Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

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

Payment and Consignation how relevant to be proved.

James Hume
v.
Robert Hyslop

Date: 8 December 1687
Case No. No 154.

Click here to view a pdf copy of this documet : PDF Copy

In a pursuit at the instance of James Hume contra Robert Hyslop, for the price of a horse,

Alleged for the defender; That he had proved payment by two witnesses, who deponed before the Commissary-Clerk.

Answered for the pursuer; Payment of money is not probable by witnesses; 2do, The deponents were not witnesses to the bargain, the alleged payment being a month posterior thereto; 3tio, They say only, that they saw the defender deliver twenty dollars to the pursuer, and not that the money was paid as the price of a horse.

Replied; Witnesses are competent to prove payment of bargains entered into without writ, especially the prices of horse; 2do, Twenty dollars was the price of the horse, and ought to be ascribed to that cause, unless the pursuer prove another cause; 3tio, The libel should bear, that the price is resting owing, which the pursuer must prove.

The Lords sustained the probation by the depositions of the witnesses, and assoilzied the defender.

Harcarse, (Probation.) No 803. p. 225.