United Kingdom House of Lords Decisions

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Cite as: [1788] UKHL 3_Paton_105

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SCOTTISH_HoL_JURY_COURT

Page: 105↓

(1788) 3 Paton 105

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

No. 28

David Donald of Conbeath, Appellant

v.

Anne Kirkaldy, Widow of James Donald, Druggist in Edinburgh, deceased, Respondent

House of Lords, 8th April 1788.

Subject_Proving the Tenor — Special Casus Amissionis, when necessary. — Antenuptial Contract of Marriage. —

Whether the parties can agree to retire and discharge it after marriage?

The respondent's husband died without issue, possessed of heritable estates worth £2000, and moveable estate a mounting to £5000, to which the appellant, her husband's brother, succeeded, as heir and next of kin to him, subject to whatever provisions, legal or conventional, she might be entitled to. By law she was entitled to the liferent of one-third of the heritable estate as her terce, and to one-third of the moveable estate as jus relictœ. But the appellant alleged, and the respondent admitted, that an antenuptial contract had been executed between the parties, settling a jointure on her of £50 per annum; and although it had now disappeared from the deceased's repositories, and was lost, there were strong grounds that it was either concealed by the respondent, or destroyed by her. He first raised an exhibition against her, to recover the deed, and failing in this, he raised an action of proving the tenor, in which a proof being allowed, and the respondent examined, she admitted the execution of the deed, and that it lay in his repositories,—and that she had seen it last about eighteen months previous to her husband's death. In point of fact, the respondent deponed that the deceased, together with her father, who held her copy of the contract, mutually agreed, sometime before his death, to cancel and destroy both copies of the contract, which was done accordingly, that she, as his widow, might enjoy her legal rights. In point of law, therefore, it was pleaded, 1. That it was incumbent on the appellant to prove that the writing was of a certain tenor. 2. To make out a special casus amissionis, such as accidental fire, in order to satisfy the Court that the writing was not legally cancelled.

July 24, 1787.

Dec. 11, —

The Court assoilzied the defender (respondent), after considering the proof, and memorials thereon, and refused a reclaiming petition.

Page: 106↓

Against these interlocutors the present appeal was brought.

Pleaded for the Appellant.—A contract of marriage is not a retireable instrument in the sense of law, but one of a permanent nature, the obligations arising from which cannot be cancelled or injured, after marriage has followed on the faith of it, even by the mutual consent of the arbritating parties thereto; because the moment marriage follows, other interests arise and are settled than those of the contracting individuals. It is said, that the cancelling the contract was just a mode resorted to in effect to enlarge the provisions thereby stipulated; but this is a very unusual mode, and a mode not recognized by law. Assuming, therefore, that an antenuptial contract of marriage is not a retireable instrument, it follows, when lost, its tenor may be proved without any special casus amissionis; and the onus lies on the defender to show that the contract was lawfully discharged or cancelled. The evidence adduced to show that her husband, along with her father, had actually destroyed the contract during Mr. Donald's life, is very far from being sufficient or satisfactory. It is attended with circumstances which render the evidence suspicious, and mainly rests on the testimony of near relations.

Pleaded for the Respondents.—The office and object of a proving of the tenor, is to prevent persons rights suffering by the loss of deeds; but as this is an extraordinary remedy, the utmost strictness is required in proof, otherwise such deeds might be reared up, after they were extinguished or discharged by the parties; and, accordingly, the deed must be proved to have been destroyed in such a way as to exclude the possibility of its having been laid aside or destroyed, as retired or discharged. The contract in question being a mere personal deed, in which none but the respondent and her deceased husband were concerned, having been followed by no infeftment or registration, was as much capable of being retired as any other obligation, such as a personal bond, &c., and being so capable, it required a special casus amissionis to be established, in order to warrant a proving of the tenor; but as no such proof has been offered, and as it has been proved that the deceased had destroyed the contract, with the view of giving to his wife more enlarged provisions, the present appeal ought to be dismissed.

After hearing counsel, it was

Page: 107↓

Ordered and adjudged that the interlocutors be affirmed.

Counsel: For Appellant, Ilay Campbell, R. Dundas, Geo. Ferguson.
For Respondent, J, Anstruther, Wm. Adam, Will. Honeyman.

1788