and so might be a ground to annul what was done most justly upon the grounds urged and under Consideration whereby the Justice and Integrity of the Lords might be tarnished by the Faults and Omissions of Parties or Procurators And if by Protestations such doubtful Cases were brought in without limitation to be debated before a different Judicatory proceeding by different forms and in a distinct view and in another light it were impossible for a debate oâ— what might be tâ—â— conâ—equences oâ— a contrary Decision to hundreds of Third parties who had no Interest or concern the time of the first Sentence Nor can any person foresee all that might follow upon such a sudden alteration as to allow unlimited Protestations in any Case only this much is plain that the evident evil Consequences are so many as would render every man uncertain in his enjoyments not knowing at what time some one of these Consequences might reach him which would at one blow strick at the root of all the quiet and secure Enjoyments and Possessions of the Liedges But to return from these more remote Considerations anent the import of unlimited Protestations in general to the particular Case in hand suppose that Protestations were in every Case allowed yet it seems highly unreasonable that the same should be admitted otherwise than in terms of respect to the Lords and in moderation or that Parties should be admitted to affix such injurious and reflecting Characters upon their Decisions as the Petition contains as if any Decision of the Lords should be so grosly absurd As to violate the Faith of all Contracts and to wrest Law to the ruine and defraud of Widows and not only to encourage indirect Dealings but to own the design of Law to be such and to deliver a Decision that equally impugns Law Equity and Honesty These expressions all contained in the Petition are so harsh and rude that if they were allowed at a Parties pleasure it would deprive the Lords of the benefit of that Credit Respect and Honour which is due to them by many former Laws several times reiterate in every Reign since the Institution of the Colledge of Justice and which were thought necessary in the former and present Ages not so much for regard to the Persons of the Judges as to the Interest and Security of the People that these to whom the final determination of all civil Causes in the ordinary Administration Justice was committed might not be over-awed by the Influence and Humour of any person until upon legal Tryal they were Convicted to have done Wrong or Vnhonesty as the Law bears And as this method is not allowable in any Case so for clearing the Injury and Injustice thereof in this the same is desired either to be considered as it is stated in the Process above mentioned Or if any person be unwilling to bestow so much labour let it be considered in a more general view what rational probability can arise from the Circumstances of the Judges and Parties that they should be guilty of such gross Iniquity in prejudice of the Lady Castle-haven As the Petition proports Collingtoun had no near Interest or contingency by Relation or otherwayes to any person on the Bench or in the State and that which in all former times has created Fears and Jealousies of corruption and Iniquity hath either been personal Interest with or by the Party or Court Influence On the other hand the Lady Castle-haven wanted not a Relation either upon the Bench or in the State and particularly she is in that near degree of Consanguinity with the sole Secretary of State now His Majesties High Commissioner that in Law she is reckoned in the place of a Parent to him And tho' that Noble person is indued with more Integrity Honour Justice than in the least to design or countenance the over-awing of the Bench Yet the Lords nether were nor could be Ignorant that her Interest was sufficiently regarded and that she did not want a just Support and Countenance of her Friends and Relations withall not above one or two of the Lords were Personally known to the King or could be supposed to have their Advancement in Places without the Influence of the Secretary and it would appear they had very carly forgot their gratitude if they could in so few Weeks after their Advancement be guilty of such gross Iniquity to the near Relation of so eminent a Person by whom they were so lately Obliged And tho' they could have forgot their Gratitude and also the Oath of God that lay upon them and all without they did so far neglect their Interest as to Disoblige a person whose Favour might be so useful in supporting them or promoving their farther Interest Besides were they Ignorant that there were many envious Beholders to observe their Halting especially in the beginning of their Administration And what was to intice them to all this gross Iniquity Let the World but consider if the Decision had run on the other side and that Collingtoun had Interposed a Protestation What Influence might these general considerations have obtained in the minds of these who are only fit or willing to receive a general view But the Decision in this case did carry so little presumption of any byass or corruption that it gave a general satisfaction and nothing could have more reasonably vindicat the reputation of the Integrity and Justice of the Lords in the eyes of all indifferent Persons it being thereby evident they could not be influenced by any interest or by-end And it is not questioned but the great Persons who have Relation to the Lady will find it their Interest and Credit to support the Lords in determining according to their Consciences and that they will look upon it as a great Honour to them That during their influence The Judges of the Land were not overawed or afraid by the Interest of any party to determine according to the Law and their Judgements as it is recorded of one of the greatest of our Kings that the Lords having in his own presence Determined Against his interest He rejoyced in the Integrity of his Judges neglecting his loss And wheras the Petition asserts that the Ladies Lawyers did redargue all the quibbles of her opposites to the Conviction of all Lawyers who were not blinded with personal Concern for proving this also there is still the same Authority The Ladies assertion And that which she is pleased to call Quibbles is a continued train of uniform Decisions in the cases of clauses of Conquesce to Wives and Children for the space of above sixty years By all which the Lords have followed one constant Rule That such Clauses do not hinder a Husband or Father to use a during his Life albeit these should wholly exhaust the Conquesce at his Death As appears by the Abbreviat of Decisions above mentioned whereof many more of the like Import could have been produced And it is strange that all
