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Scottish Court of Session Decisions >>
James Anderson of Stobcorse, and William Anderson, Merchant in Glasgow. v William Gilhagie, and Hugh Wallace of Kenniehill. [1714] Mor 58 (27 January 1714)
URL: http://www.bailii.org/scot/cases/ScotCS/1714/Mor0100058-002.html Cite as:
[1714] Mor 58
Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION in SECURITY.
James Anderson of Stobcorse, and William Anderson, Merchant in Glasgow v. William Gilhagie, and Hugh Wallace of Kenniehill
Date: 27 January 1714 Case No. No 2.
An adjudication in security, of provisions in a contract of marriage, found to require no previous charge.
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James and William Andersons, at whose instance, execution upon William Gilhagie's contract of marriage with Agnes Anderson, was provided to pass against him, for securing 20,000 merks to the said Agnes in liferent, and to the children of the marriage in fee; finding the husband to be in a broken condition, raised a summons of adjudication of his lands of Kenniehill, as conveyed, under trust for his behoof, to Hugh Wallace; who, being admitted a contradictor for his interest, alleged, That no such adjudication could be decerned, in implement of the contract of marriage, without a previous constitution of the provision; and personal execution, by a charge and denunciation against the husband, as uses to be, in all adjudications on obligements ad factum prestandum; even where the fact is specific, or liquid, as an obligement to dispone particular lands or tenements; and much rather where the obligation is general, to employ a certain sum of money, without determining or confining the husband to this or that special subject.
Answered for the pursuer, 1 mo, As this process is, at least upon the wife's part, very favourable, and of the nature of dotalitia actio; so personal execution against the husband, at the instance of his wife, or trustees in her name, and upon her account, is neither necessary nor becoming; nay, would seem contra honorem matrimonii, and might readily occasion discord betwixt the husband and wife, which law is ever careful to prevent. 2do, Previous horning, or personal diligence, in order to adjudge, is only necessary in adjudications for implement of dispositions, or the like illiquid facts; whereas, here adjudication is craved for security of a certain liquid debt, which uses to be granted; 2d January 1684, Bruce against Hepburn (No 1. h. t.)——The Lords found, That the adjudication might proceed without a previous charge of horning or personal diligence, for employing the 20,000 merks in terms of the contract of marriage.
