The Lords inclined to sustain a gift of escheat for adultery; though the party was not denounced to the horn, nor any sentence past in a criminal court. There was a decree of the Commissaries, finding the marriage adulterous and unlawful.
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There is a complaint given in by Mr Christopher Irving, son to Doctor Irving, against Elizabeth Ker, his pretended relict, shewing he had obtained a decreet of the Commissaries of Edinburgh, as executor and nearest of kin, finding his first wife was forced to withdraw for fear of shares laid for her life by the said Elizabeth; and thereafter she lived many years in adultery with the said Doctor, while his first wife was still in life; and that she had embezzled his father's means, and was still disposing thereon, whereby he would be utterly disappointed; therefore craving the goods might be sequestrate, &c.—Alleged, She had right by disposition, and was owned for his wife by the space of many years; and it was inauditum to dispossess her summarily, till her right was reduced.—Answered, By the 119th act, Parl. 1592, dispositions by the adulteress are declared void at the instance of the bairns, and there is par ratio for the adulterer.—Yet fee Sir George M'Kenzie's observations on that act.——The Lords thought there was periculum in mora, and therefore ordained the whole goods to be inventaried, and her to depone if she has abstracted any since the date of the giving in this bill, (for as to preceding imbezzlements, the Lords found the same could not be brought in here, but behoved to be pursued by way of action,) as also to find caution to make them forthcoming to the pursuer, in case he prevail; but if she fail to find caution betwixt and a prefixed day, then appoint the Magistrates of Edinburgh to sequestrate and secure the goods, and such of them as may spoil and perish by keeping, to appretiate and sell them, and deposite the price; and for the books, either to seal them up, or else to put them in a responsal man's hands, on his obligement to deliver them to any who shall be found to have belt right; and the Lords allowed this to be presently put in execution, without abiding the Minute-book and extracting, for fear of putting them out of the way medio tempore; even as the Lords granted” warrant summarily to apprehend James Mason, the bankrupt, when he way flying, without a caption; and caused secure David Spence's goods when he broke in 1690; and put on padlocks, where a competition of creditors arises on the death of a party; or examine a party when he is on deathbed, to lie in retentis; or put people to find caution judicio sisti et judicatum solvi, where they are in meditatione fugæ. (See Bankrupt)
In this case there was cited for the relict, 1. 4. § 3. D. de condict. ob turpem causam, quod meretrici datur nequit repeti; nam turpiter facit quod sit meretrix, sed non turpiter accipit cum sit; and Covaruvias on the Canon Law goes farther, that meretrix potest agere pro mercede promissa; but these are unchristian immodest citations. (See Pactum Illicitum.)
1698. February 3. In the declarator of Elizabeth Ker, relict of Doctor Christopher Irving, her escheat, pursued by the Doctor, his son against Mr Thomas Skene, as having right by disposition;—it was alleged, There could be no escheat upon the adultery, because the same only falls after a denunciation to the horn, and a sentence in a criminal Court; and the act of Parl. 1551, and act 74, 1563, and act 105. 1581, anent adultery, do all relate to the denounciation, or some criminal trial; but ita est, all the warrant of this gift of escheat was a decreet of the Commissaries, finding the marriage adulterous and unlawful; and a confession of adultery emitted before a kirk session was found by the Lords, not to be a sufficient ground of escheat, 9th Jan. 1662, Baird contra Baird, (Stair, v. 1. p. 77. See Proof.)—Answered, By the general practice, escheats have proceeded on the crimes of adultery and usury, where they are notour, without any previous sentence or conviction; and the Commissaries are very competent to judge the divorce. though, they cannot punish the crime; and so upon their sentence the escheat may follow: And the reason why a confession to a minister and his elders is not probative, is, because that is only in soro pænitentiali emitted ad levamen conscientiæ taking away the scandal, and is not to be made use of farther, least it harden men in their sins. And reduction being also craved of a disposition, made by the Doctor to his second wife, because prejudicial to the children of his prior lawful marriage it was alleged, That the 119th act of Parl. 1592; discharges adultresses to dispone in pejudice, of their lawful succession, which was ob fragilitatem sexus, but this does not disable the adulterer; for though si quis comprbehendit et si quæ yet it is not e contra.—Answered, There is the same parity of reason in both, which allows extension etiam in slatutis pænalibus; and the Lords had found so, 20th July 1622, Weir of Blaikwood contra Durhame, (Durie, p. 31. See Pactum Illicitum.)——The lords thought the case singular, and new, and therefore resolved to hear it debated in their own presence.
After a hearing, the Lords inclined to sustain the gift of escheat on these two grounds complexly, 1mo, That the escheat in such crimes falls ipso jure et exlege, sine sacto bominis. 2do, That there is a formal gift here, on her being denounced fugitive, which is conjoined by way of reply, though the declarator on it was not yet come in.
