Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Gavin Hamiltoun of Raploch, and Jean Lockhart, his Spouse,
v.
James Bonner

Date: 14 July 1676

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In an action at Raploch's instance, and his spouse, against James Bonner, as representing his brother, John Bonner, for payment of the sum of 4000 merks, upon this ground,—That John Bonner, the said Jean's first husband, having received in tocher an assignation to a bond of 6000 merks, granted to her by Allan Lockhart; by a special provision, he became obliged, that, failyieing of children of the marriage, that 4000 merks of the said portion should return to the said Jean Lockhart: which case having now existed by the death of the said John Bonner; his brother, as representing him, ought to be decerned to make payment.

It was alleged for the defender, That he could not be liable for payment, but only for making a retrocession to the said Jean of the right assigned; seeing he aid never receive payment from the said Allan Lockhart, notwithstanding that he did exact diligence against him in England; and the contract of marriage and provision bearing no obligement to make payment, but only a substitution failyieing of children of the marriage, there is no ground in law to make the husband's heirs liable; unless he had received payment, especially having done diligence.

It was replied, That the defender ought to make payment notwithstanding; because, by the contract, the husband being expressly bound, in the case of no children, that sum should return to the wife, she was not concerned whether he got payment or not; or did diligence for recovery against the principal debtor; wherein she was not interested, the husband having taken his hazard of the tocher: and in contracts of marriage, which are most favourable as to all provisions made to the wife, who can only assign her portion to the husband, who only can do diligence, if he should be negligent, or the debt not prove good; then, contrary to the meaning of parties, and the favour which the law allows, all conjunct fees or provisions in favour of the wife would be elusory without her fault. And married persons having lived long after the contracts, it hath been found, by several practicks, that wives are not obliged to instruct payment of their tocher.

The Lords found, That the husband, being assigned to a bond, with that provision,—“In case of no children, the half to return to the wife,”—that he was bound to do diligence for recovering payment; which not having obtained, his heirs were only obliged to retrocess, but not to make payment: being moved upon these reasons, that there was no obligement in the provision, after dissolution of the marriage, to make payment. 2d. That it was irrational to conceive that it was mens contrahentium, that, albeit the husband should do diligence, and the tocher prove desperate, that, notwithstanding the husband should pay back again what he did not receive, having sustained onera matrimonii.

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