Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION II.

Payment when presumed.
Subject_3 SECT. IV.

Tocher stipulated by a Wife in her Contract of Marriage when presumed paid.

Calderwood
v.
Cunningham

Date: 11 December 1672
Case No. No 81.

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Alexander Calderwood, as donatar to the bastardy of Robert Menzies, pursues Margaret Cunningham his relict, for delivery of his goods, who alleged, That she was executrix-creditrix confirmed for implement of her contract of marriage. It was replied, That she could not retain for 3000 merks, which was her tocher, because herself was obliged to pay the tocher, and the husband was only obliged to employ it when he received it. It was answered, That the clause being, that she, and a friend who contracted with and for her, being obliged to pay conjunctly and severally, and he not being cautioner, or having any clause of relief, the husband ought to have put him to it, and the wife during the marriage, was not in capacity to do any thing; and it is ordinarily sustained for relicts to have their jointure, though their tocher be not paid.

The Lords found, That the wife and her friend being bound as co-partners, if the husband failed in diligence as to her friend, it should not prejudge the wife, and therefore gave her allowance as to the one half of the tocher, and not to the other part, in regard that her friend might have had recourse to her for that half, in case he had been distressed.

Fol. Dic. v. 2. p. 139. Stair, v. 2. p. 131. *** Gosford reports this case:

Alexander Calderwood, as donatar to the estate of Robert Menzies, by reason of bastardy, did pursue Margaret Cunningham, as vitious intromissatrix with her husband's goods, who was debtor to Menzies. It was alleged, 1mo, That the gift of bastardy could be no title to the donatar, but he ought to confirm, the sums being moveable; 2do, The defender was confirmed executrix-creditrix to her husband by her contract of marriage, whereby he was obliged to employ 9000 merks to him and her in liferent, and so had right to the whole goods confirmed during lifetime. It was replied to this last defence, That by the contract of marriage, the husband was to employ 3000 merks of the 9000, which was the defender's tocher, at the receipt and payment thereof, which was never made to the defender's husband during lifetime. It was duplied, That William Cunningham being burden-taker for the said Margaret for payment of the tocher, her husband ought to have done diligence against him, and recovered payment, and his omission thereof cannot prejudge the defender of her liferent.

The Lords, as to the first, found, That a gift of bastardy was no title to moveables without confirmation; and therefore found, that there should be a confirmed testament before extracting; as to the second, Having considered the contract of marriage, whereby the defender, and William Cunningham, her brother, as burden-taker for her, were obliged to pay the tocher at a certain day, conjunctly, but not severally, and that the husband was not obliged to employ the same before payment; they found, That she was not creditor as to her own half, for which her husband could do diligence against her, being his own wife; but sustained the defence for the other half due by William, as conjunct debtor, against whom he might have done diligence.

Gosford, MS. No 537. p. 284.