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The Marquis of Tweeddale v Helen Henderson. [1698] 4 Brn 424 (17 December 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040424-0843.html Cite as:
[1698] 4 Brn 424
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Marquis of Tweeddale v. Helen Henderson
Date: 17 December 1698
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The Marquis of Tweeddale pursues Helen Henderson, relict of Dempster, his Chamberlain, for payment of the balance of his accounts, upon the passive titles, as representing her husband; and probation being led, it was proven by single witnesses, that she had intromitted with £15 Scots, and other small sums not given up by her in the inventory of the confirmed testament, as executrix, creditrix on her contract of marriage, and so presumed to be fraudulently omitted; and there was the concurring testimony of two witnesses proving she had disposed of some plough-graith and cart-wheels.
Answered,—That testes singulares nihil probant; and where there was a conjunction of two witnesses it was de re minima; and the plough and cartgraith was confirmed, in so far as the utensils and domiciles of the house being given up, they behoved to be included in that article; at least it was a probable ground for her to think so: and passive titles, being odious, are not to be extended where the intromission is small and inconsiderable.
The Lords considered that wives had great opportunities of concealing and embezzling money and other moveables; and she had an universal intromission; and it appeared there were 1600 merks lying beside him a little before his death, and which now they would give no account of; therefore the Lords found her liable.
And our predecessors have not so much regarded the smallness of the intromission as the animus fraudandi,—as appears by Haddington, 8th March 1610, Baillie against Home; Dury, 13th January 1630, Cleghorn against Fairly; and Stair, 15th June 1675, L. of Abercairny against Nicol; where the lying on the father's bed, eating at the table, wearing his stockings, drinking in his maizercup, working with his tools, &c. inferred vitious intromission; and the Lords thought there was enough in this case ad victoriam causœ.