same albeit it was alledged that the price of the Lands was not payed but was resting the time of his Fathers decease and that the Son as representing him is lyable for the same And it is subjoin'd that the like Decision was done the 11 of Januar. 1632. The Lady Bonningtoun contra Hadden and the 27 of Jun. 1676 The Earl of Dumfermling contra the Earl of Callander where the Lords found that a general Clause of Conquesce did extend to what the Husband had acquyred during the Marriage more then what he had the time of the contract of Marriage with the burden of all his Debts contracted during the Marriage that was esteemed Conquesce which was free over and above the debt contracted during the Marriage By which it is evident that in so far as the Estate was meliorat and in a better condition the time of the dissolution of the Marriage than it was the time of the contract that was to be esteemed Conquesce and that no debts were to be deduced but these that were contracted during the Marriage And as to the Decisions adduced for the Lord Collingtoun the 26 of November 1629 Where the Lords found that Lands being acquired be the Husband from the Seller of the Lands and thereafter disponed in few again to the same seller for ane greater few duty than was contained in the sellers priors Rights The augmentation of the few duty be the Husband could not be repute ane Conquesce whereof the Relict might Claim a lyfrent as coming under the clause of Conquesce of the contract And in the case of James Wauchop contra the Laird of Niddrie in the year 1683 where the husband having right to the Lands prior to the Marriage and during the Marriage having acquired partial Rights were not found to fall under the clause of Conquesce It is answered that these Decisions doe not meet this case for as to that of the Lady Dumfermling against her Son It was in the case betwixt a Superiour and a Vassal where a Superior having pursued a Reduction against his Vassal and the Vassals rights being found null for want of Confirmation and the Superiour having given a new right to the Vassall for augmentation of the few-duty that was not found Conquesce In respect there was no new acquisition the Superior having right to the Lands before the Marriage and his right to the property of the few being only declared after the Marriage by reduceing of the Vassals right and therefore albeit the Superior gave a new right to the Vassal augmenting the few-duty That augmentation was not repute Conquesce to give the Relict the benefit of the lyfrent thereof And that this was the case of that Decision it is cleare by the Decision the last of June 1629. Betwixt the same Persons And as to the Case of Niddrie and his brother first the question there was betwixt the Heir of Line and the Heir of Conquesce of the second Marriage which does not meet in this case Next the partial rights acquired by the husband after the Marriage was found not to fall under the Clause of Conquesce in respect that the Husband had belonging to him of money and other estate of great value prior to the Marriage of which any sums of money he depursed after the Marriage in acquiring rights to the Lands was the true product and might be ascribed to the sums of money and other estate which belonged to him before the Marriage And as to the case of Cowan contra Young the 9th of February 1669 where a Father having given a bond of Provision of 400 pound to a Daughter of the first Marriage was sustained and found to affect the Heir of Conquesce of the Second Marriage And the 15 of July 1673 Robertson contra Robertson where the Lords found that a clause in a contract of Marriage providing the lyfrent of the conquesce to the Wife did not hinder the Husband to give competent provisions to the Children And Smith contra Muire 23 December 1668. Where it was found that such a clause did not prejudge Creditors but the Relict that intrometted with the moveables falling under the conquesce was found lyable for the Debt And in the case of Frazer contra Cumming the 8 of December 1687. Where the Lords found the Provision granted to the Children of the first Marriage was to be deduced out of the conquesce in prejudice of the Relicts lyfrent as also that his debts ought to be deduced and 11000 pound that he had reserved to himselfe be the contract of Marriage and the superplus only to be repute Conquesce It is answered that the case of Cowan Young being betwixt a Child of the first Marriage and the Heir of Conquesce in the second Marriage it did not meet the case of a lyfrenter next it was only but a small provision granted be a Father to his Child of the first Marriage whom be the Law of Nature he is oblidged to provide As also in that Case the Heir of the second Marriage had a special provision and something also of the Conquesce so that the Fathers granting a moderate provision to a Child of the first Marriage was not understood a defrauding of the Children of the second Marriage And the case of Robertson contra Robertson albeit the Lords found that such clauses could not exclude