Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HUSBAND AND WIFE.
Subject_3 Donatio inter virum et uxorem.

Sophia, Lady Cranston,
v.
George Lewis Scott and Others

1776. February 22, and 1776. August 2.

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[Faculty Collection, VII. 289; Dict., App. I, Husband and Wife, No. I.]

Covington. The benefit of this donation does not go to Lord Cranston or his creditors, but to Lady Cranston's own children; and therefore it is not a revocable donation which she made.

Kaimes. By this transaction, the creditors of Lord Cranston are not much benefited; but his children are great gainers, and his wife loses nothing. Such a transaction cannot be called a donatio inter virurn et uxorem.

Gardenston. This deed, holding it to be completed, cannot be revoked, for it is a contract with creditors.

On the 22d February 1776, “The Lords found the contract binding;” adhering to Lord Auchinleck's interlocutor.

Act. J. M'Laurin. Alt. R. M'Queen. Reported by Mr David Ross of Ankerville, Lord Probationer.

August 6.—Kaimes. In mutual contracts, the consent of both parties is required, and till both consent, neither is bound: but it is not promise alone which binds parties; there may be an offer, as in this case, sufficient to constitute an obligation. “I will do this, if you will do that. I am bound, but not for ever.” The offer must be accepted of debito tempore: as there were many creditors, matters could not be instantly adjusted. Lady Cranston put her deed on record, and the creditors have accepted so early that the lady can suffer no loss.

Covington. I am sorry that my opinion does not coincide with what I consider to be a beneficial transaction for the family. My doubt lies here: I cannot hold this to be a conditional obligation. There was never any complete agreement. It was incumbent on the creditors to have qualified their claims in the ranking according to the proposed restriction. Instead of this, some of the creditors wavered, and were uncertain whether to consent or not. Lady Cranston proceeded on a wrong supposition that the creditors had consented This was a mistake, for the creditors lay by till Lord Cranston's death. Before that time the bargain was uncertain, but not afterwards.

Monboddo. There was no donation here by Lady Cranston to her husband: it was an absolute bargain proceeding on an offer, only resolvable upon the creditors not agreeing. If this was a donation, it was a donation to third parties, and it cannot be recalled, although the husband should get a consequential benefit.

Kennet. The deed was put on record, and the creditors did not intimate their purpose to recede.

Justice-Clerk and Alva doubted, in consequence of Lord Covington's argument.

President. Here is a fair contract for the benefit of Lady Cranston's first husband, which she calls in question after having gotten a second. Nothing was done by Lady Cranston to undo the proposal: it was put on record. The creditors must have been allowed time to give a special consent. There was no harm done to Lady Cranston, and there is no reason that she should be suffered to resile.

On the 2d August 1776, “The Lords found that the deed of renunciation by Lady Cranston is binding upon her and her husband for his interest, and that she is bound to implement it;” adhering to their interlocutor of 22d February 1776.

Act. R. M'Queen. Alt. J. M'Laurin, D. Rae. Reporter, Ankerville.