of which he could have payed his Debts viz 24. Chalders of Victual yearly as a part of the Pursuers Joynture which in the debate is acknowledged to have been allocat for the Defuncts free disposal at his pleasure Suppose then that the Defunct had consumed his Sallaries and Pensions upon the charges and expenses of his Family or upon other reasonable and creditable occasions as it is acknowledged he might have done freely and unaccountably and that he were Lucratus by applying the saids 24. Chalders of Victual for the payment of his Debt he could not be said to be Lucratus by sums of Money but only by Bolls of Victual for which by the clause he is not accountable and if the Pursuer will assert that he is Lucratus by sums of Money Asserenti incumbit probatio And farther he had other subjects out of which payments might be made viz. The Lands of Collingtoun which were stocked as also he sold 100000. Merks worth of Lands and there is nothing more ordinary than for overburdened Heritours to obtaine great eases when they have ready money to pay whereby the said 100000. Merks may have payed 100000 pounds of debt So that my Lady cannot be exonered upon a presumptive but must adduce a positive probation that my Lord was Lucratus by sums of Money 4 The Pursuer must not only prove that the Defunct was once Lucratus by payment of his Debt but that the said Lucrum did remaine with him till the dissolution of the Marriage 〈…〉 purging any of the Debts did upon a just and reasonable cause dispose of his releived Lands to his eldest Son by Contract of Marriage as is alledg'd the Pursuer cannot claim any interest in that purchass But it appears evidently by the Contract that the Defender was then designed to suceced to his Father in these Lands in so far as the very Clause upon which the Pursuer founds her conquesce to be provided to her in lyfrent and the Bairns of the Marriage in fee which failing to the Defuncts other Heirs appointed to succeed him in his other Lands and Estate whereby it appears that as the Defender was the lineal Legal Successor of his Father the Pursuer did not then envy his succession to the Estate of Collingtoun which by her own clause of Conquesce is designed his other Lands and Estate so that the Lands of Collingtoun can never be reckoned Conquesce nor can the Pursuer quarel the convoying the right therof to the Defender seing by her own Contract it is declared that his present Lands and Estate not contracted was designed to descend to his Lineal Heirs which could not be unless it had been also Lawful to purge the same of Debts being then burdened above the value and as it was arbitrary to the Defunct not to have made any Purchase so he might justly dispose of it But that the Lords may be satisfyed how Calumnious and groundless this great noise of Purchase is they would be informed that the Defender being Married in Anno. 1670. Within a few years after the Contract it was not possible the Defunct could make any purchase before the Defenders Marriage Because all the Subject of his Estate was my Ladies Joynture of 36. Chalders of Victual 200 pounds Sterling of Sallary and the Lands of Collingtoun not then exceeding 3000 Merks out of this he had all the necessary charges of his Family Servants Coach and Horses to lay out and the Defender to intertain in his travels and the Annual-rent of his weighty debt to pay after which deductions there will remaine no place for Conquesce And after the Defender was Married he lived in that intire Confidence with his Father that all the portion he received which was known to be 〈…〉 by his Father to him was as much possest and enjoyed by his Father as by himselfe never having heard of this pretence of Conquesce and looking upon his Fathers interest and his own as the same many sums affecting the Estate were payed by him without so much as mention from whom the money was received and there were no Assignations taken to any Debt but alwayes Renounciations and Discharges so that if this Covetous pretence should hold foot my Lady should lyfrent the Defenders portion which was four times greater then the Conquesce it being impossible to distinguish the one from the other In respect whereof the Lords are humbly intreated to give distinct interloquitors upon the several grounds abovementioned and particularly 1 Anent the Extent and Import of the clause of Conquesce 2 Anent the Import of the second clause if it does relate to sums due or falling due after rhe Marriage 3 If the same could be of any greater force than a clause of Conquesce tho' it did relate to sums due after the Marriage 4 If by such a construction the second clause would not be equivalent to a Renounciation of the Jus mariti as to these sums in favours of the Wife and if such a Renounciation can consist with Law and former Decisions 5 If the Pursuers probation of the payment of Debts and the receiving of sums of Money could infer a sufficient evidente that these Debts were payed by the sums of Money seing there were other Subjects out of which the Debts might have been payed 6 If