A servant hiring himself for more years than one, how to be proved?
Click here to view a pdf copy of this documet : PDF Copy
A Servant's hiring himself for more years than one can only be proved by writ; and although his hiring for one year may be proved by witnesses, yet if the writ by which he engaged for more years be null, it will not be competent to supply it even by his oath, as the nullity of a written contract cannot be supplied by the party's oath upon the terms of the agreement. But if, upon such null contract, the servant shall have entered to his service, then the bargain being proved by his oath, res non est integra, to this effect, to oblige him to serve for one year, (but no longer,) as so far he could have bound himself by a verbal contract.
And, accordingly, in this case, which was a process at Caddel's instance against Sinclair, his servant, for deserting the service which he had undertaken for three years, and which, in the inferior Court, he had acknowledged on oath to be true, the Lords, in respect no writ had intervened, “Found him only bound to serve for one year.”
The case is the same with respect to tacks. A tack for more than one year can only be proved by writ; and if the writ be null, it cannot be supplied by the oath of party. Or where a verbal agreement is made for a tack of three or more years, but with this provision, that it is to be reduced into writing, till writ follow, the agreement is of no effect; but if, in consequence of such verbal agreement, the tacksman be permitted to enter into possession, it will be effectual for one year, though writ should never follow.
Fol. Dic. v. 4. p. 161. Kilkerran, (Proof.) No 10. p. 445.
