of dubious Hermophradits where the one Sex doth not 〈◊〉 predomine doth not make Marriage and the common essentials of consent must also here be observed so that who cannot consent cannot Marry as Idiots and furious Persons neither they who have not the use of Reason as Infants and those under age who are not come to the use of diseretion unless malitia suppleat aetatem that is when the person is within the years of Pupillarity commonly established in Law to be fourteen in Males and twelve in Females yet seing Marriage is an Obligation natural and not annullable by positive Law as to it regard must be rather had whether the parties be truely come to discretion and capacity whereof commixtion of bodies is sufficient evidence And this also is the sentence of the Canon Law de illic cap. 9. ult de spons Errors also in the Substantials make void the consent unless future consent superveen as it did in Jacob who supposed that he had Married and received Rachel but by mistake got Leah yet was content to retain her and serve for the other also But Errors in qualities or circumstances vitiat not as if one supposing he had Married a Maid or a chast Woman had Married a Whore So then it is not the consent of Marriage as it relateth to the procreation of Children that is requisite for it may consist though the Woman be far beyond that date but it is the consent whereby ariseth that Conjugal Society which may have the conjunction of Bodies as well as of Minds as the general end of the Institution of Marriage is the solace and satisfaction of Man For the Lord saw that it was not fit for him to be done and therefore made him a help meet for him Yet though this capacity should never be actuat as it persons both capable should after Marriage live together and it should be known or acknowledged that all their lives they did abstain yet were the Marriage 〈◊〉 as to the Conjugal Rights on either paart If it be asked whether the consent of Parents be essential to Marriage the common Sentence will resolve it Multa impediunt matrimonium contrahendum quae non dirimunt contractum so that consent is necessary necessitate praecepti sed non necessitate medii though by humane Constitution such Marriages may be disalowed and the Issue repute as unlawful but the Marriage cannot be annulled l. 11. de stat hom l. 13 § 6. de Adult by which Laws not only the Issue of such Marriages are excluded from Succession but the Marriage it self insinuat to be null which humane Constitutions cannot reach though the Magistrate or Minister Celebrator of the Marriage may refuse to proceed without consent of the Parents as by the Law and Custom of Holland Art 3. Ord. Pol. It is statute that before the Celebration of Marriage there be three Proclamations in the Church or in the Court and that where the Parties are Minor they be not married without consent of their Parents and where they are both Major Intimation must be made to the Parents and if they appear not their consent is presumed and if they do appear and dissent they must condescend upon the Reasons that it may be cognosced whether they be sufficient or not And if the Marriage do otherwayes proceed they account it null Marriage is also void and inconsistent when contracted within the Degrees prescribed Levit. 18. whereby the next Degree Collateral is only prohibit both in Consanguinity and Affinity which makes those joyned in Affinity in the same Degree as being by Marriage one Flesh neither can Marriage consist where either Party is married before But the Exclusion of further Degrees by the Canon Law as of Cousin-Germans or of certain degrees in Affinity Ecclsieastick or the prohibiting Marriage to these in sacris are there unlawful Devices which cannot alter this divine Contract but become a Cheat putting Parties in the Pop's power to approve or disapprove as His Avarice or Interest leads neither do the Civil Constitutions of Princes annul or dissolve Marriage whatever they may work as to the Interest of the married Persons or their Succession as were the Prohibitions of Marriage between those of consular Dignity and Plebeian Persons between Tuttors and their Children and Pupils Yea between Jews and Christians for diversity of Religion cannot annul it 2. The Dissolution of Marriage is only Natural by Death Adultery and Desertion do not annul the Marriage but are just occasions upon which the Persons injured may annul it and be free otherwayes if they please to continue the Marriage remains valid All do agree that Adultery hath some Effect upon Marriage the Canon Law doth not thereupon dissolve it that the Party injured may be free to marry again but only granteth Separation But our Saviour's Precept cleareth the contrary who in Relation to the Custom that then was of Divorce for light Causes resolves that puting away was not lawful except in the Cases of Adultery and so in that case approves the Divorce even as then used Matth. 19. v. 9. It may be doubted whether the Adulterer after the Dissolution of the Marriage upon his default may marry again But though Positive Law as a Penalty upon Adulterers may hinder their Marriage with the Adulteress or otherwise declare such Marriages as to Succession and civil Effects void yet can it not simply annul it and as to any other person they may Marry With us Marriage betwixt the two Committers of Adultery is declared null and the Issue inhabilitat to succeed to their Parents Parl. 1600. cap. 20. But otherwise the person guilty may again marry The second ground of Dissolution of Marriage is wilful desertion which is grounded upon the answer of the Apostle 1 Cor. 7. 15. concerning the Marriages of Christians with Infidels which he declares valide unless the unbeliever depart in which case he declares the Christian not to be under bondage which cannot have any speciality to the party deserted as a Christian and therefore must infer a general Rule that all Married persons wilfully deserted are free but this seems inconsistent with Christs resolution making Adultery the only exception which is easily cleared by adverting that Christs determination is not general of the dissolution of Marriage but of putting away by divorce and so concludes no more but that the putting away of the wife is unlawful unless for Adultery but the wilful deserter is not put away but goeth wilfully away yet whether the person deserted or put away be simply free by the dissolution of the Marriage or only freed from the bondage of adherence is not clear from that Text 1 Cor. 7. 15. For from Matth. 5. 32. and 19. 9. Luke 16. 18. It would appear that by desertion the Marriage is not dissolved and that the person deserted may not marry again because it is said That whosoever marries her that is put away or deserted committeth Adultery By the Law of Scotland dissolution of Marriage for non-adherence or wilful desertion is expresly ordered Parl. 1573. cap. 55. That the deserter after four years wilful desertion without a reasonable cause must be first pursued and decerned to adhere and being thereupon denunced and also by the Church excommunicate the Commissaries are warranded to proceed to divorce but the absence will not be accounted a wilful desertion if he be following any lawful imployment abroad and content to accept and intertain his Wife for
to which it was estimate all the other Goods of the Wife were Paraphernalia whereof she had the sole Power and Right The Customs of most Nations even where the Roman Law hath much weight in this matter have returned to the natural course as is observed by Cassaneus ad consuetudines Burgundiae tit 4. And Duarenus tit ff de nupt in relation to the Custome of France Wessenbecius in parat ad tit ff de ritu nuptiarum And Covaruvias Epitt. lib. 4. Decretal part 2. cap. 7. In reference to the Customs of the Germans Spaniards and most part of the Nations of Europe Gudelinus de Jure Noviss sheweth the same to be the Custome of the Netherlands in which they do almost in every thing agree with our Customs to which we return By the Custome of Scotland the Wife is in the power of the Husband and therefore First The Husband is Tutor and Curator to his Wife and during her Minority no other Tutor or Curator need to be conveened or concur to Authorize So it was decided French contra French and Cranstoun hop tit de minoribus But on the contrair the Wife is in no case conveenable without calling the Husband and though she be Married during the dependance the Husband must be cited upon Supplication and the Process continued against him for his interest Spots Husband and Wife Margaeret Bailie contra Janet Robertson And likewise a Wife being charged upon her Bond given before Marriage but the Letters not being raised against her Husband for his interest they were found null by way of exception Nic. Reverentia Maritalis Relict of Robert Young contra Wachup yet a Wife was found con veenable without calling the Husband he being twenty years out of the Countrey and she repute Widow June 19. 1663. Euphan Hay contra Elizabeth Corstorphin Yea a Wifes Escheat or Liferent falls not upon any Horning execute against her during the Marriage because being then under the power of her Husband she hath no power of her self to pursue suspend or relaxe Dury February 16. 