Scottish Court of Session Decisions

This is an action at the instance of Mrs Isabella Bain or Smith, wife of Mr Adam Smith, writer in Falkirk, and is directed against her husband. The conclusions of the action are for two half-yearly instalments of an annuity of £60, which the pursuer says is due to her under an antenuptial contract of marriage entered into between them on the nth of August 1847, by which the defender settled that yearly sum on the pursuer; and further, that the defender should be decerned and ordained to settle and secure at the sight of the Court, in terms of the contract of marriage, the said free yearly annuity of £60 to and in favour of the pursuer, the same to be secured so as to be paid to her during the subsistence of her marriage with the defender, exclusive of the jus mariti of the defender, courtesy of Scotland, or other title, and also exclusive of liabilities for his acts and deeds and the diligence of his creditors, and thereafter during her viduity, if she shall survive her husband. There is an alternative conclusion that the defender should be ordered to consign £2000, in order that the same be invested at sight of the Court for payment of the annuity. There is an additional conclusion that the defender should pay the pursuer the sum of £1248, 16s. 5d., being the one-fourth part or share of her father's estate, to which the pursuer is entitled, exclusive of the jus mariti of her husband, or that he is bound to make it forthcoming that she may invest it.

After living for some time together the wife left the society of her husband, and they are now living separate. The defender, in respect of such desertion, pleads that he is not bound to pay the annuity. In the marriage contract there was a clause nominating trustees, at whose instance action and execution should pass, and upon this clause the defender pleads that the pursuer had no title to sue. To this the pursuer answered that of the persons named as trustees four are dead, one, if alive, is out of the country, and the others declined to act. The Lord Ordinary (Kinloch) repelled the objection to the pursuer's title to sue, holding that, besides the pursuer's answer, the nomination of trustees in a marriage contract, however convenient in many supposable circumstances, does not deprive the wife of her personal right to sue (with a curator ad litem) for fulfilment of her marriage contract. On the merits his Lordship found that the defender was bound to pay the annuity—the marriage contract containing no conditions warranting a refusal. Whatever was the motive of the parties for entering into such an

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arrangement it was not an illegal one, and must be enforced as made. As to the last conclusion, the Lord Ordinary has found the defender bound to set aside and invest such sum as shall appear to have been received by him out of the pursuer's one-fourth share of her father's estate, that the pursuer may receive the liferent thereof, in respect of a provision to that effect in the marriage contract. Against that claim the defender pleaded compensation, in respect he had expended large sums on her account. To-day the case was argued and advised.