Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Anent Reference to a Wife's Oath

1677. November.

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It was questioned, where a woman in her viduity lends out a sum of money, and takes a bond for it, and afterwards marries, and her husband charges the debtor to make payment, and he suspends, and offers to prove by the wife's oath that either it is paid, or that she discharged him of it, or promised never to seek it; and the husband answers, that he will not suffer his wife to depone to his prejudice; whether this be a good answer, yea or no. If he produce the wife's discharge in writ anterior to her marriage, there is no doubt but it will cut off the husband from seeking that debt. But it remains more controverted where he has no other way of probation of the payment or promise, but by the wife's oath; for if her oath were receivable, a widow of an opulent fortune might easily, by her oath, defraud and disappoint her husband, for she might lift up all she could get, and give them down the one half, to get it up from her husband: which is not to be allowed; yet see it sustained in Dury, March 16, 1622, Home and Macmath. Yet some make a distinction, that a husband needs not suffer his wife to depone in a cause where the result of is ad debitum contrahendum, to infer or draw on an obligation or a debt upon the husband, for there he is in damno vitando; but she may be forced to depone ad debitum distrahendum, for liberating a third party from a debt, because there the husband's prejudice is not so great, and he is in lucro captando; yet even there she has a prejudice. Yet if collusion could be made out, that she did it maliciously, and, only to prejudge her husband, lifted sums, I think it would have its own weight, and deserve consideration, since dolus proprius nemini debet prodesse. What if the sum lent by the wife, in her viduity, be due by an heritable surety? then the husband, jure mariti, has right to no more but the bygone annualrents of it, and in time coming, unless it was made moveable by a charge of horning; yet, as administrator to his wife, he may uplift the principal, and he and she discharge it; and if she once consent to that, then it becomes moveable, and falls under his jus maritale.