Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Jean Callender
v.
My Lord Saline's Daughters

1684. January.

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A man having a bond of 3000 merks, to himself and his wife, in liferent, &c. whom he was formerly obliged, by contract of marriage, to provide to the liferent of 5000 merks; she, after his decease, pursuing for the annual-rent of the bond, the debtor pleaded compensation upon sums belonging to him which the pursuer's husband intromitted with. Answered, The compensation can only affect the fee, and not the liferent, which is secured to the pursuer by the provision in the bond. Replied, It is usual for men to provide the liferent of sums to their wives, and yet, being master of the bonds, to give them back, and uplift the money without the wife's consent; and, consequently, they might discharge or extinguish the same by compensation. Duplied, When such a thing is intended, the bond uses to bear a faculty to the husband to uplift without the wife's consent, and this bond must be presumed to have been so conceived, in implement of the contract of marriage, although it do not expressly relate thereto. The Lords found the answer and duply for the relict relevant, though no infeftment on the bond had passed in her person; and that the grounds of compensation, prior to the bond, could not be obtruded against the wife, seeing the obligement to pay annual-rent to her was a passing from all these grounds.

Page 93, No. 361.