Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Halbert Lauder v. William Alisone
1673.
November.
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Halbert Lauder having married William Alisone's daughter, in the contract of marriage William obliges himself to pay L.1000 in tocher: 500 merks of it in good and sufficient ware; 500 merks in assignations to bonds; and the other 500 merks in money. Halbert charges for the L.1000. Alisone suspends, 1mo, That he had given him 500 merks worth of goods. 2do, He had assigned him to the value of 800 merks of bonds. 3tio, Upon compensation; he having given his daughter, before her marriage, merchant ware, to set up a little shop with, to the value of 400 merks. 4to, He had alimented them an year in his house after their marriage, for which he craved 600 merks. And, upon thir grounds, he had a process depending before the bailies of Edinburgh against his son-in-law, to hear and see it found and declared, that he had paid the L.1000 of tocher in manner foresaid, and were owing him 800 merks over and above it.
To this it was answered,—That the ware and bonds were acknowledged and accepted in part of payment: except one, which proving desperate, he offered to retrocess, since he was obliged to give him good and sufficient bonds; and he never accepted it in satisfaction. And if it be pretended, that assignations are presumed to be taken in satisfaction, where the contrary is not expressed and provided; it is answered, the presumption is just opposite, that assignations are not supposed to be accepted in satisfaction. See Hadinton, 25th February, 1624, Wishart against Ferme.—As to the third reason, it was absurd and ridiculous to think, that goods given to a maid in familia with her father, [1ike a peculium profecticium, to trade with apart,) and before marriage, can constitute a debt, so as to be obtruded for a ground of compensation, or imputed ex post facto in satisfaction of an obligement for a tocher, contained in a posterior contract of marriage, not relative to that furnishing, or mentioning that it shall be ascribed in the fore-end of the tocher.—Yet it may be doubted, whether what a father so gives his children in familia will be reputed animo donandi, or animo repetendi, at least animo to impute and attribute it in their legitim and natural portion, pro tanto.—As to the fourth, anent the aliment,—non relevat, unless it were offered to be proven, that it was promised and conditioned by paction. As for the suspender's desire to have the suspension, or ground of it, remitted to the bailies of Edinburgh, since the cause coincident and of equivalent nature, is depending before them, it is impertinent; since the connexitas et continentia causæ ought rather to attract that of the bailies hither, as the nobler Court, than the action before the bailies should draw this to them.—See Stair's Form of Process, p. —. and the laws there cited on the margin.* Dury, 25th November, 1624, Hamilton against Mathison.
There was also another reason of suspension insisted on, viz. that, by the contractmatrimonial, Halbert, the charger, was mutually obliged to ware and employ L.1000 Scots, on sufficient security and annualrent to the wife and children; which reciprocal obligement not being performed, he was not tied till that were done.
Answered,—That can never stop execution for payment of the tocher; no execution being ordained to pass at the suspender's instance, and the wife and children concerned not craving it; and it being more their interest that it be employed in merchandizing, by which it will afford double the annualrent. And, therefore, I think that destination should be dispensed with where the party uses trade.
See the information of the cause apud me. Vide supra, No. 180, in June, 1671; and 321. [1aird of Balnamoon against M'Intosh,] in 9th February, 1672.
Advocates' MS. No. 430, folio 228.
* Videlicet that judiciorum contiguitas, connexitas, et continentia, non est dividenda; 1. 10. C. de Judiciis; 1. 13. C. de Rei Vindictione. Hippolitus de Marsiliis singulars, 654.
