An Exact and Faithful RELATION OF THE PROCESS Pursued by Dame Margaret Areskine, Lady , Relict of the Deceased Sir James Foulis of Collingtoun; against Sir James Foulis now of Collingtoun; before the Lords of Council and Session.  
WITH CERTAIN REMARKS Upon the Import and Extent of PROTESTATIONS For Remeed of LAW in General: And in Particular upon the Protestation or Appeal offered by the LADY.  
EDINBURGH, Printed at the Society of Stationer's Printing-house Harts-Close, over-against the Trane Church 〈…〉   

An Exact and Faithful RELATION OF THE PROCESS Pursued by Dame Margaret Arsekine, Lady , Relict of the Deceased Sir James Foulis of Collingtoun: Against Sir James Foulis now of Collingtoun; before the Lords of Council and Session.  
DAme Margaret Areskine Lady Castlehaven. having succumbed in a Process pursued at her Instance, against Sir James Foulis of Collingtoun: She did Appeal and Protest for Remeed of Law, against the Interloquitor of the Lords of Session: And in prosecution thereof, hath caused Print and publish a Petition to be presented by her to the High Court of Parliament: In which she doth not offer any distinct Relation of the Process, Debate, or Decision; but satisfies herself with general groundless Assertions of the Justice of her Cause, and of the Iniquity of the Decision; whereby she pretends, All Faith in Contracts is Violated, the Law which ought to protect Widows, wrested to their Ruin: And fraud, and indirect Deal, are not only encouraged, but owned to be the design of Law: And which Decision, as it is pretended, Doth impugn Law, Equity, Justice, and Honesty.  
The Lady hath not thought fit to disperse or publish any part of the Process, or Debate upon which the Interloquitor proceeded, For verifying of this great Charge against the Supreme Ordinary Court of Justice in the Nation, whom our Predecessors thought worthy to be the Depositars of the Securities of their own, and our, Properties and Possessions; but she is pleased to lay the weight of all upon her own Assertion: And albeit bold Calumnies do ofttimes leave some Impression; yet this being a matter of the highest Concern, to the Interest and quiet of all, (not only those who have Process depending, but such as may have them) It cannot be unacceptable, that Collingtoun should publish to the World the whole Process and Debate upon which the Interloquitor of the Lords of Session proceeded; which indeed had been the proper part of the Lady, who makes the Complaint: By which means, either the Lady's Charge will be made good, or otherways the Justice of Collingtoun's Defences, and the Integrity of the Lords will be Vindicate, and the Nation satisfied and quieted in the Evidence, that their Rights and Securities are safely lodged: And it is left to the Judgement of all  persons, whether the former, or latter doth appear, upon perusal and consideration of the Process, which followeth, with so great Candour and Favour to the Lady, that no part of her Claim, or any Evidence thereof produced is omitted; though several Decreets and Instructions produced for Collingtoun be forborn; lest the Process might thereby appear too prolix.  

Copy of the Lady's Contract of Marriage.  
AT Edinburgh the first day of June one thousand six hundred and sixty one years: It is Appointed, Agreed, Contracted and Ended, betwixt the Honourable Parties following, to wit, Sir James Foulis of Collingtoun Knight, one of the Senators of the College of Justice, on the one part: And Dame Margaret Areskine, Relict of Vmwhile Sir Joh. Mᶜkenzie of Tarbat, on the other part; in Manner, Form, and Effect following: That is to say, the foresaids Parties Binds and Obliges them to Solemnizat and Accomplish the Holy Band of Marriage each of them with the other in face of Holy Kirk, with all Solemnities requisite; betwixt the date hereof, and the _____ day of _____ next to come but longer delay. In Contemplation of the which Marriage, the said Sir James Foulis Binds and Obliges him, to Renounce, Quite-claim and Over-give: Likeas, he by their Presents, Renounces, Quite-claims and Over-gives, all Right, Tittle and Interest, which he jure mariti can have claim or pretend, in and to the said Dame Margaret her Conjunct-Fee, and Liferent-Lands, Teynds, and others belonging to her, wherever the samen lie within this Kingdom, declaring the generality of this present Renounciation to be as sufficient, as if the said hail Conjunct-Fee, or Liferent-Lands, Teynds, and others were insert and set down here until: Renouncing all Benefit of the Law, or other Benefit whatsoever, either competent, or that may accress to him by this Contract, or by the subsequent Marriage, or by any manner of way whatsoever, to her saids Conjunct-Fee, or Liferent-Lands, or any part thereof, for now and ever; in Favours of herself to be used and disposed of at her pleasure. And by their Presents, doth take his hazard of what he may have otherways by the said Dame Margaret. And farther, The said Sir James Foulis by their Presents, Binds and Obliges him, his Heirs, Executors and Successors, That in case it shall happen him at any time, during the Marriage betwixt him and the said Dame Margaret, to Conquesce and Acquire any sums of Money, Lands, or Heretages; or to Receive payment of Sums of Money due to him, in that case to Employ the samen, And take the Rights and Securities thereof in Favours of himself, and the said Dame Margaret the longest Liver of them two, in Conjunct-fee and Life rend; and to the Heirs-male to be Procreate betwixt them; Whilks failing, to the said Sir James his other Heirs, who are appointed to succeed him in his other Lands and Heretages. And in case their shall be no Heirs Male, but Female; The said Sir James Binds and Obliges him and his forsaids, to provide them to the half of the said Conquest; and the other half thereof to pertain and belong to the said Sir James his other Heirs foresaids. Which Provision above-written, the said Dame Margaret accepts, likeas it is hereby declared, That the samen is granted and provided to her, and Heirs foresaids to be Procreate of the said Marriage, in full contentation and satisfaction of all other Conjunct-Fee, Terce, Third, Right of Movables, heritage, or any other Right whatsoever; except allennarly the Manor, Place, and Dwellinghouse of Collingtoun, and Yairds thereof, which are hereby appointed and allotted to the said Dame Margaret for a Dwellinghouse during her Life-time. Providing always she sufficiently Maintain and Uphold the said House, and Houses in as good Condition, as they shall be in, at the time of the said Sir James his Decease: And that she shall not Directly, or Indirectly be herself, or any others in her Name, or at her Direction, cut, or destroy any manner of growing Trees, or Planting about the said House or Yairds, or within any part of the Bounds of Collingtoun, for no pretext nor use whatsoever. And for the more Security, both the said's Parties are content and consent that their Presents be insert and Registrat in the Books of Council and Session, or in the Court Books of any other competent Judge within this Kingdom; to have the strength of an Decreet of any of the said's Judges, and their Authority Interponed thereto, that executorials of Horning upon an simple Charge of ten days and others competent, may be direct hereupon: And for that effect Constitute— Their Procurators, promitten de Rato, etc. In witness whereof, both the said's parties have Subscribed their presents, (which are written be Alexander Keith, Servitor to Mr. Andrew Gilmour Advocate) day, place and year of God above written. Before their Witnesses, Sir William Murray of Dreghorne Master of His Majesty's Works, and Sir John Foulis of Ravelstone Younger. Sic Subscribitur Ja. Foulis, M. Areskine, W. Moray witness, Jo. Foulis witness.   

