Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Hugh Blair v. Robertson and Chapman, her Husband
Date: 13 November 1680
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In Hugh Blair's pursuit against one Robertson, that was his taverner, and ———Chapman, now her husband, for his interest, the Lords having advised the probation which was led on an act before answer, anent the vitiation in the count-book keeped betwixt them, they decerned, conform to Hugh's count-book, which bore in the controverted article, that she had only paid him two pieces of wine such a day, whereas her book bore, that she had counted to him for four pieces, which could not prove in her own favours; especially seeing, the writer of both books being examined, he owned Hugh's book.
Yet she offering to prove, by Hugh's wife's oath, that her book was juster and righter in that particular than her master's; though it was alleged she was vestita viro,—yet the Lords ordained her to come in and depone without any new act, being in a concluded cause, because she was præposita negotiis, and in use to count weekly with her servants and taverner. And they received it hoc loco, though it was contended it should have been proponed in the first act, because it was instantly verified by the pursuer's wife's oath, who lived in town, and it was only an act before answer. Yet, by an Act of Sederunt, 23d July 1674, these acts are declared to be equivalent to acts of litiscontestation.
Then she having denied it, it was alleged there could be no decreet, because the price of these two pieces of wine was not yet proven. This was repelled, in respect of the notoriety of the quantity a piece consists of, and that each pint was sold at twenty-pence, allowing so much to her for dreg and leakage.
Thereafter, on the 20th of November they referred to Hugh's oath, that he had charged her with a piece of wine which was returned to Gilchrist the merchant. He deponed, that piece was returned, but that he substituted and put another in the place of it. At advising, it was alleged, that this quality of giving her another piece was extraneous, and behoved to be otherwise proven. The Lords refused to divide the oath, but found the quality competent and intrinsic, there being no other probation but his oath.
