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Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIV.
Compensation or Retention not Proponable after Decree.
Mr Andrew Naismith v. Alison Bowman
Date: 5 December 1710 Case No. No 106.
Again found, that compensation in not receiveable after sentence.
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By contract of marriage betwixt Mr Andrew Naismith, student of divinity, and Euphame Gilmour, in 1708, Alison Bowman, mother to the said Euphame, engages for L. 80 Scots yearly during her lifetime ad sustinenda onera matrimonii. The marriage dissolving by the said Euphame's death, within 15 months, she dying in childbed, he charges Bowman, his mother-in-law, for the said L. 80; who suspends, that she was circumvened and abused, the contract never being read to her; but she was made believe that her obligation was only to subsist during the standing of the marriage. To this, the clause of the contract, being so precise and positive, was opponed; and she offering neither qualifications nor proof to canvel the contract, the letters were found orderly proceeded against her; and she being charged on the decreet, suspended of new on this reason, That she had buried her daughter, and debursed all the funeral charges, which exceeded the sum in the decreet, and so she behoved to have compensation, it not being presumeable that it was ex pietate materna, 1mo, Because a husband is bound to funerate his wife; 2do, debitor non præsumitur donare.—Answered, This allegeance is in terminis contrary to the 143d act, 1592, ordaining compensation de liquido in liquidum not to be receiveable after sentence; and so this being competent and omitted, cannot be now proponed; which is founded on that excellent reason, that if debtors were allowed to parcel out their defences, there would never be an end of pleas; 2do, esto the debursements were liquidate and proven, (as they are not) he might crave compensation, she being paid by his wife's goods, effects, and cloaths which she intromitted with; but that is not hujus loci; 3tio, If it were never so just a claim, she can never lose it in case she live another year; for though it cannot be obtruded against the sum in the decreet, yet it will meet when she comes to pay subsequent terms, and then she will get compensation and allowance of it in so far as she instructs.——The Lords repelled this compensation now proponed in the second instance, as competent and omitted in the first, but reserved it as accords. There were other allegeances made against him, which, the Lords did not regard hoc loco, which were, that he had forefaulted any benefit he could claim by his wife's death, in so far as his barbarous and inhuman usage gave occasion thereto, and it was a just rule and principle of the commmon law, that he who was accessory to his author's death, vel causam necis dedit, or when done by another, and did not prosecute the same, he lost the inheritance; for nemo debet lucrari ex proprio delicto, et iniquum est ex scælere ditari, cum non debent lucrum consequi ex eo quod pænam potius meretur—Answered, The accusation is false and calumnious, and if any were unnatural to her, it was her own friends; and it is neither extraordinary nor unusual for a woman to die in childbed; but when they attack him in a criminal process, he will clear and vindicate his innocence.—But the Lords thought these recriminations wholly extraneous to the present question, and so waved them at this time.
Fol. Dic. v. 1. p. 165. Fountainhall, v. 2. p. 603.
