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Scottish Court of Session Decisions >>
Jean Campbell and her Spouse v Alexander Campbell. [1673] Mor 9396 (28 November 1673)
URL: http://www.bailii.org/scot/cases/ScotCS/1673/Mor2209396-014.html Cite as:
[1673] Mor 9396
Jean Campbell and her Spouse v. Alexander Campbell
Date: 28 November 1673 Case No. No 14.
Between conjunct persons, if a bond bear for borrowed money, the oath of party is sufficient to support the deed, but if there is a disposition bearing for an onerous cause, the onerous cause must be instructed, otherwise than by oath.
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The said Jean being provided by her contract of marriage with Donald Campbell to the half of the moveables that should belong to her husband at the time of his decease, and two hundred merks out of the first end of the other half, she did pursue the said Alexander for payment of the half of a legacy, which was left by the said Donald's father to him, and intromitted with by the said Alexander, by virtue of a disposition made to him by his brother. It was alleged for the defender, That he could not be liable, because by the disposition he did acknowledge himself debtor to him in a thousand merks, and for satisfaction thereof disponed to him the said legacy and moveables, which was lawful to him to accept of, being a lawful creditor as said is. It was replied, That the disposition being granted by one brother to another, the law presumes it to be fraudulent, unless that he can prove scripto, and otherways than by the said disposition, that his brother was truly debtor in the said sum; specially the defender having given a back-bond of that same date, whereby he was obliged never to regret the said bond and disposition, bearing a receipt of the money, and an obligement to make payment, and an assignation of the moveables, for farther security, was sufficient to instruct the debt, and he was not obliged to prove it otherways by writ, being content to give his oath, that the bond was for sums of money truly delivered. The Lords found that there was a difference betwixt a disposition made for an onerous cause only, and a bond of borrowed money bearing a special sum, and an obligement to pay, which liberates from the necessity to prove otherways scripto, that a brother was debtor, whereas in the first case they must condescend on a special onerous cause, and instruct the same otherways then by his own oath; and therefore they found it sufficient the defender should make faith, that the borrowed money was a true debt, and had no respect to the back-bond on any presumption founded thereupon, that the bond was simulate, seeing it did only contain a forbearance of execution, which might be easily granted by one brother to another.
