Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Earl of Dumfermling
v.
The Earl of Callendar

Date: 24 July 1677

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The Earl of Dumfermling, having pursued the Earl of Callendar before the council for a riot, for carrying away the plenishing of the house of Pinkie, belonging to the Countess of Dumfermling;—He alleged, That the property of the goods belonged not to the Countess, but to the Earl, her husband, jure mariti. It was answered, That the Earl, before his marriage, had renounced his jus mariti. And it being replied, that, by the supervenient marriage, the right of the moveables returned to the husband jure mariti, the council, in respect the spuilyie was old, superseded to give answer till the property of the moveables was decided before the Lords of Session. Which being now debated,—

It was alleged for Callendar, That, albeit this renunciation of the Lady's moveables bore date before the marriage, yet it was truly granted the time the Earl's estate was sequestrated by the English, long after the marriage; and so is donatio between man and wife, revokable, and, de facto, revoked under the Earl's own hand. 2do. Marriage being a legal assignation, suppose the moveables had been the Earl's before the marriage, and had been disponed by him to the lady, yet they did return by the subsequent marriage. 3tio. The public law hath established the right of man and wife as to moveables, that there is a communion between them, and that the husband hath the management; and there is no exception but a competent aliment to the wife, ad victum et amictum.

It was answered for the pursuer, That the defender can never pretend that the writ subscribed by his predecessor was false; which would be forgery. 2do. Whatever might be said in a simple assignation, this renunciation is in contemplation of the marriage, and so in the same condition as in a contract of marriage; in which case, the husband or his heir would certainly be repelled, by a personal objection, to question the wife's right, whatever the creditors might say. 3tio. The moveables being extant after the dissolution of the marriage, as there is no question but all provisions are allowable, by husband and wife, to take effect after the marriage, so must this as to these goods extant. Neither is it essential to marriage to have this communion of goods; which the Roman law hath not; and therefore it may be renounced.

It was answered, That this being a public law for public utility, private pactions cannot derogate therefrom. But this communion is competent ipso jure; and no paction can free husband or wife of the debt of each other; so neither, of the communion of moveables. And, on the same ground, donations between man and wife are revokable; which no renunciation, or contract of marriage, or otherwise, can alter, both these being introduced for the quiet of a conjugal society. And this renunciation relates not to the dissolution, but to the standing of the marriage; bearing expressly that the husband should not meddle with the moveables but by the wife's consent; which is an inconsistent interdicting him to his wife, contrary to the power of the government of his family: which was found inconsistent in the case betwixt the Lady Collingtoun and her husband, where, before the marriage, the lady disponed the half of her liferent to Ratho, who gave a back-bond to employ it to the use of the family of the future spouses: and though, thereafter, Collingtoun ratified Ratho's right, and renounced his jus mariti, yet the Lords found, that, Ratho's back-bond applying it to the benefit of the family, that the lady could not separate from the family, and crave a share; nor, being in the family, have any share in the management; but that the husband had it alone, as an inseparable right.

The Lords found the allegeance for Callender relevant, that this renunciation was antedated, for a reasonable cause, to exclude the usurpers from sequestration; and, therefore, found it relevant, that it was duly subscribed during the marriage, and revoked by the husband as a donation to the wife; and reserved the other point, which needed no probation, till the close of the cause.

Vol. II, Page 547.