Scottish Court of Session Decisions

Subject_1 WITNESS.

Thomson
v.
Borthwick, alias Straiton

1742, July 22.
Case No. No. 14.

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In a suspension and reduction of a bond by a principal and cautioner, by the cautioner, as granted by him, in minority, when he had curators, and without their consent; and it being alleged, that, at granting the bond, he said he was major, and both parties allowed to prove;—upon the proof, the minority and having curators was proved, though he was within six months of being major. For proving the allegeance, that majorem se dixit, the creditor adduced the instrumentary witnesses to the bond, who were his own father and brother, and proved, that the creditor not being to be present when the money was to be paid, wrote to his father that he doubted if the cautioner was of age;—that he put the question to him, and he said he was of age. Two questions occurred, 1st, Whether this was proveable by witnesses? because of a decision in Dune, 27th February 1637, (Dict. No. 156, p. 9025.); 2dly, and chiefly, Whether the creditor's father and brother, though instrumentary witnesses, were habile? (for they were adduced before Commisioners, and the objection referred to the Court;) and it carried that they were not. In which I did not vote, for I doubted much whether they were not necessary witnesses to every part of the transaction at granting the bond, as well as to the signing; and I thought the lending the money upon the faith of that security strongly adminicled their testimonies. Then another question was, Whether it was not proveable by the party's oath, to which the creditor referred it,—notwithstanding a proof by witnesses had been adduced, since they were found inhabile? The Court was much divided in this. I thought it was competent, in the same way as if that proof had not been received, and in form it should not have been received, and the objection determined before hearing their testimony; but at last the suspender agreed to depone.