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Scottish Court of Session Decisions >>
Paton and Mossman v Pitcairn and her Spouse. [1676] Mor 12491 (11 January 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor2912491-351.html Cite as:
[1676] Mor 12491
Wife's Oath with regard to Transactions before Marriage, if relevant against the Husband.
Paton and Mossman v. Pitcairn and her Spouse
Date: 11 January 1676 Case No. No 351.
A wife's oath of calumny cannot affect her husband.
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William Paton and George Mossman, as factors constituted by Cornelius Williamson, an Hollander, to uplift 228 gilders, due by ticket, by umquhile John Rankin to Williamson, pursues Christian Pitcairn his relict, as intromitter with his goods, or as having promised payment before the bailies of Edinburgh. The defender raised advocation upon iniquity, 1mo, Because the bailies sustained the said Christian's oath, to prove her intromission, or promise, which was not sustainable, she being clad with a husband to his prejudice. It was answered, That the oath was relevant against the wife herself, to affect her goods, after the dissolution of the marriage, and that there was no iniquity, seeing this restriction was not proponed and repelled.
The Lords found, That this restriction ought to be adhibited, but seeing it was not proponed, they repelled the reason of advocation, but allowed the restriction to be adhibited by the bailies.
The second reason of advocation was, That the bailies had sustained process, libelled at the instance of these factors, and not at their constituent's instance, and concluding to pay the factors.
The Lords repelled also this reason, and found, That the factors might proceed in this order, but that the defender might prove against them by the constituent's oath.
The third reason was, That the bailies had sustained the pursuit upon a factory, which is null, not being subscribed by the constituent, or by two notaries for him, but only by one notary. It was answered, That the factory was sustained, because it was offered to be proved, That by the custom of Holland, whereby the factory was granted, one notary was sufficient.
Which the Lords sustained, and therefore repelled this reason also. The Lords likewise found, That a wife's oath of calumny was not receivable in prejudice of her husband, because her confession thereby being holden as confest, would be probative as well as her oath of verity.
