Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HERITABLE AND MOVEABLE.
Subject_3 A process instituted, stante matrimonio, upon a bond bearing interest that was due to a woman at the time of her marriage, has not the effect to render the sum moveable quoad the husband, and affectable by his creditors-arresters.

Alexander M'Kenzie
v.
Dewar and Duncan M'Farlane

Date: 1 December 1772

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[Fac. Coll. VI. 90; Dict. 5778.]

Pitfour. The raising summons, and even obtaining decreet, will not vary the nature of the debt. There are some old decisions which may seem to speak a different language. They proceed upon presumptions of intention, which are exceedingly arbitrary. I never liked those decisions.

Kaimes. Intention is the prevailing rule, but is not to be extended beyond what is necessary.

Coalston. When a woman pursues for payment of a debt heritably secured, she may either intend to re-employ the money, or to gift it to her husband. Donatio non presumitur; therefore she must be presumed to have meant to re-employ it.

Gardenston. The strongest evidence of intention would not do: an assignation to the husband would have been infinitely stronger than the action, and yet the assignation would have been revocable as long as the money remained unpaid.

President. In so far as the wife uplifted, and did not employ, the money, if extant, would be moveable; not so to what has not been uplifted.

On the 1st December, 1772, the Lords preferred the wife; altering Lord Alva's interlocutor.

Act. Ilay Campbell. Alt. A. Bruce.