The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ...

TITLE IV. Conjugal Obligations.

• 1. Marriage a Divine Contract.
• 2. Whereby Marriage is formally constitute.
• 3. Dissolution of Marriage by Death.
• 4. Desertion and Adherence.
• 5. Jus Mariti.
• 6. The Husbands Obligations.
• 7. The power of the Husband by the Civil Law.
• 8. By the Custome of Neighbour-Nations.
• 9. By the Custome of Scotland.
• 10. The Wifes Escheat.
• 11. The Husbands concourse.
• 12. A Wifes Obligation null.
• 13. A Communion of Goods and Debts.
• 14. Donations betwixt Man and Wife revocable.
• 15. Dissolution of Marriage within the year.
• 16. Divorce.
• 17. Rights arising from the Dissolu∣tion of Marriage.
• 18. Priviledges of Wives.

THE first Obligations God put upon man to∣ward man, were the Conjugal Obligati∣ons, which arose from the Constitution of Marriage before the Fall; from whence have arisen, Rights of the greatest conse∣quence; as of the Husbands power over the Wife, and her Goods; the mutual so∣ciety of Families, which is the only socie∣ty immediatly Institute of God, in the Law of Nature; and from whence, is the power of Parents over Children; and oeconomical Government of Families, which of all other is the most absolute, and full, extending not only to the determi∣nation of Civil Rights, but to the punishment of all Crimes, till by the uni∣on of greater Civil Societies, many of these powers have been devolved upon the common Authority of the Societies; and therefore, these Obligations do deserve the first consideration.

1. Though Marriage seem to be a voluntar Contract by ingagement, be∣cause the application of it is, and ought to be of the most free consent; and because in matters circumstantial, it is voluntary, as in the Succession of the Issue, and the Provision of the Wife and Children; yet, that Marriage it self and the Obligations thence arising, are Jure divino, it appears thus; First, Obligations arising from voluntar Ingagement, take their Rule and Substance from the will of Man, and may be framed and composed at his pleasure; but so cannot Marriage, wherein it is not in the power of the Parties, though of common consent, to alter any Substantial, as to make the Marriage for a time, or take the power over the Wife from the Husband, and place it in her or any other; or the right of Provision or Protection of the Wife, from the Husband, and so of all the rest; which evidently demonstrateth, that it ••s not a Humane, but a Divine Contract.

2. That Marriage ariseth even from the Primitive Law of Nature, and that as it is the Conjunction of two single Persons; is evident not only from that natural Affection, which all sorts of Men in all places of the World (where no common Example nor Consent can reach) have unto a married Estate. But as the Lawers say, that it is founded in the common nature of Man, with other Creatures, who have a resemblance of it in themselves, and it is given for the very Example of the Natural Law, as contradistinct from the Law of Reason, and Law of Nations; for most part of the living Creatures live and converse in pairs, and keep the common Interest of their off-spring, as is clear in all Fowles, whose Wings have freed them from mans comptrol, and many of the Beasts of the Field: And it is like, all of them would be so inclined, if their natural Liberty were not restrained by Man, by pursuing such as are Wild, and making use of the Tame, as they may be most profitable, preserv∣ing most of the Female for Increase, and Destroying the Male.

3. The Affection of the Property and Chastity of Women, and Animosity and Jealousy that ariseth in Men, naturally upon the Breach thereof, doth evince, that by the Law of Nature, every Man ought to content himself with his own Wife, and Women not be common: for as no Man can indure the communica∣tion of his own, so it must necessarily follow, that he should not incroach upon others Property: and seing Nature holds not out a proportion be∣twixt the Male and the Female, whereby every man might appropriat more, it must therefore subsist in one; and so was the first Institution by God, and all the Posterior Directions in his Word are for a man, and his Wife, not his Wives; and as the man hath not power over his Body, but the Wife: so it were an absurd Inconsistency, if that power were in many, and so behoved to resolve in a management by the common consent of the Wives.

