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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gray v Robertson [1835] CA 13_720 (15 March 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0720.html
Cite as: [1835] CA 13_720

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SCOTTISH_Shaw_Court_of_Session

Page: 720

Gray

v.

Robertson
No. 224.

Court of Session

1st Division

Mar. 15 1835

Ld. President

Gray and Company,     Pursuers.— Robertson— G. G. Bell. Thomas Robertson,     Defender.— D. F. Hope— Patterson.

Subject_Proof—Husband and Wife.—

1. Under an issue whether one of two co-acceptors had authorized a third party to sign the co-acceptor's name to the bill,—hold, that the other co-acceptor, being tendered by the holder of the bill, was inadmissible on the ground of interest, though not a party on the record.—2. The husband being inadmissible on the ground of interest,—held, that the wife could not be received as a witness.

Gray and Company, merchants in Edinburgh, gave a charge to Thomas Robertson, mill-wright in Kirkhill, on a bill for £36, bearing ex facie two co-acceptors, Walter Ross, grocer in Kdinburgh, and Robertson. Robertson offered a bill of suspension alleging forgery, and averring that he could not write. The bill was passed, and the charge was allowed to be turned into a libel. Afterwards, on its appearing that Robertson could not write, the libel was allowed to be amended, to the effect of raising the question, whether Robertson had not authorized his son to subscribe his name to the bill as co-acceptor? The following issue went to trial:—

“Whether, on or about the 21st day of May 1832, the defender authorized his son, Robertson, to subscribe his (the defender's) name as acceptor to the bill of exchange No. 5 of process, for the sum of £36, and is indebted and resting owing to the pursuers in the said sum?”

At the trial, Gray and Company tendered Ross, the co-acceptor, as a witness.

The defender objected, that Ross had a direct interest in the issue, because, by proving that there was a co-acceptor, he would get relief against such co-acceptor, from one-half of the amount contained in the bill. Besides, he might thereby divert the diligence of the pursuers entirely away from himself.

Gray and Company answered that Ross was no party on the record, and that, if he ever sought relief against the defender from any obligation under the bill, the verdict, in this case, would not be res judicata between them.

The Court sustained the objection.

Gray and Company then tendered Mrs Ross, the wife of the co-acceptor.

The defender objected that she was equally liable to the objection of interest with her husband. They had one and the same interest; and as the diminution of the debt in the bill was a direct benefit to the moveable estate which fell under communion, and in which the spouses had an equal share, she was inadmissible. There were also grounds of public policy for holding that the wife should not be admitted, where the husband was objectionable on the ground of interest.

Gray and Company repeated their previous answer, with the addition that the alleged interest was of a much more remote character, in so far as it affected the wife.

The Court sustained the objection.

The pursuers tendered no farther evidence.

Verdict for the defender.

Solicitors: J. Usher, S.S.C.— J. Cullen, W.S.—Agents.

SS 13 SS 720 1835


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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0720.html