Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROOF.
Subject_3 Parole evidence is competent to prove, that an heritable bond, bearing to be onerous, and adjudged by an onerous creditor, was granted gratuitously, and contrary to the Act 1621.

Janet Gib and her Husband,
v.
Alexander Livingston

Date: 26 February 1767

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[Faculty Collection, IV. p. 78; Dictionary, 909.]

Coalston. This pursuer is in the same situation with every other onerous creditor. I doubt how far the bond could be disproved by witnesses, but, at any rate, inhabile witnesses ought not to be received.

Auchinleck. It is not sufficient to say, as a reason for examining inhabile witnesses, that there was a difficulty in finding habile witnesses.

Pitfour. Ought not the unexceptionable witnesses to be first examined, and then we may see whether there is a semiplena probatio, and whether the proof may not be completed by witnesses more inhabile.

President. Of Pitfour's opinion.

Kaimes. The nature of this process is as to an alleged fraud; and yet it is said, in the condescendence, that Gib, the author of the fraud, signed the deed reluctantly: When such is the supposed species facti, we ought to be careful how we admit inhabile witnesses.

The Lords refused, hoc statu, to admit the aunts and uncles as witnesses.

Act. W. Nairne. Alt. D. Rae. Reporter, Barjarg.