4. The Degrees in which Marriage is allowed or forbidden are, by divine Institution; for the next Degree collateral, is only forbidden; for of As∣scendents and Descendents, there is properly no Degree, the great Grand∣mother, being in that regard as near as the Mother; and so the next collateral to all Ascendents and Descendents is in the same Degree with Brothers and Sisters, and Uncles and Aunts, Nephews and Nieces, are alike in the Propinqui∣ty of Blood, with these, and the great Grandmother's, Sister, with the Mothers Sister; else if these were different Degrees, there would many Degrees in∣terveen betwixt a Person and his great Grand Aunt; But that there is a natu∣ral abhorrence of that Promiscuous Commixtion of Blood, it is commonly acknowledged over all the World, as to all Ascendents and Descendents.

And as to the next Collaterals, the Word of God cleareth it, not to have been a Positive Law given to the Jews, but to have been a Common Law to the Gentiles also: and therefore, Lev. 18. where the Degrees of Marriage are exprest, and unlawful Commixtion forbidden, It is subjoyned, v. 24, 25. Defile not your selves in any of these things, for in all these the Nations are de∣filed, which I cast out before you, and the Land is defiled; therefore do I vi∣sit the Iniquity thereof upon it. But unless these Degrees of prohibite Marri∣age, were a part of the Law of Nature written in Man's heart, or a com∣mon positive Law known to the Nations; the Lord, who hath declared that he will judge men by that Law, which is known, would not so have judged the Caananites.

5. The Perpetuitie of Marriage is also evident, by our Saviour's Sentence against Arbitrary Divorce, which was permitted by the Law of Moses, for the hardness of that Peoples hearts; but the Lord cleareth up the Ancient Law of Nature, from the beginning it was not so; which sheweth the Perpetuity of that Law, and that it was before the Judicial Law; and therefore he con∣cludeth, that whosoever putteth away his Wife, except for Fornication, is an Adulterer.

11. For understanding of these Conjugal Rights, it will be necessar, 1. To consider the Constitution of Marriage. 2. The Dissolution of it. 3. The Rights and Interests thence arising: For the first; Marriage is defin∣ed by Modestinus, to be the Conjunction of Man and Woman, to be Con∣sorts for all their Life, with a Communication of Rights Divine and Hu∣mane, l. 1. ff. de ritu. nuptiarum; so the essence of it consists in the Conjugal Society; the special nature of which Society, appeareth by the state, Interest, and Terms that the married Persons have thereby.

It may be questioned, whether the Conjunction wherein Marriage consists, be a Conjunction of mindes by mutual consent to the married state; and that whether privatly or in the publick Solemnity; or whether rather it be, a Conjunction or Commixtion of Bodies. For clearing whereof, consider, that it is not every consent to the married state that makes Matrimony, but a consent de presenti, and not a promise de futuro Matrimonio; for this Promise is only the Espousals which are premised to Marriage, and that so so∣lemn an Act might be with dew Deliberation; and therefore though as o∣ther Promises and Pactions, Espousals be naturally obligatorie and effectual also by the Canon Law, whereby the espoused Persons may be compelled to perfect the Marriage, unless there arise some eminent Discoverie of the Corruption or Pollution of either Party, or defect or Deformity, through Sick∣ness or some other Accident. C.de literis extravag. de sponsalibus, & cap. 2. eodem, c. ult, de Conjug. yet by the Civil Law, there is place for either party to repent and renunce the Espousals, l. 1. Cod. de sponsalibus, which is also the custom of this Nation; for Marriage uses not to be pursued before Solemnization, r•• integris, so that the matter it self consists not in the Promise, but in the present Consent, whereby they accept each other as Husband and Wife; whether that be by words expresly, or tacitly by marital Cohabitation, or Acknowledgment, or by natural Commixtion where there hath been a Promise or Espousals proceeding; for therein is presumed a conjugal Consent de present••

