Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
James Euart v. Janet Chapman and Hart Brown
Date: 4 June 1679
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James Euart, vintner, charges Janet Chapman, and Hary Brown her spouse, upon a bond, granted by her before her marriage, for £200 Scots, as the balance of the account of her intromissions as taverner in running his wines. The husband suspends on this reason, That the bond was null, and could not militate against him, because, though it was granted by her before her marriage with him, yet it was after she was contracted, (which interpretatively is reputed to be done stante matrimonii),)and after the proclamation of the banns in the church, at which, time she could contract no debt to affeet him; as the Lords have oft found.. And, Dury tells it was so decided, 29th January 1633, Scot..
Replied,—The husband must still be liable, because such crying in the church may be clandestine, and cannot put him in mala fide, nor a creditor know it.. 2do, The bond is homologated by partial payment. N.B.—If it be made by. the wife, without, her husband's knowledge, non relevat to bind the debt upon him. 3tio, It was in rem mariti versum, because it is offered to be proven that, with: the said pursuer's money, she bought their household furniture. 4to, The husband must here be liable, because it is not a bond for borrowed money, contra S. C. Velleianum, but depends on an antecedent cause, as being institor or prceposita tabernce, and she who has sold his wines and liquors, and received the price thereof. 5to, It is offered to be proven they were proclaimed after the granting of this bond.
Thir four last seem relevant; but it may he asked whether the last is receiv-able against the husband, by way of reply, or if he must be pursued in an action to pay it. And, in both cases, the bond (though proceeding on an account, being in æstro amoris,)must be loosed, and they must count over again;, in which, count, the master stating a charge of her whole intromissions, she must discharge herself, or else the charge will be admitted to probation; in which case, since he permitted her to go out of bis service, the practick of the Lords will not sustain it relevant to offer to prove by her oath, that she was intrusted with such a quantity of wines and other liquors, and sold and disposed; thereof, (and here, in such a case as this, though she be clothed with a hus-band, yet her oath must be taken for clearing the debt,) and received the price; but it must also be referred to her oath simul et semel, that the same is yet resting owing, and unaccounted for by her: because it is presumed that master and taverner clear accounts, at least once, a-week; and that he would not have suffered her to go out of his service, till she had paid him.
But this presumption militates but slenderly in Mr Ewart's case, because be, suffered her to go forth of his service, upon the account she gave him bond for what she was owing him; and, that bond being now quarrelled by her husband, Mr Ewart ought not to be precluded from the same manner of probation he would have got if he had been put to pursue her, and constituted the debt against her, at the time of the granting of the bond.
That the Lords found it only relevant complexly,—that they intromited, and that it is yet resting owing, unpaid,—is observed by Dury, 21st January 1636, Couts; and the same was again decided by the Lords, within these few years, between Alexander Cromby, Vintner, and one Leidington. As also, in a parallel case, (12th Jan. 1678,) between Dundass and Holborn, about levy-money, for raising a company. See also 13th of November 1677, Wilson.
