Fotheringham of Pourie v. The Heir of Hunter of Burnside
Date: 27 November 1708 Case No. No 236.
Promise by a vassal to give his superior a piece of plate, upon his passing from the benefit of an incurred, irritancy in the vassal's right, not probable by witnesses.
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Fotheringham of Pourie being superior to Hunter of Burnside, who had a feu-charter, bearing, if two years feu-duty ran in the third unpaid, he should forfeit and amit the feu by the 246th act 1597, and the failzie being incurred, Pourie offered to repone him against the caducity, upon his paying the bygone feu-duties, and paying a piece of silver plate, or L. 20 Sterling as the liquidate value of it, for a new charter and entry, which Hunter accepted in presence of Grahams of Fintray and Duntroon, and several other famous witnesses; but Hunter dying shortly after this bargain, without performance on either side, Pourie pursues Hunter's heir for implement and payment of the peice of silver plate, or its price; and, by an act made in the Outer-house, where the relevancy is not debated, Pourie is allowed, before answer, to prove the agreement by witnesses, whose testimonies coming this day to be advised, the Lords found the agreement clearly proved by the witnesses present, so that there remained neither doubt nor suspicion of the truth of it; but it was alleged, it was before answer to the relevancy, and this being a promise of payment, it was noways probable by witnesses, who may easily mistake the situation of words, but only scripto vel juramento, and there being no writ, and the party dead, the probation by either of these ways was altogether lost: For there was scarce any case where there was a more uniform track of decisions than here, that promises are never allowed to be proved by witnesses; Durie, 4th March , Lilly contra Tours, No 187. p. 12383; and 25th March 1629, Russel contra Paterson, No 185. p 12383; Gilmour, June 1663, Craw contra Cuthbertson, No 188. p. 12384; and February 1664, Cheyn contra Keith, No 189. p. 12385; Stair, 19th January 1672, Denham contra Brown, No 192. p. 12386; and many other like cases in Dirleton, Sir George M'Kenzie, &c. Answered, This was not a promise of payment, but a plain bargain, If you pay me L. 20 Sterling, I'll pass from the caducity, which sort of agreements have ever been sustained probable by witnesses. What stumbled the Lords was, that it had been admitted to probation, and was to conviction proved; though it were to be wished the Lords were more circumspect and wary in admitting points to probation (though before answer), when they are manifestly irrelevant, as this was; for it puts the parties to much needless expense, delay, and trouble, which would be prevented by determining obvious relevancies. As also this seemed to be a paction, causa data, causa non secuta, for nothing followed on it, neither was there a charter given, nor the price thereof paid; and esto the irritancy had been incurred, Pourie the superior, had raised no declarator thereon; and though there had been a depending process, the Lords would have found it purgeable at the bar by present payment of the feu-duties, cum onmi causa, such clauses and advantages sought thereon being odious in Law. Therefore the Lords, balancing their predecessors' decisions in this matter, found the agreement could not be proved by witnesses, and therefore assolizied.
Fol. Dic. v. 2. p. 232. Fountainhall, v. 2. p. 466.*** Forbes reports this case:
In the action at the instance of the Laird of Pourie against Hunter of Burnside his vassal, the Lords found a promise to give the pursuer a piece of silver plate worth L. 20 Sterling, upon his having passed from the benefit of an irritancy in the defender's right, incurred by his father, not probable by witnesses.
