Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Jus Relictæ
1671.
June22,
24.
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June 22.—A wife pursuing for the third of the moveables, It was alleged,—They behoved to have compensation, in so far as they offered them to prove, that in her husband's time she intromitted at her own hand inscio marito with such and such goods and gear, and disposed on them, and made use of the price which was never in rem mariti versum; and therefore these goods must be imputed to exhaust her third pro tanto, especially considering that this defence is founded on that same individual reason, that actio rerum amotarum is in the civil law. Answered, that whatever intromission she had with her husband's goods in his lifetime, can never be ascribed in satisfaction of third, or any thing else she can claim to by decease of her husband; because, being in the eye of her husband, it must be presumed to have been with his consent; and they might as well make her liable, and fix a passive title on her for intromitting in her husband's time as do this: both which are such novelties as I believe neither of them were ever heard at this bar before.
They were to have the Lords answer thereupon, infra No. 182.
Advocates' MS. No. 180, folio 100.
1671. June 24.—In the foresaid cause at the 22d of June, No. 180, taken to interlocutor, the Lords found intromission by the wife stante matrimonio not relevant, unless they would say she was thereby locupletior facta; that she conveyed her husband's means, and took bonds therefore in her own name, and applied them to her own use, and so benefited herself to her husband's prejudice.