1633. Stuart contra Banner man and this was found though the Decreet was an ejection committed both by man and Wife yet where the Horning is upon a deed proper to the Wife as to divide the Conjunct-fee Lands Horning is valide Nic. Reverentia Maritalis Duff contra Edmonstoun or where the Horning was upon a Delinquence as on Laborrows Hope Husband and Wife Lord Roxburgh contra Lady Orknay In like manner a Wife cannot pursue or charge without concourse of her Husband and so Letters not raised at his instance were reduced though he concurred thereafter Dury July 27. 1631. Robert Hay contra Mr. John Rollo The like Spots Husband and Wife Napeir contra Mr. Robert Kinloch and Agnes Lial The like in a Reduction of an Heritable Right done by the Wifes Father on death bed which was not sustained unless the Husband had concurred or had been called in which case if he refused concourse without just reason the Lords would authorize the Wife to insist July 8. 1673. Christian Hacket contra Gordoun of Chapeltoun But we must except from this Rule if the Husband were Inhabilitat or forefaulted Had. the 26. of March 1622. William Hamiltoun contra Stuart or the Wife authorized by the Lords upon special consideration the Husband refusing to concur Dury the 9. of January 1623. Marshel contra Marshel Or that she were pursuing her Husband himself against whom ordinarily she hath no Action except in singular cases ut si vergat ad inopiam or in case he had diverted from her Dury December 21. 1626. Lady Foules contra her Husband Or if a Wife with concourse of her Friends at whose instance Execution was provided by her Contract were pursuing reduction of a deed done by her Husband in prejudice thereof during her life February 12. 1663. Lockie contra Patoun or that the Obligation in its own nature require execution in the Husbands life as an obliegement to Infeft the Wife in particular Lands but if it be a general Obliegement to imploy Money for her or to Infeft her c. which the Husband may at any time of his life perform the Wife will have no Action against him neither will she get Inhibition upon supplication unless the Lords grant the same upon knowledge that the Husband is becoming in a worse condition or that the Wife hath quite a present Infeftment for an Obligation of an other in which case the Lords granted Inhibition July 13. 1638. Lady Glenbervy contra her Husband This delay where a Term is not exprest is upon consideration of Merchants who ordinarily having no other means than the Stock with which they trade it would ruine them if they were necessitate to imploy it on security so soon as they are married It is a Priviledge of Women amongst the Romans per Senatus consultum velleianum that the Obligations by which they became surety or interceeded for others were void But our Custome hath inlarged that Priviledge so far that a Wifes Obligation for Debt or personal Obliegement contracted during the Marriage is null even though the Bond were granted by her and her Husband containing an Obliegement to Infeft the Creditor in an Annualrent out of their Lands and in this case the Bond as to the Wife and an Apprising thereon as to her Life-rent of these Lands was found null But here there was no special Obliegement of Annualrent or Wodset of the Wifes Life rent Lands but generally out of both their Lands Dury March 24. 1626. Greenlaw contra Gulloway The like Hope Husband and Wife Archibald Douglas of Tofts contra Mr. Robert Elphingstoun and Susanna Hamiltoun The like Dury January 30. 1635. Mitchelson contra Moubray in which case the Bond being granted by the Man and Wife and thereupon Apprising deduced though she did Judicially ratifie it upon Oath never to come in the contrair yet the Bond and Infeftment as to her Life-rent was found null seing there was nothing to instruct her Ratification but the Act of an inferiour Court whereof the warrand was not produced But a Wifes Obligation with her Husband conjunctly and severally oblieging them to pay and also to Infeft in an Annualrent out of either of their Lands found null as to the Wife in the Obliegement to Pay but not as to the Obliegement to Infeft December 15. 1665. Master John Ellies contra Keith Neither was a Wife found lyable for furnishing to the House in her Husbands absence furth of the Countrey which did only affect her Husband Spots Husband and Wife John Loury contra Lady Louristoun The like January 29. 1631. Porter contra Law The like though the cause of the Bond was Money advanced for the Wifes necessar Aliment for which no Process was granted against her till her Husband was first discussed December 22. 1629. Mr. David Artoun contra Lady Hackertoun And also a Wifes Obligation without consent of her Husband found not to affect her but him
though she was not praeposita Negotiis but because she was Persona Illustris and her Husband out of the Countrey Hope Husband and Wife Mr. David Russel contra Earl of Argyle but a Wifes Bond for necessar Habiliments for her Body found to obliege her self and not her Husbands Executors and as to these she may contract Had. July 6. 1610. Eustacius Wise contra Lady Hallyrudhouse this must be understood where the Wife has an Aliment constitute by her Husband or other Right exempt from his Jus Mariti And it was so lately found in the case of Adam Garrns Merchant contra Elizabeth Arthur December 19. 1667. February 23. 1672. John Neilson contra Arthur But a Wifes account of Furniture to her Person not being great found valide against her Husband being subscribed by the Wife though she was minor being Persona Illustris February 20. 1667. Andrew Littlejohn contra Duke and Dutchess of Munmouth This Priviledge of Wives was extended to Obligations or Dispositions made by the Wife though before compleating of the Marriage being after Contract and Proclamation whereupon Marriage followed January 29. 1633. 〈◊〉 contra Brown The like specially where the Proclamation was not only at the Husbands Paroch Church but the Wifes July 8. 1623 Stewart contra Aitkin The like of a Disposition in favours of the Wifes Children after their Contract and one Proclamation July 5. 1611. Fletcher in Dundee contra Brown Yet Wives Obligations relating to their Delinquence are not void but only such as relate to their Contracting So a Wife was found oblieged to fulfil an Act of a Kirk Session under a Penalty that she should forbear an other mans company which was found not to affect her Husbands Goods but her own Hope Husband and Wife John Bell contra Executors of James Hogg and the Kirk Session of St. Cuthberts Here also are excepted Obliegements relating to Dispositions of Lands Annualrents or Liferents of which hereafter 13. As to the Husband and Wifes Interest in their Goods by our Custome without any voluntar Contract there arises betwixt them a communion of all Moveables except the Habiliments and Ornaments of the Wifes Body which though they be superfluous and the Husband insolvent are not Arrestable for his Debts the Husband hath the full and sole administration of all moveable Goods belonging or accressing to the Wife during the Marriage and the Rents and Profits of Heretable Rights as being moveable And therefore an Heretable Bond found to belong to the Husband Jure mariti because he was married before the Term of Whitsonday at which time it was payable June 15. 1627. Nicolson contra Lyell and a sum was found to belong to the Executors of the first Husband though the Term of Payment was after his Decease and not to the Wife or her second Husband Also a Legacy left to a Wife was found to belong to her Husband Hope Legacies Elizabeth Brown contra 〈◊〉 Likewise a Husband found to have right to a Bond blank in the Creditors name which the Wife during the Marriage put in the hands of a third Party who filled up his own name therein though the Husband and Wife were voluntarly separate February 11. 1634. Drummond contra Captain Rollo except Aliments duely and competently provided for the Wife which are not Arrestable for the Husbands Debt November 29. 1622. Thomas Edmonstoun contra Christian Kirkaldie and Alexander Barclay The like of an Aliment modified by Decreet Arbitral betwixt the Husband and a third Party though the cause thereof was founded upon the Husbands Right March 27. 1627. Westnisbit contra Morison yea the Husband himself found to have no access to a Sum provided to a Wife by her Father for her Aliment July 4. 1637. Tennant contra 〈◊〉 This communion of Goods by our Custome extendeth not to the Wifes Rights Heretable as Lands Annualrents Heretable Bonds nor to Liferents for as to these the Wife may obliege her self personally in Clauses relative to such Rights as Clauses to Infeft Clauses of Warrandioe and Clauses of Requisition of Sums for which her Lands were Wodset by her if the Wife be first and principally bound with consent of her Huaband but where the Wife and Husband were bound for Infeftment in Lands belonging to the Wife and both bound in the Requisition yet thereby the Wife was not found oblieged either for granting the Infeftment or in the Requisition because it appeared that the Money was not borrowed for the Wifes use December 19. 