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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gillespie v. Honyman [1868] ScotLR 6_26_1 (29 October 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0026_1.html
Cite as: [1868] ScotLR 6_26_1, [1868] SLR 6_26_1

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SCOTTISH_SLR_Court_of_Session

Page: 26↓

Court of Session Inner House First Division.

Thursday, October 29 1868.

Lord Deas Lord Kinloch Lord President

6 SLR 26_1

Gillespie

v.

Honyman.

Subject_1Husband and Wife—Action—Reduction ex capite lecti
Subject_4Heir-at-law.
Facts:

Held that a husband was not entitled to compel his wife, proprietrix of an entailed estate, to sue a reduction ex capite lecti of a bond of annuity granted by her father, former proprietor of the estate, in favour of her mother.

Headnote:

This was an action raised by William Gillespie of Torbanehill, in the name of “Mrs Elizabeth Honyman or Gillespie of Torbanehill, heiress of entail of the deceased Sir R. B. Johnston Honyman, Baronet, and as such, in possession of the lands and estates of Torbanehill and others, spouse of William Gillespie of Torbanehill, with consent and concurrence of the said William Gillespie, and the said William Gillespie for himself and his own right and interest in the premises,” and also as receiver of the rents jure mariti, against Dame Elizabeth Campbell or Honyman, mother of Mrs Gillespie, and relict of the late Sir R. B. Johnston Honyman. The object of the action was to reduce, ex capite lecti, a bond of annuity granted by the deceased Sir R. B. Johnston Honyman in favour of the defender.

The defender pleaded, inter alia, that the pursuer had no right to use the name of Mrs Gillespie in the action, she not having given any authority for such use; and contended that as Mrs Gillespie repudiated the action, it ought to be dismissed, in so far at least as it bore' to proceed at Mrs Gillespie's instance.

The Lord Ordinary ( Jerviswoode) sustained this plea, adding the following note:

“The matter which the Lord Ordinary has dealt in the present interlocutor is one of some difficulty, but on the whole, after the best consideration which he has been able to bestow on the able argument which was on both sides submitted to him, and on the decisions in the cases of Wedderburris Trustees v. Colville, Jan. 29, 1789, M. 10,426; Adkins v. Orr, Feb. 11, 1812, M. 16.140; and Ferguson v. Cowan, June 3, 1819. which is reported but briefly by Baron Hume (Decisions, p. 222), he has come to the

Page: 27↓

conclusion that the action ought not to proceed so far as at the instance of Mrs Gillespie. These cases, if held to be authoritative, appear to the Lord Ordinary to go far to support his present judgment, and he may be permitted to add, that had he been obliged to form the opinion here without such guidance, his impression is, that the conclusion to which he must have come would have been the same.

But while this is so, the Lord Ordinary would not wish it to be held that, in his opinion, it is competent on the part of a married woman to exercise an uncontrolled will in all cases, or, in every state of circumstances, to insist or not in an action to which she is a necessary party as a pursuer. The Court may have power to take into consideration the alleged motives and grounds of refusal, and it is but fair to the parties here that the Lord Ordinary should state that his opinion has in some degree been affected by the consideration that the nominal leading pursuer is set forth in the action as challenging the deed of her own father, on the plea that that deed was reducible ex capite lecti—a ground of reduction privative to the heir-at-law, and which may competently be insisted in by the person holding that character, although the capacity of the granter, as respects possession of mental powers, may be complete.”

The pursuer reclaimed.

Moncreiff, D.-F., and Pattison for reclaimer.

Clark and Balfour for respondent.

The case of Stevenson v. Hamilton, 1 D., was cited.

At advising—

 Judgment:

Lord Deas—This is a very clear case. I think that, if authorities are necessary, the cases referred to are sufficient to support the view taken by the Lord Ordinary. But there is no need of authority. The principles of law and justice are sufficient in themselves. If there must be any peculiarity in the nature of the pleas which the husband desires his wife to state, there is enough of that here. He asks her to challenge a deed executed by her father, on the technical ground of deathbed, which does not imply the least incapacity in him to do what he did. I am glad to see that he had a desire to provide for his wife, even to the limited extent he has done. I don't think it is reasonable to ask her to challenge the deed on that ground. But more than that, he asks her to challenge a deed in favour of her own mother, giving a small annuity-perhaps, for anything I know, all she had to live on. If circumstances of that kind are necessary, they are to be found in this case.

Lord Kinloch—I am of the same opinion. This question is settled by the authorities in such a way that I am very far from wishing to disturb them. The conclusion at which the Lord Ordinary has arrived follows, I think, from a consideration of the position of the wife. She is proprietrix of the estate. Her husband is not in any sense the proprietor. No doubt he has by his jus mariti a right to the rents after they have accrued, but he is in no sense proprietor. The wife is under curatory, but her husband, as her curator, is not entitled to do anything affecting her estate without her consent. To hold that he was so entitled would be to maintain a position adverse to the first principles of law. The Lord Ordinary has not disposed of the question whether Mr Gillespie may not himself bring this reduction. A good deal may be said as to the peculiarities of his position, but the question now to be determined is, can he compel his wife to sue to such effect that the bond shall not affect the estate at all? I think that, both on authority and principle, the Lord Ordinary is right.

Lord President—There are questions remaining to be determined in this case, and others which remain for determination in the action at the instance of Lady Honeyman, as to which we must indicate no opinion. I am far from saying that your Lordships have done so; I only say that we must be careful to confine ourselves to the question properly before us. This bond of annuity was made a burden on the estate in 1842, by the then proprietor. His heir is entitled to reduce it ex capite lecti. His heir is Mrs Gillespie, and she declines to do so, and the question is, whether her husband has a title to compel her to join with him in sueing this reduction against her will? On that question, I entertain no doubt. It is settled by authority, and it is, besides, clear on principle. I entirely agree with the Lord Ordinary.

 Counsel:

Agent for Pursuer— H. Buchan, S.S.C.

Agents for Defender— Mackenzie & Black, W.S.

 1868

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