Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 25 November 1685
Mrs Forrester v. George Govan
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The case of Mrs Forrester and George Govan was reported by Drumcairn. A wife's creditors who had adjudged her jointure lands, pursuing for maills and duties, it was alleged, by the husband's creditors, there could be no jointure, because, by the contract of marriage, it was only provided “at and on the receipt of the tocher;” and ita est the tocher is not yet received.
Answered,—She was not bound for it, but her father.
Replied,—It was made payable to her husband and her, and if he would not do diligence for recovery of it, she might; for in sundry cases the Lords authorise the wives, where their husbands refuse concourse. Duplied,—That the jus executionis et exactionis stante matrimonio was only in the husband; and where she can act without him, is allenarly when she craves him to be inhibited as vergens ad inopiam, but not against third parties.
The Lords found the husband only, and not the wife, liable to do diligence for this tocher, she not being personally obliged; and therefore assoilyied from the reason of reduction.
The same was decided in February and September 1671, between Corbet and Menzies.