Double of the Summons, Dame Margaret Areskine against Sir James Foulis of Collingtoun.  
JAmes, etc. Forsuameikle as it is humbly meaned and shown to us by our Lovet Dame Margaret Areskine Relict of the Deceased Sir James Foulis of Collingtoun, late Justice Clerk, and one of the Senators of our College of Justice. That where the said persuer therein designed Relict of the Deceased Sir John Mekenʒie of Tarbat be her Letters of Assignation and Disposition Subscribed with her Hand, of the date the last day of May 1661. years (for the Causes therein specified) Sold, Assigned, Transferred and Disponed from her, her Airs and Assigneys; to and in Favours of Mr. Adam Cunningham of Woodhall his Airs and Assigns whatsomever: All and hail her Life-rent Right of the Lands, Teynds and others after specified, to wit, Of all and sundry the Lands and Barony of Innerteil, therein comprehending the Maynes of Innerteil, Manor, Place, Houses, Biggings, Yards, Orchards, Dowcat and pertinents thereof, Bridge, and Lands of Bridge-lands, called the Village of St. Katherine's, with the Chapel of St. Katherine's, and Gift of Chapellanry of the samen, with the Houses about the said Chapel, and special Pendicle of the said's Lands, called St. Germans-Aiker; together with all Edifices, Yards, Tofts, Crofts, Coals, Coalheughs, Lyme and Lyme-quarrel, with the Mylne, Mylnelands and Multurs of the samen, Salmond Fishing, and other Fishings, as well in Salt as Fresh Waters, annexis, connexis, parts, pendicles and pertinents whatsomever of all and sundry the Lands and Barony of Innerteil, lyand within the Sheriffdom of Fife as principal: And also of all and sundry the Lands and Barony of Glengarnock, comprehending the special and particular Lands therein mentioned; and that in special Warrandice and Security of the said's Lands and Barony of Innerteil: And sick like of all and hail the half Lands of over and nether Tyries; with Houses, Biggings and Pertinents thereof, lyand within the: Regality of Dalkeith, Constabulary of Kinghorne and Sheriffdom of Fife, wherein the said Dame Margaret Areskine persuer was infest upon the 25 day of February 1645. Years; and siclike of all and sundry the Teynd Shaves of all and hail the saids lands of Innerteil and Bridge-lands of Innerteil with all and sundry parts, pendicles and pertinents thereof, and of all and sundry the teynd sheaves of all and hail the lands of Sea-field and the said's half lands of Tyrie, with their parts, pendicles, and pertinents above mentioned; And also of all and hail the teynd sheaves of all and sundry the lands of Balbartuon, mylnelands thereof and pertinents of the samen; and of all and sundry the teynd sheaves of all and hail the lands of Morislands with their pertinents all lying in the said Parochin of easter Kinghorn, and shirefdome of Fife, and pertaining to the parsonage of the said paroch Kirk, specified and contained in an Tack set be the Earl of Kinghorn to the deceased Sir, George Areskin then of Innerteil, and Dame Isabel Bruce his Spouse, & assigned be them to the said persuer, together with the Fruits, Rents, Emoluments & duties of the samen, Males, Ferms Kaynes, Customs, Casualties Tack-duties and other services and duties due and payable to the said Dame Margaret Areskin for the said's Lands, Stock and Teynd thereof, and that during the second Marriage. With power to him to Call Fellow and Pursue therefore, Decreets and Sentences thereupon to recover, and to remove and output Tenants therintil and to do all other things requisite annent the premises; And thereby made and constitute the said Mr. Adam Cunnigham her Cessioner and Assigney in and to the foresaids' Rights and Disposition of the samen: As the said Assignation and Disposition of the date foresaid at more length proports Like as the said Mr, Adam Cunningham be his letters of Translation of the dait the last day of May 1661. years for the causes therein expressed) sold, assigned, transferred, and disponed to and in favours of the deceased Mr. Alex. Foulis of Ratho, the foresaid Right and Disposition of the Conjunct-Fee Lands, Teynds and others above wirttten made and granted be the said persuer to him in manner above expressed; and surrogate 〈…〉 Translation and Disposition of the date foresaid, at more length bears, And sicklike, the said Deceased Mr. Alexander Foulis of Ratho be his back-band subscribed with his Hand of the date, the last day of May 1661. years (Narrating the foresaid Assignation granted be the said persuer to the said Mr. Adam Cunningham and the foresaid Translation granted be the said Mr. Adam to the said Deceased Mr. Alexander Foulis) Mentioning, that the said Vmwhile Mr. Alexander Foulis, taking to consideration, that the said Assignation, Translation and Disposition, and Right of Life-rent foresaid therein mentioned, was made and granted to him, no ways for his own use, Utility, and Benefit, but that the samen was only made use of in his Name, and the same borrowed thereto, for the use, Utility, and Profit of the said Deceased Sir James Foulis of Collingtoun, and the said persuer his Spouse during all the days of their Life-time jointly for the Entertainment and Aliment of their Family allennerly, and upon their express Terms, that the samen, or any parts thereof should not be liable to be affected directly or indirectly with the birding of the said's persons their Debts, bygone, present, or to come; and that none of their Creditors should have any Action against the samen, or any part thereof: Therefore he band and obleist him to denude himself of the said Life-rent Right, and of all Right, Tittle and Interest which he either had, or could have, claim or pretend thereto, or any part thereof: Likeas, the said Deceased Mr. Alexander Foulis be the Tenor of the said Band per verba de eodem, did denude himself and his Airs therein mentionat thereof; and Band and Obleist him and his foresaids to Dispone, likeas he thereby Assigned. Transferred and Disponed the said Life-rent Right, withal Right, Title and Interest, Claim of Right, or Possession which he had, or could pretend thereto, To and in Favours of the said deceased Sir James, and the said persuer in manner foresaid, with Power to them to use and Dispone thereupon at their pleasure; for the use and effect foresaid allennerly, and upon the express Provisions and Conditions above written, and no other ways; And in case it should happen the said Persever to survive the said Deceased Sir James Foulis her Husband. It is thereby declared, That in that Case the foresaid Right of Life-rent abovewritten was only in trust and to her own proper use and behoove; like as in the forsaid case the said deceased Mr. Alexander Foulis band and obleist him and his forsaids, to transfer the premises in favours of the said persewar, like as he thereby transferred the samen in her Favours: As the said back band of the date forsaid, insert and registrated in the Books of our Council and Session upon the 17 of January. 1667 years more fully proports. And in like manner be Contract of Marriage passed betwixt the said deceased Sir James Foulis of Collingtoun, and the said perswar on the ane and other parts, of the Date, the first day of June and year of God foresaid 1661. years, in contemplation of the Marriage then Contracted and thereafter solemnised, the said deceased Sir. James Foulis band and obleist him, to Renounce, Quite-claim and overgive, like as he thereby renounced quite claimed and overgave, all Right Title and Interest which he Jure mariti could have claim or pretend in and to the said persuer her conjunctfie or  Lands, Teynds and others belonging to her wherever the samen lie within this our Kingdom, Renouncing thereby all Benefit of the Law, or other Benefit whatsomever whilks might accrue to him by the said Contract or any manner of way whatsomever, to her said conjunct fie or Liferent Lands or any part thereof for ever, In Favours of the said persuer, to be used and disposed of at her pleasure, and did thereby take his hazard of what he might have otherways by the said persuar, And further the said deceased Sir James boulis did thereby bind and obleis him his airs executors and successors, that in case it should happen him at any time during the Marriage betwixt him and the said persuer, To conqueis and acquire any sums of money, lands or heretages, or to receive payment of sums of money due to him, In that case, to employ the same and take the rights and securities thereof in favours of himself and the said persewar the longest liver of them two in conjunctfie or lifrent, the said Vmwhile Sir James, his other Airs who are appointed to succeed him in his other Lands and Heretages: As the said Contract of Marriage of the date foresaid Insert and Registrat in the Books of Our Council and Session upon the said 17 day of January 1667. years likeways more fully proports. And true it is, and of verity, that the said Vmwhile Sir James Foulis the said persewers' Husband during the time of the foresaid Marriage hes Conquest and Acquired, and hes received payment of sums due to him, which will extend to the sum of two hundreth and threescore thousand Marks, which by the foresaid Contract he was obleist to employ and secure upon Lands and Heretages, and take the Rights and Securities thereof, in Favours of himself and the said persewer, the longest liver of them two: And by the foresaid Back-band the Mailles and Duties of the said Lyferent Lands, provided to the said Persewer in manner foresaid, extending yearly to the number of thirty six Chalders of Victual, was to be Employed for the Maintenance of the said Deceased Sir James Foulis▪ and the said persewer their Family: Nevertheless the said Vmwhile. Sir James Foulis hes not Employed and Secured the said sum of two hundreth and threescore thousand Marks Conquest and Acquired, and received by him as said is, and taken the Rights and Securities thereof in Favours of himself and the said persewer and the longest Liver of them two, in Conjunct-Fee and , as said is; nor yet did he Employ the said threttie six Chalders of Victual for the Maintenance of his own and the said persewers' Family, but did actually uplift and Intromet with twenty four Chalders of Victual of the said 36 Chalders of Victual, for the particular years of God after specified, of the quantities, qualities and prices after rehearsed, viz 22 Chalders of Bear, and two Chalders of Meal yearly out of the Lands and Barony of Innerteil, and that for the Cropts and Years of God, 1661., 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 85, 86, and 1687 years, each Boll of the said Victual, Meal and Bear over head being worth six pounds' Money of this our Realm communibus annis of the years above mentioned, conform to the Current prices of such Victual grow and in that part of the Country. And that the said persewer, during the said space of twenty six years, did Maintain the said Deceist Sir James Foulis his Family with all suitable Entertainment; and did pay the rent of his Lodging wherein he Dwelled during the said spaces, and paid all Servants Fees. And albeit, Sir James Foulis now of Collingtoun eldest lawful Son, and appeirand Air to the said, Vmwhile Sir James Foulis his Father, and Executor nominate and confirmed to him, at least Successor to him in his Lands and Heretages titulo lucrativo post Contractum debitum, and universal Intromettor with his movable Airship Goods and Geir, and Charter Chest, aught and should secure the said persewer in an  Right during all the days of her Lyfetime, of the said Sum of two hundreth and threescore thousand Marks conquest, Acquired and received by his said Father, as said is; and to make payment to her of the said 24 Chalders of Victual uplifted by his said Vmwhile Father out of her said Life rend Lands; which should have been applied for the Maintenance of her Family as said is: And that for the particular years of God and Cropts above expressed, of the quantities, and qualities particularly above rehearsed, or liquidat pryces thereof , extending to the sum of fifty nine thousand, nine hundreth and four pounds' Money foresaid, after the Form and Tenor of the foresaid Contract of Marriage and other Writs above deduced in all points: Nevertheless he wrongously refuses so to do without he be compelled. Our Will is herefore, etc.  
Given under our Signet at Edinburgh the twenty day of February, and of our Reign the 4th. year.   