1626. Mathie contra Sibbald other ways such Obliegements are effectual against the Wife The like Hope Annualrent Agnes 〈◊〉 contra James 〈◊〉 where a Wife was found lyable to pay an Annualrent disponed by her and her Husband out of her 〈◊〉 Fee-Lands even during the time they were in Ward The like of an Annualrent disponed by a Wife and her Husband for which both were personally oblieged in respect she lifted the Rents of the Lands out of which it was to be uplifted Spots Husband and Wife Walter 〈◊〉 contra Margaret Chisholm The like of a Clause of Requisition in a Contract of Wodset granted by the Wife upon her Lands stante matrimonia Hope Husband and Wife Agnes Gordon contra Elizabeth Gordon And this is the difference betwixt these and other Personal Obliegements of the Wife stante matrimonio which even though the Husband consent are 〈◊〉 and obliege her not yea a Renunciation of a Tenement by a Wife without consent of her Husband being absent though he ratified it at his return was found null Spots Husband and Wife Helen Melvil contra So that the Husbands Right Jure Mariti to the Rents and Annualrents of the Wifes Rights which are not Alimentary cannot be evacuate without the Husbands consent though the Wife may dispose of the Right it self to take effect after the dissolution of the Marriage In Heretable Rights of Wives Bonds bearing Annualrent though without a clause of Infeftment are comprehended for these remain Heretable 〈◊〉 〈◊〉 relictum by the Act of Parliament 1661. cap. 32. And therefore a provision by a Father to his Daughter bearing Annualrent five per cent found not to fall under the Husbands 〈◊〉 Mariti June 28. 1665. James 〈◊〉 against 〈◊〉 Edgar July 4. 1676. John 〈◊〉 contra Bruce The Marriage without any Contract is a legal Assignation to the Rents and Profits of the Wifes Lands and other Heretable Rights during the Marriage so that without his consent the Wife cannot alter the condition thereof in prejudice of his Right during the Marriage Jus Mariti is so effectual as to the moveable Goods of the Wife that though a Life-renter in her second Contract of Marriage reserved a part of her Life-rent Lands to be solely at her own disposel and that the Husband in the same Contract of Marriage renounced his Jus Mariti thereanent yet that Renunciation was found to be his Jur. Mariti and so the profits of her Life-rent were affected by his Creditors it not being constitute
Husbands Revocation upon Death-bed subscribed by Nottars because of his Infirmity Hope Husband and Wife Earl of Angus contra Countess of Angus And a Husband was allowed to recall a Bond granted to his Wife bearing that he thought it convenient that they should live a part and therefore oblieged him to pay a Sum yearly for her Aliment albeit it bore also that he should never quarrel or recal the same as importing a Renunciation of that Priviledge February 6. 1666. Livingstoun contra Beg. Yea a Donation by a Husband to his Wife was found Revocked by a Posterior Right to his Children though it was not a pure Donation but in lieu of another Right and quoad excessum only seing it was notabilis excessus November 20. 1662. Children of Wolmet against Lady Wolmet And un Infeftment bearing Lands and a Miln was found Revockable as to the Miln it not being exprest in the Wifes Contract February 5. 1667. Countess of Home contra Hog This was extended to a Wifes accepting of an Infe ftment in satisfaction of her Contract February 12. 1663. Relict of George Morison contra his Heir It is also Revockable indirectly by the Husbands posterior Disposition of the Lands formerly Disponed to his Wife in Life-rent July 16. 1622. John Murray of Lochmaiben contra Scot of Hayning A Donation by Infeftment granted by a Man to his Wife beside her Contract found Revocked by an Annualrent out of these Lands granted to his Daughter pro tanto without mention of Revocation December 15. 1674. Mr. Robert Kinloch contra Raith It was also found effectually Revocked by the Husbands submitting of the Right of the Land wherein he had formerly gifted a Life-rent to his Wife and a Decreet Arbitral adjudging the same to another Nic. de Donat. inter virum uxorem Viscount of Annandail contra Scot. But Donations by a man to his Wife who had no former Provision nor Contract of Marriage found not Revockable being in satisfaction of the Terce due by the Marriage March 25. 1635. Laird of Louristoun contra Lady Dunipace The like November 22. 1664. Margaret Mcgill contra Ruthven of Gairn But where the Husband granted Infeftment of all that he then had there being no Contract of Marriage And thereafter a second Infeftment both Stante Matrimonio The first was sustained being in place of a Contract of Marriage but the second was found Revockable 23. of November 1664. Halyburtoun contra Porteous And a provision to a Wife having no Contract of Marriage was found Revockable in so far as it exceeded a Provision suitable to the Parties 27. of July 1677. Short and Burnet contra Murrays Yet the want of a Contract did not sustain a Donation by a Wife to her Husband to whom she assigned an Heretable Bond the Husband being naturally oblieged to provide for his Wife and not the Wife for her Husband December 15. 1676. Inglis of East-shield against Lowry of Blackwood And an Assignation to an Heritable Bond by a Wife to a third Party but to the Husbands behoove found Revockable by the Wife after the Husbands death even against the Husbands singular Successor for causes onerous the trust being proven by Write June 17. 1677. Margaret Pearson contra Mclane Yea a Donation by a Wife by Assignation of her former Joynture to her Husbands behoove found Revockable though there was no Contract unless the Husband had given a remuneratory provision January 22. 1673. Janet Watson contra Bruce And a Wifes consent to a Contract of Wodset of her Life-rent Lands with a back-tack to the Husband only found valid as to the Creditor but Revockable as to the Husband in relation to the back-tack declaring the same to belong to her for her Life-rent use that she might injoy the superplus more than the Annualrent June 28. 1673. Arnot contra Buta Donation by a Husband to his Wifes Children of a former Marriage was not found Revockable though done at his Wifes desire January 15. 1669. Hamiltoun contra Banes Nor by a Wife subscribing her Husbands Testament by which her Life-rent Lands were provided to her Daughter July 12. 1671. Marjory Murray contra Isobel Murray Such Donations are also annulled by the Wifes Adultery and Divorce As all Donations are Revockable for ingratitude Hope donatio inter virum uxorem Margaret Dowglas contra Aitoun A Bond conceived to a Man and Wife and her Heirs found a Donation by the Man whose Means it was presumed to be and Revockable by him after her death and a Tack taken by him to himself and his Wife in Life-rent was found Revockable by a posterior Tack thereof to himself and his brothers Son December 21. 1638 Laird of Craigmiller contra Relict of Gawin 〈◊〉 yet thereafter it was found in the same case January 30. 1639. that in respect the 〈◊〉 was set by a third person and that it did not appear to be by the Mans 〈◊〉 that the Back-tack to the Wife was not Revockable But a Donation betwixt Man and Wife altering their Contract of Marriage being done before the marriage it self was not found Revockable January 23. 1680. John Home contra John and George Homes yea where the Donation did bear date before the Marriage the Husbands Heir proving the Write antidated and that it was truely after the Marriage the Donation was therefore found Revockable July 24. 1667. Earl of Dumfermling contra Earl of Callender 15. To come to the Interest of the Husband and Wife after the Dissolution of the Marriage we must distinguish the Dissolution thereof which falls by death with in year and day from the solemnizing thereof and that which is Dissolved thereafter for by our Custome this is singular which is found no where else in the Neighbouring Nations that if the Marriage Dissolve within year and day after the Solemnizing thereof all things done in Contemplation of the Marriage become void and return to the Condition wherein they were before the same and so the Tocher returns back to the Wife or these from whom it came and she hath no Benefite or any Interest either in the Moveables or Heretables either by Law or Contract provided to her nor hath he any Interest in hers unless there were a living Child born which was heard cry or weep in which case Marriage hath the same effect as to all intents and purposes as if it indured beyond the year and this is extended to both the Marriage of Maids and Widows July 23. 1634. Maxwel contra Harestones And extended also to an Infeftment by a Husband to a Wife though it had no relation to the Marriage but was only presumed to be hoc intuitu November 16. 1633. Grant contra Grant and not only extended to the Wife and Husband and their Heirs but to any other person concerned Restitution being made hincinde of all done 〈◊〉 Matrimonii June 8. 1610. Laird of Caddel contra Elizabeth Ross yea a Disposition by a Father to a Son of his Estate in Contemplation of
