A contract of separation bona gratia, found null, in consequence of which money saved by the wife during the separation, was found to belong to the husband.
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The Lady Athol having borrowed 1000 merks from the Lady Burgh, she granted to her a bond thereupon, with a blank for inserting the name of the creditors to whom it should have been paid. This bond being assigned by her, and delivered to one Alexander Drummond, who inserted his own name therein, and charged the Lady Athol, and Captain Rollock her husband for the same; who suspending, that the bond was blank the time of their subscription, and the sum pertained to the Lady Burgh, from whom they borrowed it, at the which time she was clad with a husband, who yet lives, to whom the same must appertain, and in whose prejudice the Lady could not assign the same nor any other name could be inserted therein, to prejudge his right thereof; and the charger alleging, that the Lady and her husband, by a voluntary separation made betwixt them, of their mutual consent were divorced, like as the husband, in respect of that separation, had given her a certain sum of money for her sustentation; of the which sum this sum now acclaimed is a part, and so the husband can have no interest to claim any part of this sum, especially seeing this charger had furnished her for her aliment, as much as would exhaust a great part of this sum; and the husband compearing by his procurator, concurred with the suspender, and insisted in the reason with, him. The Lords suspended the charges raised by Drummond upon his bond, and found the same, the sum therein contained, to pertain to the said husband, and that he had right thereto, and that the wife could not make any right thereof, nor insert any name in the bond to the husband's prejudice, the the money being acknowledged to be hers; and found, that this voluntary separation betwixt man and wife, not being lawfully authorized by a legal and judicial sentence, ought not to be sustained, nor allowed; and therefore found, that no deeds depending thereon, whereby any monies were provided to her by her husband, ought to be effectual, but was altogether null, whenever it was drawn in question: And whereas it was alleged by the charger, that a great part of the money was applied for the wife's aliment; they found, that being condescended, and lawfully qualified, ought to be allowed pro tanto, to produce execution to the charger for the same.
Act. Stuart.Alt.Clerk, Gibson.
Fol. Dic. v. 1. p. 412. Durie, p. 702.