Information for Dame Margaret Areskine Lady , Against The Lord Collingtoun.  
THE deceist Lord Collingtoun being engaged in debts above the value of his Estate, In the treaty of Marriage betwixt him and Dame Margaret Areskin, by the advice of Lawyers, there was threttie Six Chalders of victual of the Lady's jointure conveyed before the Marriage in the name of Ratho. for the mantenance of the Family; And in the contract of Marriage Collingtoun did renounce his jus mariti, that his Lady's Estate might not be subject to his Creditors; and their being nothing to which he should provide her, all her interest in the contract did depend upon this Clause, That incase he shall happen at any time during the Marriage to conquesce and acquire, any sums of money, Lands or Heretages, or to receive payment of sums of money due to him, in that case to employ the same, and take the Rights and Securities thereof in favours of himself, and the said Dame Margaret Areskin and the longest liver of them two in conjunctfie, And for this hope of Conquesce, my Lady renounced the terce of heretages and third of moveables, competent to her by Law.  
My Lady pursues this Lord Collingtoun as representing his Father, for the lyfrent of the sums conquest and received by his Father during the Marriage And condescends upon the particulars sums received by my Lord Collingtoun for 24 Chalders of Victual of the Lady's Jointure lands yearly, (besides what was Employed for the use of the Family) and for Salaries, Pensions, and otherways.  
It was alleged for the Defendar, 1. That it could not be subsumed that My Lord Collingtoun had acquired Lands or Heretages during the Marriage; and that sums employed for payment of Debts, or clearing a man's heretages from Encumbrances, was never understood Conquesce, but only an accessary Right to the heritage. And therefore in the competition betwixt an Heir of Conquesce, and an Heir of Line, where the Predecessor had a nats' defective Right, and thereafter had acquired a valide and effectual Right to the same Lands, It was not found Conquest to belong to the Heir of Provision, but to belong to the General Heir, as accessary to the heritage. 2. a Clause of Conquest, can never be understood to bind up the Fire, or denude him of the Faculty and Capacity to employ, or dispose upon the Conquest at his pleasure; and therefore Clauses of Conquesce Imports no more, but that ane Heir of Provision, or Relict shall succeed, or lyfrent, what Conquesce remains undisposed upon at the Fiars decease, 3. The last clause (or if I shall happen to receive any Sums due to me) does relate to debts which was then due to Collingtoun, and particularly a sum due by the Marquis of Huntly; and if that sum should be recovered, it was to be lifrented by my Lady. But the Clause cannot be extended beyond sums due to him at the Marriage, and all sums that should become due to him did fall under the former clauses of Conquesce.  
It was replied for my Lady, 1. The clause in her Favours, Is not only a Clause of Conquesce, But to take off all debate, or Cavil that might arise anent the Interpretation of Conquesce, this special Clause is subjoined, that whatever sums my Lord Collingtoun should receive, Eo ipso, that he received the sums, he became bound to employ them in lyfrent to my Lady, and this by the advice of Lawyers, who could expect nothing from the Lord Collingtoun, but his Pensions and Salaries from the King, to which he had great pretensions; these sums as soon as ever they came to be received, became subject to her Lyfrent; and therefore my Lady has it in her Option, either to insist on the Clause of Conquesce for all the sums of money that were employed in the redeeming of the Estate of Collingtoun, or for the Lyfrent of the sums libeled as he received them.  
2. Clauses of Conquesce, are most ordinary and known securities, and it were absurd and against the common Faith of Contracts of Marriage (which of all others ought to be most Sacred) to render such obligations Elusorie, and at the arbitrament of the party engaged, and debtor in these obleisments. And albeit Heirs of Provision or Conquesce, as they are Creditors, so they do represent and succeed; and as they can have no Action against their Predecessor, so they are bound to have a regard; and the Law in some Cases hath relieved them from the severity of their obleisment in favours of their own Successors, and hath allowed them a latitude to dispose, or employ their conquest to all necessary and even rational uses; But a Wife is merely a Creditor, and therefore the obleisment of Conquesce in her favours, aught to be more strictly and rigidly observed then to Heirs. And yet the Law nor practic did never relax any obleisment of Conquesce to tha● degree; that the debtor in the obleisment might prejudge the obleisment, and totally evacuat the same; and certainly it were a plain defrauding of this obleisment, If my Lord Colligtoun did employ the conquest of this Marriage, to relieve his Estate, of debts contracted in a former. And if this Doctrine hold, if their had been Heirs of this Marriage, they should not have had a sixpence, notwithstanding they are provided out of the Conquesce, which would lose all the Faith and Security of Contracts.  
3. Whatever latitude the Lords may take, where a Wife is otherways provided, and hath only the Conquest as a General and accessary clause, yet where a wise gets nothing but the Conquesce it were absurd totally to frustrate and defraud Her.  
4 In contemplation of this Conquesce, the Lady did renounce a third of the Estate of Collingtoun, and it is inconsistent with the Reputation or Justice of the Session to debar her from the Conquesce by sustaining the employment of the Conquest for redeeming of that heritage whereof she had renounced her terce.  
5. The other half of the Clause puts the debate of Conquesce out of Doors, and found'st the Ladies Right upon the precise receiving of money. And whereas it is pretended that the Clause is only relative to sums due at the Marriage, and not to sums that should become due during the Marriage,  
It is answered, 1. This is no distinct Clause, but a separate view or part of the former, viz. And in case he shall happen at any time during the Marriage to conquesce, and acquire sums of Money, Lands, or Heretages, or to receive any sums of money due to him viz During the Marriage, Which is understood to be repeated, as well at the last, as at the first part of the clause; And if it had been otherways designed, it had been easy to have Expressed it thus (presently belonging to him) And the word (due to him) was to exclude my Lady from any interest that she might pretend to sums borrowed and received by him. And it is evident that it is all but one Clause, because the obleisment to Employ is subjoined to both. And ●herefore the words (acquired during the Marriage) must be understood to be repeated in relation to the sums received due to him, as well as the sums, Lands, and Heretages, are to be employed to my Lord and Lady in lyfrent and Children in fie. 2. In common Style when men speak of sums belonging to them at the time, they do not say (received,) but in case they shall uplift, or where the sums are doubtful, incase they shall recover; and (Receive) is never used but either in relation to Donations, or where money is offered, and the parties required to receive their Money. 3. It cannot be condescended upon that any sums of Money were due to Collingtoun, but an pretended Debt due by Huntley, which single Debt could never answer the Clause (in case I shall receive sums) And certainly if this Debt had been designed, it would have been expressed; for where there is only one particular under consideration, no body uses to express that single thing under a generality, when there is nothing else can be included. 4. If this Clause had been meant of Huntley's Debt, why was the  only granted, in case the sum were received, for a man's uplifting and recovering his own was never Conquesce; and therefore if this Clause had been meant to extend no farther than Debts due to Collingtoun the time of the Marriage, the Lady would have been provided to the  of all Debts due to him without that condition and quality (In case he should receive them.) But the truth is, my Lord Collingtoun was a man of more ingenuity then to have shamed his Lady with mentioning this Debt, which neither is nor ever was 〈…〉 is but of a few days before the Sentence against the Marquis of Argyle: And it was then perfectly understood, that Huntely was to be Donator to Argyles Forfeiture; in so far as concerned Huntley's Estate; so that this Debt was for ever excluded. But suppose there were no Forfeiture in the Case; the expired comprisings did absolutely convey his Estate; and it was possessed be the Marquis of Argyle be virtue of these comprisings, and not be the Forfeiture, for this Debt was never worth the regarding, much less to be the only subject of the separate Clause. 5. In this Sense, the Clause had been ridiculous and of no Security to my Lady; for if her right to  the sums due to Collingtoun did depend upon his pleasure in uplifting and recovering these sums; then the obligment imports no more, then that my Lady should  what he pleased; for it could not be expected that he would prejudge his Heirs by uplifting sums only to gratify his Lady with a Lyferent: And these absurdities must convince, that this can never be the genuine meaning of the Clause; but the design is plain, and the words are adapted to Pensions and Salaries which he should receive as due to him during the Marriage: And it is a general Rule in the Interpretation of all Contracts and Clauses, That, that Sense and Construction should be admitted, whereby the Clause should not be superfluous, redundant, and ridiculous: And in this Case, the Clause must either operate a  of the sums Conquest, or of all the sums received; or else all the Provisions in Favours of the Lady, for which she renounced her Terce, and third part, was superfluous and elusory. 6. By the Clause in the Contract of Marriage, my Lord Collingtoun being obliged to Employ, All sums of Money, Lands, or Heretages, that he should happen to acquire, or sums of Money due to him, whereof he should receive payment during the Marriage: Albeit the Lady might justly crave the Lyferent of all the sums of Money that can be instructed my Lord Collingtoun received during the Marriage, which is the express Terms in the Clause of the Contract, yet she declares that she insists only upon the 〈…〉 1. That what Debts my Lord Collingtoun has paid due priot to the Marriage, with Sums of Money acquired and received during the Marriage, that she should have the  of the same upon this ground; because if these Debts had not been paid, they would have affected this Lord Collingtoun the Son; and he would have been liable for the samen; so that in so far as the Son and Heir reaps Benefi●, by Employing the sums his Father received during the Marriage, for payment of Debts prior to the Marriage, for which otherways he would have been liable, as representing his Father, the Lady ought in so far to have right to the  of the sums with which the Lord Collingtoun paid the prior Debts 2. The Lord Collingtoun did not only reap Benefit by his Father's payment of prior Debts with sums of Money that he received during the Marriage, but also the subject that he has acquired by these sums he received during the Marriage, being extant at the dissolution of the Marriage: The Lady by virtue of the foresaid Clause in her Contract, must have Right to the Life rend of what was acquired during the Marriage, and extant the time of the Husband's Decease; and therefore in making the Computation of what the Lady should have Right to , the Lord Collingtoun's condition, and the condition of the Estate is to be considered, as it was the time of the entry into the Marriage, and as it was at the time of the Dissolution thereof; and in so far as the Estate is meliorat, and what the Lord Collingtoun had more at the Dissolution of the Marriage, than he had the time of the entering into the Marriage, that must be understood to have been acquired during the Marriage, and the Lady must have the  of the samen; especially seeing in all such cases, where the Wife is provided to the  of what should be Conquest and Acquired during the Marriage: The Lords are always in use to take Trial of the Husband's Condition, the time of the entering into the Marriage, and of his Condition the time of the Dissolution thereof; and what ever his Condition was better at that time, than it was at the time of the entering into the Marriage, that is esteemed Conquesce to give the Wife the Benefit of the  of the samen, which is clear by several Decisions, and particulary the 4th. of March 1623. Skeen contra Robieson Where the Husband by his Contract of Marriage being obliged to give a Lyferent of the Conquesce during the Marriage to his Wife, and the Fie to the Heirs of the Marriage: And he having acquired certain Lands and Fishings that did hold of the Town of Aberdeen in his Sons Name; and the Relict having pursued the Son, as representing his Father upon the passive titles, for the lyfrent of the Lands and Fishings: And it being alleged that she could not have the lyfrent of these Lands and Fishings because by ane Act of the Town of Aberdeen which was confirmed by the Queen, the Lands and Fishings could not be fewed nor lyfrented by a Woman; upon which the Lords found that albeit the Relict could not lyfrent the Lands and Fishings, yet the Heir should give her Damnum et interest, because the Husband could not be allowed to make any purchase that could prejudge the Wise of her lyfrent. And the 3d of July 1627. The Lady Dumfermling contra the Earl her Son, Where by the contract of Marriage, the Lady being provided to all Lands that should be conquest during the Marriage, and her Husband having acquired certain Lands during the Marriage, and taken the Rights in his Son's name, the Lords found that the Lady had the right of the lyfrent of the same: albeit it was alleged that the price of the Lands was not paid, but was resting the time of his Father's decease, and that the Son as representing him is liable for the same. And it is subjoined that the like Decision was done the 11 of Januar. 1632. The Lady Bonningtoun contra Hadden and the 27 of Jun. 1676 The Earl of Dumfermling contra the Earl of Callander, where the Lords found that a general Clause of Conquesce did extend to what the Husband had acquired during the Marriage, more than what he had the time of the contract of Marriage, & with the burden of all his Debts contracted during the Marriage; that was esteemed Conquesce which was free over and above the debt contracted during the Marriage. By which it is evident that in so far as the Estate was meliorat, and in a better condition the time of the dissolution of the Marriage, than it was the time of the contract, that was to be esteemed Conquesce; and that no debts were to be deduced, but these that were contracted during the Marriage. And as to the Decisions adduced for the Lord Collingtoun the 26 of November. 1629 Where the Lords found that Lands being acquired be the Husband from the Seller of the Lands, and thereafter disponed in few again to the same seller for ane greater few duty than was contained in the cellar's prior's Rights, The augmentation of the few duty be the Husband could not be repute ane Conquesce, whereof the Relict might Claim a lyfrent, as coming under the clause of Conquesce of the contract, And in the case of James Wauchop contra the Laird of Niddrie, in the year 1683▪ where the husband having right to the Lands prior to the Marriage, and during the Marriage having acquired partial Rights, were not found to fall under the clause of Conquesce.  
It is answered that these Decisions do not meet this case; for as to that of the Lady Dumfermling against her Son, It was in the case betwixt a Superior and a Vassal, where a Superior having pursued a Reduction against his Vassal, and the Vassals rights being found null for want of Confirmation, and the Superior having given a new right to the Vassal for augmentation of the few-duty; that was not found Conquesce, In respect there was no new acquisition, the Superior having right to the Lands before the Marriage; and his right to the property of the few being only declared after the Marriage, by reduceing of the Vassals right; and therefore albeit the Superior gave a new right to the Vassal, augmenting the few-duty, That augmentation was not repute Conquesce, to give the Relict the benefit of the lyfrent thereof: And that this was the case of that Decision, it is clear by the Decision the last of June 1629. Betwixt the same Persons. And as to the Case of Niddrie and his brother, first the question there was, betwixt the Heir of Line, and the Heir of Conquesce of the second Marriage, which does not meet in this case. Next the partial rights acquired by the husband after the Marriage, was found not to fall under the Clause of Conquesce, in respect that the Husband had belonging to him of money, and other estate of great value, prior to the Marriage, of which, any sums of money he depursed after the Marriage in acquiring rights to the Lands, was the true product, and might be ascribed to the sums of money, and other estate which belonged to him before the Marriage.  
And as to the case of Cowan contra Young the 9th of February 1669, where a Father having given a bond of Provision of 400 pound to a Daughter of the first Marriage, was sustained, and found to affect the Heir of Conquesce of the Second Marriage; And the 15 of July 1673 Robertson contra Robertson, where the Lords found that a clause in a contract of Marriage providing the lyfrent of the conquesce to the Wife, did not hinder the Husband to give competent provisions to the Children; And Smith contra Muire, 23 December 1668. Where it was found, that such a clause did not prejudge Creditors; but the Relict that intrometted with the moveables falling under the conquesce, was found liable for the Debt; And in the case of Frazer contra Cumming, the 8 of December 1687. Where the Lords found the Provision granted to the Children of the first Marriage was to be deduced out of the conquesce in prejudice of the Relics lyfrent, as also that his debts ought to be deduced and 11000 pound that he had reserved to himself be the contract of Marriage, and the superplus only to be repute Conquesce.  
It is answered, that the case of Cowan & Young, being betwixt a Child of the first Marriage and the Heir of Conquesce in the second Marriage, it did not meet the case of a lyfrenter; next it was only but a small provision granted be a Father to his Child of the first Marriage, whom be the Law of Nature he is obliged to provide. As also in that Case the Heir of the second Marriage had a special provision, and something also of the Conquesce, so that the Father's granting a moderate provision to a Child of the first Marriage, was not understood a defrauding of the Children of the second Marriage. And the case of Robertson contra Robertson, albeit the Lords found, that such clauses could not exclude competent provisions to the Children of the same Marriage, which was most Just, yet it is with this express quality, that there were competent means, for a provision to the Mother remaining, and that the husband had done nothing fraudfully in prejudice of that clause. And the case of Smith and Muir, was betwixt a Relict and a Creditor, And it is not controverted but that a true and Lawful debt contracted by the Husband during the Marriage, should deduce off the Conquesce, And as to the Case of Frazer and Cumming it was thus, By contract of Marriage betwixt Alexander and Christian Frazers, The Husband did provide his Wife to ane certain yearly Annuity in lyfrent, and likeways to the lyfrent of the clause of conquesce, reserving to himself certain tenements of Lands and others extending to 11000 pounds; and all the question there was in relation to the import of the Reservation as to the 11000 Pounds, if the Husband's Debts should affect the 11000 pounds, or be deduced out of the Conquesce. Upon which the Lords found that the import of the clause of the Contract, is, that in the first place, There aught to be deduced out of the Husband's Estate extant the time of his Decease, the Debts then due; and next that the 11000 Pounds is to be deduced, and what remains only is to be repute Conquesce. By which it is evident that the 11000 Pounds that belonged to the Husband the time of the entering into the Marriage, was deduced in respect of the express reservation. And albeit a Husband may grant a Provision to a Child of the first Marriage, yet it will not follow, that he can do such Deeds in defraud of the Relict, as may absolutely evacuat the Clause. As also in that Case, the Relict had a special  Provision, besides the  of the Conquesce. And that Decision is so far from making against the Lady, that it makes expressly for her: In sua far as in that Case, the Lords ordained Probation to be led for proving the Condition of the Husband's Estate the time of entering into the Contract of Marriage; and what was the worth and value thereof the time of the Dissolution of the Marriage: To the effect that in sua far as the Husband's Estate was better the time of the Dissolution of the Marriage, than the time of the Contract: The Relict might have the benefit of the Lyferent thereof as Conquesce. And as to any other Decision alleged upon for the Lord Collingtoun, they are either in the Case of a Competition betwixt the Heirs of a first and second Marriage, or in the Case betwixt Heirs of second Marriages and Creditors, which does not at all meet this Case.  
And whereas it is alleged, that the Lady has aliunde, a sufficient Joyntute, albeit she get nothing of the Lord Collingtoun, and so is not destitute of a Provision.  
It is answered, That albeit the Lady have a Jointure aliunde, yet seeing she has nothing from the Lord Collingtoun, except the House and Yards of Collingtoun, which is not worth the speaking of; yet that can be no Argument why she should not have a Jointure off the Lord Collingtoun, be virtue of that clause in her Contract of Marriage, his Father having received so great sums of Money during the Marriage, partly out of the lady's Jointure, and partly out of his Pensions and Salaries, by which he made his Estate so much in a better condition the time of the Dissolution of the Marriage, than it was the time of the Contract: And albeit the Lady get a large Jointure▪ yet the Lord Collingtoun will not be destitute of a Provision, seeing he has gotten a large Estate with his Lady.  
In respect whereof, etc.   

