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Scottish Court of Session Decisions >>
Mr Thomas Rae, Minister at Dundurras, v James and John Mans. [1694] 4 Brn 190 (12 July 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040190-0425.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr Thomas Rae, Minister at Dundurras, v. James and John Mans
Date: 12 July 1694
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Mr Thomas having married his daughter to James Man, and contracted 1000 merks of tocher with her; before the year and day that it became due, he lent 700 merks of it to his goodson's brother, on his letter, that, either the money should be paid, or else allowed in the fore-end of the said tocher. The marriage dissolves within year and day, and so there was no tocher due in law. He pursues now for repetition of the 700 merks, against the heir of his son-in-law, who is also now dead. The defences were, first, He was minor, and non tenetur super hœreditate paterna.
Answered,—This does not touch heritage, but only repetition of a sum. The Lords repelled this first defence.
The second was, The letter was not holograph, and so not probative. The Lords sustained the letter, in respect it was adminiculated by the contexture and whole tract of the affair.
3tio. It was alleged to be alternative, either to allow it in the fore-end of said tocher, or to retire the bond; and, in omnibus obligationibus alternativis, electio est semper debitoris; and he choosed to deduce from the tocher pro tanto.
Answered,—That member of the alternative proceeded from a supposition that the tocher would fall due, if the marriage subsisted year and day; or else on his ignorance that he had right to it quomodocunque: but ita est the marriage so dissolving, the term of payment of the tocher never came, but it returned to the giver; and so there was no alternative.
The Lords found, this member not existing, it could not be chosen by the debtor; and, therefore, decerned him to refund the money.