The publick Solemnity is a matter of Order, justly introduced by positive

Law, for the certainty ofso important a Contract, but not essential to Mar∣riage: thence arises only the distinction of publick and solemn, privat or clandestine Marriages, and though the Contraveeners may be justly punished, (as in some Nations, by the Exclusion of the Issue of such Marriages from Succession) yet the Marriage cannot be declared void, and annulled; and such exclusions seem very unequal against the innocent Children, But by our Custome, Cohabitation, and being commonly repute Man and Wife, validats the Marriage, and gives the wife right to her Terce, who cannot be excluded therefrom, if she were reputed a lawful Wife, and not questioned during the Husbands life, till the contrary be clearly decerned, Par. 1503. cap. 77. So also, a Contract of Marriage was found valid, against the Husbands Heir, though the Marriage was never solemnized in Kirk nor Congregation, Hope. t. Husband &c. William Barklay contra Anna Naper. The like found to exclude the bastardy of the Children, by the Father and Mothers, being repute Married, and keeping house and society together, for several years; Nicolson, de Agno∣scendis liberis, Brok contra but the contrair was found, where it was positively proven, that the Defunct had another Wife, Ibid. Archibald Chirnside contra Isobel Grieve and John Williamson. So likewise, in the former case, a Contract of Marriage was found valid, and the Man thereby oblieged to Solemnize the Marriage, seing he had procreate Children with the Woman, and by his missives had acknowledged he had Married her, though by a Contract, posterior to the Contract of Marriage, she had re∣nunced the same, Nicol. de sponsalibus, Barclay contra Janet Kelly; But where a Man by his Write had acknowledged, that such a Child was got under promise of Marriage, and promised to solemnize the same, yet the Lords, on the mans al∣ledgance that the woman had born a Child to another, and her answer, that it be∣hoved to be presumed his, would not sustain that presumption, without in∣structing their conversing together, medio tempore, January 31. 1665. Christian Barclay contra George Baptie. It was also found lately relevant, for validating a Contract of Marriage, sixteen years Cohabitation, and being repute Man and Wife, Elizabeth Grierson contra Laird of Craigdarroch.

As to the other point, though the commixtion of bodies seem necessar for the constitution of Affinity arising from Marriage; yet the opinion of the Canon Law is true, consensus, non coitus, facit Matrimonium; but this consent must specially relate to that Conjunction of Bodies, as being then in the consenters capacity, otherwise it is void; so the consent of persons naturally impotent, or 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 Pupil∣larity, 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 circum∣stances vitiat not, as if one supposing he had Married a Maid, or a chast Wo∣man, 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 con∣sist, 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 Conju∣gal 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 hu∣mane 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 ex∣cluded from Succession, but the Marriage it self insinuat to be null, which humane Constitutions cannot reach, though the Magistrate or Minister, Ce∣lebrator of the Marriage, may refuse to proceed without consent of the Pa∣rents; as by the Law and Custom of Holland, Art. 3. Ord. Pol. It is sta∣tute, 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 Con∣sanguinity and Affinity, which makes those joyned in Affinity, in the same Degree, as being by Marriage one Flesh; neither can Marriage consist where either Par∣ty 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 Sepa∣ration. But our Saviour's Precept cleareth the contrary; who in Relation to the Custom that then was of Divorce for light Causes, resolves, that put∣ing 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 doubt∣ed, 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 de∣clare 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, Mar∣riage 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 Chri∣stian; 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 Mar∣riage is not dissolved, and that the person deserted may not marry again, be∣cause it is said, That whosoever marries her that is put away (or deserted) commit∣teth Adultery.

By the Law of Scotland, dissolution of Marriage for non-adherence, or wil∣ful desertion, is expresly ordered, Parl. 1573. cap. 55. That the deserter, af∣ter 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 ex∣communicate, 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 she is oblieged to follow him.

3. The rights arising from Marriage, are the Jus Mariti, or conjugal power of the Husband over the Wife, her Person and Goods, and therewith by consequence, the obliegement for her debts. 2. His power, and the Wifes security, whereby, during the marriage she cannot obliege her self. 3. The Husbands obliegement to intertain the Wife, and provide for her after his death, and her interest in the Goods.