Additional Information for the Lady ; against the Lord Collingtoun,  
TO evince the Ladie's Claim beyond exception; and in answer to all the Practics that have been, or can be obtruded: The Pursuer not only insists upon the foresaid clause anent the Lord Collingtoun his receiving payment of sums of Money due to him during the Marriage: But farther doth press preceisly the former clause of Conquesce, viz. That the Lord Collingtoun hath Conquest and acquired sums of Money during the Marriage: For seeing that it is undeniable, that he hath cleared and reconquest his own Estate, which before, the Marriage was sunk in more Debt than it was w●rth; and that this could not be done without his acquiring of sums of Money: It is evident that he hath acquired sums of Money, and that these acquisitions are really still extant▪ if not in Specie; yet in their undeniable effects. If the Pursuer were only insisting upon Collington's Conquescing and Acquiring of Lands and Heretages, and urging that the Reconquescing of his Estate was a real Conquesce. The practic touching the clearing of old Wodsets, and the purchasing of accessional Rights▪ and finding these to be no new Conquesce of Lands, might be objected with some show of reason; but the Case of these Practics was only concerning Conquesce of Lands, which is not the principal point now in Controversy: But the point here urged is, That the Lord Collingtoun did purchase and acquire sums of Money; and this is evidently made out both that he did acquire them, and that they are yet truly extant; so that its impossible to frustrate the Pursuer of the benefit of this head of the Conquesce, unless the Defender can as plainly make it out, that the Lord Collingtoun did Reconquesce the Estate, by sums not of his own acquiring, but by the Defenders Tocher and Means, which can never be made out; seeing the Conquesce of the Estate doth far exceed all the Portion the Defender got with his Wife, and there is a great part of that yet unreceived. Neither is it to any purpose to debate here, how far the Lord Collingtoun might exhaust his Conquesce by contracting of Debt, or doing other Rational Deeds, seeing that the Debt which the Lord Collingtoun left at his Death, is always acknowledged, that it is to be deduced; and for other rational Deeds there is none can be alleged, except the conveying of his Estate to his Son and appeirand Heir the Defender, which is no exhausting, but a transmitting of the Conquer●●, 〈…〉 to perform his Father's obligment. It's true, it is alleged that the Lord Collingtoun's paying of his old Debts with the Moneys that he acquired, were rational Deeds: But it is as true, that these Deeds does no ways exhaust the Conquesce, but rather establish it: It being plainly ridiculous for a man to allege, that his getting and applying sums of Money for the payment of his Debt, and clearing of his Estate, and thereby making himself Richer, should be an exhausting of Conquesce, since it is absolutely the best evidence can be brought for it, and the best use that can be made of it; so that all the practics about the exhausting of rational Deeds are here Impertinent, and prove nothing. Nor is there the least Injustice in what the Defender alleges for a great Absurdity, viz. That the Heir Male of the Marriage (if any had been) should by this means have carried away my Lord Collingtouns Estate from his Son in the former Marriage: For not to insist upon the good Estate, the Lord Collingtoun hath got by his Marriage, what could be more reasonable than that the Heir Male of the Marriage should have the Fee of what was really acquired during the Marriage.  
And there fore seeing this Obligment of Conquesce is made to the Pursuer in her Contract of Marriage, and that its undeniable that the Lord Collingtoun did Conquesce and Acquire sums of Money, which are yet most really extant in their abiding effects: It is impossible the Lady can be deprived of her Lyferent thereof, in sua far as the sums were truly acquired by him, and not brought into the Family by the Defender aliunde.   

