A contract of separation bona gratia, found effectual till it was revoked, and therefore a separate aliment found to cease after revocation, but sustained as to bygones.
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Thomas Begg having granted a bond to Livingston's wife, bearing, that in in respect he thought it convenient that they should live apart, he obliged him to pay her a certain sum of money yearly for her aliment, and obliged him never to quarrel, or recal that obligation; being charger thereupon, he suspends on this reason, that it was donatio inter virum et uxorem, and so he might recal the same; and now offered to cohabit with his wife, and aliment her according to his means. It was answered, that he had renounced that privilege, in so far as he had obliged himself, never to recal, or come against this obligment. It was answered, that though he had expresly renounced that privilege, yet the renunciation was donatio inter virum et uxorem, and he might therefore recal, and come against both.
The Lords found the reason of suspension, and reply relevant in time coming; but not for the bygone time, during which, the wife had actually lived apart, and alimented herself.
Fol. Dic. v. 1 p. 412. Stair, v. 1. p. 348.*** Newbyth reports the same case:
Thomas Begg upon a narrative, that he did not find it convenient to keep table and diet with Elibabeth Begg his spouse, and that it was just she should be entertained, therefore he is obliged to pay her 250 merks yearly, during her lifetime and his, for her aliment, whilk bond contains an assignation to Mr John, and Mr William Livingstons, for her behoof, to the duties therein contained; the bond being suspended upon this reason, that by the narrative, it appeared it was for aliment to his wife, and that he was most willing to aliment her with himself, it is donatio inter virum et uxorem and so revocable; to this it was answered, that the husband being major sciens et prudens cannot quarrel it, especially being expressly bound by the bond never to revoke the same. The Lords found the letters orderly proceeded for bygones and ay and while he should aliment his wife.
Newbyth, MS. p. 54.
*** See Earl of Argyle against his Lady. No 263. p 6054.
