Scottish Court of Session Decisions

Subject_1 ADULTERY.

The Countess of Argyle
v.
Tenants of Dollar, and the Earl of Argyle

Date: 19 December 1573
Case No. No 1.

A tack was granted to the longest liver of a husband and wife. They were divorced. After the husband's death, the Lady's right continued.

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Jean Stewart, Countess of Argyle, summoned the tenants of Dollar, to hear and see letters of the four forms given, and decreet conform, to compel them to answer and obey to her, of their teinds for years to run, conform to an letter of tack. The Earl of Argyle, brother to her husband, and one of the parochiners, alleged, That she shall have no letters, because the tack was made to umqle Archibald, Earl of Argyle, her husband and to her, the longest liver of them two, and to the said umqle Earl's heirs and assignees; and before the decease of the said Archibald, there was an sentence of divorce given betwixt them, for certain causes contained in the said sentence, by virtue of the whilk, the pursuer had tint all thing that she had of her husband by reason of marriage, and sicklyke all tacks that she was in by him; because it is to be supposed, that all letters of tacks set to a man and his wife, be obtained by the industry of the man; and she therefore ought and should tyne the same, by reason of the said sentence of divorce.—The pursuer alleged, That she should tyne no more, neither land nor other thing, but only so meikle as was given to her, or obtained by reason of the said marriage; and so this tack cannot come under this decreet, by reason the samen was set by her umqle husband and to her, the longest liver of them two, long after the completing of the marriage, by a stranger, and not by her husband, for the causes of marriage; and albeit such tacks may be conquest, may be supposed, and are supposed to be gotten by the man's industry, that is no cause in this case, that the woman should tyne the tack; because all things that is supposed to be by the law, is not admitted to be truth, where the contrary may stand.—Whilk alledgeance of the Lady was admitted by the Lords, and letters decerned, conform to the tack, for answering and obeying her, conform to the desire of her summons.—Thereafter the said Earl, and the rest of the defenders, alleged, That the pursuer's umqle spouse had made Mr John Patoun cessioner and assigney to the said tack and terms to run, and profits thereof, by virtue of whilk the cessioner and assigney was in possession of the samen.—The pursuer alleged, That if the said Lord had made the said Mr John assigney, yet he never came in possession of the samen by virtue of the assignation; and if he was in possession, the same was because he was servant and collector of sundry of the Earl's rents, as chamberlain to him, amongst whilk he intromitted with the said tiend, as said is, more quo supra, whilk he disponed again at the said Earl's command, and to his utility and profit unto his decease; and made compt and reckoning thereof to the said Earl, and others having power thereto of him, or by him, et non alias.—Whilk reply and allegeance of the said Lady, was admitted by the Lords, and referred to her probation.

Colvil, MS. p. 4.