Information for my Lord Collingtoun, against. The Lady  Relict of the deceased Lord Collingtoun his Father.  
WHen the deceased Lord Collingtoun was Married to his last Lady in Anno. 1661. he was under considerable burden of Debt; and lest my Lady's Jointure of 80 Chalders of Victual, by her former Husband might be affected by my Lords Creditors, several conveyances thereof were made in trust and by the Contract of Marriage my Lord did Renounce his Jus mariti to the said Jointure▪ and took his hazard of what he might have otherways by my Lady, and farther my Lord bound and obliged him, that in case it should happen him at any time during the Marriage betwixt him and his said Lady, to conquesce and aquire any sums of Money. Lands or Heretages, or to receive payment of sums of Money due to him; in that case, to employ the samen in favours of himself and his future Spouse in conjunct fie and lyfrent, and the Heirs male to be procreate betwixt them, which failing to my Lord, his other Heirs who are appointed to succeed him in his other Lands and Heretages  
There is a process at the Lady's instance against this Lord Collingtoun as representing his Father upon the passive Titles, libelling that" the defunct did after the Marriage, conquesce and acquire the Sum of 260000 Marks, and concludes that the defender should be discerned to employ the same for the Pursuers Lyferent use: And urges that conclusion upon the clause of the Contract of Marriage above mentioned, containing two separate and distinct obligments: The one, To take the Lands, Heretages, and sums of Money to be Conquesced during the Marriage: And the other, To Employ all sums of Money due to him, whereof he should receive payment, during the Marriage, likewise to my Lady 's Lyferent use; Whereby it doth appear, that my Lady did not intent to rest upon a clause of Conquest in the usual Style, but did farther provide for her own security, by adjecting the posterior Clause, obliging my Lord to employ all sums of Money to be received during the Marriage, to her liferent use, which was most Just and Reasonable, seeing my Lord's condition at the time did not suffer him to secure any present jointure, his Estate being affected with many encumbrances, it was therefore highly reas able that what ever sums he should receive during the Marriage, should be secured for her liferent use.  
It was answered for the Defender denying the passive Titles, 〈…〉 o● these Clauses contained in the contract of Marriage, unless the Pursuer will condescend upon Lands, Heretages, sums of Money, Conquest during the Marriage, and extant unconsumed at the Dissolution thereof: Or that the Defunct had received sums of Money due to him the time of the contract of Marriage: for as to the Clause of Conquesce, There has been no point in our Law more fully and clearly determined, than the Import thereof both in relation to Heirs of Provision and Relics in Contracts of Marriage: for the various circumstances of Children, or Relics having the benefit of those Clauses, have prompted them upon several Specialties, to endeavour the extensions of such Clauses in their Favours, upon some pretences of differences from the Cases formerly decided, whereby upon consideration of the most important Decisions in that point, it will appear that the Lords have scarce ever varied, since there were Practics upon Record, anent the import of Clauses of Conquesce, which they have ever found to give Relics, or Heirs of Provisions, the Benefit of what Conquest did remain unconsumed at the death of the Husband, or Father; and that such Clauses could not hinder the Acquirer from the full, free, and unaccountable Administration of his own Estate during his Life, and to dispose of his own by any just or rational Deed at his pleasure: providing that nothing were done fraudulently for evacuating of such Clauses. And farther, The Deeds of the Acquirer are not only sustained when the Conquesce is consumed, but even when the Conquesce of Lands, Heretages, or sums of Money is extant at the dissolution of the Matriage; the same is affected and burdened with all the Debts of the Acquirer, not only for onerous, but also for gratuitous Causes; there being always a just and rational consideration, such as the Provision of Children with suitable Portions; and even a Provision of an eldest Son hath been frequently sustained as a paternal Deed; and if in any Case gratuitous Debts or Deeds, of the Acquirer have been annulled, at the instance of Relics, or Children of a Marriage; the same has always been upon the head of Fraud, or that there was no just cause for making such Deeds, and these Deeds are not only sustained in favours of Creditors to affect the Conquesce, but they have even been sustained as burdens upon the Conquesce, whereby Relics or Heirs of Provision have no Action against the Representatives of the Acquirer, to Disbursed the Conquest of these Debts: The Decisions in this matter are so numerous, and the Cases so various, that it were tedious to relate them; but the Defender did both in his Debate, and by a particular Note a part offer a few of them to the Lords consideration, whereby it will appear, that the ground of all is one, viz. That Conquesce is burdened with all rational Deeds of Administration of the Acquirer.  
As to the second Clause, whereby it is pretended, that, All sums of Money due during the Marriage, and received by the Defunct, aught to be Employed for the Pursuers Liferent use. It is answered, That the Lords are entreated to consider the Clause as it stands in the Contract, which is very far from Importing that Sense which is fixed upon it: For by the first Clause, the Conquesce during the Marriage was designed to be secured in the ordinary Style of Conquesce: And by the second all sums due to my Lord before the Marriage, were designed to be secured to my Lady, and that which was in Prospect, was a Debt due upon the Estate of Huntley; And my Lord had just ground to expect, that the same might have been made effectual to him, who was then in great Favour, and had suffered much for the King; and it was not sit to express the Debt particularly in the Contract, least being propaled, it might have been affected by his Creditors; and as this was the true Communing, so it is impossible the words of the Clause can bear another Sense, which runs in these Terms, viz. He obliged himself in case it should happen, him to purchase, or acquire sums of Money, Lands, or Heretages, or to receive payment of Debts due to him, to employ, etc. Whereof the construction of the last Clause is, in case he shall happen to receive payment of sums due to him, where Sums due, must in propriety of Language signify a Preterite, that the sums ●●●turo, was in case it should happen him to receive these sums: And the prospect of receiving of sums, must always presuppose the sums due. And the first end of the Clause relating to Purchase of sums thereafter, the natural Alternative subjoined to that Provision, is sums dew already, whereby all sums were secured to my Lady, whether due before, or purchased after the Contract, with the legal burden of my Lords full and free Administration during the Marriage. And whereas the words of the Clause (as the Pursuer would construct them) run thus, In case it should happen my Lord during the Marriage to receive payment of sums due; even this construction, though it be not natural, or suitable to the Clause, yet it altars not the Case one hairs breadth: For in that construction the words (during the Marriage) which signify Futurition, have not the least relation to sums due, which are still in Preterito; but they do only relate to the receipt of the Money: So the Clause doth import, that if sums then due should be received during the Marriage, they were to be Employed; but it is altogether force against the natural construction to mention these words, During the Marriage, In the first Clause, which can neither relate to the Receipt of the Money: Because if that Money upon the Estate of Huntely should be received or secured, though after the Dissolution of the Marriage, the Pursuer would have a Liferent thereof by the Clause, which she could not claim, if the condition run, In case during the Marriage the Money were rece ved: Neither is it possible that the words, During the Marriage, can relate to sums due: For Sums due during the Marriage, is Nonsense, Sums due, being Preterite, and during the Marriage, being then Future; unless for my Lady's Conveniency, she be allowed to add a word or two, to make the Sense as she would have it; and that she should be permitted to Interpret the Clause, in their Terms, viz Sums falling due, or becoming due during the Marriage, For without the Addition of these words, or other of the like Import, it is impossible in nature that ever the●e words 〈…〉 by any construction that can be forced upon the Clause, as it stands: And if such violence were put upon it, than it would still disagree with what has been evidently communed, viz, That Huntleys' Debt already due should be Liferented, if received: For if only sums falling or becoming due Thereafter, were to be employed, then there were no Obligation, as to these which were already due; And it would be a wonderful stretch that could make the same words signify both Preterite and Future.  
Secundo, Suppose the words of the Clause should be strained (as the Pursuer contends) to an Obligment of Employing all sums due during the Marriage; yet it is not possible to extend the Importance of that Clause, farther than an ordinary clause of Conquesce; and consequently the Husband's Obligation would only be prestable with the burden of all rational Deeds: For the Clause of Conquesce oblidges, to bestow, All sums of Money Conquest during the Marriage: And the second Clause obliges (as is pretended) to Employ, All sums falling due during the Marriage to be received by the Defunct; Which is all one Clause; for all sums falling due during the Marriage, that the Defunct could receive, must be sums Conquest during the Marriage; and consequently if the Obligment to employ the Conquesce, cannot secure the Pursuer from the burden of all rational Deeds, neither can the Oblidgment of employing sums falling due, which is the same thing: And it is not the variation of the Style, or words, that will evert the effect of such a train of Decisions; nor is it possible that the Defunct, or any reasonable man would have agreed to such an extravagant Clause, whereby all his Fortune was then wholly over-burdened, so he should have been Incapacitate for ever to render it in a better condition for himself, or his Heirs: For though in this Case there be eventually no Children of the Marriage, which might probably have existed, my Lady being then little past 40. And being as careful to provide for them, as herself; yet if they had existed, the Defunct would have been Incapacitate that his eldest Son might succeed, which in consequence would have drawn his Creditors upon him; that he could not have had his person safe, when they found that he could not apply one sixpence for their payment out of what he had, or could acquire.  
It was replied, that the Pursuers Lybel is most Relevant, both upon the Conquest, and subsequent Clause: And albeit, the Pursuer doth not allege, that any sums of Money, Lands, or Heretages, Conquest during the Marriage, are extant, seeing the Defunct did apply these sums acquired, and falling due during the Marriage, for payment of the Debts affecting the Estate and Lands of Collingtoun. The Defunct being Locupletior factus, by applying these sums for the Relief of his own Estate, which by the Conrract ought to have been employed for the Pusuers Lyferent use, the Lady ought to have the benefit thereof, and doth not claim any Lyferent of sums spent and consumed; but where there is ane existing benefit enriching the Defunct, she ought to have a lyfrent of the Lands relieved to which she restricts her lybel, and craves no more neither upon the first nor second Clause of the Contract. 2. Conquesce in favours of Wives or Children, is always understood in so far as the Husband is richer at the Dissolution of the Marriage, than he was at the time of the Contract, And the defunct being richer in the value of the hail Lands redeemed, my Lady ought to have the lyfrent thereof. 3 Decisions in matters of Conquesce have varied according to the circumstances of the cases Debated, and all of them have this notable difference from the Pursuers Case, that in these Decisions, the Relict had special suitable provisions, and the Conquests were only adjected as general uncertain Clauses upon which the Relics did not depend, But here there is no special provision, except the House and Yeards of Collingtoun, and all that was depended upon, was the clause of Conquesce which was advised by my Lord Dirlingtoun, and eminent Lawyers, who thought fit to take the defunct obliged in the terms of the Contract than to take a it cannot be imagined that so eminent a Lawyer would advise a clause that would be absolutely Elusory, tho' the defunct made his fortune during the Marriage, 4. There are also several Decisions which fortify the pursuers Case, as particularly a decision Skeen contra Robertson. 