Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Marion Dods, and David Dick, her Husband,
v.
Ninean Home

Date: 25 July 1676

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James Scott, in his contract of marriage with Marion Dods, being obliged to provide her to the liferent of the annualrent of all sums of money he should conquest during the marriage; after the death of the first husband, she having married David Dick, she did pursue Ninean Home, as being debtor to her deceased husband in the sum of 1000 merks, for payment of the annualrent thereof to her during her lifetime.

As was alleged, the defunct, James Scott, did leave the half of the said principal sum to the defender in legacy, which was so acknowledged by the said Marion Dods, his relict, that she, being executrix-creditrix to her deceased husband, did only give up and confirm 500 merks, as only due of the said bond. d. He ought to have compensation; because the said James Scott, as faetor for the said Ninean, did uplift sums of money due to him, extending to the sums craved.

It was replied to the first, That the bond being heritable, and the said Marion creditrix by her contract of marriage, could not be prejudged by any legacy: and for giving up an inventory, the time of the confirmation, of a less sum than was truly due, cannot prejudge her; seeing she might have eiked the same.

It was replied to the second, That there can be no compensation; because she, being provided by contract to all sums due to her husband, compensation is only receivable against the heirs who may be distressed for payment, but cannot meet her; who is a lawful creditor to the defender by her contract of marriage.

The Lords did find, That the legacy, or confirmation of the testament, could not prejudge the wife of the benefit of the contract of marriage, whereby she was a lawful creditrix; and so they repelled the defence: but, as to the compensation, they did sustain the same; and found, That a husband getting a bond from a debtor, and being satisfied by intromission, or become debtor for as much as would compense the debt during the marriage, that would compense and militate against the wife as well as against the heir; seeing the debtor did know nothing of the wife's interest, and was only bound to the husband, whom he might intrust to intromit with what was his, upon that assurance, that it would pay his own debt due by bond.

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