Scottish Court of Session Decisions

Subject_1 CONDITION.
Subject_2 SECT. II.

Condition of Marrying with Consent.

Captain John Dalziel and Christian Elies
v.
Scotstarbet, &c

Date: 9 June 1687
Case No. No 30.

Found, that a lady had right to her tocher, although she had not obtained the consent of certain persons named by her father.

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Captain John Dalziel and Christian Elies his spouse, having obtained a deliverence last Session to cause Scotstarbet, Livingston and me, to answer summarily to a declarator raised by them against us, to consent to their marriage, and to her disposition of her portion to him by her contract of marriage; or else that the Lords would declare her disposition valid without our consent; notwithstanding that, by her father's disposition, she is restricted to adhibit our consent;—The Lords, on a bill, retracted that deliverance, and ordained the process to be given out to see in communi forma; though he was a Captain in Holland, and his forelooff expired; because, whatever the Lords might appoint against me, as a member of the session, (and yet this is not in actu officii,) yet they could not deny the rest the usual induciæ deliberatoriæ of seeing in common form et via ordinaria.

July 6. 1688.—The declarator pursued by Captain John Dalziel and Christian Elies, his spouse, against Scotstarbet, &c. mentioned 9th June 1687, being advised; the Lords find that she has right to the tocher, notwithstanding the friends named by the father have not consented to her contract of marriage; and the Lords supplied their consent; but found she must provide it in the terms of her father's tailzie; so that failing of heirs of her body, and her sister Elizabeth, it goes to the other substitutes; so that her husband could not break nor alter it. He reclaimed against this, that he might have the power of disposal upon it.

Fol. Dic. v. 1. p. 190. Fountainhall, v. 1. p. 454. 510.