4 March 1624. where a band of Provision to a Daughter was found to be liable to the Relics lyfrent by her clause of Conquesce. And in the same case, the Husband having acquired right to a Salmond Fishing near Aberdeen, which by the custom of the place could not be bruiked by a Woman, yet the relict by her Conquesce was found to have utilem actionem against the heir for the value, And in the case of the Countess of Dumfermting against her Son (Lands being conquest originally in the name of the eldest Son) the Countess was found to have right, to Lyfrent these Lands tho' never in the Person of the Father, The like _____ Where a Right originally acquired in the name of a second Son, was also affected by the Relics lyfrent, upon a clause of Conquest. 50 The Decisions adduced in the Case of Children provided to Conquesce, import nothing; because all Children do represent the Defunct, in so far as they have benefit by him; whereas the Relics are most favourable Creditors, and the Decisions adduced in the case of Relics are of no moment, as that Lands conquesced, or burdened with the Debts due expressly for the purchase thereof, nothing being reckoned but with deduction of Debts during the Marriage. And in the case of the Lady Dumfermling against her Son 26. November. 1629. Where the Superior having acquired the property of Fews, and having again fewed the same Land for greater Few duties, These additional Few duties were not reckoned Conquesce, Because the Right of the Fews came to the Husband by Virtue of Irritancies contained in the Fewars Charters, incurred before the Marriage, and whereby no duty out of these Lands could be reckoned Conquesce during the Marriage. 6. The Pursuer did not rest in a single clause of Conquesce to which all the Decisions did relate, but did farther provide for her Security by 〈…〉 to employ all Sums during the Marriage, which must at least oblige the Defunct in so far as he and his Heirs were Lucrati by employing these sums for the relief of his Estate, which clause must either have that import, or none at all; For no body can imagine that the Pursuer would consider that uncertain claim upon Huntley's Estate to be of any value, and if nothing else had been considered, that would have been particularly expressed: and it was most rational that the Defunct should grant such an obligement, Because my Lady by the conveyance of her Jointure did secure 36. Chalders Victual for the maintenance of the Family, which being sufficient for maintenance, and all necessary expenses, it was most Just that what other sums might be received by the Defunct, should be employed for the Ladies lyfrent use, yet notwithstanding of the setlement at the Contract, It is offered to be proven that my Lord by himself did intromet with 24. Chalders of the victual allocat for the entertainment of the Family, by which means my Lady was necessitat to take up her Jointure in the North, which she had disponed to her Children at the time of the Contract, and to consume the same for the Entertainment of the Defuncts Family. So that it cannot be thought an invidious claim, that my Lady should desire her lyfrent, equivalent to the debts paid by that part of the Jointure, which was allocat to the entertainment of the Family.  
It was duplied, that all the pretences insisted upon Jointly or separately have no shadow of relevancy in them, and 1st, As to the first Alledgance viz. That the Pursuer insists only for a lyfrent of what is extant Conquesce during the Marriage, by relieving the Estate that was overburdened, and thereby was Locupletior factus. It is answered, that as the lybel could not relevantly conclude the employment of all sums purchased and received during the Marriage, but with the burden of all rational Deeds So neither can it be sustained, as it is now restricted, for the lyfrent of the Lands relieved, and in quantum the Defunct was Lucratus; because Law doth allow all Husbands a free and ●ull Administration, and they 〈…〉 of Conquesce for what is consumed by that administration, and as they might have wasted, and spent all unprofitably, so much more might they apply the same for payment of debts, which is not only a rational but a necessary deed, and if the Creditors had not found the Defunct so just in his Inclinations, they would have compelled him thereto, either by personal diligence, or by affecting his Estate; and the pretence of Locupletior factus imports nothing, unless the Pursuer could subsume in the terms of the obligment that the Defunct had been Locupletior factus in Lands, Heretages, or sums of Money, which here cannot be alleged; for the Defunct was only Locupletior factus, by payment of his urgent Debts, which is neither a fraudulent administration, nor was he thereby enriched in the Particulars enumerat in the clause of Conquesce; and consequently my Lady had no Interest in that gain: for clauses of Conquesce are strictly interpret, and never extended beyond the precise Words; therefore a wife having right to Conquesce of Lands, hath no right to sums acquired, and she who has right to Lands and sums, has no right to Victual, Plenishing, Plate, Jewels, or moveables of any sort, So that if the Defunct at his decease had been worth 10000 pounds Sterling, in other moveables than sums of Money, the Pursuer could not have acclaimed any interest therein, which may satisfy the Lords that there was not such an anxious concern to make this Conquesce secure, when Goods and Geir and all moveables were omitted in the Clause, which are oft provided as Conquesce, and as the Defunct had power to have turned all his free Estate in such moveables, so much more could he pay his urgent Debts, and relieve his ancient Estate, without providing the same to his Lady, and the Children of his second Marriage, to the exclusion of his legal Heirs, 2. The relieving of the Lands of Collingtoun▪ cannot in Law be reckoned a Conquesce of these Lands, because a Conquesce Is a new few to which the Defunct neither did, nor could succeed, as Heir to any of his Predecessors: and the Defender desires that the Pursuer would condescend upon any former practic, where ever a Wife or Heirs of provision did pretend that a Husband, or Father, could not pay his Debts in prejudice of a Conquesce; so that if there be little decided in this, it is because few or none have ever pretended to call it in Question; on the contrary all that is found to approach to this Case, is a debate betwixt the Countess of Dumfermling and her Son 26. November. 1629. And Fraser contra Fraser lately decided. By the first of which Decisions, the Lords found That the Earl of Dumfermling having acquired the right of property of certain fews during the Marriage which he fewed out again for greater few-duties, that the Countess had no interest in these additional Few duties by the clause of Conquesce. And whereas it is pretended that the ground of this Decision was, because the Fews were declared Null, upon irritancies before the Marriage, this alledgance, is gratis dictum and without the least vestige of reason from the Decision, which was upon just grounds; because the Earl having a Dominium Directum, any improvement of that Dominium during the Marriage was not regarded as a Conquesce. And the Lords had formerly great regard to this Decision, in the case of the Laird of Niddrie against his Brother; where the Father having a right upon the Lands of Lochtoure preceding the second Marriage, albeit the same would have been ineffectual in competition with Rights acquired during the second Marriage, yet the Lords found, that the posterior rights were presumed to have been acquired for validating and completing the anterior Right, and that they did accresce thereto, and the Son of the second Marriage had no ininterest therein as Conquesce And in the case of Fraser and Fraser, the Husband at his Contract did put a valuation upon the Estate he had over and above certain Ackers of Land, which he declared should not be estimate any part of the Conquesce, yet the Relict having acclaimed a lyfrent of the Conquesce during the Marriage, the following points were therein decided viz. 1 That the Father having immediately after the second Contract provided 6000 Marks, to his eldest Son, beside the forsaid capital of 11000 pounds, and his Daughter to 5000. Marks, and allowed 1000 pounds for her Wedding , and having paid a great part of these sums very shortly after the Contract, before it was possible to have acquired so much money as could have paid the same, yet the Lords found, that these sums so contracted, and paid, were not to be taken off the capital of 11000 pound of his Estate before the Marriage, but the whole capital foresaid behoved to be deduced before reckoning the Conquesce at the Dissolution 2. In that case, they found that all Debts were to be deduced, both those that were prior, and those that were posterior to the Marriage; as appears by the debate immediately preceding the Interloquitor, which was done upon deliberation by the whole Lords, and thereafter represented of new by two several Bills, containing the whole favourable circumstances of the Case, and particularly that the Relict had but a very mean provision besides the Conquesce, upon which she could not live; all which appears by the forsaid Decreet, marked at the several debates and interloquitors; and what is now pretended is far less favourable than any of these Cases.  
To the second alleging, that Conquesce is always understood, in sua far as the Husband was richer at the Dissolution then at the Contract of Marriage. It is answered that the grounds abovementioned do fully satisfy this pretence, for the estimation of the Husbands being Richer, must be made with relation to these particulars whereof the Contract is provided to the Wife; and if the Husband have provided a Wife to lyfrent the Conquest, Lands, and Heretages only; it is not to be considered how far the Husband is become Richer in sums of Money, Goods and Geir, whereof, the Wife hath no clause of Conquesce, or if the provision of Conquesce be of Lands, Heretages, and sums of Money, as in this case, tho' the Husband had purchased a great Estate in Jewels, Plate, Victual, , or any moveables, that is not to be considered but only how far he is become richer in Lands, Heretages, and sums Conquest which is not pretended in this Case but only that he is richer by payment of his Debts, and receiving of his Lands. And seeing my Lady did not take my Lord obliged to employ all Goods, Geir, and movables whatsomever, it is a demonstration that she did not intent to tie him so closely as is now pretended, but left to his own discretion whether he would enrich himself in these particulars provided for her lifrent-use, or in others wherein she had no interest.  
To the third, it is admired that the Lady should recur to Decisions to fortify her pretence, for in all the Decisions for above sixty years there is no variation, except in that pretended Decision adduced be the Pursuer Skeen contra Robertson, which has not been seen by the Defender not being in Durie nor any citted known writer, and whereof the circumstances do not appear, and all others do agree in this, that a Husband, or Father, may not only do all onerous Deeds, but may give Liberalities and Gratuities even to Children, or to the Heir where there is a rational Cause, much more may urgent Debts be paid, whereto the Acquirer could be compelled.  
And as to the only defence against all the Decisions, upon the singularity, that the Pursuer had no special provision, and that by the advice of an eminent Lawyer. It was thought fit to take these general Clauses, than a provision of 3000 Marks yearly, It is answered, this speciality makes no alteration, it being impossible to find different Cases, so perfectly agreeing, but some circumstances will vary, but here the rule of the Lords Decisions is, that all rational Deeds shall be sustained, and if this be such a circumstance, that it renders the payment of the Debt in prejudice of the Conquesce, fraudulent, than it is relevant but not otherways, and still there is to be a difference wade betwixt first and second Contracts of Marriage, for if a man in his first Contract of Marriage gave no special provision, but a clause of Conquesce, whereby if the Husband should voluntarly evacuat the Conquesce, the Wife of his youth, and Mother of his Children would become destitute and miserable, It were infamous in him to evacuate such a Conquesce, except by inevitable Deeds; and any voluntary Deed would in Justice be reckoned fraudulent; but in a second contract where there is no portion, but a jointure that returns at dissolution, the like favour is not due. For if the Relict have an honourable provision, whether by the first or second Marriage, it imports not, yea there is nothing more ordinary than that Heiresses do content themselves with the lifrent of their own Heretages, and oft times with less, yet in the case Robertson against Robertson 15th July 1673. It is plead for the Rclict who was Wife of the first Marriage, that she had only an clause of Conquesce, and no special provision, yet a bond originally taken in the name of the eldest Son during the Marriage, was sustained against her, unless there were not sufficient means for a competency to her Aliunde, in which case the Lords found, the bond would be fraudulent; and there is no question the Lady was very well advised in relation to these Cases she desired advice in, as how to convoy her Jointure, which was done to so good effect, that the Defunct with all the Influence and right of a Husband, could never come to one sixpence of the North-Countrey Jointure; but these Clauses were never advised by a Lawyer to have any special effect, whereof the Lords may be satisfied by the Pursuers own Assertion, that 3000 Marks of Jointure was offered; and was there ever any Lawyer that would prefer a general Clause of Conquesce to a special Provision, which has a preference as to Movables, to all Creditors, and is usually the best secured real Debt; so that the neglecting of a special Provision, is a demonstration that there was no Liferent under prospect, and that the Clause of Conquesce was adjected of mere Style and Formality. And Sir Andrew Gilmour who drew the Contract, would never have agreed to so unreasonable Clauses as these in the Contract are, according to the Pursners' Interpretation, he being the Defuncts Brother in Law.  
