Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Alexander M'Lean v. Patrick Ogilvie of Halyeards
Date: 13 June 1700
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The Lords advised the concluded cause, Alexander M'Lean, merchant in Inverness, against Patrick Ogilvie of Halyeards. The debate arose from some qualities adjected by Mr M'Lean on his oath. The case was, Alexander had married Halyeards's daughter, and, by the contract, was provided to 2500 merks of tocher: within little more than a year after the marriage she dies, leaving a girl, who did not outlive her long. Alexander charges Halyeards, his father-in-law, for the tocher: He suspends on thir reasons, 1mo, That it was made payable when he should add and secure 5000 merks of his own proper means to it; which he never did, and therefore could have no execution for the tocher, whose term of payment was suspended on that event.
Answered, 1mo, There was no necessity of implementing his part, seeing the marriage was dissolved by the wife's death, and no issue now remaining; and so there was none to whom he could perform. 2do, He was never put in mora, nor mala fide, by requisition to perform his part.
The Lords repelled this first reason of suspension, unless they subsumed that he was interpelled and refused.
The second reason was, Partial Payment: which being referred to the charger's oath, the first article he was interrogated on was anent a guinea and six dollars given him shortly after the marriage, as to which he confessed his wife received the same from her mother, the next morning after the wedding: And it was contended this behoved to be ascribed in part of payment of the tocher, 1mo, Because debitor non prœsumitur donare; 2do, Though the mother gave it, yet it must be construed to be her husband's means, all accrescing to him jure ma. riti.
Answered,—This can never be understood to be any more than a token gifted by a mother to a daughter; and a part of the mother's peculium and pose, and a part of the daughter's paraphernalia. 2do, This can never ascribe to the tocher, for it is not paid by the debtor, but only by his wife; neither is it received by the creditor, but by his wife; and so it is not inter easdem personas.
The Lords found this could be imputed in no part of the tocher.
The second article was, Some bedding and household furniture given him after the marriage: As to which he deponed, the same was gifted to him by his mother-in-law. Objected,—This quality was extrinsic, and he behoved to prove it aliunde than by his own oath:
Which objection the Lords repelled; and found, ex natura negotii, there was nothing more usual and customary than for mothers to give their married daughters some plenishing, and which was never sustained in part payment of their tochers.
3tio, alleged,—He had received £80 Scots, and sundry other things; which he confessed, but adjected this quality, That they were given him in satisfaction for keeping and alimenting Halyeards the suspender's son, for several months.
The Lords thought he had deponed very cautiously for himself, in asserting he got them in solutum of that debt, which seemed to make it intrinsic; for if he had acknowledged the receipt, but added, he owes me as much for his son's aliment, that would have been clearly extrinsic, and he behoved to have proven it; but the case being rigorous and unfavourable on the charger's part, he offered to prove the truth of the quality and alimenting by the suspender's oath.
The fourth article was Compensation; because I kept your daughter several months till she died. He deponed, That, after his wife's death, his goodmother would have away his daughter from him; and that there was no paction nor mention made for paying aliment, seeing he was willing to have kept his own daughter.
The Lords found there could be nothing claimed on this account, seeing it was the suspender's own desire to have their grand-child; and what they expended must be presumed to have been done ex piet ate; it being usual to take home their grandchildren where their mother is dead, especially when young, and the expense inconsiderable; and though the father was alive, yet no transaction spoke of.
Many and frequent debates occur at the advising of oaths, whether the qualities added be intrinsic and competent or not: Wherein the most general rule of determining is, where the party-referrer to oath picks out such parts and circumstances of the bargain, promise, agreement, or fact, as make for him, omitting the rest; in that case the party-deponer may declare the whole tenor of the affair, and what conditions and qualities were communed on, and the special terms on which he agreed, and the whole parts of the bargain; and these qualities will be intrinsic, and both necessarily and warrantably adjected: But if he confess the debt, and add,—” The pursuer owes me as much on another account,” this is extrinsic, and resolves into an exception of compensation, and must either be proved aliunde, or action reserved to the deponer against the pursuer for constitution and recovery of it, as accords.