the Defunct can be reckoned Lucratus seing he did not Die in the fee of these Lands releived but was denuded thereof upon a most just and rational account sine fraude which are all distinct grounds separatly proponed A List of the Decisions related to in the Lord Collingtoun's Information against the Lady Castle-haven THat the Husband hath the absolute Administration and Managment of all Rents Annual-rents and other Moveables belonging to his Wife during the Marriage notwithstanding any Renounciation of his Jus Mariti thereto in Favours of the Wife is evident from these following Decisions viz. 9 February 1667. Lady Collingtoun contra Lord Collingtoun The Lords found that the Clause in my Lord Collingtoun's Contract renouncing his jus mariti in favours of his Lady did not debar my Lord from the management and administration of the Rents destinate for maintenance of the Family and that albeit the administration and management had been expresly renounced by him in the said Contract The said renounciation had been contra bonos more 's and so void and null in Law and that the Husbands administration being the Inherent Right and Priviledge of the Husband as such was absolute and unaccountable and could not be renounced in favours of the Wife 13 July 1678. Nicolson contra Inglis The Lords found that a Wife having in her Contract of Marriage reserved a Power to dispose upon her Liferent without the Husbands consent and the Husband having renounced his jus mariti to what was so reserved The said renounciatidid recurre and accress to the Husband himself by the Marriage and after Decease of the Husband allowed Compensation to the Heirs of
also found That the Earl having first acquired a profitable Tack of the same Lands during the Marriage and afterwards baving acquired the property the Ladies Lyferent of the Lands extended no farther than to the Tack-Duty contained in the Tack first acquired On this ground that the Lady was not provided to the Lyferent of Tacks albeit it might have seemed that the Tack was extinguished by the Property But still the Lords do restrict these Clauses as much as they can bear As to the Fifth Pretending to Answer the Decisions adduced it is answered That the Decisions in case of Heirs of Conquesce do by much more strong reason cut off the conclusion of this Pursuers process For Heirs of Conquesce are more favourable in relation to Conquesce than Relicts as was expresly found in the Case of the Lady Kilbocho against the Laird and Lady Rentoune against the Laird where Lands Conquest were burdened with annual-annual-rents of a part of the price resting albeit in both the Lords declared they would have found otherwise in the Case of Heirs of Conquesce so that Heirs of Conquesce being more favourable than Relicts what ever doth exclude their Interest in Conquesce must much more exclude the Relicts Interest and the pretence that Heirs of Conquesce do represent the Defunct whereas Relicts are Creditors is of no moment because in competition with Creditors they are considered as Heirs but in respect of the Heirs of Lyne which is the Case of all the Decisions they are most favourable Creditors To the Sixth Founding upon the last Clause of the Contract anent sums due during the Marriage alledged to be insert for a farther Security than the common Clause of Conquesce which varies this Case from all these beside it It is answered The Defender hopes he has already sufficiently cleared that by the construction of the words in the Contract nothing is comprehended that fell due after the Marriage Et separatim it is hoped that the Reasons already adduced why the import of that Clause as the Pursuer would have it signifies no more than a common Clause of Conquesce and consequently must be subject to the saids burdens and be concluded with the same Decisions and the force of what hath been said is the more evident that the Pursuer found her self obliged to recede from the first conclusion of the Summonds for Imploying all sums due and received without exception and did restrict the same to the sums imployed for the Payment of Debt and in quantum Lucratus whereby it is evident that Law does not sustain such an Obligment to imploy All sums received in the full Latitude of the Clause And if it cannot be effectual as it stands in the Style of words we must then consider what is the Cause why Law restricts the effect of such Obligments and we shall find the Cause to be the same why Law restricts the effect of Conquesce as being against the Interest and meaning of Parties the rights of Property and Commerce and that such Clauses are only Destinations Again if we consider the Syle of both Clauses Clauses of Conquesce are as peremptor to imploy all sums Conquesced as this is alledged to be for sums during the Marriage And seing the last Clause cannot be effectual in the full Latitude more than the first what other estimate can be made thereof than the known Marches and Land Marks by which the Lords have bounded the effect of Conquesce And as clauses of Conquesce do easily run in relation