competent provisions to the Children of the same Marriage which was most Just yet it is with this express quality that there were competent means for a provision to the Mother remaining and that the husband had done nothing fraudfully in prejudice of that clause And the case of Smith and Muir was betwixt a Relict and a Creditor And it is not controverted but that a true and Lawful debt contracted by the Husband during the Marriage should deduce off the Conquesce And as to the Case of Frazer and Cumming it was thus By contract of Marriage betwixt Alexander and Christian Frazers The Husband did provide his Wife to ane certain yearly Annuitie in lyfrent and likewayes to the lyfrent of the clause of conquesce reserving to himself certain tenements of Lands and others extending to 11000 pounds and all the question there was in relation to the import of the Reservation as to the 11000 Pounds if the Husbands Debts should affect the 11000 pounds or be deduced out of the Conquesce Upon which the Lords found that the import of the clause of the Contract is that in the first place There ought to be deduced out of the Husbands Estate extant the time of his Decease the Debts then due and next that the 11000 Pounds is to be deduced and what remains only is to be repute Conquesce By which it is evident that the 11000 Pounds that belonged to the Husband the time of the entring into the Marriage was deduced in respect of the express reservation And albeit a Husband may grant a Provision to a Child of the first Marriage
be condescended upon that any sums of Money were due to Collingtoun but an pretended Debt due by Huntley which single Debt could never answer the Clause in case I shall receive sums And certainly if this Debt had been designed it would have been exprest for where there is only one particular under consideration no body uses to express that single thing under a generality when there is nothing else can be included 4. If this Clause had been meant of Huntley's Debt why was the Lyfe-rent only granted in case the sum were received for a mans uplifting and recovering his own was never Conquesce and therefore if this Clause had been meant to extend no farther then Debts due to Collingtoun the time of the Marriage the Lady would have been provided to the Lyfe-rent of all Debts due to him without that condition and quality In case he should receive them But the truth is my Lord Collingtoun was a man of more â—ngenuity then to have sham'd his Lady with mentioning this Debt which neither is nor ever was 〈…〉 is but of a few dayes before the Sentence against the Marquess of Argyle And it was then perfectly understood that Huntely was to be Donator to Argyles Forfeiture in so far as concerned Huntley's Estate so that this Debt was for ever excluded But suppose there were no Forfeiture in the Case the expyred Comprysings did absolutely convey his Estate and it was possessed be the Marquess of Argyle be vertue of these Comprysings and not be the Forfeiture for this Debt was never worth the regarding much less to be the only subject of the separate Clause 5. In this Sense the Clause had been ridiculous and of no Security to my Lady for if her right to Lyfe-rent the sums due to Collingtoun did depend upon his pleasure in uplifting and recovering these sums then the obligment imports no more then that my Lady should Lyfe-rent what he pleased for it could not be expected that he would prejudge his Heirs by uplifting sums only to gratify his Lady with a Lyferent And these absurdities must convince that this can never be the genuine meaning of the Clause but the designe is plain and the words are adapted to Pensions and Sallaries which he should receive as due to him during the Marriage And it is a general Rule in the Interpretation of all Contracts and Clauses That that Sense and Construction should be admitted whereby the Clause should not be superfluous redundant and ridiculous And in this Case the Clause must either operate a Lyfe-rent of the sums Conquest or of all the sums received or else all the Provisions in Favours of the Lady for which she renounced her Terce and third part was superfluous and elusory 6. By the Clause in the Contract of Marriage my Lord Collingtoun being obliged to Imploy All sums of Money Lands or Heretages that he should happen to acquire or sums of Money due to him whereof he should receive payment during the Marriage Albeit the Lady might justly crave the Lyferent of all the sums of Money that can be instructed my Lord Collingtoun received during the Marriage which is the express Terms in the Clause of the Contract yet she declares that she insists only upon the 〈…〉 1. That what Debts my Lord Collingtoun has payed due priot to the Marriage with Sums of Money acquired and received during the Marriage that she should have the Lyfe-rent of the same upon this ground because if these Debts had not been payed they would have affected this Lord Collingtoun the Son and he would have been lyable for the samen so that in so far as the Son and Heir reaps Benefiâ— by Imploying the sums his Father received during the Marriage for payment of Debts prior to the Marriage for which otherwayes he would have been lyable as representing his Father the Lady ought in so far to have right to the Lyfe-rent of the sums with which the Lord Collingtoun payed the prior Debts 2. The Lord Collingtoun did not only reap Benefit by his Fathers payment of prior Debts with sums of Money that he received during the Marriage but also the subject that he has acquired by these sums he received during the Marriage being extant at the dissolution of the Marriage The Lady by vertue of the foresaid Clause in her Contract must have Right to the Lyfe rent of what was acquired during the Marriage and extant the time of the Husbands Decease and therefore in making the Computation of what the Lady should have Right to Lyfe-rent the Lord Collingtoun's