Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Halbert Lauder
v.
William Alison

Date: 22 January 1674

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In a suspension, raised at William Alison's instance, who was charged at the instance of the said Halbert, for payment of the sum of £1000 of tocher, contained in his contract of marriage with the said William's daughter, upon this reason,—That the letters ought to be suspended as to 500 merks; because, by the contract, he was only obliged to pay 1000 merks in real money or bonds, and for making up of the £1000 he was obliged to deliver merchant-ware for 500 merks; which he had really done, by delivering as many merchant goods to the charger, upon inventory, after the marriage:

It was answered, That the reason was noways relevant; because the merchant goods were in possession of the daughter long before the marriage, who, for several years, was in use of buying and selling in the shop as her own goods, and never counted for the profit thereof to her father.

It was replied, That the daughter, being in familia paterna, and having no means of her own, any goods in her possession must be presumed to be the father's; and his payment of the maill of the merchant shop to the heritor thereof, and delivering the goods after marriage upon inventory, must be interpreted a fulfilling of the contract of marriage, as to that obligement of delivering of 500 merks of merchant ware.

The Lords did sustain the reason of the suspension, notwithstanding of the answer, unless the charger would offer to prove that the suspender's daughter had means belonging to herself, whereby she might buy merchant-ware, and trade therewith by succession, or legacy, or any other right flowing from any other person than her father; otherwise they found, that she, being infamilia, the goods behoved to be reputed the father's goods; and the delivering of the same upon inventary ought to be ascribed to the fulfilling of the contract of marriage pro tanto.

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