Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum pręstandum.
The Lady Dairsie v. The Laird and His Creditors
Date: 13 July 1677 Case No. No 25.
A husband and wife being, by a contract, each entitled to an alimentary provision, that provided to the wife was found to belong to her exclusively, although the husband's, by mismanagement of the estate, had failed.
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By contract betwixt the Laird and Lady Dairsie and their eldest son, the estate was disponed to the eldest son, with the burden of the debts, and with an alimentary annuity to the Laird, and another to the Lady, who had lived for some time a-part; whereupon the son was infeft, and for implement of his obligement to his mother, he procured an assignation to her in liferent to the annualrent of 17000 merks from the Earl of Southesk, and to himself in fee; whereupon Southesk gives in a bill of suspension on double poinding; and the cause being ordained to be discussed on the bill, it was alleged for the Laird, That this assignation being granted in favours of his wife, did accresce to him jure mariti. It was answered, 1mo, That albeit all moveable rights fall to the husband jure mariti, except abuilziements, yet it hath this exception, that if a third party do freely provide any thing to a wife for her aliment, excluding her husband or his creditors, that exclusion is a quality of the donation and is effectual, otherwise the donation must cease and return to the granter, to the prejudice of both husband and wife. It was replied, 1mo, Pactis privatorum non derogatur jure communi; 2do, This assignation by Southesk is no free donation, but for implement of his being cautioner for the Lord Sinclair who was debtor to the husband. It was duplied for the Lady, That hoc dato the husband could not quarrel it, because by the contract betwixt him, his wife and son, there was an alimentary provision granted both to the husband and wife separatim, which contract being subscribed by husband, wife, and son, imports all their consents to every article in it, so that the husband having consented to this alimentary provision to his wife, could never come against the same. It was triplied, That the husband's consent was from the whole complexly, wherein there is an aliment provided to himself and another to his wife; but his own aliment proves ineffectual by reason of the debts, and therefore he should have access to a share of his wife's aliment; 2do, The husband did not renounce his jus mariti, and therefore his consent in favours of his wife returns to himself, as was found in a far stronger case betwixt the Lord and Lady Collington, No 50. p. 5828. where the Lady had assigned the half of her liferent-right before her contract of marriage to the Laird of Ratho, who did by a back-bond declare, that that assignation was in trust for entertainment of Collington and the Lady's family; and some days thereafter, in the contract of marriage narrating the said assignation to Ratho, Collington did approve the same, and renounced his jus mariti as to his wife's aliment; and yet the Lords found, "That the backbend brought it back to Collington himself, and that he had power to dispose of it jure mariti.
The Lords found, That this assignation by Southesk being alimentary, and for implement of the foresaid contract subscribed by the husband, and being so small as did not exceed victum et amictum to the Lady and her two sons to maintain them, that the same was effectual, and did exclude the husband, albeit his own aliment proved ineffectual through the mismanagement of his estate, and that it was noways in the case of the Lord Collington, where the Lady by the back-bond had not a separate aliment; but that it was an aliment to the family for husband and wife, and behoved to be so employed by the order and direction of the husband as head of the family.