To the Fourth, There was nothing ever decided contrary to what is now pleaded: for the Decision finding, That the Wife had Right to the value of a Fishing in Aberdeen, which by the custom of the place could not be bruiked by a Woman, was most ju●●, 〈…〉 like the Earl of Dumfermling Acquiring Lands in the Name of his eldest Son, was justly found, To have done a fraudulent Deed to evacuate the Conquest, Yet betwixt the same Parties, it was also found, That the Earl having first acquired a profitable Tack of the same Lands during the Marriage, and afterwards having acquired the property, the Ladies Lyferent of the Lands extended no farther, than to the Tack-Duty contained in the Tack first acquired; On this ground, that the Lady was not provided to the Lyferent of Tacks, albeit it might have seemed that the Tack was extinguished by the Property: But still the Lords do restrict these Clauses as much as they can bear.  
As to the Fifth, Pretending to Answer the Decisions adduced, it is answered, That the Decisions in case of Heirs of Conquesce, do by much more strong reason cut off the conclusion of this Pursuers process. For Heirs of Conquesce, are more favourable in relation to Conquesce than Relics; as was expressly found in the Case of the Lady Kilbocho, against the Laird; and Lady Rentoune against the Laird, where Lands Conquest were burdened with annual-rents of a part of the price resting, albeit in both the Lords declared they would have found otherwise in the Case of Heirs of Conquesce, so that Heirs of Conquesce being more favourable than Relics, what ever doth exclude their Interest in Conquesce, must much more exclude the Relics Interest, and the pretence that Heirs of Conquesce do represent the Defunct, whereas Relics are Creditors, is of no moment, because in competition with Creditors, they are considered as Heirs, but in respect of the Heirs of Line (which is the Case of all the Decisions) they are most favourable Creditors.  
To the Sixth, Founding upon the last Clause of the Contract anent sums due during the Marriage, alleged to be insert for a farther Security than the common Clause of Conquesce, which varies this Case from all these beside it. It is answered, The Defender hopes he has already sufficiently cleared, that by the construction of the words in the Contract, nothing is comprehended that fell due after the Marriage. Et separatim, it is hoped that the Reasons already adduced, why the import of that Clause (as the Pursuer would have it) signifies no more than a common Clause of Conquesce, and consequently must be subject to the said's burdens, and be concluded with the same Decisions, and the force of what hath been said, is the more evident, that the Pursuer found herself obliged to recede from the first conclusion of the Summons, for Employing all sums due, and received, without exception, and did restrict the same to the sums employed for the Payment of Debt, and in quantum Lucratus; whereby it is evident that Law does not sustain such an Obligment to employ All sums received in the full Latitude of the Clause. And if it cannot be effectual as it stands in the Style of words, we must then consider what is the Cause, why Law restricts the effect of such Obligments, and we shall find the Cause to be the same why Law restricts the effect of Conquesce, as being against the Interest and meaning of Parties, the rights of Property and Commerce, and that such Clauses are only Destinations. Again, if we consider the Syle of both Clauses; Clauses of Conquesce are as peremptor to employ all sums Conquesced, as this is alleged to be for sums during the Marriage. And seeing the last Clause cannot be effectual in the full Latitude more than the first, what other estimate can be made thereof, than the known Marches and Land Marks, by which the Lords have bounded the effect of Conquesce. And as clauses of Conquesce do easily run in relation to sums purchased and acquired; so suppose a clause of Conquesce should run in these Terms, All sums Purchased, Acquired and received during the Marriage; can it be supposed that the word (Received) should make an alteration in the Case; or are not sums Acquired during the Marriage, Purchased? And are not sums Purchased, Received during the Marriage? So the terms being Convertible, they cannot vary the Decision. 2. Et separatim, tho' it had been the express meaning of Parties, to have obliged the De●●n●● to 〈…〉 to be Received by him; yet such an Obligation could not have been effectual in Law: Because a Husband by his Jus Mariti hath right to all movable sums falling under Communion of Goods: And farther his right thereto is unaccountable, and the Jus mariti of an Husband, it is so fixed and insured by Law, that inhaerit Ossibus, and cannot possibly be renounced in favours of the Wife, by any deed of the Husbands directly nor indirectly: Whereas by this clause as it is interpreted, the Husband should be effectually denuded of his Jus mariti in favours of his Wife, in so far as he would thereby be accountable to his Wife for her lyfrent-use, for his intromission with movable sums, which in Law do belong to him unaccountably. And as it is not controverted that the Jus Mariti doth imply an unaccountable right in the Person of the Husband, so it hath been found on most Just grounds that this right is incommunicable to the Wife, in the case of the Lady Pilton against Hay of Balhousie 2d. February. 1667. Where a bond of 1000 Marks yearly being granted to a Wife to be disposed of as she pleased, secluding the Husband's Jus Mariti; The Lords found that payment made to the Husband, without the Wifs consent, did exoner the Debtor, and exclude the Wifs executors: Which clears that a right could not be so qualified, but that it behoved to be Simply transmitted to the Husband, or null. But for farther evidence, that even the deed of the Husband himself cannot divest him of his Right, It was sound 13, July 1678 that a Husband having renounced his Jus mariti to a part of his Wife's Jointure in favours of his Wife, the right thereof did return to the Husband, albeit he suffered his Wife to possess the renunced Lands all her life time, yet the extant product of these Lands did belong to him, and that he himself could not be excluded by the personal objection of his own Renounciation. The like was found in the case of Hamilton against the Lady Carberry. And, if the Husband could not by a Direct deed renounce the unaccounntable management, much less can he do it by a general and separate Clause, which would in consequence import a renounciation thereof to his Wife, for the Jus mariti, consists not only in the Management, but it must be unaccountable.  
3, Et Separatim, the Defender cannot be liable In quantum Lucratus, upon this Clause, tho' it could be effectual in Law, unless it were subsumed and offered to be proven, that he was Lucratus, by applying sums of money received during the Marriage to the payment of his Debts. For albeit it were instructed that the Defunct did receive considerable sums of Money, and also that he paid considerable sums due by him▪ yet that could not infer that these debts were paid by sums of Money received during the Marriage, seeing the Defunct had another Subject than Sums of Money, out of which he could have paid his Debts viz 24. Chalders of Victual yearly as a part of the Pursuers Jointure, which in the debate is acknowledged to have been allocat for the Defuncts free disposal at his pleasure. Suppose then that the Defunct had consumed his Salaries, and Pensions, upon the charges and expenses of his Family, or upon other reasonable and creditable occasions (as it is acknowledged he might have done freely and unaccountably) and that he were Lucratus by applying the said's 24. Chalders of Victual for the payment of his Debt; he could not be said to be Lucratus by sums of Money, but only by Bolls of Victual, for which, by the clause he is not accountable; and if the Pursuer will assert that he is Lucratus by sums of Money Asserenti incumbit probatio. And farther he had other subjects out of which payments might be made, viz. The Lands of Collingtoun which were stocked, as also he sold 100000. Marks worth of Lands, and there is nothing more ordinary, than, for overburdened Heritors to obtain great eases, when they have ready money to pay, whereby the said 100000. Marks may have paid 100000 pounds of debt, So that my Lady cannot be exonered upon a presumptive, but must adduce a positive probation, that my Lord was Lucratus by sums of Money.  
4 The Pursuer must not only prove, that the Defunct was once Lucratus by payment of his Debt, but that the said Lucrum did remain with him, till the dissolution of the Marriage. 〈…〉 purging any of the Debts, did upon a just and reasonable cause, dispose of his releived Lands to his eldest Son by Contract of Marriage, as is alleged, the Pursuer cannot claim any interest in that purchase; But it appears evidently by the Contract, that the Defender was then designed to suceced to his Father in these Lands, in so far as the very Clause upon which the Pursuer found'st her conquesce to be provided to her in lyfrent, and the Bairns of the Marriage in fee, which failing to the Defuncts other Heirs appointed to succeed him, in his other Lands and Estate; whereby it appears, that as the Defender was the lineal Legal Successor of his Father, the Pursuer did not then envy his succession to the Estate of Collingtoun, which by her own clause of Conquesce, is designed his other Lands and Estate; so that the Lands of Collingtoun can never be reckoned Conquesce; nor can the Pursuer quarrel the convoying the right thereof to the Defender, seeing by her own Contract, it is declared that his present Lands and Estate not contracted was designed to descend to his Lineal Heirs which could not be, unless it had been also Lawful to purge the same of Debts, being then burdened above the value, and as it was arbitrary to the Defunct not to have made any Purchase, so he might justly dispose of it: But that the Lords may be satisfied how Calumnious, and groundless this great noise of Purchase is, they would be informed, that the Defender being Married in Anno. 1670. Within a few years after the Contract, it was not possible the Defunct could make any purchase before the Defenders Marriage; Because all the Subject of his Estate was my Lady's Jointure of 36. Chalders of Victual, 200 pounds Sterling of Salary, and the Lands of Collingtoun not then exceeding 3000 Marks; out of this, he had all the necessary charges of his Family, Servants, Coach, and Horses to lay out, and the Defender to  in his travels, and the Annual-rent of his weighty debt to pay, after which deductions there will remain no place for Conquesce: And after the Defender was Married, he lived in that entire Confidence with his Father, that all the portion he received, which was known to be 〈…〉 by his Father to him, was as much possessed and enjoyed by his Father as by himself, never having heard of this pretence of Conquesce, and looking upon his Father's interest and his own, as the same, many sums affecting the Estate were paid by him without so much as mention from whom the money was received, and there were no Assignations taken to any Debt, but always Renounciations and Discharges; so that if this Covetous pretence should hold foot, my Lady should lyfrent the Defenders portion, which was four times greater than the Conquesce, it being impossible to distinguish the one from the other.  
In respect whereof, the Lords, are humbly entreated to give distinct interloquitors upon the several grounds abovementioned, and particularly, 1 Anent the Extent and Import of the clause of Conquesce 2 Anent the Import of the second clause, if it does relate to sums due or falling due after the Marriage. 3 If the same could be of any greater force than a clause of Conquesce tho' it did relate to sums due after the Marriage. 4 If by such a construction the second clause would not be equivalent to a Renounciation of the Jus mariti, as to these sums in favours of the Wife, and if such a Renounciation can consist with Law and former Decisions. 5 If the Pursuers probation of the payment of Debts, and the receiving of sums of Money, could infer a sufficient evidente that these Debts were paid by the sums of Money, seeing there were other Subjects out of which the Debts might have been paid. 6 If the Defunct can be reckoned Lucratus, seeing he did not Die in the fee of these Lands relieved, but was denuded thereof upon a most just and rational account, sine fraud, which are all distinct grounds separately proponed.   

