What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. II.
Bonds containing Substitutions. - Bonds bearing Annualrent. - Bonds having clauses of Infeftment. - Bonds assigned before Marriage, though not intimated. - Bond to the Widow's Fund. - Arrears of taxes due by a Minister.
Alexander M'Kenzie, &c v. Dewar and M'Farlane
Date: 2 December 1772 Case No. No 19.
A process instituted, stante matrimonio, upon a bond, bearing interest, that was due to a woman at the time of her marriage, has not the effect to render the sum moveable quoad the husband, and affectable by his creditors arresters.
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Neil Campbell of Dunstaffnage, by bond of provision dated February 7, 1752, obliged himself, his heirs, &c. to provide and secure Lillias Campbell, his eldest daughter, in the sum of 4000 merks Scots, payable at any time of his life he pleased, or at the first term of Whitsunday or Martinmas after his decease, with a fifth part more in case of failzie, and annualrent after the said term till payment.
In 1758 and 1761, Neil Campbell executed two bonds of additional provision to his daughter, in the event of his dying without issue-male, bearing interest in the same manner; but, as he was succeeded by his son Angus Campbell who survived him, and who brought a reduction of these additional provisions, it was found that they could not take effect.
Lillias Campbell, after her father's death, married James M'Kenzie; no contract of marriage passed between them; and her money-provision of 4000 merks continued meanwhile in her brother's hands, upon the father's bond, bearing interest. A process was indeed raised againg her brother Angus for payment of her provision; but the death of the defender put a stop to it.
Upon that even, the estate having gone to a collateral heir-male, the present Dunstaffnage, in December 1770, Dewar and M'Farlane, as creditors to James M'Kenzie, by his accepted bill, executed an arrestment in Dunstaffnage's hands.
Thereafter, it being thought that Lillias might still have a claim for her additional provisions, in the event which had happened; with a view to prosecute for them, (as was said) she, with consent of her husband, assigned to Alexander M'Kenzie, writer to the signet, the whole of her provisions; the assignation being declared to be in trust for the following purposes: For payment to Mr M'Kenzie, in the first place, of the expenses disbursed, or that might be disbursed by him in prosecuting for the payment of these sums; and, in the next place, that the balance which may be recovered should be again employed upon bond, or other security, conceived in favours of the said Lillias Campbell and her heirs, executors, and assignees, exclusive of her husband's jus mariti, and unaffectable by his debts and deeds.
Mr M'Kenzie, the trustee, brought a process accordingly against the present Dunstaffnage, for payment of the sums in the above bonds, deducting some partial payments already obtained, and also a reduction of the decree of reduction or the additional provisions.
The trustee and Dunstaffnage afterwards entered into a submission of all questions to an arbiter, who accordingly pronounced his decree-arbitral, finding, that there was due by the heirs and representatives of the said Angus Campbell of Dunstaffnage, to Alexander M'Kenzie, as assignee of Lillias Campbell and her husband, in virtue of the foresaid bond of provision executed by the deceased Neil Campbell for 4000 merks, a balance of L. 126: 8s. Sterling of principal, upon the 1st day of August 1771, after deduction of all partial payments made to, or for behoof of Lillias Campbell and her husband, conform to the vouchers and instructions thereof; as also, finding Alexander M'Kenzie entitled t L. 50 Sterling in lieu of the additional provisions settled upon Lillias Campbell by the foresaid two other bonds of provision executed by Neil Campbell. The decree-arbitral proceeds to decern the present Dunstaffnage to make payment to M'Kenzie, as assignee foresaid, of the above sums, amounting in all to L. 176: 8s. Sterling of principal, at the term of Martinmas then next, with interest from the 1st August current until payment. And, as certain arrestments had been laid on in the hands of Dunstaffnage by creditors of James M'Kenzie, the husband, the decree-arbitral further ordains M'Kenzie, as trustee foresaid, to procure these arrestments purged, and to relieve Dunstaffnage of the effect of them.
