Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

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

Delicts, how relevant to be proved.

Borthwick
v.
Young

Date: 5 January 1681
Case No. No 262.

What proof that a party affirmed himself major?

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A reduction of a bond on minority and lesion. Answered, It was for the balance of an account, and in re mercatoria, minority is not respected for the benefit of commerce. This the Lords repelled, because the suspender was but a cautioner, and was not a merchant granting bond for his own traffic. Then answered, 2do, Offered to prove by the witnesses, omni exceptione majores, inserted in the bond, he affirmed himself to be major, and so could not be restored, C. L. 3. T. 43. Si minor se majorem dixerit. The Lords found this affirmation was not probable by witnesses, but only scripto vel juramento of the minor, because it might be of dangerous preparative if the sum were great; 2do, That a promise is not probable per testes being nuda emissio verborum; 3tio, That then the oath of a minor, swearing he was major, might be so proved; 4to, They had a remedy by inserting the affirmation in the bond, which being omitted, sibi imputet.

Fol. Dic. v. 2. p. 234. Fountainhall, MS.

*** Durie reports a similar case, 28th February 1637, Wemyss against——, No 156. p. 9025, voce Minor.