condition and the condition of the Estate is to be considered as it was the time of the entry into the Marriage and as it was at the time of the Dâ—ssolution thereof and in so far as the Estate is meliorat and what the Lord Collingtoun had more at the Dissolution of the Marriage then he had the time of the entering into the Marriage that must be understood to have been acquired during the Marriage and the Lady must have the Lyfe-rent of the samen especially seing in all such cases where the Wife is provided to the Lyfe-rent of what should be Conquest and Acquired during the Marriage The Lords are alwayes in use to take Tryal of the Husbands Condition the time of the entering into the Marriage and of his Condition the time of the Dissolution thereof and what ever his Condition was better at that time then it was at the time of the entring into the Marriage that is esteemed Conquesce to give the Wife the Benefit of the Lyfe-rent of the samen which is clear by several Decisions and particulary the 4th of March 1623. Skeen contra Robieson Where the Husband by his Contract of Marriage being oblidged to give a Lyferent of the Conquesce during the Marriage to his Wife and the Fie to the Heirs of the Marriage And he having acquired certain Lands and Fishings that did hold of the Town of Aberdeen in his Sons Name and the Relict having pursued the Son as representing his Father upon the passive titles for the lyfrent of the Lands and Fishings And it being alledged that she could not have the lyfrent of these Lands and Fishings because by ane Act of the Town of Aberdeen which was confirmed by the Queen the Lands and Fishings could not be fewed nor lyfrented by a Woman upon which the Lords found that albeit the Relict could not lyfrent the Lands and Fishings yet the Heir should give her Damnum et interesse because the Husband could not be allowed to make any purchass that could prejudge the Wise of her lyfrent And the 3d of July 1627. The Lady Dumfermling contra the Earle her Son Where by the contract of Marriage the Lady being provyded to all Lands that should be conquest during the Marriage and her Husband having acquired certain Lands during the Marriage and taken the Rights in his Sons name the Lords found that the Lady had the right of the lyfrent of the
Futurition have not the least relation to sums due which are still in Preterito but they do only relate to the receipt of the Money So the Clause doth import that if sums then due should be received during the Marriage they were to be Imployed but it is altogether force against the natural construction to mention these words During the Marriage In the first Clause which can neither relate to the Receipt of the Money Because if that Money upon the Estate of Huntely should be received or secured though after the Dissolution of the Marriage the Pursuer would have a Liferent thereof by the Clause which she could not claim if the condition run In case during the Marriage the Money were rece ved Neither is it possible that the words During the Marriage can relate to sums due For Sums due during the Marriage is Nonsense Sums due being Preterite and during the Marriage being then Future unless for my Ladies Conveniency she be allowed to add a word or two to make the Sense as she would have it and that she should be permitted to Interpret the Clause in thir Terms viz Sums falling due or becoming due during the Marriage For without the Addition of these words or other of the like Import it is impossible in naâ—ure that ever theâ—e words 〈…〉 by any construction that can be forced upon the Clause as it stands And if such violence were put upon it then it would still disagree with what has been evidently communed viz That Huntleys Debt already due should be Liferented if received For if only sums falling or becoming due Thereafter were to be imployed then there were no Obligation as to these which were already due And it would be a wonderful streatch that could make the same words signify both Preterite and Future Secundo Suppose the words of the Clause should be strained as the Pursuer contends to an Obligment of Imploying all sums due during the Marriage yet it is not possible to extend the Importance of that Clause farther than an ordinary clause of Conquesce and consequently the Husbands Obligation would only be prestable with the burden of all rational Deeds For the Clause of Conquesce oblidges to bestow All sums of Money Conquest during the Marriage And the second Clause obliges as is pretended to Imploy All sums falling due during the Marriage to be received by the Defunct Which is all one Clause for all sums falling due during the Marriage that the Defunct could receive must be sums Conquest during the Marriage and consequently if the Obligment to imploy the Conquesce cannot secure the Pursuer from the burden of all rational Deeds neither can the Oblidgment of imploying sums falling due which is the same thing And it is not the variation of the Style or words that will evert the effect of such a train of Decisions nor is it possible that the Defunct or any reasonable man would have agreed to such an extravagant Clause whereby all his Fortune was then wholly over-burdened so he should have been Incapacitate for ever to render it in a better condition for himself or his Heirs For though in this Case there be eventually no Children of the Marriage which might probably have existed my Lady being then little past 40. And being as careful to provide for them as her self yet if they had existed the Defunct would have been Incapacitate that his eldest Son might succeed which in consequence would have drawn his Creditors upon him that he could not have had his person safe when they found that he could not apply one sixpence for their payment out of what he had or could acquire It was replyed that the Pursuers Lybel is most Relevant both upon the Conquest and subsequent Clause And albeit the Pursuer