Mr M'Kenzie, in consequence, brought an action of multiplepoinding in name of Dunstaffnage, in which the arresters were called; and compearancs having been made for Dewar and M'Farlane, who, as creditors to James M'Kenzie, had executed the foresaid arrestment in Dunstaffnage's hands,
Upon the question, how far the sum ascertained to be due by him was affectable for the debts of M'Kenzie the husband? The Lord Ordinary “found, that the process brought by Lillias Campbell, with consent of her husband, against Angus Campbell, as heir and representative of her father, for payment of the sums due by the bond of provision, rendered the same moveable, and consequently affectable by the creditors of her husband; and that the same was legally attached by the arrestment of Dewar and M'Farlane, previous to the assignation made to Alexander M'Kenzie; therefore, preferred. Dewar and M'Farlane,” &c.
Pleaded by M'Kenzie, the trustee, in a petition; It does not occur upon what principle of law, or ground in justice, a sum belonging to Lillias Campbell, which, at the period of the marriage, was due by bond, bearing interest, and to this day continues in the same state, can be attached by her husband's creditors, as falling under the jus mariti.
From a state of the debt produced, it appears, that, at the time of using the arrestment in question, there was only a trifle of annualrent due, which was more than exhausted by claims of compensation which Dunstaffnage had against James M'Kenzie, for money lent to him on his bills; and, by the decree-arbitral, this compensation having been sustained, Dunstaffnage was only found liable in the balance; so that the sum now in medio, is entirely composed of principal, and cannot be the subject of arrestment for the husband's debts, unless the Court shall be of opinion, that the bond of provision itself has, by some act and deed of Lillias Campbell, been converted into a moveable subject, falling under the communion of goods, though clearly otherwise at the date of the marriage.
Now, hitherto, the very reverse of the competitors plea, which the interlocutor confirms, has been understood to be established, both in the principles of law, and in the practice of the Court; and it might be attended with very unjust consequences, were the Court to forfeit a wife of her property, upon so very slender a foundation as that of bringing a process for payment, which, for the most part, is intended with the view of securing her effects in a proper manner, and not to alter the state of them, in so far as regards the legal effects of husband and wife.
Not only has it been understood that the mere commencement of a process is not sufficient to operate so strong an effect, but it is laid down in the law-books, that even recovering the money does not bring it under the jus mariti, if it is again meant to be laid out in the same way as formerly, the presumed intention being, that it is recovered for behoof of the party to whom it formerly belonged, i. e. for the wife, unless the contrary appears by her allowing the husband to intromit with, and use it as his own; Vide Bankton's Institute, B. 1. tit. 5. § 85.
And, agreeably to this rule, the Court have decided in a variety of cases, which may be seen in the Dictionary, tit. Husband and Wife, and in the other books of decisions. One of these cases, reported by Lord Stair, February 21. 1679, Cockburn, No 29. p. 5793., is very strong in point; and the reasoning in this decision is extremely just.
It is plain, that, if a process or charge for payment, at the instance of a wife, were to have the effect to make a sum, formerly heritable, become moveable, quoad the interest of husband and wife, it would be impossible for any married woman to sue for payment, of her bonds, without making them fall under the husband's power; and therefore, she must either rest satisfied with seeing her money lost by bankruptcy of the debtor, or give away her; estate to her husband; and further, it would be an easy way for husbands to get possession of their wives estates, by barely prevailing on them to raise a process for payment, which no woman would ever dream was to have the effect of an alienation in favour of the husband.