Jus Mariti, as a Term in our Law, doth signifie the right that the Hus∣band hath in the Wifes Goods, yet it may well be extended to the power he hath over her person, which stands in that oeconomical power and autho∣rity, whereby the Husband is Lord, Head and Ruler over the Wife, by the express Ordinance of God, Gen. 3. 16. Where the Lord says to Eve, Thy de∣sire shall be towards thy Husband, and he shall rule over thee; which, though it may seem as a penalty imposed upon her, for being first in the transgression, and so not to be of the Natural or Moral Law, which is perpetual; yet it is no more than a consequence of the Moral Law, whereby Marriage being Insti∣tute before the Fall, The Woman was made for the Man, and not the Man for the Woman: And therefore, in that Conjugal Society, being but of two, the determination of things indifferent, of their Interest, behooved to be in the Man, and he to have in so far the Precedency and Government of the Wife; but when through the Fall, the greatest measure of infirmity besel her, as being first in

the transgression, whereby she became the weaker Vessel: there was need, not only of a determination in things free, but an exaction of duties, wherein∣to she became less knowing and willing: Therefore, from that Consequence, and not by any new Imposition, the Man became to have Dominion over her, and power to make her do these duties, which in her Innocency, she would have done of her own accord.

This power oeconomical, as hath been said before, did naturally com∣prehend all authority, till most of it was devolved upon Magistracy, yet by this power the Husband may still contain the Wife within the compass of the conjugal Society, and her abode and domicile followeth his, and he hath right to recover her person from any that would withdraw, or withhold her from him, except in the case of an allowed Separation, for his Injuries and Attro∣cities, whereby she might not be with him in security and safety.

From this power the Husband hath over the Wifes person, and Conjugal Society involved in the Nature of Marriage, arises the Husbands power and right to the Goods of the Wife, whereby, according to the nature of So∣ciety, there is a community of Goods betwixt the Married persons; which Society, having no determinate proportion in it, doth resolve into an equa∣lity; but so, that through the Husbands oeconomical power of Government, the administration, during the Marriage, of the whole, is alone in the Husband, whereby he having the sole administration and unaccountable, his power may rather seem to be a power of Property, having indeed all the Ef∣fects of Property, during the Conjugal Society, yet is no more than is exprest.

This right of the Husband in the Goods of the Wife, is so great, that hard∣ly can it be avoided by the pactions of parties, whereby if any thing be re∣served to the Wife, during the Marriage, to be peculiar and proper to her, excluding the Jus Mariti: Yet the very Right of Reservation becoming the Husbands, Jure Mariti, makes it elusory and ineffectual, as always running back upon the Husband himself, as Water thrown upon an higher ground, doth ever return; And therefore a Wife, before her Contract of Marri∣age, having disponed a part of her Joynture, and taken a Back-bond for imploying of it for the use of her future Spouse and Family joyntly, though the Husband by his Contract of Marriage, renunced his right thereto; yet he was found to have the power to mannage it, to the use of the Family, Februa∣ry the 9. 1667. Lord Collingtoun and Ratho contra Tennants of Innerteil, and Lady Collingtoun, nevertheless by private pactions, the interest and division of the Goods of Married persons, after the dissolution of the Marriage, may be ac∣cording to their pleasure, as they agree: and Alimentary Provisions, in case of necessary Separation, are so personal to the Wife, that inhaerent ossibus, and recur not to the Husband or his Creditors.

Besides the Obligations of the married persons, which are naturally in the minds and affections of each to other, there is outwardly the Obligation of Co-habitation, or Adherence, of which formerly; and the Obligation of the Husband to Aliment, and provide for the Wife in all necessars, for her Life, Health and Ornament, according to their means and quality, to which he is naturally bound, though he had no means, but were to acquire the same, For he that provides not for his own Family, is worse than an Infidel; yet the Civil effect thereof, is only to give Aliment and Intertainment, according to the mans means and quality, and so he is civilly bound, quoad potest; hence it is, that the Aliment, or Furnishing of the Wife, is a Debt of her Husbands, not

only for what is furnished by Merchants and others, hoc nomine, in the Husbands Life, but even her Mournings after his Death, if it be proper for her qua∣lity to have Mournings, burden the Executors of the Husband, and not the Wife, November 12. 1664. Lady Kirkaffie contra Cornelius Neilson. July 7. 1675. Agnes Wilkie contra Christian Morison. Jus Mariti, is a Legal As∣signation to the Wifes moveable Rights, needing no other intimation, but the Marriage, and is preferable to any voluntar Right, prior to the Marriage, if not intimate before the Marriage, December 18. 1667. John Achinlek con∣tra Mary Williamson and Patrick Gillespie.