doth not alledge that any sums of Money Lands or Heretages Conquest during the Marriage are extant seing the Defunct did apply these sums acquired and falling due during the Marriage for payment of the Debts affecting the Estate and Lands of Collingtoun The Defunct being Locupletior factus by applying these sums for the Relief of his own Estate which by the Conrract ought to have been imployed for the Pusuers Lyferent use the Lady ought to have the benefit thereof and doth not claim any Lyferent of sums spent and consumed but where there is ane existing benefit inriching the Defunct she ought to have a lyfrent of the Lands releived to which she restricts her lybel and craves no more neither upon the first nor second Clause of the Contract 2. Conquesce in favours of Wives or Children is alwayes understood in so far as the Husband is richer at the Dissolution of the Marriage than he was at the time of the Contract And the defunct being richer in the value of the hail Lands redeemed my Lady ought to have the lyfrent thereof 3 Decisions in matters of Conquesce have varied according to the circumstances of the cases Debated and all of them have this notable difference from the Pursuers Case that in these Decisions the Relict had special suitable provisions and the Conquests were only adjected as general uncertaine Clauses upon which the Relicts did not depend But here there is no special provision except the House and Yeards of Collingtoun and all that was depended upon was the clause of Conquesce which was advised by my Lord Dirlingtoun and eminent Lawyers who thought fitter to take the defunct obliged in the termes of the Contract than to take a it cannot be imagined that so eminent a Lawyer would advise a clause that would be absolutely Elusory tho' the defunct made his fortune during the Marriage 4. There are also several Decisions which fortify the pursuers Case as particularely a decision Skeen contra Robertson 4 March 1624. where a band of Provision to a Daughter was found to be lyable to the Relicts lyfrent by her clause of Conquesce And in the same case the Husband having acquired right to a Salmond Fishing near Aberdeen which by the custom of the place could not be bruiked by a Woman yet the relict by her Conquesce was found to have utilem actionem against the heir for the value And in the case of the Countess of Dumfermting against her Son Lands being conquest originally in the name of the eldest Son the Countess was found to have right to Lyfrent these Lands tho' never in the Person of the Father The like _____ Where a Right originally acquired in the name of a second Son was also affected by the Relicts lyfrent upon a clause of Conquest 50 The Decisions adduced in the Case of Children provided to Conquesce import nothing because all Children doe represent the Defunct in so far as they have benefite by him whereas the Relicts are most favourable Creditors and the Decisions adduced in the case of Relicts are of no moment as that Lands conquesced or burdened with the Debts due expresly for the purchase thereof nothing being reckoned but with deduction
acclaimed a lyfrent of the Conquesce during the Marriage the following points were therein decided viz. 1 That the Father having immediatly after the second Contract provided 6000 Merks to his eldest Son beside the forsaid capital of 11000 pounds and his Daughter to 5000. Merks and allowed 1000 pounds for her Wedding Cloaths and having payed a great part of these sums very shortly after the Contract before it was possible to have acquired so much money as could have payed the same yet the Lords found that these sums so contracted and payed were not to be taken off the capital of 11000 pound of his Estate before the Marriage but the whole capital foresaid behoved to be deduced before reckoning the Conquesce at the Dissolution 2. In that case they found that all Debts were to be deduced both those that were prior and those that were posterior to the Marriage as appears by the debate immediatly preceeding the Interloquitor which was done upon deliberation by the whole Lords and thereafter represented of new by two several Bills containing the whole favourable circumstances of the Case and particularly that the Relict had but a very mean provision besides the Conquesce upon which she could not live all which appears by the forsaid Decreet marked at the several debates and interloquitors and what is now pretended is far less favourable then any of these Cases To the second alledging that Conquesce is alwayes understood in sua far as the Husband was richer at the Dissolution then at the Contract of Marriage It is answered that the grounds abovementioned doe fully satisfy this pretence for the estimation of the Husbands being Richer must be made with relation to these particulars whereof the Contract is provided to the Wife and if the Husband have provided a Wife to lyfrent the Conquest Lands and Heretages only it is not to be considered how far the Husband is become Richer in sums of Money Goods and Geir whereof the Wife hath no clause of Conquesce or if the provision of Conquesce be of Lands Heretages and sums of Money as in this case tho' the Husband had purchased a great Estate in Jewels Plate Victual Cattel or any moveables that is not to be considered but only how far he is become richer in Lands Heretages and sums Conquest which is not pretended in this Case but only that he is richer by payment of his Debts and reâ—eiving of his Lands And seing my Lady did not take my Lord oblidged to imploy all Goods Geir and movables whatsomever it is a demonstration that she did not intend to tie him so closs as is now pretended but left to his own discretion whether he would enrich himself in these particulars provided for her lifrent-use or in others wherein she had no interest To the third it is admired that the Lady should recur to Decisions to fortify her pretence for in