Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION IX.

The wife's personal privileges.

John Anderson
v.
Margaret Buchanan

Date: 27 July 1775
Case No. No 297.

Execution may be used against a wife's person, upon her obligation ad factum præstandum.

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Margaret Buchanan, wife of Andrew Harvie, in the course of her business of retailing ale and spirits, had contracted a debt to John Anderson maltman, to the amount of L. 19; and, being distressed for some other small debts which she was owing, Anderson was induced to lend her L. 6 to pay them off, upon her granting an heritable security to him upon certain subjects to which she had succeeded, as heir to her brother; and, accordingly, an heritable bond for L. 25 was executed by the said Margaret Buchanan and her husband, whereby the principal sum was not to be demanded till the term of Martinmas 1770, three years and nine months after the date of the bond; and it is thereby declared, that, in default of redemption of the said lands upon the foresaid term, full power is given to the said John Anderson to sell and dispose upon the foresaid lands, and to retain out of the price the foresaid sum lent, interest, and expenses. And as neither the principal, nor even the interest, was paid at that term, Anderson applied to Margaret Buchanan and her husband to concur with him in the sale of the subjects; but this being also refused, he proceeded to obtain a decree before this Court, finding that he, in terms of the clause in the bond, might dispose of the subjects, and likewise decerning them to concur with him in the sale of the lands, and in granting the rights necessary in favour of the purchasers; and afterwards having sold the subjects at a public roup, and bound himself to grant a disposition to the purchaser, with concurrence of the said Margaret Buchanan and her husband, Harvie did agree thereto, but Margaret Buchanan entered a protest againt the sale, and did, without the consent or concurrence of her husband, intent a process of reduction of the said heritable bond and disposition, upon the head of force, fraud, and circumvention; from which process Anderson was finally assoilzied; and having extracted his decree absolvitor, Margaret Buchanan was again desired to concur with him in granting a disposition to the purchaser of her subjects; but she still refused to do so, Anderson proceeded in diligence, by charging her with horning to implement, and then executing a caption against her, upon which she was imprisoned within the tolbooth of Glasgow; and after remaining above six months there, she applied to this Court for letters of suspension and liberation; and

Argued; That, by the opinions given by our lawyers, that diligence may proceed against the person of a woman vestita viro ad factum præstandum, such facts only are meant as are incumbent upon her by the law itself, without any obligation of her own, and which cannot be performed but by herself; so that, unless personal diligence were allowed to proceed against her for such performance, the rights of third parties could not be made effectual; but the case in question falls precisely under one of those in which personal diligence is totally incompetent.

The Lords ‘ unanimously refused the bill.’

Act. J. Boswell. Alt. H. Erskine. Clerk of the Bills. Fol. Dic. v. 3. p. 285. Fac. Col. No 186. p. 111.