Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

William White
v.
Thomas Chatto

Date: 21 February 1679

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William White pursues Thomas Chatto for payment of £500 borrowed by him from the pursuer's wife, during the marriage, wherein the father had granted a bond in favour of Isobel Chatto.

The defender alleged, That he could not be liable in double payment; and was content to pay, either to the pursuer or to the said Isobel: who alleged, that her bond could not be taken from her, by being proven, by the defender's oath, to have been borrowed from his wife, but only to be proven by her own oath.

The pursuer answered, That his libel was relevant to be proven by the defender's oath, that he had received sums of money from his wife, during the marriage; and is not obliged to refer it to the oath of any other. But if the defender has granted bond to a third party, at his wife's desire, he did it mala fide: for he could not be ignorant that he should not have given a bond for money borrowed from a wife, but to herself or her husband; and if, by doing otherwise, he run the hazard of that third party's denying the sum to have been made up of the money received from the pursuer's wife, sibi imputet if he become liable in double payment.

The Lords found the libel probable by the defender's oath; and allowed him, if he thought it fit, to have the oath of the third party, whether the bond granted by him to her, was for the same cause; but would not receive it by way of quality, that he had given bond to a third party, at the wife's desire.

Vol. II, Page 702.