Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

William Hamilton of Grange-Brech, and Margaret Boswal, his Spouse,
v.
Cornet George Boswal

Date: 25 July 1705

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Margaret Boswal, daughter to Cornet George Boswal, having a proper estate, which came by the mother, and friends on the mother's side,—as 4000 merks upon Vicars-Grange, 2000 merks due by Kininmonth, and thirteen acres of land, with a lodging, orchard, and other houses, in and about Kinghorn : her father and his two brethren had a long intromission with her whole estate. William Hamilton of Grange married her with the father's consent; and neither he nor she knowing any thing of her fortune, they both yielded to the father's terms,—giving to him, and accepting from him, whatever he was pleased to propose. The Cornet contracted with his daughter 6000 merks of tocher, reserving his own liferent of 2000 thereof; and, for this portion, he made his daughter, with consent of her future spouse, and him, as taking burden for her, discharge himself and his brother Balmuto of their curator-accounts; and, at the same time, took a separate obligement from them, to dispone to him, upon the day after their marriage, the thirteen acres of land, with the lodging, orchard, and other tenements above mentioned, under the pain of 1200.0 merks, by and attour performance :—and, accordingly, such a disposition was granted by Grange and his spouse, the very next morning after their marriage. They coming afterward to understand what a gross abuse had been put upon them, raised reduction of the contract, bond, and disposition, upon the grounds of minority, lesion, and circumvention. Wherein the Lords, 19th December, 1701, sustained the reason of lesion, in behalf of Grange's lady, who was minor; but found that the husband, being major, and not having proven concussion or circumvention, could not be reponed against the deeds subscribed by him, before and after the marriage.

For proving the lesion, a count and reckoning was appointed, wherein it was alleged by the defender, that his daughter, the pursuer, could not charge him with the rents of her lands, and annual-rent of her money preceding the marriage, because they fell under the husband's jus mariti; and, by the contract of marriage, and disposition after the marriage, he had disponed the same to the defender.

The Lords found all must come in computo to make up the lesion, but decerned the Cornet to pay only the principal sums; and assoilyied him from counting for annual-rents of sums, or rents of lands, due before the marriage, as falling under the jus mariti of William Hamilton, who discharged the same, and is not restored against the discharge.—[See 22d Nov. 1705 ; next page.]

Page 34.

Affirmed on Appeal.—Vide Robertson's Appeal Cases, p. 346.