Scottish Court of Session Decisions

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

William Cunninghame
v.
Margaret Allardice

Date: 13 January 1676

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In a pursuit, at William Cunninghame's instance, as brother and executor to John Cunninghame, against the said Margaret, for repayment of twelve hundred merks, to which she was provided by contract of marriage, failing of children of the marriage, as being indebite solutum; she being only provided thereto in contemplation of her part of the contract; whereby she affirmed that there was so much debt due to her, and that she should procure bond therefor, in name of her deceased husband: so that, unless she can prove, that truly that sum was paid to her husband, or bonds taken in his name, she ought to refund the money paid to her, as being causa data causa non secuta.

It was alleged, Absolvitor; because the defender had a general discharge of all debts, or other claims whatsoever, upon a special submission and decreet-arbitral, of all differences; and unless it were offered to be proven, by her oath, that this particular was not comprehended nor spoken of, and that her husband never got payment of that sum, conform to her obligement in the contract of marriage, the general discharge ought to defend her: especially seeing the marriage continuing twenty years after the contract, and neither the defunct himself, nor this pursuer, gave up the same in the inventory of debts, and the pursuer's title is only a dative ad omissa, after the general discharge.

It was replied, That the libel being founded upon an express obligement to provide, and the subsumption being a negative that it was never done, it proves itself; unless the defender will prove scripto that it was performed: neither can the general discharge include this particular, there being nothing then treated by submission or decreet-arbitral, but the right of moveables, which was then confirmed.

The Lords having considered that the general discharge was of all debts and claims; and granted by the pursuer, who was major, sciens et prudens, and in all probability could not but consider the whole debts belonging to his brother, when he made this submission; did sustain the defence founded upon the general discharge; unless it were taken away by the defender's oath: and found her not liable to prove payment after so long a time, her husband having right to that debt, both by contract and jure mariti; and never having done any diligence by the space of 20 years, for instructing that he was frustrated, the law presumes in favorem matrimonii, that the wife's obligement hath been satisfied; and is so strong a presumption that it cannot be taken away but by her oath.

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