The Roman Law hath exceedingly varied in this matter from the Natural Law; for with them, the Wife was not in potestate viri, but either in potesta∣te Patris, or, sui Juris, and her Goods remained fully her own, unless they had been constitute by her in a Tocher, of which the Husband had the admi∣nistration and profit, during the Marriage, ad sustinenda onera Matrimonii; and in which, after dissolution of Marriage, he had no interest, except by paction, de lucranda dote; and for security whereof, the Wife had donationes propter nuptias equivalent, only in dote estimata, the Husband had power to dis∣pose of the Tocher, for the value 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 Cu∣stoms, 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 conveen∣able, 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, Margae∣ret 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. Reve∣rentia 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, Hus∣band 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 ex∣cept 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 Mar∣shel: Or that she were pursuing her Husband himself, against whom, or∣dinarily 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. Febru∣ary, 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 In∣hibition 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 Hus∣band. This delay, where a Term is not exprest, is upon considera∣tion 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 interceed∣ed 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 gene∣rally 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, Ja∣nuary, 30. 1635. Mitchelson contra Moubray; in which case, the Bond being grant∣ed 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 An∣nualrent, 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 con∣tract, Had. July, 6. 1610. Eustacius Wise contra Lady Hallyrudhouse; this must be understood, where the Wife has an Aliment constitute by her Hus∣band, 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 Hus∣band, 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 Chil∣dren, 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 for∣bear 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 except∣ed, 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 Arrest∣able 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 there∣fore, an Heretable Bond, found to belong to the Husband, Jure mariti, be∣cause 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 af∣ter

his Decease, and not to the Wife, or her second Husband. Also, a Le∣gacy 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. Drum∣mond, contra Captain Rollo, except Aliments duely and competently provided for the Wife, which are not Arrestable for the Husbands Debt, Novem∣ber, 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, Wal∣ter 〈◊〉〈◊〉 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 ob∣liege her not: yea, a Renunciation of a Tenement by a Wife, without con∣sent 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 af∣ter 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 Hus∣band in the same Contract of Marriage, renounced his Jus Mariti therea∣nent, 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 as a formal and a proportional Aliment, as was found in the case of the Creditors of Mr. Andrew Hamiltoun, contra Lady Carberry his Wife.

From this Communion of Goods, it follows also, that there is a Commu∣nion of Debts, whereby the Husband is lyable for the Wifes Debt, though it should both exceed her and his Moveables, and the profit of the Wifes Land, or of her other Heretable Rights; but this was not found to hold in matter of wrong, or Criminal things; and so the Husband found not lyable for a Spuilzie, or wrongous Intromission committed by his Wife, without his knowledge or approbation, during the Marriage, February 2. 1628. Scot contra Katharine Banks and James Neil. The same is observed by Spots, Hus∣band and Wife, inter eosdem; these were done, Stante Matrimonio, without the Husbands consent: And yet the Husband found lyable for the damnage of a Milne demolished by his Wife, as praeposita negotiis; and by his Dome∣stick Servants, though he was out of the Countrey, Spots, Husband and Wife, Laird Ludqhairn contra Earl of Marishal. Neither was a Husband found lyable for the penalty of the contraveening the Act of a Kirk Session, ut supra. A Husband found lyable for his Interest, for his Wifes Tutor Compts, not only what she was lyable for, during her Widouity, but during the time of a former Husband, his Successor being always first discust, as to what was 〈◊〉〈◊〉 in his time, March 28. 1629. Mathison contra Waristonn; yea, without the discussing of the Successors of the first Husband, primo loco, where the intromission was before both Marriages, but prejudice to the De∣fender, to pursue the Heirs of the first Husband as accords, February 18. 1663. Dumbar of Hemprig contra Lord Frazer. But a Husband was not found lyable for Furniture, given by Merchants to his Wife, without his consent, she having gone to London without his Warrand, except in so far as her ordinar expenses would have amounted to; if she had stayed at home, though her Husband had not Inhibite her, July 6. 1677. John Allan contra Earl and Countess of Southesk.

