Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Rose Fincham, Lady Bradisholm, v. James Muirhead of Bradisholm
Date: 28 June 1707
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Lady Bradisholm against the Laird. Rose Fincham, Lady Bradisholm, younger, pursues James Muirhead of Bradisholm, her father-in-law, for payment of her own and husband's expenses, in buying coach and horses, and coming from London to Scotland, founded upon a letter inviting them home, and promising to be at the charge of their journey.
Alleged,—The letter was null, wanting both date and subscription. Answered,—She offered to prove that it was his hand-writ, by his oath. He contended, He was not bound to depone, or supply the nullity of a writ by his oath. Yet the Lords overruling this, and allowing him to adject what competent quality he pleased, he deponed, That, in 1698, a little after his son's marriage, being advertised that he was ill, and like to fall into a decay and consumption, he wrote the letter now produced, desiring he might come home alone, without his wife, thinking his native air might recover him; but they did not comply with that invitation, and did not come till four or five years thereafter to Scotland, when they had spent all they had; and, during that interval, he had sent them, in money, black cattle, and other goods, upwards of 6000 merks; which was far more than any thing they could crave for their journey.
This oath coming to be advised, it was alleged for the Lady,—That it sufficiently proved her libel; for it acknowledged he had wrote that letter, and had invited them home on his expenses.
Answered,—The oath must not be divided, but taken complexly as it stands; by which it appears, his sole motive was the recovery of his son's health; and to come alone, (her company being unfit for him in these circumstances:) but this he did not obey for sundry years; and none can imagine his offer was to be perpetual, that he would bear the charges come when ye will. And, esto it were so, he has paid double, by remitting money and goods beyond what they could have demanded on their journey's account.
Replied,—It is true he did not come home at that precise time, not being then able to travel; and, by posterior letters, Bradisholm still continued to invite his son home; which must be understood with the same quality and offer made in his first letter, it not being expressly retracted. And, as to the other quality of the sums remitted, No regard thereto; because, 1mo, Extrinsic, and must be proven aliunde, and. not by his own oath. 2do, Though debitor non prcesumitur donare, yet this holds not in parents where there is an antecedent debitum naturale, to which it can be ascribed. 3tio, Bradisholm sent his second son to London, who staid long with his elder brother; and so, the father being bound to aliment him, he must allow him compensation thereon.
Duplied,—The qualities adjected to his oath cannot be separate; for it is all one as if he had deponed, I owe my son nothing; for I paid him by money I sent him up: which undoubtedly would have been intrinsic.
The Lords stated the votes distinctly: 1st, If their not coming on the first invitation exonered and liberated him of his offer; or if, by the posterior letters, it was still continued? And the Lords found it was still obligatory. Then, 2do, Whether the money and goods sent must be imputed to this debt, so as it needs no other probation, but is intrinsic? The Lords found it behoved to be otherwise instructed than by his own oath, and that it was an extrinsic quality. Then the Lords were proceeding, in the third place, to modify a sum on account of that journey. Bradisholm offered to prove his advancing the foresaid money scripto, and produced bills under his son's hand, acknowledging the receipt thereof: Which allegeance being new, the Lady's procurators did take them up to see.
