Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David Forbes v. William Dallas
Date: 1 February 1696
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Mr David Forbes, advocate, pursues Mr William Dallas, writer, on his promise to relieve him of a debt due to him by William Cockburn, father-in-law to the said Mr William; who, having deponed on the promise, acknowledged there was a communing, wherein he took off 1200 merks of the debt; because Mr David passed from an arrestment he had laid on; and that Mr David pressed him to engage for the rest, which he also offered, upon condition of his quitting the annualrent, &c. And being interrogated, If, upon the reading the articles of their agreement reduced into writing, and signed by two witnesses, he had not acquiesced; he depones, He neither approved nor disapproved; from which confession Mr David inferred he ought to be liable, nam qui tacet consentire videtur.
Mr William Dallas opponed his oath, denying he had acquiesced in the terms Mr David demanded; and that silence is a medium participationis between consenting and dissenting, but sometimes participates more of the one extreme than the other, as here, where Mr Dallas did not judge himself further concerned to repudiate his unreasonable terms; and homologations are not inferred from such remote conjectures as nods, insinuations, or taciturnity.
The Lords found the oath did not prove the acceptance of the agreement; nor that the qualifications of the fraudulent silence amounted to make Mr Dallas liable in the same.