After Inhibition against Wives, the Husband is not lyable for any thing they Contract, except what is furnished suitable to their quality, and where the Husband cannot instruct that he sufficiently provided his Wife otherwayes, July the 25. 1676. 〈◊〉〈◊〉 Campbel contra Laird of Abden. The like was found at the same time, concerning the Furniture of the Lady Monteith.

But this obliegement of the Husbands being only for his Interest, 〈◊〉〈◊〉 Mariti, the Debt it self doth not properly become his; but only it may take effect against his Person and Goods, during the Marriage: but if that Interest were dissolved by his own, or his Wifes death, there will be no farther Process against him, or his Heirs, Nic. de reverentia Ma∣ritali, Campbel contra Dumbar. And though there was, Litis contestation, before the Wifes death, the Husband was found free; 〈◊〉〈◊〉 he was or∣dained by Interloqutor, to find Caution, to pay what should be de∣cerned, July 11. 1664. Dumbar of Hemprig contra Lord Frazer. So like∣ways,

a Husband decerned with his Wife for his Interest, she dying before executi∣on, he was free of the Debt, December 28. 1665. Dam Rachel Burnet contra Lepers. The like, where the Husband was holden as confest, upon refusing to give his Oath of Calumny, February 26. 1668. George Graham contra Grizel Touris, and Kelhead her Husband: so likewise, a Husband decerned with his Wife for his interest, having died before execution, his Successors were found free of thedebt, Hope, transferring, Francis Kinloch contra Dumbar: But the contrair was found, where the Husband was denunced upon the Decreet, and had sold his Wifes Portion of Land; Ibidem, Earl of Murray contra Lord St. Colmb. The like, where the Decreet against the Husband, after his Wifes decease, was only found ef∣fectual, in so far as might extend to his Wifes third part of his Moveables, February 7. 1629. Brown contra Dalmahoy. And a Husband was found ly∣able for his Wifes Debt, after her Death, in so far as might be extended to the benefit of her Life-rent Duties, resting at her Death, February 1. 1662. Sir James Cuninghame against Thomas Dalmahoy. And the Husband is al∣ways lyable for his Wifes Debt, even after her Death, in quantum est lucratus, which cannot be understood to be by every Benefit, or Tocher, Marriage being an onerous Contract, where a Tocher is given, ad sustinenda onera Matrimonii, and for the Wifes Provision by Law or Paction, after the Mans Death: And therefore, he can only be accounted, Lucratus, when the benefit he hath by his Wife, doth far exceed these, onera, December 23. 1665. Dam Rachel Burnet against Lepers. And even in case he be Lucratus, the Wifes Heretage must be first discust, January 23. 1678. Agnes Wilkie contra Stu∣art and Morison. A Husband being charged Summarily for his Interest, upon a Decreet obtained against his Wife, before the marriage, and denunced thereupon; yet not being undertaken by him, or affecting his Goods be∣fore his death, he was Liberat, March 20. 1627. Knowes contra Kneiland. The like, though not only Horning was used against the Husband, but Arrestment thereupon, January 23. 1678. Agnes Wilkie contra Stuart and Morison. But a Husband having given Bond of borrowed Money for his Wifes Furniture, was found lyable therefore after her Death, July 7. 1680. Slowan contra Lord Bargainie. But that the Husbands Lands, or Here table Rights, will be lyable for his Wifes Debt, there is neither Decision nor Ground for it; these not being in Communione bonorum. It is more dubi∣ous, and for any thing I know, undecided, Whether the Heritable Debt of the Wife will affect the Husband, Quoad mobilia; but seing it is a Com∣munion of Goods only moveable, it should be also of Debts moveable, though in communi forma, as Tutors or Curators. So Husbands will be decerned generally for their Interest; yet with this difference, that Tutors and Curators will be lyable, in so far as they have the Pupils Means. But I never heard that there was distinctions, whether the Wifes Debt did exceed the third part of the Mans Moveables, which is her Proportion of the same; but indefinitely, it hatheffect against the Husbands Person by Caption, or his 〈◊〉〈◊〉 by Poynding. But a Wifes Heretable Bonds, become not her Husbands, though uplifted by her, or made moveable by a Charge, during the Marriage, seing she then re-imployed the Money for Annualrent, February 〈◊〉〈◊〉. 1679. Alexander Cockburn contra George Burn.

