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The Captain of Downe, called Stewart, was pursued by her who had been his wife, to pay to her 500 merks which he had received with her in tocher good, because they were divorced. In his defence it was alleged, that he should be assoilzied, because, before the divorcement, they being willing to be separated, they had contracted, the said Stewart for himself, and his said wife for herself and Paton, her mother's brother, for her, and taking burden as cautioner for her, by the which he had bound himself to pay to her 500 merks, in full contentation of all that she could pretend or crave by the marriage; and which sum he had paid to Paton, and reported his acquittance thereof. It was answered, that that contract was made stante matrimonio, and was null, and could not exclude her from her action of the law. Nevertheless, the Lords found the exception relevant; albeit in my opinion it was illicitum pactum betwixt the husband and the wife, et propter turpem causam, and so was null of the law.
Fol. Dic. v. 1. p. 410. Haddington, v. 1. No 1062.
