What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. VI.
Moveables accruing to the Wife during Marriage.
Dame, Janet Murray Lady Pitfirran v. Mr Alexander Wood, Chamberlain to the Earl of Kinnoul
Date: 26 July 1709 Case No. No 38.
A bond granted to a Lady in lieu of the ordinary compliment of a gown, for consenting to the alienation of her husband's lands, found not to fall under the jus mariti.
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In the suspension of a charge at the instance of the Lady Pitfirran against Mr Alexander Wood, for payment of L. 1400 contained in a bond granted by him to the charger, for the behoof of the Lady Cultmalundie her daughter, in lieu of the compliment of a gown for renouncing her liferent right in the lands of Cultmalundie, purchased by the Earl of Kinnoul from David Drummond her husband;—the Lords found the bond not compensable by a bond granted of the same date for the like sum by the husband to Alexander Wood the suspender, in respect the customary gratification to a wife for her consent to the alienation of her husband's lands, commonly called, ‘the Lady's gown,’ falls under the paraphernalia, and excludes the jus mariti; and it hardly consisted with bona fides in the suspender, to take another bond at the same time from the husband, to defeat the security granted to the Lady.
Fol. Dic. v. 1. p. 387. Forbes, p. 350.*** Fountainhall reports the same case:
Mr Alexander Wood chamberlain to the Lord Dupplin, now Earl of Kin noul, grants bond to Dame Janet Murray, Lady Pitfirran, for L. 1400 Scots, who being charged, suspends on this reason, that he offered to prove by her oath, that though it bore borrowed money, yet her name was only inserted for the behoof of Lady Cultmalundie, her daughter; and that being acknowledged, then he behaved to have compensation; for ipso jure, the money being the Lady Cultmalundie's, it accresced to her husband, and he had a bond from him for the equivalent sum, which compensed the Lady's bond. Answered, It is very true, the Lady Pitfirran's name is for her daughter's behoof, but that will not prove that the sum therein contained accresces to Cultmalundie jure mariti; for it is offered to be proved, that when Cultmalundie sold his lands to the Viscount of Dupplin, it was agreed, that, besides the price, he was to give 100 guineas to the Lady for her consent to the disposition, and for renouncing her right and jointure therein, which gratuity is commonly called ‘the Lady's grown;’ and this bond was granted by the buyer's chamberlain to the Lady's mother on that very account; and it was not very honest to take a bond from the husband, at the same time to found a compensation to meet it; and such gratuities are of the nature of peculium separatum to the wife, and are as much exeemed from the husband's jus mariti, as her parapharnalia are; for what if the 100 guineas bad been actually employed to buy her cloaths, rings, and jewels, the husband nor his creditors could have claimed no right therein, and no more can the husband claim the money so destined in compliment for giving her consent. Replied, The wife can have no moveable sums, though hid and screened under other confident names; but the same ipso momento accresce and belong to the husband. The Lords found this gratification given for the Lady's gown did not fall to the husband, but properly was her own; and therefore repelled the reason of suspension, and found the letters orderly proceeded against Mr Wood.