to sums purchased and acquired so suppose a clause of Conquesce should run in these Terms All sums Purchased Acquired and received during the Marriage can it be supposed that the word Received should make an alteration in the Case or are not sums Acquired during the Marriage Purchased And are not sums Purchased Received during the Marriage So the terms being Convertible they cannot vary the Decision 2. Et separatim tho' it had been the express meaning of Parties to have obliged the Deâ—â—nâ—â— to 〈…〉 to be Received by him yet such an Obligation could not have been effectual in Law Because a Husband by his Jus Mariti hath right to all moveable sums falling under Communion of Goods And farther his right thereto is unaccountable and the Jus mariti of an Husband it is so fixed and insured by Law that inhaerit Ossibus and cannot possibly be renounced in favours of the Wife by any deed of the Husbands directly nor indirectly Whereas by this clause as it is interpreted the Husband should be effectually denuded of his Jus mariti in favours of his Wife in so far as he would thereby be accountable to his Wife for her lyfrent-use for his intromission with moveable sums which in Law do belong to him unaccountably And as it is not controverted that the Jus Mariti doth imply an unaccountable right in the Person of the Husband so it hath been found on most Just grounds that this right is incommunicable to the Wife in the case of the Lady Pilton against Hay of Balhousie 2d February 1667. Where a bond of 1000. Merks yearly being granted to a Wife to be disposed of as she pleased secluding the Husbands Jus Mariti The Lords found that payment made to the Husband without the Wifs consent did exoner the Debitor and exclude the Wifs executors Which clears that a right could not be so qualified but that it behoved to be Simply transmitted to the Husband or null But for farther evidence that even the deed of the Husband himself cannot divest him of his Right It was sound 13 July 1678 that a Husband having renounced his Jus mariti to a part of his Wifes Joynture in favours of his Wyfe the right thereof did return to the Husband albeit he suffered his Wife to possess the renunced Lands all her life time yet the extant product of these Lands did belong to him and that he himself could not be excluded by the personal objection of his own Renounciation The like was found in the case of Hamilton against the Lady Carberry And if the Husband could not by a Direct deed renounce the unaccounntable management much less can he do it by a general and separate Clause which would in consequence import a renounciation thereof to his Wife for the Jus mariti consists not only in the Management but it must be unaccountable 3 Et Separatim the Defender cannot be lyable In quantum Lucratus upon this Clause tho' it could be effectual in Law unless it were subsumed and offered to be proven that he was Lucratus by applying sums of money received during the Marriage to the payment of his Debts For albeit it were instructed that the Defunct did receive considerable sums of Money and also that he payed considerable sums due by him yet that could not infer that these debts were payed by sums of Money received during the Marriage seing the Defunct had another Subject than Sums of Money out
Marriage Though this be expresly contrary to the Tenour and Faith of the second Contract by which he is expresly bound to Employ all Sums he should Acquire so as your Petitioner might Life-rent them But least the Iniquity designed should not be cleare enough since no clause in the Contract could prejudge his Creditors or hinder them to affect these new Acquired Sums The saids Lords by another Clause declared that if he Employed his Money to pay his Debt and so to relieve Lands formerly morgaged by him to Creditors yet that your Petitioner by no means could pretend to the Rent of these Lands so redeemed by the Money which by the Faith of the Contract was destinate for your Petitioner by which strange Sentence all Faith of Contracts is violated and Law which should protect Widdows is wrested to their Ruine and Fraud and indirect Dealings is not only Encouraged but owned to be the Design of the Law for whatever might be pretended for employing the Money acquired during the Marriage for releiving his morgadged Estate yet what can colour the Fraud and Iniquitie of employing it so contrary to the Tenour and express Faith of the Contract and the Equity of the Conveyance as to force the profite of that Money to descend on the Lord Collingtoun's Son in Defraud of his Wife by whom he profited considerably and Consequently was as onerous and Just a Creditor as he had or could have This being so clearly to Impugne Law Equity Justice and Honesty that none who knew the late Lord Collingtoun thinks he designed so foul a Fraud nor could ever such an Interpretation of this Contract fall under the Prospect of so Honest a Man Albeit your Petitioners Lawyers did fully Redargue all these Quibbles which my Opposites Propond and that all Lawyers who were not Blinded