Scottish Court of Session Decisions

Subject_1 HUSBAND AND WIFE.

Mary Dick
v.
Mr Cassie and His Wife

1738, Jan. 24.
Case No. No. 9.

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The Lords (8th November 1737) found it proved by the contract of marriage and disposition that the bond libelled did then exist, and found that the defender having without order of law or inventory intromitted with the defunct's repositories, it is presumed that she embezzled and abstracted the said bond, and therefore repelled the defence and found the defender liable. 17th November Adhered, and refused a bill without answers.

In the process betwixt these parties, on which an interlocutor was pronounced 9th November, two new questions occurred; first, how far the acknowledgment by the wife authorized by the husband binds the husband; 2dly, this being a bond bearing annualrent, whether the husband be liable for the principal? As to the first, we found the acknowledgment of a fact which was proveable by witnesses emitted by a wife authorized by her husband, or which is the same, by their procurator, was probative against the husband. Arniston thought that the husband is not obliged to allow his wife to depone to his prejudice, yet if without objection he allows her to depone, her oath will bind him. As to the other Arniston thought that this was not to be considered as a debt of the wife's bearing annualrent, but as a debt that ought to have been paid out of the first husband's executry before Mrs Cassie's provisions. But what satified me and others was, that Mrs Cassie had in her contract of marriage conveyed to Mr Gassie her whole effects per universitatem, which implied the onus debitorum, or which is the same thing, it must be deducits debitis,—and therefore we found him liable. (24h January 1738.)