Of Bills with clauses stipulating Annualrent and Penalty.
John Gilhacie v. John Orr
Date: 13 December 1738 Case No. No 23.
Found in conformity with No 20. p. 1418.
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John Gilhagie of Kennyhill was sued before the Magistrates of Glasgow by John Orr of Barrowfield, for payment of 200 merks and annualrents, contained in a bill drawn by Jean Fleming upon, and accepted by, Gilhagie's father. It was dated May 1721. It contained in græmio a stipulation for payment of annularent from the date, and was payable at the Whitsunday thereafter.
Mr Orr's title was that of executor-creditor to Thomas Orr, the husband of Jean Fleming, drawer of the bill. Jean Fleming had executed a general assignation in favour of her husband; and it was separately contended, that his jus mariti comprehended the bill.
After the process had depended for some time before the Magistrates, a new process was brought before the Commissary of Glasgow, because an objection had been made to Mr Orr's confirmation. The Commissary repelled the defences; Gilhagie offered a bill of advocation, which Lord Haining, Ordinary, refused. Gilhagie then presented a petition to the Court.
Pleaded for the petitioner, That a bill, payable at the distance of 12 months, bearing in græmio a stipulation for payment of annualrent, does not fall sub jure mariti; and that no obligation, granted by a woman bearing annualrent ex facie, will fall sub jure mariti of a husband, to whom she shall happen to be thereafter married. The cases, Pitcairn against Edgar, Stair, v. 1. p. 290.; and Rollo against Brownley, Stair, v. 2. p. 436. voce Husband and Wife, were cited. But separatim that although the Court have sustained bills bearing clauses of annualrent, they never sustained such a one as the present, dated in 1721, payable 12 months after date, and never heard of till September 1738, in the hands of an executor-creditor, after both drawer and acceptor were dead.
Pleaded for Mr Orr, respondent, That the bill had lain so long over on account of the death of the original debtor, and of the promises of the petitioner to pay: That bills bearing annualrent, from their date, have been sustained, Henderson against Sinclair, No 20. p. 1418.; and that there is no occasion to dispute whether the bill fell under the jus mariti or not; because certainty it was comprehended under the assignation in the marriage contract, if not under the jus mariti.
The Court ‘repelled the objection of nullity to the bill, and found it fell under the jus mariti.’
For the Petitioner, Arch. Hamilton.For the Respondent, Cha. Maitland.
Fol. Dic. v. 1. p. 96. Session Papers in Advocates' Library.
*** Lord Kames mentions, that, in this case, it was found that bills bearing annualrent and penalty are null; but nothing of this appears from the printed papers.
