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Sir George Mouat, as assignee to a tocher of 5000 merks, whereunto umquhile Dumbaith was contractor, pursues Hemprigs, as representing him, for payment. The clause of the contract bore, that the husband should have the tocher out of the first and readiest goods of the wife's father, and that he should have annualrent therefor, but did not expressly oblige Dumbaith to pay, and therefore he is not liable personally, unless he had intromitted with the defunct's means.
The Lords found the defender liable, seeing the clause being in re dotali, it behoved to be interpreted cum effectu, and if it did import only a consent, not to hinder the husband, it signified nothing; and because in cases conceived passive, where it does not appear who is obliged, the contractor is understood obliged.
