John Carse, Writer in Edinburgh, v. Sir John Kennedy of Colzean
Date: 16 July 1714 Case No. No 59.
A father deponed in an exhibition, that he had cancelled a bond of provision to his child, because he had executed it in minority without consent of his curators. The minority and want of consent found extrinsic.
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John Carse, as assignee by Dame Jean Kennedy, and Sir Gilbert Kennedy of Girvanmains, her husband, pursued an exhibition against the deceased Sir Archibald Kennedy of Colzean, for exhibiting and delivering a contract of marriage, past betwixt the said Sir Archibald, father of the said Dame Jean Kennedy, and Mrs Elizabeth Lesly, her mother, wherein, among other things, Sir Archibald bound him and his heirs to pay to the daughters of the marriage, at the term, and with annualrent and penalty, as was more fully contained in the libel, the sum of L. 2,000 Sterling equally among them; and subsumed, that the said Dame Jean Kennedy, being one of the four daughters, had right to a fourth part of the said sums; and concluded, that the contract being exhibited, the said Sir Archibald ought to be decerned to pay the said fourth part. The libel being found relevant to be proved by the defender's oath, he compeared, and deponed, That in his minority he married the said Mrs Elizabeth Lesly, and was prevailed with to sign a contract of marriage without consent of his curators; and his Lady's side of the contract falling afterwards in his hands, he did cancel the same about 11 or 12 years ago, and he believed he had also cancelled his own side of the said contract about the same time. The said Sir Archibald Kennedy having died pendente lite, the process was transferred against Sir John Kennedy of Colzean, his son and heir: And the pursuer insisted, that the defender's father having cancelled the contract he ought to be found liable in the conclusions libelled, upon the rule in law, qui dolo desiit possidere pro possessore habetur, l. 131. D. De R. 1. Which general rule is plainly and particularly transferred to actions ad exhibendum, l. 5. & 2. D. Ad exhibit. For there is no case wherein greater prejudice can be supposed to arise to the lieges, than the destroying or cancelling of writs; and the wilful cancelling of no writs is of more dangerous consequence than contracts of marriage, which may contain the rights and interests of parties for many generations to come, and are seldom registered, but entrusted with the parents, as common depositaries.
Answered for the defender; 1mo, The oath owns only there was a contract, whereof the tenor must be proved, and doth not prove the tenor libelled, binding to special provisions in favours of daughters, where there were heirs-male of the marriage, who might succeed to the estate. For this is a clause so unusual as not to be found in the contract of a landed gentleman; it being ordinary to provide daughters in case there were no heirs-male of the marriage, and the estate went to other heirs-male excluding the daughters. 2do, If the oath prove the existence of a contract, it likewise proves that it was null in law, being entered into by a minor, having curators, without their consent. That Sir Archibald had then curators is further instructed by a registered factory, granted by him and his curators two years before the contract; and that the contract was entered into without their consent, is cleared from the instrument of sasine following thereon, which, though it takes in the subscriptions of all parties concerned, mentions no subscription of a curator.
Replied for the pursuer; 1mo, The tenor of the contract as libelled cannot be objected against by the defender, because quidvis præsumitur contra versantem in illicito; and if the pursuer were put to prove the precise tenor of the paper destroyed by the defender's father, the defender should reap advantage by the fault of him whom he represents, and the pursuer be deprived of a legal proof: Therefore the Lords should decern in the tenor of the libel; the said Dame Jean Kennedy deponing in litem. 2do, Were the pursuer insisting to make up the tenor of a writ lost by accident or negligence, the quality of the defender's father's oath might have been found intrinsic, because the tenor could no otherwise appear. But in this process of exhibition of a writ wilfully and unwarrantably destroyed by him, the pursuer is not bound to regard any quality adjected by the defunct imparting a nullity in the writ. Besides, this quality in the oath resolves into an exception, arising from the form of the writ, and the want of its essentials, which can only be proved by the production of the writ itself. And if the defender be deprived of this benefit, through his father's destroying it, sibi imputet; damnum quod quis sua culpa sentit, sentire non videtur. Nay, farther, this quality resolves into a reason of reduction, which cannot be considered till the writ is produced. So that the quality in the oath is indisputably extrinsic, and stands for nothing. And if the quality is extrinsic, it is in vain for the defender to pretend to adminiculate the same. Nor are the adminicles adduced of any moment in themselves; the sasine being the naked assertion of a notary in a point which he needed not to have noticed; besides, the sasine narrates the contract to be entered into with advice and consent of Sir Archibald's curators undersubscribing, and therefore it is presumed, that their consent was adhibited, quod inesse debet facile præsumitur; which presumption is of more weight to support the writ, than the want of the curators' names in the sasine is to annul the writ narrated therein. The allegeance upon the factory is yet less to the purpose; because it being granted two years before the contract, Sir Archibald might notwithstanding have been past minority the time of entering into the contract.
Duplied for the defender; 1mo, Had Sir Archibald cancelled the contract debita opera of purpose to prevent action against him at the instance of the younger children, that is, if post motam litem he had done so, the cancelling might be thought unwarrantable; but when this was done, as the oath bears, several years before the commencement of this process, for other reasons that concerned the subsistence of his family, it cannot be thought unwarrantably destroyed as to the defender. 2do, There is a difference betwixt the intrinsic formalities of a writ, such as writer's name and witnesses, which may be presumed, and those which are not intrinsic, but adventitious according to the circumstances of the party. This writ might have been formal as to all its solemnities, and therefore a good evident, but still reducible for want of sufficient authority, because the curators did not consent. Again, that is an intrinsic quality, when being referred to a person's oath he qualifies the nature of the writ of what kind it was originally conceived, as when he says, it was without curators. An extrinsic quality is when the deponent simply acknowledgeth the writ, but adds, that it was altered or innovated, or a supervenient ground of compensation existed. These are indeed extrinsic, because they supervene ex post facto, to qualify that which was simply obligatory at first. And though an extrinsic quality in an oath is not probative, yet it needs not a positive proof, because of the presumption for the verity of an oath which may be adminiculated.
The Lords found that the contract was unwarrantably cancelled, and must be held as still extant in the defender's hand; and found the quality in the oath, that his curators were not subscribing, is extrinsic and not probative; and that it is presumed the said contract was duly and formally made, and did contain clauses of provision in favour of the pursuer. But the Lords did not then determine what the effect of that presumption should be.
