Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION I.

What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. IX.

Effect of Jus Mariti.

Janet Macdonald, and John Duff, her Husband,
v.
David Doig

Date: 29 January 1793
Case No. No 60.

Every thing in the wife's possession, except her paraphernalia, is presumed to belong to the husband, till the contrary be proved; even although a few years before he had obtained a decree of cessio bonorum

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John Duff, in 1787, obtained a decree of cessio bonorum. In this action David Doig was called, among his other creditors.

Near two years after, Duff married Janet Macdonald. In an antenuptial marriage-contract, proceeding on the narrative of her being possessed of personal effects at least to the extent of L. 200, he renounced his jus mariti; and she conveyed to trustees the whole property which she then possessed, or should afterwards acquire, without inventory or specification; but the trustees never took any possession.

Duff and his wife have ever since their marriage kept an alehouse.

In March 1791, David Doig sent a messenger to poind his household furniture. The messenger, on going to the house, was told that the furniture belonged to Janet Macdonald; and, on his insisting to proceed in executing the diligence, she paid him, under protest, L. 5: 7: 6, being the amount of the debt and expenses. But she afterwards brought an action for repetition of that sum, and for damages. The defender

Pleaded; It is no doubt true that a marriage contract may be so framed as to exclude the husband's jus mariti over the personal property of the wife; 23d June 1730, Walker, No 55. p. 5841.; 5th February 1745, Dalrymple against Murray, No 57. p. 5842. But it would be dangerous to give that effect to a contract like the present, where no inventory of the property conveyed was made up, and where, consequently, it might be made a cover for secreting the effects of the husband to any amount, and for any length of time, even where the wife had never had any property of her own.

At any rate, every thing in the wife's possession, and the money paid by her in the present case, must be presumed to belong to the husband till the contrary is proved. A presumption which is not removed by Duff having formerly been bankrupt.

Answered; If to exclude the diligence of her husband's creditors, it were necessary that the marriage contract should specify every article of the wife's property, no person in Janet Macdonald's situation in life could ever enjoy that benefit. Her property consisting of her stock in trade, as keeper of an alehouse, and a few articles of household furniture, being constantly liable to alteration.

The general terms of the contract create no suspicion of an intention to defraud in this case; where, on the one hand, the contract affords evidence that the wife had property; and, on the other, the husband having so recently obtained a cessio bonorum, renders it improbable that he can have any; unless he has fraudulently secreted it from his creditors, which is not to be presumed. And if the poinding attempted was illegal, the extorting money, in order to prevent it, must be equally so; 20th February 1782, Henderson against Buddo, voce Sequestration.

The Lord Ordinary had sustained the claim to the extent of repetition of the money, and expenses of process.

This interlocutor having been brought under review, by a reclaiming petition and answers, the Court, on the 4th December, 1792, adhered, “in respect no proof was offered by either party.”

But upon advising a second reclaiming petition and answers, it was Observed on the Bench; That the former interlocutor would have been attended with very dangerous consequences. Some Judges seemed to think, that a specification of the subjects in an inventory was absolutely necessary to make a contract of this nature effectual; for that although an actual and visible estate belonging to the wife might by an antenuptial contract be secured against the husband's jus mariti, a general stipulation that so much money should belong to her, would he liable to much abuse. But all agreed, that every thing in the possession of the wife must be presumed to be the husband's till the contrary was established, and that this presumption was not removed by his having formerly obtained a decree of cessio bonorum.

The Lords assoilzied the defender, and found the pursuer liable in expenses.

Lord Ordinary, Dreghorn. Act. William Robertson Cha. Hope. Alt. John Dickson. Clerk, Menzies. Fol. Dic. v. 3. p. 279. Fac. Col. No 19. p. 38.