Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

William Calderwood and Isobell Miller in Montrose,
v.
Thomas Steel

Date: 18 January 1693

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The Lords had formerly found, that she, being factrix for her husband, when at sea, and granting an heritable bond to a creditor in these terms, for herself, and as factrix, that these words excluded her from her liferent of these houses quoad that creditor to whom she gave the heritable security foresaid; for the Lords thought that verba non debent esse in contractu aliqua otiosa, and that if they did not import at least a non repugnantia on her part, and a renunciation of her liferent never to be obtruded against him, then they signified nothing.

But this day, there being nothing yet signed nor extracted, the Lords resumed the consideration of the point; and found, by a plurality, that these words, for herself, were but the exuberancy and redundancy of the style, and had not been understood by the woman to divest her; and that the factory from her husband only impowered her to contract debt, but not to give away her own liferent, which she could not do without his consent; and that, she not having his authority interposed thereto, it was null. There was another point referred to the reporter, to be farther heard, viz. that the money then given was utiliter in rem versum, in reparation of this tenement, and so she must be liable in quantum her liferent was meliorated.