Scottish Court of Session Decisions

Subject_1 CAUTIONER.

James Gibb
v.
Walker and Simpson

1751, July 26.
Case No. No. 19.

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Gibb, in bargaining for the sale of some lambs to Walker, refused to sell without caution for the price, and Walker said that Simpson was to be concerned with him in the bargain, and would be his paymaster; and Gibb having applied to Simpson, he answered, if John Walker buy your lambs, give them to him, and I will see you paid for them,—and thereupon Gibb sold and delivered the lambs to Walker. Gibb sued both in the Sheriff-Court for the price, and proved the above communing with Simpson by witnesses, before Simpson appeared in the cause;—and then he compeared and objected that such a proof of a cautionry obligation was not competent by witnesses,—and the Sheriff found it not proveable by witnesses. Gibb presented an advocation, which Shewalton refused. But upon a reclaiming bill, we all differed from him, (agreeably to a former decision we gave in the sale of sheep at the house in the muir to a principal and cautioner, but I have forgot the parties and year, though I think I have it marked,) and thought that as this was part of a bargain for moveables, it was proveable by witnesses, and therefore without any answer remitted it back to him to pass the bill.