his Marriage which was dissolved within year and day by the Wifes death was found void seing the Father persisted not therein but Infeft his second Son July 15. 1678. Lord Burley contra Laird of Fairny And a Tocher payed within the year was 〈◊〉 to be repayed without any Deduction for the Wifes intertainment during the Marriage but only for her Cloathes which were before the Marriage and her Funeral Charges which was after the Marriage was Dissolved February 23. 1681. Janet Gordoun contra Thomas Inglis But Gifts given to the Married Persons by the Friends of both were divided equally the Marriage being dissolved within year and day January 14. 1679. Wauch contra Jamison But if a living Child was born the Marriage was found valide though both Mother and Child died within the year Spot Husband and Wife Stuart contra Irving The reason why the Child must be heard cry is to make certain its lively ripeness and not to leave it to the conjecture of the Witnesses and therefore it sufficed not though they did declare that the Child was living immediately before the Birth and appeared lively and full ripe when it was born but that it was stifled in the Birth as was found in the case of Sandelands and Thores yet a Wifes Infeftment was found valid till her Tocher was repayed though the Marriage Dissolved within the year July 20. 1664. Petrie contra Paul But where a Marriage continued a year and a part of the next day after the year the Tocher was found not to return Nam in favorabilibus dies ceptus habetur pro completo February 25. 1680. George Waddel contra George Salmond 16. Marriage Dissolveth by Divorce either upon wilful non-adherence or wilful Desertion or by Adultery and the party injurer loseth all benefit accrueing through the Marriage as is expresly provided by the foresaid Act of Parliament concerning non-adherence 1533. cap. 55. But the Party injured hath the same benefit as by the others Natural Death as was found March 21. 1637. Lady Manderstoun contra Laird of Rentoun But if Divorce follow upon Impotency all things return hinc inde because in effect there was no Marriage as was found Earl of Eglintoun contra Lady Eglintoun 17. By the Dissolution of Marriage there ariseth to Married Persons not only these Rights which by voluntar Contract are Constitute to either and which are not proper here but also these which by Law and Custome are Competent without any special Convention or Covenant and these are either upon the part of the Husband or more frequently upon the part of the Wife To the Husband is Competent the Life-rent of the Wifes Heretage which because it is peculiar unto these Nations it is said to be the Courtesie of Scotland or England To the Wife ariseth her share of the Moveables which is the half where the Man hath no Children in familia and the third where there are such and her Terce which is the third part of his Lands during her Life But of Reversions Heretable Bonds Dispositions or Rights of Lands without Infeftment and of Teinds or Tacks or Tenements within Burgh the Relict hath no Terce These Rights of Terce and Courtesie fall in to be considered amongst the Feudal Rights and the Relicts third or half of Moveables in the Succession of Moveables wherein it is a Concomitant and regulat according to that which is proper Succession either of Children or others though as to the Wife it be rather a Division of that Community of Goods Moveable that was Competent to the Married Persons during the Marriage and therefore shall be insisted on no further here but left to these places And we shall proceed to the next kind of Obediential Obligations and Natural Rights which interveen betwixt Parents and Children Law and Custome hath favoured and priviledged Wives in many cases propter fragilitatem sexus they are free from obliegements for sums of Money and from personal Execution by Horning or Caption if it be not for Criminal Causes their Contracts of Marriage are preferable to other Personal Creditors February 8. 1662. Thomas Crawford contra Earl of Murray their share of their Husbands Moveables is not burdened with the Husbands Heretable Debt December 28. 1668. Margaret Mckenzie contra Robertsons July 19. 1664. Elizabeth Scrimzour contra Murrays yea gratuitous moveable Bonds granted by a Husband payable at his death whereby the whole Executry would be exhausted and the Wife have no share having no other provision the same were not found to affect the Wifes share But otherways such Bonds granted in Leige Poustie without fraud were found to come off the hail Head and not off the deads part only December 8. 1675. Thomson contra Executors of Eleistoun And a Wife was found not excluded from her share of her Husbands Moveables by a gratuitous Disposition by her Husband to his Brother of all sums that he should have at his death January 10. 1679. Grant contra Grant In like manner the Infeftments and Provisions of Wives are effectual although the Tocher which is the mutual cause thereof be not payed she not being oblieged therefore her self though the Contract bore that the Tocher being payed it should be imployed to the Wifes use July 5. 1665. Mackie contra Stuart The like though the Contract bore that the Husband should imploy the Tocher for the Wife in Life-rent albeit the Tocher was lost through the Fathers Insolvency June 11. 1670. Margaret Hunter contra Creditors of John Peter The like though the Contract bore that the Wife should have no benefit while the Tocher should be fully payed if the Tocher could be recovered by the Husbands diligence November 21. 1671. Mary Menzies contra John Corbet On the same ground a Contract of Marriage bearing the one half of the Tocher to the Wife failing Children albeit conceived passive and not that the Husband was to pay the same or do diligence therefore yet the Husband was found lyable to pay the half of the Tocher although it was not recovered unless he had done the diligence of a provident man which was found implyed in his Duty and Trust as Husband the Wife being in potestate viri July 14. 1676. Jean Lockhart and Raploch her Spouse contra James Bonar And though Husbands have no communion in the Habiliments and Ornaments of the Wife which cannot be affected for his debt yet she hath her share of the Habiliments of the Husband which falls in his Executry and he is oblieged to pay all Accompts for her Habiliments suitable to her quality But where the Wife had an Alimentary Provision for her Habiliments Ornaments and her other Uses the Husband having furnished them and received that sum was not found lyable to repay the same to her Executours February 2. 1667. Executours of the Lady Piltoun contra Hay of Balhousie Wives have not only a half or third of their Husbands Moveables when they survive but have their Aliment till the next Term after the Husbands
have followed l. cumamplius ff de regulis juris but especially this is confirmed by the Law of God Prov. 6. 1. If thou be surety for a friend if thou hast stricken thy hand with a stranger thou art taken with the words of thy mouth and the performance of words is acknowledged a part of Gods righteousness Nehemiah 9. vers 8. Hebrews 10. vers 23. where it is acknowledged a part of Gods faithfulness And if Promises were not morally oblieging they could have no effect but by Positive Law which is no more it self then a publick Paction laborans eodem morbo and then all Pactions and Agreements among Nations would be ineffectual and all Commerce and Society among men should be destroyed Pactions Contracts Covenants and Agreements are Synonimous Terms both in themselves and according to the recent Customes of this and other Nations so that it will be unnecessar to trace the many subtilties and differences amongst Pactions and Contracts in the Roman Law 11. This much only in a word their Contracts were of four kinds either perfected by Things Words Write or sole consent Contracts by intervention of things remain naked Pactions ineffectual until something be given or done by either party to other such are all these Contracts which are called innominat which have not a special Name and Nature acknowledged in the Law and therefore obliege not by sole consent but the giving or doing of the one party only obliegeth the other as Permutation Excambion or Exchange when either a thing is given for another or a thing is given for a Deed Work or Use or one Deed or Work is done for another for the which the Law hath no special Name and therefore names them do ut des do ut facias facio ut facias Amongst real Contracts the Law numbereth matuum and commodatum for which we have but the one name of Loan Depositation or Custody Pignus or Pledge of which anone Contracts perfected by words are stipulations which being wholly out of use we shall say no more of them then that before is hinted The third kind of Contracts is these which have their force by Write and therefore are called Chyrographa The hand Write or Subscription of the Debitor by which he acknowledges the receipt of so much Money either in borrowing or Tocher and accordingly is oblieged to pay at his day or at the dissolution of the Marriage these Writes for the space of two years after their date and delivery do not prove the recept of the Money as they express but during that time if the Creditor pursue thereupon he must prove the delivery of the Money and the Law presumes that the Write was given spe numerandaepecuniae upon hope of delivery of the Money but after the two years it presumes the Money to be delivered and therefore then the Write is 〈◊〉 and is the cause of the Obligation whether the Money was delivered or not after which the Debitor could not prove the not delivery of the Money even by the Oath of the Creditor l. in contractibus ff de non numerata pecunia but this is also changed with us and with the Neighbour Nations as Baldimius testifieth ad titulum Just. de lit oblig And Boetius de consuetudine tit de jurisdic And Rebuffus ad proximum const Reg. gloss 5. num 59. So now the Custome is that the Write is not the Substance of the Obligation but is only a Probation of the Promise though in some case it be a necessar solemnity till which the parties may resile as hath been formerly showen But the Write being subscribed and delivered proves from its date and is valide unless it be improven yet so as it admitteth contrair Probation by the Creditors Oath or Write though the Write bear the numeration of Money and do expresly renounce the exception of not numerate Money The last kind of Contracts are these which are by sole consent as are the Contracts of Sale Location or Hyring Society and Mandat or Commission but not only now these but all other Promises and Pactions are valide Contracts by sole consent except where Write is requisite as is before expressed and this consent may be either express by Word Write or Fact by doing Deeds importing consent which therefore is called Homologation whereof acceptance of any Right is a special kind and it takes place in many cases but it cannot take place unless it be proven or presumed that the Homologator knew the Right and therefore a Bond drawen in name of several Apprizers to communicate their Rights and subscribed by some found not Homologat by one who subscribed not seing it appeared not that he knew thereof though de facto he concurred in pursuits with these Apprizers to exclude other Rights July 6. 