Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Robert Arbuthnott
v.
Scott

Date: 9 July 1765

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The late Bailie Arbuthnott, father of Robert, gave a verbal order to Scott, who was then going to London, to give L.10 sterling to a young lad, a friend of the Bailie's, who was then in London, to buy him a suit of clothes,—which commission, accordingly, Scott executed. The question was, Whether this order of the Bailie's could be proved by witnesses, after the bailie's death ? The Sheriff of Edinburgh had found that it could not: but this day the Lords altered that judgment, and found that it could be proved, and was proved, by witnesses who had been examined by the Sheriff, dissent. tantum Coalston, who thought the precedent dangerous, and that it might go to L.l0,000 sterling as well as L.10.

N.B. If the commission had been given to do any thing for the behoof of the Bailie, I think it might have been proved by witnesses as a proper mandate; but as it was singly for the behoof of the young man at London, and was a pure gratuity, I think it was the same thing as if the Bailie had directly promised the L.10 to the young man, which certainly could not have been proved by witnesses; for it is the same thing to me whether it be attempted to be proven by witnesses that I promised L.10 to A, or that I ordered B to pay him L.10 sterling. It is true such a mandate as the Bailie gave would have been a proper mandate, according to the rules of the civil law, and, as such, might have been proved by witnesses, but so might a direct promise of the L.10 sterling to the young man; and the doctrine of the Roman law concerning mandates must not be carried so far as to impinge upon that principle of our law, that no donation, even of the smallest sum, can be proved by witnesses, unless it be a legacy to the extent of L.100 Scots. To this it may be added, that it is established, by many decisions, that a cautionary obligation cannot be proved by witnesses. Suppose that in this case the Bailie had given commission to Scott to be caution for the young man to the merchant for the value of the clothes, Could that commission have been proved by witnesses ?

In this case the Lords did not advocate the cause, though it came before them by a bill of advocation, as it was under L.12 sterling, but remitted it to the Sheriff with instructions to decern for the L.10 sterling, with full expenses of suit.