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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> James Campbell and Others v Janet Somerville. [1778] Hailes 788 (18 February 1778) URL: http://www.bailii.org/scot/cases/ScotCS/1778/Hailes020788-0481.html |
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BANKRUPT.
Subject_3 A postnuptial Provision by a Husband, obæratus, on his Wife, how far good against Creditors?
Date: James Campbell and Others
v.
Janet Somerville
18 February 1778 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, VIII. 29; Dict.1000.]
Kaimes. This liferent is not a provision in a marriage-contract, but a donation revocable at pleasure: it is without an onerous cause, and creditors
must be preferred. Every debt contracted by a man at any time will be understood, pro tanto, as a revocation of such a gratuitous right. Covington. The grant of the liferent was, pro tanto, implement of the marriage-contract. The wife is preferable to the possession, but she must impute the rents in part payment of her annuity.
Braxfield of the same opinion. The contracting of debt is an implied revocation of the gift. If there were funds sufficient at the death of the husband, the wife may take the donation absolutely: if not, she can only hold it in part payment of her annuity.
On the 18th February 1778, “The Lords assoilyied from the reduction, but found that the liferent of the house must remain, as a security pro tanto of the annuity, reserving to the defender to operate total payment out of the deceased husband's effects, if any there be;” varying Lord Elliock's interlocutor.
Act. M. Ross. Alt. A. Rolland.
The electronic version of the text was provided by the Scottish Council of Law Reporting
