Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.

Beatson of Killrie
v.
Margaret Beatson, &C

1747, June 30.
Case No. No. 24.

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A Bond of provision by a brother to his sister, payable at her marriage, proviso that if she should have no children, the fee of the principal sum shall fall, accresce, and pertain to the granter and his heirs; and she having assigned the bond to her husband in consideration of the settlements by him on her; both of them charged the brother, who suspended because of the foresaid proviso. We thought that this condition of the bond could not be disappointed by assigning even in a contract of marriage;—but we thought for the wife's necessary use it might be spent, and that she ought not to starve while that money was owing; therefore we would not oblige the husband to find caution to repeat the money upon the conditions existing, because should the wife be reduced to beggary, the cautioner would remain bound. But we found the husband obliged to give his own bond to repeat in that event, whereby there might be execution against his effects if he any had, 19th February 1747. But, June 30, we altered, and obliged him to give caution.

The Lords, 30th June, found that this bond being granted by the brother, Kilrie, without any antecedent cause, therefore that Margaret Beatson's husband, as her assignee, could not uplift the money without caution to repeat in case of no children.