Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

William Bruce
v.
James Alexander

Date: 11 January 1676

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James Alexander having granted a bond to his daughter Janet Alexander, and being charged thereupon, suspends on this reason; That it was never a delivered evident, but was unwarrantably intromitted with by his daughter, being in a locked box of his, which she broke up; at least being in a coffer or trunk of his whereof she had got the keys, being in his family for the time; and, that she had left his family and married, without his consent, to William Bruce. All which he referred to her oath; at least craved her oath of calumny, and that witnesses, ex officio, might be examined how she came by the bond.

It was answered; That the bond, being moveable, did now belong to William Bruce, her husband, jure mariti, which is a legal assignation; and so his wife, as cedent, cannot depone in his prejudice; neither can her oath of calumny be admitted, for the same reason: But he is willing to depone that he got the bond from his wife, before the marriage, as her portion, and knew nothing of any unwarrantable way of coming to it. Neither did she marry without her father's consent or approbation; for he agreed to the marriage; and, by a minute of contract, which was drawn up by his warrant, was to have disponed his land, which was provided to heirs-male, in contemplation of this marriage; but, having differed in some provisions, it was not subscribed; and, after the marriage, the said William and his spouse were entertained in the family with the father. And therefore, there was no reason to prove the intromitting with the bond, by witnesses, ex officio, or otherwise.

The Lords allowed witnesses, ex officio, to be examined, how the bonds came in the hands of the said Janet Alexander; in respect of that evidence, that she had left the family, and married without consent of her father, and that there was a draught of the minute of contract on other terms, without mention of this bond; but did not grant the oath, either of calumny, or verity of the wife.

Vol. II, Page 396.