all the Decisions for above sixty years there is no variation except in that pretended Decision adduced be the Pursuer Skeen contra Robertson which has not been seen by the Defender not being in Durie nor any citted known Writter and whereof the circumstances doe not appear and all others doe agree in this that a Husband or Father may not only do all onerous Deeds but may give Liberalities and Gratuities even to Children or to the Heir where there is a rational Cause much more may urgent Debts be payed whereto the Acquirer could be compelled And as to the only defence against all the Decisions upon the singularity that the Pursuer had no special provision and that by the advice of an eminent Lawyer It was thought fitter to take these general Clauses then a provision of 3000 Merks yearly It is answered this speciality makes no alteration it being impossible to find different Cases so perfectly agreing but some circumstances will vary but here the rule of the Lords Decisions is that all rational Deeds shall be sustained and if this be such a circumstance that it renders the payment of the Debt in prejudice of the Conquesce fraudulent then it is relevant but not otherways and still there is to be a difference wade betwixt first and second Contracts of Marriage for if a man in his first Contract of Marriage gave no special provision but a clause of Conquesce whereby if the Husband should voluntarly evacuat the Conquesce the Wife of his youth and Mother of his Children would become destitute and miserable It were infamous in him to evacuate such a Conquesce except by inevitable Deeds and any voluntary Deed would in Justice be reckoned fraudulent but in a second contract where there is no portion but a joynture that returns at dissolution the like favour is not due For if the Relict have an honourable provision whether by the first or second Marriage it imports not yea there is nothing more ordinary then that Heiresses do content themselves with the lifrent of their own Heretages and oft times with less yet in the case Robertson against Robertson 15th July 1673. It is plead for the Rclict who was Wife of the first Marriage that she had only an clause of Conquesce and no special provision yet a bond originally taken in the name of the eldest Son during the Marriage was sustained against her unless there were not sufficient means for a competency to her Aliunde in which case the Lords found the bond would be fraudulent and there is no question the Lady was very well advised in relation to these Cases she desired advice in as how to convoy her Joynture which was done to so good effect that the Defunct with all the Influence and right of a Husband could never come to one sixpence of the North-Countrey Joynture but these Clauses were never advised by a Lawyer to have any special effect whereof the Lords may be satisfied by the Pursuers own Assertion that 3000 Merks of Joynture was offered and was there ever any Lawyer that would prefer a general Clause of Conquesce to a special Provision which has a preference as to Moveables to all Creditors and is usually the best secured real Debt so that the neglecting of a special Provision is a demonstration that there was no Liferent under prospect and that the Clause of Conquesce was adjected of meer Stile and Formality And Sir Andrew Gilmour who drew the Contract would never have agreed to so unreasonable Clauses as these in the Contract are according to the Pursners Interpretation he being the Defuncts Brother in Law To the Fourth There was nothing ever decided contrary to what is now pleaded for the Decision finding That the Wife had Right to the value of a Fishing in Aberdeen which by the custom of the place could not be bruiked by a Woman was most juâ—◠〈…〉 like the Earl of Dumfermling Acquiring Lands in the Name of his eldest Son was justly found To have done a fraudulent Deed to evacuate the Conquesâ—e Yet betwixt the same Parties it was
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-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
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
the Husband against the Wife and her Assigney upon the account of the Wises intromission Stante Matrimonio with the Rents so reserved and whereof the jus mariti was renounced as said is 2 February 1667. Executors of the Lady Pilton contra Hay of Balhousie The Laird of Balhousie having granted Bond to his Wifes Sister the Lady Pilton for 1000 Merks yearly to be imployed by her for any use she pleased without her Husbands consent and secluding his jus mariti The Lords found payment made to the Husband sufficient to AssolÈie from a pursute upon a Bond notwithstanding that by the Bond it self the Husbands jus Mariti was excluded A list of Decisions anent the Import and extent of Clauses of Provision in Contracts of Marriage conceived in Favours of Heirs of Conquesce and Provision and Bairns of second Marriages for clearing that notwithstanding such Provisions and Obligments the Husband or Father hath the absolute Power and Dominion and unaccountable Administration of the Conquesce THe Lords sound an gratuitous Bond granted by Thomas Cowan to the Daughter of his first Marriage long after his second Contract of Marriage whereby he was obliged to provide all his subsequent Conquesce to the Heirs of that second Marriage to affect his Conquesce during the said second Marriage 9 February 1669 Cowan contra Young Notwithstanding that the Daughter of the first Marriage to whom the gratuitous Bond was granted was both foris-familiat and aliunde sufficiently provided before that time and it appears by the debate that as a Husband might freely have gifted all his Conquest to Strangers so he might likewayes gift rational proportions thereof to his Children of former Marriages notwithstanding any such obligment in his second Contract The Lords found that the Obligments and Provisions for Conquesce in Contracts