Scottish Court of Session Decisions

Subject_1 CONDITION.
Subject_2 SECT. I.

Si Sine Liberis.

Baillie
v.
Sommervile

Date: 11 January 1677
Case No. No 8.

The clause, si sine liber is found not to take place, where a child had been born of the marriage, although the child died, but after his mother, whose tocher was to return in case of no children.

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Littlegill having charged Mr William Sommervile to make payment of the sum of 10,000 merks, contained in his contract of marriage with Mr William's daughter, and upon a bond of corroboration, and a decreet of consent; there was a bill of suspension given in, bearing several reasons, which the Lords discust upon the bill; the first was, that his consent to the decreet was the day before he should have been execute, being in prison for a slaughter, upon Littlegill's promise to get him a remission; and for the bond of corroboration, it was extorted for fear of losing his escheat, being charged with horning upon the contract of marriage; and having presented a bill of suspension, it was unjustly refused, the reason of that bill being, that the contract had a special condition, that if his daughter did die within six years, there being no children of the marriage then alive, and that if Sommervile himself had an heir of his own body, that then he should have repetition of the half of the tocher, if it were paid; but so it is, that his daughter died within a few years, as likewise the child of the marriage died thereafter, and Sommervile had an heir of his own body. The second reason was compensation, founded upon a ticket granted by Littlegill, to be comptable to him for the half of the benefit of a commission of Chamberlain, granted by the Marquis of Douglas.—It was answered to the first, That the decreet was opponed, being in foro upon consent; and Sommervile was not imprisoned nor processed at Littlegill's instance, who denied that ever he made any such promise; and for the bond of corroboration, it was voluntarily granted, and the refusing of a bill of suspension could not be interpreted metus causa, he never having complained thereof, nor given in a new bill; and for the condition of the contract of marriage, it was clearly copulative, being conceived in these words, that in case there were no heirs of the marriage, and also that Sommervile had an heir of his own body.—It was replied to the last, which was the only point that the Lords considered, as being the ground whereupon the bond of corroboration and decreet were founded, if the condition was disjunctive and not copulative; and albeit it did bear these words, (and also) yet it ought to be interpreted (or if,) many lawyers being of that opinion, that where several conditions are set down and conjoined with the word item, it ought to be interpreted disjunctive, in resolutione orationis; and in this case it is presumed in law that it was so intended, Sommervile's daughter being only Littlegill's second wife, and Sommervile being a man of no great fortune.——The Lords considered the contract of marriage and the foresaid condition several times, and at last did all resolve, that the condition was copulative and pot disjunctive, being conceived in these terms, that if the Lady should die within six years before her husband, without any child of the marriage, and also that Sommervile should have heirs of his own body, that then he should repay 5000 merks; both which not having existed, there being a son of the marriage who survived his mother, the condition did thereby exist; and so they decerned the whole tocher to be paid.

Fol. Dic. v. 1. p. 187. Gosford, MS. No 936.