Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Isobel Eleis, Lady Innergelly, v. Sir Alexander Anstruther of Newark
Date: 26 February 1712
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Lady Innergelly against Sir Alexander Anstruther of Newark. Isobel Eleis, Lady Innergelly, having a considerable land-estate from Eleiston, her father, she was persuaded to make over the right of it to Sir Alexander in 1698, as fitter to seek out merchants for it: and he grants a backbond to be countable to her for the price; and to pay her an annuity of £100 sterling, in the mean time, deducing always 10,000 merks, as a premium for his pains. The seeds of discord being afterwards laid betwixt Colonel Lumisden of Innergelly, her husband, and her, Sir Alexander sells her lands of Shawfield to Daniel Campbell, and makes sundry transactions with others, but shifts to count to her; and, instead of paying the annuity aforesaid, gives her suspensions yearly. So finding herself over-reached, she pursues an aliment, and obtains £50 sterling modified to her per annum, and the rest declared to accresce to her husband. While she was struggling under difficulties, Sir Alexander raises a declarator of exoneration of his trust against her; and, in absence, obtains a decreet Absolvitor; whereof she now raises a reduction.
Alleged,—No process; because vestita viro, and he does not concur: and, though his backbond declares her discharge of the annuity shall be sufficient without her husband, yet this clause, derogating a jure communi, can never be extended to judicial acts and pursuing of processes without her husband's consent.
Answered,—There be few rules without some exceptions. Though a wife be sub curatela mariti, yet if he, after requisition, unreasonably refuse his concourse, or be legally dishabilitate, she may proceed; for, this being a privilege introduced in their favours, non debet in earum perniciem trahi; and he having renounced his jus mariti, she may remove this clancular decreet out of the way of claiming her full annuity; for, concesso aliquo jure, omnia creduntur concessa sine quibus illud expediri nequit,—l. 2 D. de Jurisdict. And, if I can discharge alone, then a majore, I may take this decreet out of my way alone, without my husband's consent.
Replied,—The Lords have never sustained such pursuits; seeing she is not Integra persona without him; and so a. wife was not allowed to reduce a horning; as Dury observes, 27th July 1631, Hay against Rollo. And Haddington, 9th January 1623, Marshall against Zuill, shows the Lords again refused it: but tells, the. Parliament of Paris, in such cases, authorises one to be their curator ad lites.
And the Lords remembered they had done the same lately to the Lady Pen-kill, who, being separated from Dunbar, her husband (as the Laird and” Lady Innergelly likewise are,) they having divided the jointure betwixt them; they would not sustain process till they first authorised her procurator to concur with her.
Then Sir Alexander alleged,—She could never recur to the 100 sterling:; because, by her decreet of aliment, she had accepted of the £50 sterling, and consented the rest should go to her husband. Answered,—It bore an express salvo, that it should be no homologation of the transactions betwixt Sir Alexander and her husband.
The Lords repelled the allegeance, in respect of the answer.