1661. Telfair contra Maxtoun and Cunninghame Neither doth Homologation take place where the Deed done may be attribute to another cause and so possessing Lands whereof there was an Infeftment granted in satisfaction of a Wifes Contract was not inferred where she was appearand Heir to another person Infeft December 12. 1665. Christian Barns contra Helen Young But such an Infeftment was found Homologat by seven years Possession and setting several Tacks as Liferenter though there was a general obliegement to Infeft the Wife in Lands of such a value none being exprest though it was not instructed that the warrand of the Seasing was ever known to the woman and only generally mentioned in the Band but her knowledge was presumed after so many Acts November 14. 1665. Barbara Skein and Mr. David Thores contra Sir Andrew Ramsay Neither was a Debt found Homologate by payment on a Decreet being pronounced by the English Officers before Law was patent July 24. 1661. Jack contra Fiddes Neither doth payment of one Article of a Decret Arbitral Homologate others of a different Nature November 22. 1662. Pringle contra Dune Homologation of a Fathers Legacy as to his Children was inferred by his Relicts Confirming the Testament without Protestation not to aprove that Legacy February 19. 1663. Bessie Muir contra Jean Stirling But where a Relict in the Confirmation Protested not to prejudge her own Right by a provision contained in the Testament in favours of her Daughter it was not found to Homologate the same July 12. 1671. Marjory Murray contra Isobel Murray Homologation of a Fewars Right not inferred by acceptance of two years Duty after declarator of the nullity further then that no more could be demanded for these two years June 6. 1666. Earl of Cassils contra Sir Andrew Agnew Neither did the payment of some years Annualrent Homologat a Decret of Poinding the Ground as being an Act necessary to shun Poinding of the Tennants February 9. 1672. Cockburn of Piltoun contra Halyburtoun and Burnet Neither did a Ministers receiving a Tack Duty of Teinds hinder him to reduce the Tack thereafter as being without consent of the Patron February 27. 1668. Mr. William
which was not signed by the suspender seing the Bond did not obliege the Principal and the Cautioner to perform what should be decerned but only the Cautioner to perform and the Principal to relieve him January 6. 1681. George Home contra Mr. Patrick Home In which case it was only found necessary to discuss the suspender and not the Cautioner in the first suspension Ibidem 91. Cautioners for loosing of Arrestments are not Cautioners for those in whose hands Arrestments are made but for the Debitor whose Goods or Money are Arrested in lieu of the Arrestment and yet they are no further lyable then in so far as was in the hand of the person against whom the Arrestment was used who therefore must be pursued before or with the Cautioner that it may be constitute June 21. 1626. Lord Balmerino contra Lochinvar And it may be constitute against the Cautioners by the Oath of these in whose hands Arrestment was made February 22. 1627. inter eosdem 92. Cautioners are lyable according to the Oath of the principal Debitor which is a sufficient probation against them because their obligation being accessory is lyable to the same Probation with the Principal as is clear from the case last instanced but it is more dubious whether the Cautioners runs all other hazard with the Principal Debitor wherein though the Cautioner of an Executor was not admitted to propone exhausting being proponed by the Executor himself and he failing therein March 4. 1623. Wood contra Executors of Ker. Yet it was found that where exhausting was omitted by the Executor it was admitted for the Cautioner being instantly verified July 9. 1623. Arnot contra Executors of Home and Mastertoun And likewise though the Principal intented Reduction and was holden as confest by his Oath de calumnia yet that was found not to prejudge the Cautioner or to exclude him from insisting in proving that same point January 22. 1629. Carberry contra Kello Whence we may conclude that Collusion or wilful Omission or negligence of the Principal hindereth not the Cautioner but if the Principal proponing any reason of defence used Probation by Witnesses which was not found to prove the same it would not be again admitted to be proven by the Cautioner with these or other Witnesses and therefore a Cautioner was not secluded to prove a defence wherein the Principal succumbed not being intimate to the Cautioner December 11. 1673. Earl of Kinghorn contra Earl Wintoun 93. Cautioners as Law will are liberat if the Cause be Advocat upon incompetency The like of Cautioners judicio sisti March 1. 1626. because the Caution was not warrantably taken being for a Debt only assigned to a Burgess by a stranger yet it will take place in other cases where the Citation was competent and warrantable if the inferiour Judge do not put parties so Arrested in Ward The like 〈◊〉 de saetisdando William Stuart contra Archibald Hutchison For though Advocation be obtained the Cautioner as Law will must sist the Principal when he produces the Advocation who must then remain in Ward as he was before Caution was found till the Cause be 〈◊〉 as was found February 20. 1666. contra Hugh Mcculloch The like found that a Cautioner judicio sisti judicatum solvi was Liberat by putting the party in Prison though not at the calling of the Cause July 10. 1666. Thomson contra 〈◊〉 94. Cautioners may be accessory to Obligations though the Principal 〈◊〉 be not lyable by any Statute or Custome giving him a special priviledge as Minors or Wives cled with Husbands November 28 1623. Shaw contra 〈◊〉 But where the Obligation is in it self null and hath not so much as a natural Obligation if the Principal be free the Cautioner is also free as if the Principal did not at all or did not validly Subscribe Hope fide jussor The like may be said of Obligations by Pupils Fools or Furious Persons whose 〈◊〉 are free with themselves But a Cautioner was found lyable for the whole Sum though the Principal Party subscribed but by one Notar whereby he would be only lyably for an hundred Pounds July 8. 1680. Sophia Johnstoun contra the Laird of Romano And a Cautioner was found lyable though the Debitor having received a Disposition of Moveables from the Principal Creditor in security of his Sum promised not to trouble his Person or Goods reserving power to distress the Cautioner July 12. 1680. Leitch of Monsie contra Mr. Andrew Hedderwick As to the other question Whether Cautioners be lyable insolidum unless they be expresly bound conjunctly and severally If they become Cautioners at diverse times without relation one to the other there is no doubt but as they oblieged themselves so are they lyable all insolidum but when they obliege together or with relation to one another the nature of the Deed importeth no more then Surety so that each is lyable for what is wanting by the Principal and what is wanting by the other Cautioners but this holds even when parties are bound not only as Cautioners for but as Principals with the Debitor for then they are lyable only pro rata unless they be bound conjunctly and severally or when the matter of the obligation is an indivisible Fact Cautioners ordinarily have no Action against the principal Debitor till they be distrest unless the Clause or Band of relief bear to free relieve and skaithless keep them yet where an Executour was becoming poor the Cautioner pursuing him to relieve him or find Caution was thought by the Lords to have interest so to do January 19. 1627. Adam Thomson contra Lewis Moor. If a Cautioner pay without intimation to the principal Debitor in due time before Litiscontestation it is on his peril and the Principal is not oblieged to relieve him if he had a competent Defence that would have excluded the Debitor Decemb. 19. 1632. Maxwel of Gribtoun contra Earl of Nithisdale Cautioners getting Assignation from the Creditor whether they insist in the Creditors name or their own as his Assigneys are oblieged to allow their own part July 8. 1664. Nisbet contra Leslie in this cause there was a Clause of mutual relief amongst the Cautioners Co-principals bound conjunctly and severally are mutually as Cautioners for their shares and are lyable to relieve other though there were no express clause of relief which hold also in cocautioners though there were no clause of mutual relief amongst the Cautioners June 19. 1662. Wallace contra Forbes Co-cautioners were found lyable for relief ex natura rei without an express clause of relief January 27. 1675. Monteeth contra Rodger Cautioners having payed if they seek their relief from the other Cautioners any ease they get on special favour to themselves hinders not to obtain of the rest their full proportion but if they get ease by transaction or upon account of question of the debt they can ask no more then what they truly gave out allowing their own share as was
