Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TENOR.
Subject_3 Special casus omissionis required of a marriage-contract.

David Donald
v.
Anne Kircaldie

Date: 21 July 1787

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[Fac. Coll. IX. 529; Dict. 15,831.]

Braxfield. There is no difficulty as to the tenor. If a party destroys a deed, I will presume the ordinary clauses, and so fill up the blanks. The difficulty is as to the casus omissionis. When there is a disposition of lands, with infeftment, and more especially with possession, there is no occasion for a proof of the casus omissionis. The case is different when obligations remain personal. A marriage-contract, standing in nudis finibus contractus, may be given up or destroyed: Who is entitled to complain? There are no children existing. The complainer here is the heir of the husband: How can he have any ground of challenge? Can he say that the husband tortiously destroyed the marriage-contract? [He quoted the case of Campbell of Shawfield.] The case comes to this,—Has the pursuer proved that the marriage-contract was tortiously destroyed, or lost casu fortuito? The former is not offered to be proved, and the latter is not proved. We must take Kircaldie's evidence as it stands: We cannot reject one part of it while we admit the other.

Justice-Clerk. I see here an enixa voluntas in the husband to provide for his wife in a more ample manner than had been done by the marriage-contract. My only difficulty lay in this, how far Kircaldie, being the trustee and custodier of the deed, had a power to cancel it while his daughter, and her possible issue, had an interest in it? It is certain that, by cancelling it, he put them in the power of the husband.

Eskgrove. I had the same difficulty. At the same time I could not go the length of saying that, in no case, a marriage-contract may be destroyed. Had the widow thought it of moment, and for her interest, to resort to her conventional provisions, she might have proved the tenor of the marriage-contract. But that is jus tertii to the pursuer. The widow not only acquiesces in the cancellation, but she also homologates it. The pursuer may have an interest consequential, but he has no right. But, supposing that he had an interest, I answer, that the heir is bound by the act of the predecessor; and I think it is proved that the predecessor consented to the cancellation.

Hailes. It has been said, in the course of the pleading, that there is nothing improper in putting an end to a marriage contract by the act of throwing it into the fire. This ought not to have been said, for the method was not only uncommon but hazardous and wrong. No man ought to step out of the common road of business. A short memorandum or docquet subjoined to the deed would have saved all this trouble to the parties and to the Court.

On the 21st July, “The Lords, having considered the special circumstances of this case, dismissed the action, and assoilyied.”

Act. G. Ferguson, Ilay Campbell. Act. H. Erskine, R. Dundas.

Hearing on proof.