It was said, that, in questions between heir and executor, it had been found by some old decisions, that a decree, or charge: for payment, had the effect to make an heritable sum moveable, so as to go to the executor. It is very true, this appears to have been a matter of dispute in the last century; but, even in those days, when some lawyers held, and some decisions found, that, in the question between heir and executor, a charge or requisition made an heritable sum moveable, the contrary doctrine was universally acknowledged with regard to the interest of husband and wife; because, whatever latitude might be taken in presuming a man's intention with regard to his succession, it would be much too strong to presume a wife's intention to give away her estate, from the mere act of suing for payment of what is due to her; Mackenzie, B. 2. tit. 2. §.7. And, even in the case of heir and executor, the old notion, with regard, to the effect of a decree or charge, has been gradually departed from, as is very properly observed by Mr Erskine, in his compend, B. 2. tit. 2. § 9.
In the present case, a process was indeed raised for payment, but nothing further. It did not so much as go the length of a final decree; and it does not even appear that Lillias Campbell gave authority for raising this process in her name. At any rate, there was no intention to give away the subject to her husband's creditors; and the Court will therefore see no ground for depriving her of this sole fund of her subsistence.
Answered; It will not be disputed, that a wife possessed of money upon bonds, can so far alter the nature of the security, as to render such sums moveable, and failing under the interest of the husband.
After her father's death, Lillias Campbell married James M'Kenzie merchant in Applecross; what his circumstances were, the respondents cannot say; but it is certain no step was ever taken, in order to put her small provision out of his power; on the contrary, the intention of the action against Dunstaffnage seems to have been to recover the money, with a view of increasing his stock, by laying it out in trade. Young Dunstaffnage, likewise brought a reduction of the additional bonds of provision granted to Lillias Campbell, in which he seems to have prevailed; but having died about that time. Lillias and her husband brought a reduction reductive, against the present Dunstaffnage, and for payment of the sums in the additional bonds of provision. Here, then, the Court have an action at the instance of the creditor in the bond, in order to recover payment; and it may, for a moment be considered even upon the principles laid down on the other side, whether that was done with an intention to raise the money and employ it as her occasions might require; or, if all that was meant thereby was to change hands, and to place the money again on security? In judging of this, the Court will consider what was the situation of parties; the bond was unquestionably good against Dunstaffnage, his estate was full security for the principal sum, and his circumstances rendered the payment of the interest certain; why, then, should this money have been raised, had the wife intended to retain the property of it, by keeping it placed at interest? But, on the other hand, when the Court considers the situation of the wife, that her husband was a merchant, and of what importance it was to her and her family that his trade should be extended as much as possible, the rational presumption is, and what indeed is believed to be the fact, that she wanted to raise this money, in order to give it to her husband to lay out in trade, and so employ it much more beneficially than by keeping it lying at interest. The smallness of the sum, too, gives additional weight to this construction. Had it been a capital sufficient to afford the wife an independent subsistence, or to have been a fund to provide her children, it might have been thought she would be cautious how she risked it in trade; but, as it was quite inadequate to either of these purposes, it is clear, the most prudent and beneficial way she could employ it, was by giving it to her husband to lay out in trade; and, therefore, it is to be presumed such was her intention in demanding payment; consequently, the action at her instance, must have had the effect to render the sum moveable. It must follow, therefore, even according to the principles laid down, that the respondents arrestment is good. It is not disputed this would be the case, if the sum was moveable; but, it is said, the action could not render it moveable, as Lillias Campbell's intention was to replace it at interest. The rational presumption, however, as already said, is quite on the other side, and ought to be decisive of the question, as to the effect of the action for payment.
As to the L. 50 Sterling, in which the arbiter found Dunstaffnage liable, on account of the two additional bonds of provision to Lillias Campbell, this sum can in no shape be called hetirable. It was hot secured on bonds; for the bonds had been reduced; but it was a claim in equity competent to the wife, and consequently to her husband; and, as the sum awarded on that account was undoubtedly moveable, it must be covered by the arrestment.
“The Lords altered the Lord Ordinary's interlocutor, and preferred Alexander M'Kenzie, the trustee.”
Act. Ilay Campbell.Alt. Al. Bruce.Clerk, Kirkpatrick.
Fol. Dic. v. 3. p. 278. Fac. Col. No 35. p. 90.
