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.
Sarah Sinclair v. Margaret Cockburn
Date: 6 July 1709
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Mrs Margaret Cockburn, sister to Clarkinton, being married to Gideon Murray; by the contract there are 6000 merks of tocher provided, whereof 2000 merks were simply payable to the husband, and the remanent 4000 merks provided in fee to the children; but with this quality, That the husband and wife might uplift it in case of necessity, providing they got the consent of the friends therein named. Gideon s affairs miscarrying, he went abroad, as a soldier, to Portugal; and the friends consented to the uplifting of 1000 merks of the 4000: and his wife, getting the annualrent of the 3000 merks paid her, she farther contracts for diet, clothes, and other necessaries, about 500 merks from Mrs Sarah Sinclair, and grants bond for the same; who arrests the like sum in Clarkington's hands, and pursues a forthcoming against him.
Alleged,—The bond is granted by one vestita viro, and so is null. Answered, 1mo,—He is dead. 2do, I have a factory empowering me to intromit. Replied,—Vita prœsumitur, unless death be proven. 2do, He could not give a factory for uplifting that which he could not uplift himself.
Alleged, 2do, for Clarkington,—That, by the express conception of the clause in the contract of marriage, it was burdened with the consent of some particular friends therein named, who refused their assent; 1mo, Because it may prejudge her children; 2do, In case of no bairns, 2000 merks of it is to return to the granter; and to allow its exhausting this way evacuates that clause. Answered,—The requiring the consent of friends, was to prevent unnecessary squandering and dilapidating the money; but absolute necessity has no law; and there can be nothing more necessary than to furnish her the means of life; for the annualrent of 3000 merks can never maintain a gentleman: and if the friends be obstinate in denying their consent, then it devolves in arbitrium boni viri, and the Lords of Session come in the friends' place, to consider the equity of the demand, and to supply their default.
The Lords found the narrative of the bond bearing to be for aliment, with a special account of furnishing, signed also by the debtor, were not probative, being only her assertion; but that the absolute necessity behoved to be aliunde instructed by witnesses; especially seeing it was informed that she had taken on for aliment from others, as well as from Mrs Sinclair; by which exorbitancy, in a short time, the whole stock of the 3000 merks might come to be exhausted, after which she would have no fund for her maintenance. Which consideration moved the Lords to look the more narrowly to the necessity and rationality of the furnishing.