which there have been Decisions upon both parts wherein the Reconciliation may be that if the seven years possession entered not by order of Law or by consent of these who were then possessors but entered in the void possession or obtained the Rents from the Tennents of consent such possession was vicious because the former possessor continued to possess animo but if the former possessor had long forborn to possess before the seven years or that the subsequent possessor entered by authority of Law or consent of the former possessor there is no reason to make difference whether his Competitor was in possession before or not 83. Charter and Seasine are sufficient both for pursute and defence where there is not another Infeftment that comes in competition But when two Infeftments of the same subject compete if neither have had seven years lawful and peaceable possession then the point of Right comes to be debated without Reduction and either party must propone their alledgeances upon their Authors Rights in the same way as in Declarators of Right and whatsoever points are found relevant for either party or where the Rights alledged on are ordained to be produced before the relevancy be discust terms will be assigned to either party and they will get incident diligences by Exhibition against their Authors to produce and ordinary diligences for producing their own or their predecessors Rights and whatever the event be either party will be secure as to the by-gone Fruits consumed bona fide The effect of Infeftments in the point of Right is that by the first perfected Infeftment with the several requisites aforesaid granted by him who had power the Property is established and the Proprietar will be preferred at least in petitorio to all posterior Rights but if the granter have no power as not being validly insest himself or being impeded by Inhibition or Interdiction or by anterior diligence making the matter litigious he cannot validly confer a Right Concerning Interdictions we have spoken before Tit. 6. Litigiousness falleth in amongst the effects of legal diligence But it will be proper here to speak of Inhibitions seing the effect thereof reacheth only as to heretable Rights and cometh not so properly elsewhere under consideration 84. Inhibition is by Letters under the Signet prohibiting the party inhibite to dilapidate or dispone any of his Lands Heretages c. Which is understood till the cause for which the Letters were direct mentioned therein be satisfied It proceedeth summarily upon Supplication and production of any ground thereof whether Obligation or Process and though it pass of course yet sometimes is refused as to a Wife upon the Contract against her Husband Jan. 11. 1625. Hamiltoun Supplicant And to an appearand Heir against his Father upon his Fathers Contract of Marriage whereby it was provided that his Father should be interdicted to certain persons then dead January 16. 1622. Silvertoun-hill Supplicant but being past of course against an appearand Heir it was found valid because he was entered before the debate thereupon July 5. 1623. Kirkwood contra Belshes It was refused upon the warrandice of a Discharge from the dischargers fact and deed only unless the Supplicant show a particular hazard February 4. 1623. Patrick Forbes contra William Dick. The effect of Inhibitions reacheth only deeds done by the Persons inhibite after the Inhibition and doth not reach any deeds done thereafter by his Heirs and Successors but these must be of new Inhibite Hope Inhibition John Pirycon Secondly it hath no effect against moveables albeit growing upon the Ground the time of the Execution of the Inhibition though the Style thereof bear not to dilapidat Lunds Heretages Goods or Geir March 22. 1623. Laird of Braico contra Ogilvie Hope Inhibition Aikin contra Anderson yet it will reduce a moveable Bond in so far as it is the ground of an Appryzing but prejudice of personal Execution or against moveables July 2. 1630. Dowglas contra Johnstoun But it may proceed upon a moveable Bond Ibid. July 2. 1625. Porteous contra Elliot where reduction was sustained to the effect Appryzing may proceed upon the moveable Bond though no Appryzing or other real right had then followed upon the said Bond. Inhibition is only effectual against posterior voluntary rights granted by the person Inhibite but not against Appryzings Adjudications and Infeftments thereupon though posterior to the Inhibition if they procced upon a debt prior to the Inhibition yea though the date of a Disposition was prior to the Inhibition yet the same being granted to the Purchaser for himself and to the behove of others That Clause being filled up with another hand was presumed to be filled up after the Inhibition unless the contrary were proven to have been filled up before the Inhibition by Witnesses above exception Jan. 15. 1672. Lady Lucia Hamiltoun contra the Creditors of Monkcastle Neither will it be effectual against an Infeftment after the Inhibition proceeding upon a Disposition prior thereto or upon an obliegement to grant such an Insestment being prior to the Inhibition Hope Inhibition Patrick Stirling contra Tennents of Lethendy Here the posterior Infeftment was of the property and the prior obliegement was to grant an Annualrent which was to exceed the value of the property But where the prior debt bore an obliegement to Infeft in an Annualrent generally out of the debitors Lands the disposition of the property was reduced as posterior though upon a debt prior Jan. 21. 1629. Scot contra Turnbul And an Inhibition was found not effectual against a postenor Infeftment though it proceeded upon a prior Bond meerly personal and bore no obliegement to Infeft Hope Inhibition Laird of Tillibairn contra Laird of Clunic Inhibition was not found effectual against Dispositions posterior proceeding upon Bonds prior bearing obliegements to Infeft generally or particularly July 22. 1675. Sir George Gordoun con Seaton Feb. 6. 1635 Ross con William Dick. But Inhibitions extend not to posterior Renunciations of Wodsets which are deeds necessary upon payment though the Style of the Inhibition bore renunciation July 16. 1667. Mr. John Elleis con Keith whereby Creditors were much prejudged for remeid whereof the Lords by Act of Sederunt of the 19. of Feb. 1680. did declare that Creditors using 〈◊〉 against their Debitors Infeft in Wodset or Annualrent if they shall make intintation by Instrument of a Nottar to the persons who have right to the Reversions of the saids Wodsetts or Annualrents That the Wodsetter or Annualrenter stands Inhibit at their Instance and shall produce in presence of the party and Nottar the Inhibition duly Registrate that they will not sustain Renunciations or grants of Redemption although upon true payment not being made bona fide but after Intimation as aforesaid unless the Redemption proceed by Process whereunto the user of the Inhibition must be called Inhibitions must be execute by Messengers as the Style thereof bears against the person Inhibite personally or at his Dwelling-place and
hereafter Teinds also must come in as Servitudes though they are accounted a distinct Right 1. The Roman Law divideth personal Servitudes into Usufruct Use and Habitation Usufruct is the power of disposal of the use and fruits saving the Substance of the thing which if it be restrained to these persons and their proper use without making profite or disponing to others it is called the use and because of some special Consideration in the Law of that use of Houses Habitation is a distinct Servitude from other uses 2. All Servitudes with us come under some of the kinds before named Personal Servitudes are either constitute by the deeds of men or by the Law which provideth a competent portion to either of the surviving Spouses out of the Lands and Tenements of the other during the Survivers Life as if the Wife survive she hath the third of her Husbands Tenements and if the Husband survive he hath the Liferent of the Wifes whole Tenements and that provisione legis alone But other Liferents constitute for surviving Spouses or otherways are provisione hominis So may the Terce or Liferent by Courtesie be provided and some things altered from the course of Law but oftner Liferents are constitute by Conjunctfee and most ordinarly otherways which therefore retain the common name of Liferents appropriat thereto and distinct from Conjunctfees 3. Liferents are sometimes provided particularly and sometimes generally for the whole or such a share of the Conquest during the Marriage which though not fulfilled by the Husband in his Life is effectual against his Heirs and is not accounted a fraudulent provision though it be the whole Conquest even amongst Merchants yea it was found effectual for recovering the rents of the Conquest Lands without Infeftment against the Husbands Heir in the case of the Relict of Johnstoun Merchant in Glasgow And where a Husband purchased Lands in favours of his eldest Son being then an Infant and not to himself yet his Relict was found to have Right to her Liferent thereof as being a fraudulent deed in prejudice of the obliegement of Conquest July 3. 