Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. III.

Contracts of Marriage.

Corrie
v.
Mr James Philp

Date: 27 February 1765
Case No. No 51.

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A woman, upon whom her father had settled a portion by a bond of provision, payable by her brother his heir, having married without a contract, was, after the death of her husband, who died bankrupt, maintained tor several years by her brother, who, upon her death, was pursued by the creditors of her husband for payment of the bond of provision. He pleaded in defence, That he must be entitled to retain the expense laid out by him in maintaining his sister after her husband's death; for, had she been still alive, she would have been allowed retention, in security of her legal provisions. Answered, A woman is only allowed this right of retention when a marriage-contract has intervened; but, when a woman marries without a contract, she betakes herself to the legal provisions, which she can only claim out of the free effects of her husband after his debts are paid. And the same thing applies to the claim of retention for her aliment. Replied, Where the woman herself claims retention, it is not equity that this benefit should be limited to those who had entered into marriage-contracts; but, a fortiori, it ought to be extended to such as having married without that precaution stand therefore more in need of the law's indulgence.—The Lords allowed retention to the brother of the interest which fell due during his sister's life.

Fol. Dic. v. 4. p. 17. Fac. Col.

*** This case is No 10. p. 5772.