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Scottish Court of Session Decisions >>
Heugh Chambers and Jean Innes v Margaret Strahan. [1692] 4 Brn 33 (22 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040033-0068.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Heugh Chambers and Jean Innes v. Margaret Strahan
Date: 22 December 1692
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Mr. Heugh Chambers, minister, and Jean Innes, his spouse, against Margaret Strahan. The Lords found the bonds, which she caused her husband subscribe, (though the money was his own,) could not be taken away by the writer, and witnesses oaths, but only by the creditors, their own oaths; but ordained them to be confronted with the said witnesses, and to depone in their presence; the like was done, Stair, 17th Jan. 1679, Cheyne. As also found, her intromission with her husband's goods, either stante matrimonio, or since, sufficient to make her liable in valorem, and repelled that allegeance, that actio rerum amotarum was only competent to the husband himself; and as to the bond granted by herself to Lindsay, stante matrimonio, with which she sought to exhaust the inventary of the testament as a debt of her husband's, in regard she granted it as prœposita negotiis mariti; the Lords, before answer, ordained her to prove she was in use to buy ware during her husband's infirmity for many years, and to grant bonds for the price, though she had no special factory or commission from her husband to that effect; for it appeared of a dangerous preparative to the Lords, if a wife's bonds should indistinctly oblige the husband's.—See Stair, 3d Jan. 1680, Buchannan. And as to the last defence against the 100 merk-bond that it was presumed paid, in so far as the debtor assigned him to some rents of a wadset posterior thereto; the Lords repelled it, in respect of this answer, that the said disposition bore expressly for love and favour, and so it elides the presumption that it was designed animo dissolvendi debitum, seeing he expressly ascribes it to another cause.
