Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 SPONSIO LUDICRA.

Robert Hope
v.
Thomas Tweedie

Date: 17 December 1776

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It was alleged that Thomas Tweedie of Oliver, and Robert Hope, tenant at Minziens, had wagered a pipe of port, which of them, on a certain day, would walk first from Beild to Edinburgh. Upon that day Hope came to Edinburgh, Tweedie not having come ; and thereby alleging that he had gained the wager, he pursued Tweedie for the pipe of port: the process came before Lord Kennet. The wager was not supposed illegal, or that it fell under the game-laws; but it was denied that any such wager had been entered into seriously; that it was a mere joke entered into over a bottle, so held by the parties themselves, and noways intended to be a subject of action. Lord Kennet having allowed a proof, and the proof being taken, he pronounced this interlocutor, 16th January 1776:—“ In respect it is admitted, that in the morning of the day on which it is alleged the race was run, that the pursuer called at the defender's house with boots on, as equipped for riding to Edinburgh, and did not mean to hold the wager, or run or walk to Edinburgh that day, until he thought that the defender insisted on his doing so ; and that it appears from the defender's stopping at Mrs Bryden's in Slack, when he was a great way before the pursuer, and calling to the pursuer, as he past, to come there, that the defender was not in earnest; and having also considered the other defences, assoilyies the defender, and decerns, and finds expenses due to neither party.” In short, the Ordinary found it truly a sponsio ludicra,—a wager in jest, and that nothing serious was intended on either side ; therefore he assoilyied : and, on a reclaiming petition and answers, the Lords adhered, 4th December 1776. And this day refused another reclaiming petition, without answers, and adhered.