Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION I.

What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. V.

Effect of rendering the Wife's Heritable Subjects Moveable.

Ogilvies
v.
Earl of Eglinton

Date: 11 June 1609
Case No. No 31.

Requisition and horning used by a married woman for her principal sum, was found not to make it moveable so as to empower her husband to discharge it jure mariti, without her consent; but that she or her executors might still crave it.

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Ogilvie's daughters, and heirs to their mother Martha M'Calzean, and Mr David Ogilvy their father, assignee constituted by the Guidwife of Whitekirk, who were heirs to umquhile Euphan M'Calzean their mother, pursue the Earl of Eglinton, to hear and see a contract made betwixt his umquhile Guidscher and Mr Thomas M'Calzean, for infefting the said Mr Thomas and his heirs in an annualrent forth of the said Earl's lands, which was registered in the said Mr Thomas's time, and transferred to Euphan his daughter in this Earl, to be now transferred in these pursuers.—It was excepted, That this contract could not be transferred, because the said umquhile Euphan M'Calzean, proprietor of the said annualrent, and Patrick Moscrop her spouse, having made requisition to the defender for the principal sum, whereupon the said annualrent was granted, and put the said Earl to the horn for non-payment of the same, he had thereafter satisfied the said Patrick, to whom it appertained jure mariti, as made moveable by the said requisition and horning, and had reported his acquittance of the said sum.—It was answered, That the alleged acquittance of the husband could not prejudge the wife of her heritable annualrent, unless she had renounced and subscribed a formal renunciation.——The Lords having reasoned the matter, and considered that the requisition and horning appeared to make the sum moveable, whereby if the husband had past to the horn, it might have fallen under his escheat, so might he have disponed upon it, and discharged it; nevertheless, because he could not have granted a voluntary grant of redemption after her requisition, unless she had consented and subscribed, the Lords found that the allegance was not relevant, and decerned the contract to be transumed.

Fol. Dic. v. 1. p. 386. Haddington, MS. No 1613.