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Scottish Court of Session Decisions >>
Pennycook v Cockburn. [1582] Mor 5764 (00 June 1582)
URL: http://www.bailii.org/scot/cases/ScotCS/1582/Mor1405764-002.html Cite as:
[1582] Mor 5764
What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. I.
Illiquid or conditional claims. - Rights having tractum futuri temporis. - Bygones. - Bills of Exchange. - Claims of relief. - Parapharnalia, &c.
Pennycook v. Cockburn
1582.
June. Case No. No 2.
A gift of non-entry belonging to a woman, having tractum futuri temporis, falls not under her husband's jus mariti.
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A woman called Pennycook, and spouse to umquhile Mr John Spens, burgess of Edinburgh, pursued one Cockburn for the deliverance of the gift of non-entrie, alleging the same to appertain to her as lawful cessioner and assignee made to the same. It was answered by this Cockburn, That he ought not to be compelled to deliver the same, because her said umquhile spouse, Mr John Spens, during his lifetime, disponed the said gift to the defender, and so the said gift was his own proper evident, and ought not to be delivered. To this was answered, That the said umquhile Mr John Spens had no power to dispone the same without the consent of his wife, but for his own lifetime; but that she, after his decease, could not be prejudged, but ought to be put in her own place against the same, being done without her consent and advice. The matter being reasoned amongst the Lords, some were of opinion, that maritus being dominus omnium bonorum, liberam disponendi habebat facultatem durante matrimonio, et quod illius dispositio, tam constante matrimonio, quam postea, cum effectu manebit. Others were of the contrary opinion, and that it was daily practised before the Lords, that the husband's disposition of any thing appertaining to his wife, without her consent and advice, took no longer effect but during the time of the marriage, et quod post mortem mariti revivescebat uxori quidcquid quod consensum fuit prius a marito uxoris.——The Lords, after long reasoning, voted for the most part, that the said gift and disposition, made by the husband during the time of the marriage, without consent of the wife, ought not to prejudge her after his decease.
