Scottish Court of Session Decisions

Subject_1 WITNESS.

My Lord Inverury
v.
James Gordon, Merchant in Edinburgh

Date: 11 July 1705
Case No. No. 127.

An artificer's servants admitted cum nota as witnesses for their master to prove sufficiency of a piece of work sold by him and wrought by them.

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In the action at the instance of the Lord Inverury against James Gordon for the price of a parcel of Florence wine sold by him to the pursuer, and £80 Scots of damage, upon this head, that the wine had run out through the insufficiency of the cask furnished by Gordon. John Linn, cooper, who furnished the cask, was called for his interest; and a conjunct probation being allowed to both parties as to the insufficiency of the cask, and if thereby the wine was lost, and by whom the cask was furnished, or agreed to be furnished; James Gordon's servant was received as a witness for him cum nota to prove the terms of the bargain, and John Linn's servants were allowed also to depone cum nota for proving the condition of the cask:

Albeit it was alleged for the pursuer, That Linn's servants could not be received, partly, because their master who furnished the cask would be liable for damages upon the event of its being proved insufficient; partly, because they themselves might happen to be liable as intrusted by their master in furnishing and dressing up the cask:

In respect it was answered for Gordon, That there is no way to prove the sufficiency of any cask but by the person through whose bands it comes; and if such an objection were sustained, no merchant, apothecary, or tradesmen, could ever prove their accounts, and delivery of goods to their customers or employers; therefore servants are frequently received as witnesses in causes concerning their masters.

Forbes, p. 25.