1627. Countess of Dumfermling contra the Earl of Dumfermling her Son But these provisions of Conquest do not hinder the Husband acquirer to denude himself wlthout Fraud for any onerous or just cause as selling for a price or disponing to Children whether it be the appearand Heir by ordinary Terms of Contracts of Marriage to younger Children or to Wives of subsequent Marriages June 16. 1676. Katharin Mitchel contra the Children of Thomas Litlejohn And such a Clause being of all sums acquired during a second Marriage was found to annul an universal Legacie to the eldest Son of the first Marriage but not to annul competent provisions to the Bairns of the first Marriage June 19. 1677. Murrays contra Murrays The like January 3. 1679. Mr. Alexander Gibson contra Elizabeth Thomson Yea a Clause providing the present Stock and all the Conquest to the Bairns of the Marriage whilks failing the one half to the mans Heirs the other to the wifes Heirs was found to make the man Fiar and not to hinder him to provide his whole means which were very great to his Bairns of a subsequent Marriage there being no Bairns surviving of the former marriage December 1. and 21. 1680. Alexander Anderson contra Andrew Bruce But as to such Clauses Conquest is only understood where the Husband acquired more then he had the time of the Clause but not when he sold some Lands and acquired others of no greater value June 27. 1676. Earl of Dumfermling contra Earl of Callender yea a Clause of Conquest in a Wifes Contract of Marriage who was otherways sufficiently provided was found to be with the burden of the Annualrent of a sum which the Husband declared under his hand to be a part of the price of the Lands acquired remaining due to the seller Decem. 20. 1665. Lady Kilbocho contra Laird of Kilbocho 4. This is common to all kinds of Liferents and involved in the nature thereof that they must be salva rei substantia which by Statute is especially extended to Conjunctfiars and Liferenters that they must be countable and find surety not to wast or destroy the Biggings Orchards Woods Stanks Parks Meadows or Dovecoats but that they hold them in such like kind as they receive them Par. 1491. cap. 25. which is confirmed and declared to proceed upon twenty one days by Sheriffs Bailies of Burghs or Regalities under pain of Confiscation of the Liferent-right to the Kings use Parliament 1535. cap. 14. And though the Narrative of the Statute expresseth Conjunctfiars and Liferenters giving Caution as being most ordinary by provision of men yet the Statutory part is general at least may be extended to Terces and Liferents by the Courtesie So a Liferenter was Charged Summarly to uphold the 〈◊〉 Liferented and to leave it in as good case as she found it without precognition how it was the time of her Entry March 28. 1626. George Foulis contra Isobel Allan By Act of Parl. 1594. cap. 226. Anent ruinous Tenements within Burgh which being cognosced by an In quest to be ruinous as become or which may become within a short time uninhabitable the same must be repaired by the Liferenter or the Fiar may enter in Possession finding Caution within the Burgh to pay the Liferenter the Mail thereof as the samine gave or might give the time of the precognition but this Act was not found to derogat from the former Acts nor that Precognition was requisit before finding Caution except in Tenements within Burgh decayed before the Liferenters entry as was found in the foresaid case George Foulis contra Isobel Allan Neither was the Liferenter freed from Caution upon her offer to quite the Possession to the Heretor for paying of the Rent the Tenement not being ruinous at her Entry 5. It is also common to Liferents and Conjunctfees that the Liferent-right is lyable with the Superiour of Ward-lands or his Donatar for an Aliment to the Heir to be modified by the Lords proportionally according to the quantity of the Land in Ward and Liferent by the said Statute 1491. cap. 23. Vide Tit. Heirs § 3. 6. Liferents are either Constitute by way of Reservation in Infeftments of Property or otherways by a several Infeftment but it cannot become a real Right and be effectual against singular Successours without Infeftment though most Servitudes may be Constitute by Disposition and Possession 7. Yea though Liferents being Constitute by Infeftment may be conveyed by Assignation because there can be no subaltern or renewed Infeftment of a Liferent which is only personal to the Liferenter and the Right is incommunicable yet the Fruits and Profits arising thence are communicable and assignable 8. It is also common to Liferents that nothing done after their Infeftment by the Constituent or his singular Successor can prejudge the Liferenter And so an Appryzer from the Husband was
the Neices name seing he filled it not up till the granters Sicknesse July 22. 1678. Birnies contra Polmais and Brouns But Death-bed was not found to hinder the recalling of a Disposition made by a Grand-father to his Oye and delivered to a third Party in Leige poustie if it should appear that the delivery was not Simply to the behove of the Oye whereby it became Irrevocable but Conditionally that the Disponer might recal it for eviden ce whereof it was proven by that third Parties Oath That the Defunct on Death-bed called for it and he delivered it and that the Defunct on Death-bed delivered two Blanks for dividing the Right in the first Disposition which he delivered with his said first Disposition to a Nottar And ordered the filling up of the one half to the Heir the other half to a second Son but for further clearing the Partie to whom the first Disposition was first delivered was appointed to be examined what the Defunct exprest when he delivered the first Disposition to him Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter the third Partie not being found to be examined The Lords found that there being nothing proven exprest at the delivery The recalling and the re-delivery did import that the delivery was not Simple to the behove of the Oye making it Irrevocable But that it was Conditional to be delivered to the Oye if the Disponer did not recall it and that his recalling of it for a special effect to divide the same betwixt his Heir and the second Son was effectual both against his Oye to whom he first Disponed and as effectual against his Heir as to the one half albeit the Revocation was onDeath-bed Seing thereby the Heir had no prejudice but benefit being formerly Excluded by the Disposition to the Oye delivered in Liege Poustie January 25. 1677. inter eosdem 30. But onlyFree deeds onDeath-bed are thusReduceable for if there were an equivalent Cause Onerous which was truly Imploy'd upon the Defunct or might affect the Heir it is not to the Heirs Prejudice and so not Reduceable thus the Reason of Death-bed was eleided because the Band quareled was offered to be proven for Furnishing truly Delivered to the Defunct July 13. 1632. Pollock contra Fairholme The like of a Discharge granted by a Bastard after he was Infected of the Plague against the Donatar of the Bastardry November 23. 1609. Marr contra Auchinleck In all these Witnesses are Sustained to prove the Cause Onerous in the write And likewise a Band granted on Death-bed being proven for a Cause Onerous in part viz. Droggs and Service to the Defunct on his Death-bed was sustained pro tanto and Reduced for the rest January 7. 1624. Schaw contra Gray But a Liferent granted to a Wife on Death-bed and a Liferent-Tack of Teinds of the Lands Liferented were not reduced Hope Teinds Lady Dunlap contra Laird Dunlap The reason whereof is observed to have been because the Husband before Sickness was bound to Infeft his Wife in Lands or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem 31. AsDeeds on Death-bed prejudge not the Heir So deeds in Testaments though done in Leige Poustie have no more Effect then on Death-bed And it is not habilis modus by Testament to dispone any Heritable Right December 14. 1664. Colvin contra Colvin Death-bed is not competent by Exception but by Reduction January 11. 1666. Grizell Seatown contra Dundas But in Declaratorie or Petitory Actions as Recognition it is receivable by Exception July 20. 1669. Barcley contra Barcley Or in a Reduction it is competent by Exception or Reply February 3. 1672. Barbara Hoom contra Bryson A third difference is that Successors in Moveables or Executors are not lyable Passive for the Defuncts Debts in Solidum but Heirs are Though they farr exceed the Value of the Inheritance without the benefit of an Inventar And though Craigs Opinion is that Heirs may Renounce even after their Entry if the Heritage appear overburdened The course of Decision since his time hath cleared the Contrary 32. Because Heirs entring cannot Renounce there is Annus deliberandi allowed to them by Law in which they may abstain from entering and Immixing themselves with the Heritage and then they are not conveenable for the Defuncts debt upon charges to enter Heir or otherwise but if they enter or meddle sooner they are lyable This Annus deliberandi is ordinarily accounted a year from the Defuncts Death which was so accounted though during a great part thereof the Heir remained unborn February 7. 