of Matriage did not hinder the Contracters to dispone thereupon during their Lifetime 16 June 1676 Mitthel contra The Children of Thomas Little-john And that all reasonable Deeds albeit they were done or granted without equivalent onerous Causes were effectual notwithstanding of such Obligements and Provisions of Conquesce and that the Children in whose favours the saids Obligements of Conquesce were conceived could not be heard to quarrel the same 19 June Murray's contra Murray's The Lords found that rational Provisions to Children of a prior Marriage could not be quarrelled upon the Clause of Conquesce in the Fathers second Contract of Marriage And 〈…〉 7000 Merks granted to the eldest Son of the first Marriage Notwithstanding that the eldest Son had succeeded to a considerable Land Estate by his Father And in that Decision the Lords declared that they would make the former Decision Mitchel contra the Children of Little-John a Rule for the future The Lords found that old Niddry having applied considerable sums for acquiring in new and preferrable Rights of the Lands of Lochtour and for purging and disburdening the Lands of other Incumbrances and Debts The sums so expended during his second Marriage could not be repute as sums Conquest during that Marriage 19 February 1683. James Wanchop contra Laird of Niddrie in respect Niddry had a right to the saids Lands of Lochtour standing in his Person before that time And found that James Wauchop as Heir of the second Marriage could have no Interest in the saids new acquired Rights or for repetition of the sums expended for acquiring the same upon the Obligment in his Mothers Contract of Marriage for providing all the Conquesce to him And this demonstrates that sums expended for disburdening a mans Prior Heretage of Debts and Incumbrances affecting the same can never be repute Conquesce albeit thereby the Estate be nottourly meliorat and improven and the yearly Rent coming in to the man augmented A List of Decisions for clearing the import and extent of Obligments and Provisions of Conquest conceived in Favours of Wives as to their Liferents The Lords found that albeit the Husband was obliged to provide the hail sums acquired during the Marriage in favours of his Wife in Liferent yet a Bond taken by a Husband payable to a Child of his former Marriage 10 February 1629 Oliphant contra Phinnit did not fall under the Obligment of Conquesce and found that Conquesce was only to be understood of what was standing in the person of the Husband and undisposed of the time of his Decease The Lords found that a Husband having Stante Matrimonio acquired the property of Lands formerly holding of himself 26 November 1629. Lady Dumfermling contra Earl of Dumfermling and thereafter before his Decease disponing the same to be like wayes holden of himself for a double or triple Few-Duty That neither the said Acquisition nor Improvement by tripling the Few-Duty did fall under the Obligment of Conquesce in the Wife's Contract of Marriage albeit the same was acquired and improven in her time In respect the Earl had a Right to these Lands Prior to the Marriage albeit the same was only a Right of Superiority 15 July 1673. Robertson contra Robertson The Lords found that an obligement for providing the Wife to all the Conquesce could not hinder the Father to grant provisions to his Children of a former Marriage and even to the eldest Son and appear and Heir Alexander Frazer having in his contract of Marriage with Christian Frazer his second Wife provided her to a mean Provision of the annual rent of 3400 Merks and to the lyfrent of the half of the Conquest that should be made during the Marriage and having for preventing any debate anent the Conquest insert in the said contract 8 December 1687 Frazer contra Frazer a particular inventar of his Estate extending to 11000 pounds scots or thereby It happened there was a considerable Conquesce of 15 or 16000 pounds made during that Marriage But Alexander Frazer the Husband did exhaust and spend all the said conquesce by gratuitous Donations to his eldest Son and Daughter of the first Marriage of 8000 pounds Scots and upwards and did expend the sum of other 8000 pounds or thereby that was likwayes acquired during that Marriage for payment of other Debts for which he was engadged Prior to his said second Contract Christian Frazer having after the decease of the said Alexander pursued his Heir for the half of the foresaid Conquesce and it being debated whether the gratuit ous donations to the Children of the first Marriage and the sums payed out for Debts contracted and due by the Husband before his entring into the second contract of Marriage with the Pursuer should affect the Estate belonging to the Husband before that Contract and the saids gratuitous Donations and Debts sua payed should be sustained to exhaust the Conquesce in prejudice of the Relicts Lyfrent who was so meanly provided The Lords found that the Heir of the Defunct ought to have the 11000 pound to which the Fathers Estate was estimate in the said second Contract
