Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
David Thomson v. Marion Gray and Margaret Deans
Date: 5 June 1708
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David Thomson, merchant in Edinburgh, pursues Marion Gray, wife to Deacon Gavinloch, and a widow called Margaret Deans, for the price of fifty-nine stone of butter sold them, at £4 Scots per stone: and the price being referred to oath, it was confessed; but the quantity and delivery being denied, a day was taken to prove the same front de jure. And the clerk of the weighhouse being adduced, he deponed, conform to a note extracted out of his books, that there was fifty-nine stone weighed, and that he saw part of it delivered; and one Gardner, who carried it to the weigh-house, concurred with him: so that the quantity was sufficiently proven. But how much the defenders received was not clear; for it seems, that, the market price falling, they refused to accept of, and endeavoured to cast it back in Thomson the seller's hand; for supplying whereof, they offered to prove the delivery and receipt thereof by their oaths.
Against which it was objected, 1mo,—This is to alter the act of litiscontestation, which is a judicial contract, and the pursuer having elected one manner of probation, he cannot recur to another; 2do, Marion Gray is clad with a husband, who will not suffer her to depone to his prejudice.
Answered,—Though two witnesses have deponed on the quantity weighed, and only cannot be special as to the precise quantity, there can be nothing more reasonable than that, in supplement of this semiplena probutio, you should depone how much you got of the butter. And, as to the second, she being prœposita negottis, and allowed to keep a stand in the weigh-house, you cannot hinder her to depone upon the subject of the prepositure. And, in apothecaries' and other tradesmen's accounts, there is nothing more ordinary than this juramentum suppletorium, ne debitores locupletentur cum alterius jactura.
The Lords repelled the objections; and ordained her to depone anent the quantity received; and if she adject any quality to her oath, that the bargain was resiled from and given over before delivery, the Lords would consider the import thereof at advising of her oath, how far it could exoner, or bring it under the case of quanti minoris, to lessen the price.
