Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. IX.

Naked Promise.

Cheyne
v.
Keith

Date: 13 February 1664
Case No. No 189.

A promise to pay 100 merks not relevant to be proved by witnesses; but this was after 17 or 18 years.

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There was a decreet obtained before the Commissary of Aberdeen, at the instance of Mr Thomas Cheyne, as executor to Mr John Cheyne, his father, against James Keith of Kinnady, as representing his father, for payment of 100 merks, as the price of a horse, promised by the defender's father to the pursuer's father, in regard of an agreement profitably made in an action of spuilzie pursued by the said Mr John Cheyne against Kinnady's father, which promise was proved by witnesses. This decreet was craved to be reduced upon this reason, that the promise was not probable by witnesses, especially after 17 or 18 years time, both parties being now dead, and they having lived together above 10 years; and repeated a practique out of Durie, 25th March 1629, betwixt Russel and Paterson, No 185. p. 12383. where the Lords refused to sustain a promise of L. 99, to be proved but by writ or oath of party. It was answered, This promise being for an onerous cause, and for a thing of a little moment, which prescribed not, was probable by witnesses, and quocunque tempore might be craved.

The Lords reduced the decreet.

Fol. Dic. v. 2. p. 227. Gilmour, No 95. p. 73.