14. These are the Interests of the Man and Wife, during the Marriage; but before we come to their Interests, after the dissolution thereof, it is to be considered, that by our Customes, Donations between Man and Wife, Stante Matrimonio, are Revocable by the giver, during Life;

which our Custome hath taken from the Civil Law, where this Rea∣son is rendered, Ne unituo amore se spolient; Thus a Donation betwixt a Man and his Wife, was found anulled by the 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 Hus∣band was allowed to recall a Bond granted to his Wife, bearing, that he thought it convenient, that they should live a part; and therefore ob∣lieged 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 Renunciati∣on of that Priviledge, February 6. 1666. Livingstoun contra Beg. Yea, a Donation by a Husband to his Wife, was found Revocked by a Poste∣rior 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 No∣vember 20. 1662. Children of Wolmet against Lady Wolmet. And un Infeft∣ment, 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 ft∣ment 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 Hayn∣ing. 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, De∣cember 15. 1674. Mr. Robert Kinloch contra Raith. It was also found ef∣fectually 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 Hus∣band granted Infeftment of all that he then had, there being no Con∣tract of Marriage, And thereafter, a second Infeftment, both Stante Matri∣monio; The first was sustained, being in place of a Contract of Mar∣riage; but the second was found Revockable, 23. of November. 1664. Halyburtoun contra Porteous. And a provision to a Wife, having no Con∣tract of Marriage, was found Revockable, in so far as it exceeded a Pro∣vision suitable to the Parties, 27. of July 1677. Short and Burnet con∣tra 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 As∣signation to an Heritable Bond, by a Wife to a third Party, but to the Hus∣bands 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 Hus∣band 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 Dona∣tion 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 con∣tra 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, do∣natio inter virum & uxorem, Margaret Dowglas contra Aitoun. A Bond con∣ceived 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, De∣cember 21. 1638 Laird of Craigmiller contra Relict of Gawin 〈◊〉〈◊〉, yet there∣after 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 con∣tra 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 true∣ly 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 there∣after; 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 be∣come 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 Dis∣position 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 intertain∣ment, during the Marriage; but only for her Cloathes which were before the Marriage, and her Funeral Charges which was after the Marriage was Dis∣solved, 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 Sande∣lands 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, accrue∣ing through the Marriage, as is expresly provided by the foresaid Act of Par∣liament, 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 ei∣ther 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, du∣ring 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 Communi∣ty 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 Obligati∣ons, and Natural Rights, which interveen betwixt Parents and Children.

Law and Custome hath favoured, and priviledged Wives in many cases, prop∣ter 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, De∣cember 28. 1668. Margaret Mckenzie contra Robertsons. July 19. 1664. Elizabeth Scrimzour contra Murrays; yea, gratuitous, moveable Bonds granted by a Hus∣band, 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 Move∣ables, 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 ob∣lieged 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 im∣ploy 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 reco∣vered 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 oblieg∣ed 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 death. Yea, a Wife was found to have right to the expenses of Child-bed, of a posthumus Child, born after the next Term, against the eldest Son, though he was not Heir, but having an universal Disposition of his Fathers means, which was ve∣ry considerable: which Disposition was granted after the Posthumus Childs Conception, November 10. 1671. Thomas Hastie and Barbara Ker his Mother contra William Hastie. A Wife has also her Mournings, if her quality require it, out of her Husbands Executry, November 12. 1664. Nicolas Murray Lady Craigaffie contra Cornelius Neilson. July 7. 1675. Agnes Wilkie contra Christian Morison. And likewise, if the Wife predecease, her Executours have the half, or third of her Husbands Moveables, the best of every kind being set aside, as Heirship Moveables, though there could be no Heir for the time, the Husband being alive, December 8. 1668. Agnes Guidlet contra George Nairn.