A voluntary contract of separation, by which a wife accepted an annuity from her husband, in full of every legal claim, found not to bar an action at her instance for a separation a mensa et tboro, on account of bad usage, and for a larger annuity, although she had for some time accepted the one fixed by the voluntary contract, which was equal to the jointure provided to her in a postnuptial contract of marriage.
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David Macculloch and Catharine Lawson, his wife, in May 1795, entered into a voluntary contract of separation, by which he became bound to pay her an annuity of L. 30, which she accepted of, in full of aliment, terce, and every legal claim which might arise to her, either during her husband's life, or at his death.
The parties were afterwards reconciled, and in December 1795, they entered into a postnuptial contract of marriage, by which Mrs Macculloch was provided in a jointure of L. 30 yearly.
In consequence of a subsequent disagreement, they again parted. The former contract of separation was, in March 1796, ratified by the wife, with consent of one of her nearest relations, and she thereafter accepted of two different payments, of L. 15. and L. 20 of the annuity thereby provided to her.
Afterwards, in June 1797, she brought an action against her husband, before the Commissarise of Edinburgh, concluding for a separation a mensa at thoro, on account of harsh usage, and likewise for an aliment of L. 200 yearly.
Mr Macculloch contended, That the action was barred by the voluntary contract of separation, and postnuptial contract of marriage. By the former, he observed, she had renounced every claim against him, in consideration of her annuity; and it was a deed, binding on both parties, especially as she alleged bad usage, which was a legal ground for a separation; Erskine, b. 1. tit. 6. § 30. And as her jointure, after his death, was fixed at L. 30, it is unreasonable that a larger allowance should be given her during his life.
The Commissaries repelled the defences, ‘ in so far as founded upon alleged private transactions between the parties; and before further answer, allowed the pursuer a proof of the facts stated in her libel.’
The Lord Ordinary on the bills refused a bill of advocation for Mr Macculloch, complaining of this judgment; and a reclaiming petition against his Lordship's interlocutor was unanimously refused, without answers.
Lord Ordinary, Craig.For the Petitioner, Montgomery.
Fac. Col. No 44. p. 103.