with Personal concern doe look on this Sentence alike opposite to Law as to Equity and the Interest of Mankind Yet no Address to the greatest part of these Judges would procure Redress or Delay to your Petitioner whereupon I was permitted though with Difficulty to appeal to His Majesty and his Parliament as the last Result and great Sanctuary of the Injured and Opprest That your Grace and Lordships who sits in the highest Capacity of Law should have Occasion to Vindicate the Kings Laws from the staine of being a covering for Fraud on Subtil or Wrested Notions And to shew the Nation that Faith Truth and Honesty are what Law is appointed to Sustaine and to let the People find the Judgement of the Nation can discern Equity from Fraud and is the best and last Refuge to the Injured Your Petitioners Appeal in this Matter being given in the 31 January last it could not procure so much as Delay but Decreet was given out MAY IT THEREFORE PLEASE YOVR GRACE and Lordships to grant warrand to Cite the Lord Collingtoun or any others ye shall think fit to Compeare before Your GRACE and Lordships on 24 Houres Warning he being a Member of your Meeting and to call for the process and Appeal and to Judge therein as seems Good and Just And in this small Case to shew the Nation what safety they have in their own Representatives when called by His Majesties Sacred Authority and what differences there is by Judging according to Equity and express meaning of Parties and Judging by Vnthought of Subtilties And Humbly BEGGS That the Tenour of the Contract be considered in the plain Sense and just effect And Decern the Lord Collingtoun to pay the Petitioner the Interest of what Money his Father received during the Marriage belonging to him and that for all Years since his Fathers Death and in time coming during the Petitioners Life And to remit to the Lords of Session to receive what probation Your Petitioner shall adduce for proving what Money his Father did receive belonging to him during the Marriage and that they may give therein Decreet accordingly And Your Petitioner shall ever Pray c. IF the Members of Parliament or any other persons shall be pleased to peruse the above-written Process they may have a much surer ground to found their Judgment and Determination upon in this Case which is important to the Parties but more in the preparative to the Kingdom Than to rely upon the bare assertion of either Party It is no new thing that Parties should be perswaded of the Iniquity of any Sentence which cuts them off from their Hopes and Expectations and that Complaints and Murmurings should arise upon these Sentences which alwayes were and may be expected and therefore it was ever the care of our Law-givers that neither the Judicatures nor the Persons of our Judges should be Vilified or Contemned seing they Represent the Kings Person in the Administration of Justice Nor that the Judges should be allowed to abuse the Authority that is committed to them by doing Wrong or Unhonesty Therefore shortly after the Institution of the Colledge of Justice it is provided by the 68 Act. 5. Parl. Ja. 5. That the Lords of Session should be had in special Honour and that no Credit be had to any that Murmur against them But they shall be called bâ—fore the King and if they be found Culpable they shall be punished after the quality of their fault and if they be found Clean and Innocent the Person complaining shall be punished with rigour and never have Credit with the King again This Statute and all others in relation to the Session are yet standing Laws and are sutable and agreable to that Article in the Instrument of Government Whereby it is provided That it is the Right and Priviledge of the Subject to protest for remeed of Law to the King and Parliament against Sentences pronounced by the Lords of Session Which doth not Authorize every Protestation at the pleasure of the Party but only in these Cases wherein Murmurs and Complaints were allowed by our Antient Laws And if such Protestarions be now found Injurious the Party protesting is punishable by the former standing Law against unjust Murmurers and Complainers No Protestation for remeed of Law having formerly occurred since the Claime of Right it is of the greatest importancy that the extent and meaning of the said Article of the Meeting of Estates be carefully and narrowly considered that no practice follow upon it which might tend to render the properâ—y and possession of the Subject more Doubtful Disquiet and Unsecure than formerly contrary to the cleare designe thereof By which it was intended That an important right and priviledge of the Subject should be asserted and declared In the first place then the foresaid Declaration does not Warrant nor Authorize Appeals but only Protestations for remeed of Law On the contrary the same doth clearly Import a Prohibition of Appeals by the last Provision thereof That such Protestations shall not stop the Execution of the Sentences of the Lords Which is equivalent as if the Meeting of Estates had expresly discharged Appeals seing