1610. Knows contra Menzies But the Contrary was found thereafter that the year was accounted from the Birth of the Posthumus Heir that the benefit of Deliberation might be profitable to his Tutor in his Name Spots Heirs Livingstown contra Fullertown If the Day of Compearance be after the Charge to enter Heir and after the year it will be Susrained June 27. 1667. Dewar contra Paterson In which case it was found that even Actions Real as Reductions 〈◊〉 c. which require no Charge to enter Heir are not Competent within the year of Deliberation because in these the Heir cannot Defend without the Hazard of behaving as Heir 33. Succession in Heritable Rights in Scotland are either by the will of the Fiar or by Law Provistone Hominis or Legis Heirs by the 〈◊〉 of Law are called Heirs of Line as befalling by the Line of Succession appointed and known in Law all other Heirs do Cross or Cut that Line and therefore are called Heirs of Tailzie from the French word 〈◊〉 to Cut whence Craig conceiveth this Tailzied Succession hath been first denominat amongst the French and Normands and thence being brought into England by the Normand Conquest both in Custom and Name hath been Derived to Us Yet it is liker to have come to us Immediatly from France with which we keeped greater Intercourse then with England of Old And our Tailzies at least to Heirs Male are Ancienter than the English which begun but from the Famous Law called the Second Statute of Westminster in the Reign of Edward the First of that Name of the Normand Line Heirs of Tailzie are also called Heirs of Provision which terms are Equiparat both comprehending all Heirs which are not according to the Line or Course of Law and among others Heirs Male and Heirs of Marriage Yet our Stile doth ordinarily distinguish them so that where there is no alteration from the Lineall Heirs Male and where there are severall Substitutions of certain Persons or Lines failling others by the tenor of the Infeftment they are Specially called Heirs of Tailzie but when there is an Alteration of the Lineal Succession yet not Simply to Heirs Male nor to divers Members of Tailzie they retain the common Name of Heirs of Provision as is most ordinar by Contracts of Marriage providing Lands to the Heirs of the Marriage whereby the Heirs Lawfully Procreat betwixt the
Husband was found Feer and therefore the Creditor apprising excluded the Wife and her heirs January 29. 1639. graham contra Park and Jarden And a Bond providing a Sum to a Man and his Wife in Conjunctfee and the Bairns procreat betwixt them which failing to two Bairns of a former Marriage nominatim containing a Precept for infefting the Spouse and the two Bairns named whereupon all the four were infeft yet the Father was found Feer and all the Bairns of the Family Male and Female equally were found heirs of Provision and the two Bairns named were found Heirs substitute failing the Bairns of the Marriage January 14. 1663. Thomas Beg contra Sir Thomas Nicolson And a Bond bearing a Sum borrowed from and payable to Man and Wife and longest liver of them two in Conjunctfee and to the heirs betwixt them and their Assignys Which failing to the Heirs and Assignys of the last liver found to constitute the Husband Feer and the Wife Liferenter albeit she was last liver and that her heirs of Line were found heirs of Provision to the Husband January 2. 1668. John Justice contra Mary Barclay his Mother A Tocher provided to the Husband and Wife the longest liver in Conjunctfee and Liferent and to their Bairns in Fee was found to make the Husband Feer and that the Father might alter the Substitution December 12. 1665. Mr. John Pearson contra Martine And generally in all Infeftments in Conjunctsee betwixt Man and Wife the Husband is always interpret to be Feer and the Wife Liferenter albeit the last Termination be the Wifes heirs who are heirs of Provision to the Husband unless the Right flow from the Wife originally as if she should resign her Lands in favour of her Husband and her self in Conjunctfee and the heirs of the Marriage which failing her heirs or if the Right did flow from the Wifes Father by a gratuitous Deed. But by the Contract of Marriage a Father oblieged himself to infeft the Husband Contracter and his Daughter in Conjunctfee and Liferent and the heirs betwixt them which failing the Daughters heirs and Assignys whatsoever And by the same Contract the Husband was obliged to provide all Lands that she should acquire or succed to to himself and Wife the longest liver of them two in Conjunctfee and to the heirs betwixt them which failing the one half to the Husband's heirs and the other to the Wifes heirs and their Assignys By both these Clauses the Husband was found to be Feer and the Wife Liferenter albeit the Tenement disponed by the Father was not nomine dotis yet there was no other Tocher July 2. 1671. Adam Gairns contra Isabel Sandilands Yet a Clause in a Minute of a Contract of Marriage obliging the Husband to infeft his Wife in Conjunctfee and Liferent in such a Barony named and obliging him and his Heirs and Assignys that all and whatsoever Lands or Sums of Money should be purchased by him during the Marriage that Security should be made in Liferent thereof as of theforesaid Barony to his future Spouse in case of no Issue of Children the one half of the said Conquest to be disponed upon as the Wife shall think fit the Conquest was found to be equally to the Husband and Wife and that she was Liferenter of the whole and Feer of the half in respect the Minute did not bear whose heirs should succeed and that the Conquest was all to be expected by the Wifes Means therefore she being Conjunctfeer that the one half of the Conquest should be disponed as she pleased she was found Feer of that half as not being a Faculty but a Power of Disposal importing Property June 27. 1676. Earl of Dumferling contra Earl of Callendar 52. There do many questions arise as to the Succession of Heirs of Provision by Clauses of Conquest in Contracts of Marriage The main question is what is accounted Conquest Whether that which is acquired and thereafter disponed be accounted Conquest either as to the Wife or to the Heirs or Bairns of the Marriage As to which it hath been shown before that such Provisions infer not only a Succession to the Heirs or Bairns of the Marriage as Heirs of Provision but thereby the Wife or Heir and Bairn of the Marriage have an interest as Creditors that the Husband or Father cannot ad arbitrium do Deeds prejudicial to that which is once acquired but the Husband is not thereby bound up from disponing to Strangers for causes onerous or to other Wives or Children for competent Provisions But he may not otherways intervert the design of those Provisions by taking the Rights to Wives or Children of another Marriage unlesse he have not means aliunde to provide them And therefore the Husband being oblieged to take all Sums acquired during the Marriage to to himself and his Wife inConjunct-fee having taken a Sum acquired during the Marriage in the name of his second Son his Relict was found to have Right to the Annualrent thereof July 16. 1625. Knox contra Brown The like where the Bonds were taken originally in the name of the Bairns leaving out the Wife March 14. Graham contra Representatives of her Husband But Clauses of Conquest of all Lands acquired during the Marriage do not extend to Lands acquired and disponed during the Marriage Yea Conquest of Lands was extended where there was Disposition without Infeftment with a burthen of a part of the Price upon the Disponer January 24 1629. Lady Rentoun contra Laird of Rentoun Spotswood Husband Countess of Dumfermling contra Earl of Dumfermling And where the Clause of Conquest bare Lands or Annualrents the same were extended to Bonds bearing Annualrent though without clause of Infeftment Feb. 20 1629. Douglas contra White And these Clauses are interpret strictly according to the tenor thereof for sometimes they only bear Lands Conquest sometimes Lands or Annualrents sometimes Lands Annualrents or Sums of Mony and sometimes also Goods or Geer in which case the Executors will be obliged to imploy moveable Goods and Sums for the Wife in Liferent and for the Bairns and Heirs of the Marriage in Fee These Clauses of Conquest do never extend to any thing whereunto the Husband succ eds as Heir or Executor unless Succession be exprest A clause of Conquest oblieging the Husband to take all Lands Annualrents and Sums conquest during the Marriage to himself and the Heirs and Bairns of the Marriage one or moe found to constitute all the Bairns of the Marriage Male and Female Heirs Portioners and that it was not alternative that the Husband might either take the Conquest to himself and the Heirs of the Marriage or to himself and Bairns of the Marriage at his option And therefore having taken a considerable Sum in favour of himself and the Heir of the Marriage who was his only Son yet after his Death his four Daughters of that Marriage obtained Decreet against their Brother to denude himself of their Shares