allowed and made free to him in the first place and that the haill debts due by the Husband when he died whether contracted before or after the second contract of Marriage ought to be payed and affect the Conquesce in the Second place and that the Relict could only have right to the half of the superplus of the Conquesce if any was after the two Deductions above-written It is observable that albeit there were two Bills given in craving the said interloquitor to be rectified upon thir grounds 1 That a considerable part of the 11000 pounds to which the Husbands Estate was estimat was exhausled by payment of Debts due before the second Contract and 2 That the 4000 pounds gifted by the Defunct to his oun Heire of Line who was obliged to Implement the Fathers obligment anent the Wifes lyfrent might at least be sustained as Conquesce Both bills were refused and the first interloquitor adhered to So that the Husbands Estate which was once for the most part exhausted by the foresaid gratuitous Donations and antecedent Debts as said is immediately after the second Marriage and before any Conquesce could be made was Sustained to be made up to the Heir out of the Subsequent Conquesce without allowing the Relict her lyfrent of the equal half thereof conform to the obligments of the Contract albeit her other provisions were so mean and inconsiderable And the principal decreet is produced marked with several letters of the Alphabet directing to the grounds therein pleaded and determined and herein repeated and the sorsaid Decision was so solemn that the Lords declared to the Procurators on both sides Judicialy that they would observe the said Decision in all such cases thereafter 20 December 1665. Laird of Kilbocho contra Lady Kilbocho The Lords â—oâ—nd that a 〈◊〉 was obliged to pay me annual-rents of the price of Conquest Lands notwithstanding that she was provided Simply and absolutly to the Conquesce and that the Heir was sufficiently able to have payed the same And by this Decision as also by an other Decision betwixt the Earls of Dumfermling and Callendar The Practick alledged upon by the Pursuer in the case of the Countess of Dumfermling in Anno. 1625 is fully answered and elided THE INTERLOQUITOR Edinburgh 29 January 1690. THe Lords having advised the debate Finds that the clause of Conquesce lybelled did not hinder the deceased Lord Collingtoun to spend his yearly revenue as he thought fit And find that the Lady be vertue of the clauses in the Contract has right to the Lyfrent of all sums which belonged to him the time of his entering into the second Marriage or the time of his decease But they find that albeit it were cleare that he had releived his old Lands and Estate of Debts which affected the same the time of his entering into the second Marriage by sums acquired during the second Marriage Yet that the Lady by no clause in the contract has any right to pursue for the lyfrent of the Lands releived by such sums And that the Lord Collingtoun might have imployed the sums so acquired for relieving his Estate of Debts affecting the same the time of entering into his second Marriage Notwithstanding of any clause in the Contract Sic Subscribitur JAMES DALRYMPLE I.P.D. The Ladies Appeal and Protestation I Dame Margaret Areskine Lady Castle haven Considering that in the Process pursued at my Instance before the Lords of Session against Sir James Foulis now of Collingtoun The saids Lords be their Interloquitor bearing date the 29 of January instant Found that the Clause of Conquesce Lybelled did not hinder the Deceast Lord Collingtoun to spend his yearly Revenue as he thought fit And found that the Lady be vertue of the Clauses in the Contract has right to the Liferent of all sums which belonged to him the time of his entering into the second Marriage or the time of his Decease But they found that albeit it were clear that he had reliev'd his old Lands and Estate of Debts which affected the same the time of his entring into the second Marriage by sums acquired during the second Marriage yet that the Lady by no Clause in the Contract has any Right to pursue for the Liferent of the Lands relieved by such sums and that the Lord Collingtoun might have imployed the sums so acquited for relieving his Estate of Debts affecting the same the time of entering into his second Marriage notwithstanding of any clause in the Contract By which Interloquitor I conceive my self prejudged and that by the Claim of Right it is provided That any person so prejudged may appeal for remeed of Law to an higher Judicature I do therefore by thir presents Appeal and protest from the saids Lords of Session to the High Court of Parliament for remeed of Law as said is and intreats your Lordships to stop the said Interloquitor till it be heard in Parliament Sic subscribitur M. ARESKINE The Ladies Petition to the Parliament Unto His Grace His Majesties high Commissioner And to the Right Honourable the Nobles and Barrons and Burgesses Assembled in Parliament Dame Margaret Areskine Lady Castle-haven HUMBLY SHEWETH THat the late Sir James Foulis of Collingtoun having long sought your Petitioner in Marriage did offer his House and Yards and 3000 Merks be Year to me in Jointure Which he consest was all he had Your Petitioner having at last consented to Marry but did refuse to take the 3000 Merks Since it was cleare that his Children in his first Marriage by his first Lady should then want altogether Yet he said though they should want he would secure me in that But when I told him I would not deale so with his Children but Condescended to accept of his House and Yards and the Life rent of all Sums of Money Bands or Heretage which he should Conquess or acquire and of all sums of Money due to him which he shall happen to receive during the said Marriage And he obliges himself to Employ the same and take the Rights thereof to himself and Your Petitioner the longest liver of us two in Liferent Of this he was so well pleased that he desired it might be secured as my Lawyers should desire which was accordingly done in as express Terms as they thought possible upon this Marriage following And what ever provision was made in the Petitioners Favours in that Contract as to my own former Estate Yet he possessed and employed a considerable part of my Estate to entertaine his Sons Family and to pay his former Debt After his Decease your Petitioner little doubted of the Possession of what was so fairly Contracted But being forced to Suit it before the now Lords of Session They by their Interloquitor of the 29th of January last Did Find That the clause of the Contract did not hinder the Lord Collingtoun to Employ 〈…〉 â—â—ms he acquired during the second Marriage for payment of the Debt before he entered in the second