A List of the Decisions related to in the Lord Collingtoun's Information, against the Lady .  
THat the Husband hath the absolute Administration and Managment of all Rents, Annual-rents, and other Movables, belonging to his Wife during the Marriage; notwithstanding any Renounciation of his Jus Mariti thereto, in Favours of the Wife, is evident from these following Decisions, viz.  

9 February 1667. Lady Collingtoun contra Lord Collingtoun.  The Lords found, that the Clause in my Lord Collingtoun's Contract, renouncing his jus mariti in favours of his Lady, did not debar my Lord from the management, and administration of the Rents destinate for maintenance of the Family; and that albeit the administration and management had been expressly renounced by him in the said Contract: The said renounciation had been contra bonos mores, and so void and null in Law; and that the Husband's administration being the Inherent Right and Privilege of the Husband as such, was absolute and unaccountable, and could not be renounced in favours of the Wife.  

13 July 1678. Nicolson contra Inglis.  The Lords found, that a Wife having in her Contract of Marriage reserved a Power to dispose upon her Liferent without the Husband's consent, and the Husband having renounced his jus mariti to what was so reserved: The said renounciatidid recurre and accress to the Husband himself by the Marriage; and after Decease of the Husband, allowed Compensation to the Heirs of the Husband, against the Wife and her Assigney, upon the account of the Wife's intromission Stante Matrimonio, with the Rents so reserved, and whereof the jus mariti was renounced, as said is.  

2 February 1667. Executors of the Lady Pilton contra Hay of Balhousie.  The Laird of Balhousie having granted Bond to his Wife's Sister the Lady Pilton for 1000 Marks yearly, to be employed by her for any use she pleased. without her Husband's consent, and secluding his jus mariti; The Lords found, payment made to the Husband sufficient to Assolyie from a pursuit upon a Bond, notwithstanding that by the Bond itself, the Husbands jus Mariti was excluded.   

A list of Decisions anent the Import and extent of Clauses of Provision in Contracts of Marriage, conceived in Favours of Heirs of Conquesce and Provision, and Bairns of second Marriages; for clearing, that notwithstanding such Provisions, and Obligments, the Husband, or Father, hath the absolute Power and Dominion and unaccountable Administration of the Conquesce.  
THe Lords sound an gratuitous Bond granted by Thomas Cowan, to the Daughter of his first Marriage, long after his second Contract of Marriage, whereby he was obliged to provide all his subsequent Conquesce to the Heirs of that second Marriage, to affect his Conquesce during the said second Marriage: 
9 February 1669 Cowan contra Young.  Notwithstanding that the Daughter of the first Marriage, to whom the gratuitous Bond was granted, was both forisfamiliat, and aliunde sufficiently provided before that time; and it appears by the debate, that as a Husband might freely have gifted all his Conquest to Strangers, so he might likeways gift rational proportions thereof to his Children of former Marriages, notwithstanding any such obligment in his second Contract.  
The Lords found, that the Obligments and Provisions for Conquesce in Contracts of Matriage, did not hinder the Contracters to dispone thereupon during their Life-time: 
16 June 1676, Mitthel contra The Children of Thomas Little-john  And that all reasonable Deeds, albeit they were done or granted, without equivalent onerous Causes, were effectual, notwithstanding of such Obligements and Provisions of Conquesce; and that the Children in whose favours the said's Obligements of Conquesce were conceived, could not be heard to quarrel the same.  

19 June Murray's contra Murray's.  The Lords found, that rational Provisions to Children of a prior Marriage; could not be quarrelled upon the Clause of Conquesce in the Father's second Contract of Marriage: And 〈…〉 7000 Marks granted to the eldest Son of the first Marriage: Notwithstanding that the eldest Son, had succeeded to a considerable Land Estate by his Father: And in that Decision the Lords declared, that they would make the former Decision, Mitchel, contra, the Children of Little-John, a Rule for the future.  
The Lords found that old Niddry having applied considerable sums for acquiring in new and preferable Rights of the Lands of Lochtour, and for purging and disburdening the Lands, of other Encumbrances and Debts: The sums so expended during his second Marriage could not be repute as sums Conquest during that Marriage; 
19 February 1683. James Wanchop contra Laird of Niddrie.  in respect Niddry had a right to the said's Lands of Lochtour, standing in his Person, before that time: And found that James Wauchop as Heir of the second Marriage could have no Interest in the said's new acquired Rights, or for repetition of the sums expended for acquiring the same, upon the Obligment in his Mother's Contract of Marriage, for providing all the Conquesce to him: And this demonstrates, that sums expended for disburdening a man's Prior heritage, of Debts and Encumbrances affecting the same, can never be repute Conquesce, albeit thereby the Estate be nottourly meliorat and improven, and the yearly Rent coming in to the man augmented.   

A List of Decisions for clearing the import, and extent of Obligments and Provisions of Conquest, conceived in Favours of Wives, as to their Liferents.  
The Lords found, that albeit the Husband was obliged to provide the hail sums acquired during the Marriage, in favours of his Wife in Liferent; yet a Bond taken by a Husband payable to a Child of his former Marriage, 
10 February 1629, Oliphant contra Phinnit.  did not fall under the Obligment of Conquesce; and found, that Conquesce was only to be understood of what was standing in the person of the Husband, and undisposed of, the time of his Decease:  
The Lords found, that a Husband having, Stante Matrimonio, acquired the property of Lands, formerly holding of himself; 
26 November 1629. Lady Dumfermling contra Earl of Dumfermling.  and thereafter before his Decease, disponing the same to be like ways holden of himself, for a double or triple Few-Duty; That neither the said Acquisition nor Improvement, by tripling the Few-Duty, did fall under the Obligment of Conquesce in the Wife's Contract of Marriage, albeit the same was acquired, and improven in her time; In respect the Earl had a Right to these Lands Prior to the Marriage, albeit the same was only a Right of Superiority.  

15 July 1673. Robertson contra Robertson.  The Lords found, that an obligement for providing the Wife to all the Conquesce, could not hinder the Father to grant provisions to his Children of a former Marriage, and even to the eldest Son and appear and Heir.  
Alexander Frazer having in his contract of Marriage with Christian Frazer his second Wife, provided her to a mean Provision of the annual rent of 3400 Marks, and to the lyfrent of the half of the Conquest that should be made during the Marriage, and having for preventing any debate anent the Conquest insert in the said contract, 
8 December 1687 Frazer contra Frazer.  a particular inventar of his Estate, extending to 11000 pounds' scots or thereby. It happened there was a considerable Conquesce of 15 or 16000 pounds, made during that Marriage, But Alexander Frazer the Husband, did exhausted and spend all the said conquesce by gratuitous Donations to his eldest Son and Daughter of the first Marriage, of 8000 pounds, Scots, and upwards, and did expend the sum of other 8000 pounds, or thereby, that was likwayes acquired during that Marriage, for payment of other Debts, for which he was engaged Prior to his said second Contract.  
Christian Frazer, having after the decease of the said Alexander, pursued his Heir, for the half of the foresaid Conquesce: and it being debated, whether the gratuitous donations to the Children of the first Marriage, and the sums paid out for Debts contracted and due by the Husband before his entering into the second contract of Marriage with the Pursuer, should affect the Estate belonging to the Husband before that Contract and the said's gratuitous Donations and Debts sua paid, should be sustained to exhaust the Conquesce, in prejudice of the Relics Lyfrent, who was so meanly provided. The Lords found that the Heir of the Defunct, aught to have the 11000 pound to which the Father's Estate was estimate in the said second Contract, allowed and made free to him, in the first place, and that the hail debts due by the Husband when he died, whether contracted before, or after the second contract of Marriage, aught to be paid, and affect the Conquesce in the Second place and that the Relict could only have right to the half of the superplus of the Conquesce (if any was) after the two Deductions above-written.  
It is observable, that albeit there were two Bills given in craving the said interloquitor to be rectified upon their grounds, 1 That a considerable part of the 11000 pounds, to which the Husband's Estate was estimat, was exhausled by payment of Debts due before the second Contract, and 2 That the 4000 pounds gifted by the Defunct to his owned Heir of Line, who was obliged to Implement the Father's obligment anent the Wife's lyfrent, might at least be sustained as Conquesce. Both bills were refused, and the first interloquitor adhered to; So that the Husband's Estate which was once for the most part exhausted by the foresaid gratuitous Donations, and antecedent Debts, as said is, immediately after the second Marriage, and before any Conquesce could be made, was Sustained to be made up, to the Heir out of the Subsequent Conquesce, without allowing the Relict her lyfrent of the equal half thereof, conform to the obligments of the Contract, albeit her other provisions were so mean and inconsiderable, And the principal decreet is produced marked with several letters of the Alphabet, directing to the grounds therein pleaded, and determined and herein repeated, and the sorsaid Decision was so solemn, that the Lords declared to the Procurators on both sides Judicialy, that they would observe the said Decision in all such cases thereafter.  

20 December 1665. Laird of Kilbocho contra Lady Kilbocho.  The Lords ●o●nd, that a 〈◊〉 was obliged to pay me annual-rents of the price of Conquest Lands. notwithstanding that she was provided Simply and absolutely to the Conquesce, and that the Heir was sufficiently able to have paid the same. And by this Decision, as also by an other Decision betwixt the Earls of Dumfermling and calendar, The Practic alleged upon by the Pursuer in the case of the Countess of Dumfermling in Anno. 1625 is fully answered, and elided.   

THE INTERLOQUITOR, Edinburgh 29 January 1690.  
THe Lords having advised the debate, Finds, that the clause of Conquesce libeled, did not hinder the deceased Lord Collingtoun to spend his yearly revenue as he thought fit. And find, that the Lady, be virtue of the clauses in the Contract; has right to the Lyfrent of all sums, which belonged to him the time of his entering into the second Marriage, or the time of his decease. But they find, that albeit it were clear that he had relieved his old Lands and Estate, of Debts, which affected the same, the time of his entering into the second Marriage, by sums acquired during the second Marriage; Yet that the Lady by no clause in the contract, has any right to pursue for the lyfrent of the Lands relieved by such sums. And that the Lord Collingtoun might have employed the sums so acquired; for relieving his Estate of Debts affecting the same the time of entering into his second Marriage, Notwithstanding of any clause in the Contract.  
Sic Subscribitur JAMES DALRYMPLE. I.P.D.   

The Lady's Appeal and Protestation  
I Damn Margaret Areskine Lady Castle haven, Considering that in the Process pursued at my Instance before the Lords of Session, against Sir James Foulis now of Collingtoun: The said's Lords be their Interloquitor bearing date the 29 of January instant, Found that the Clause of Conquesce libeled, did not hinder the Deceased Lord Collingtoun to spend his yearly Revenue as he thought fit: And found that the Lady be virtue of the Clauses in the Contract, has right to the Liferent of all sums which belonged to him the time of his entering into the second Marriage, or the time of his Decease: But they found, that albeit it were clear that he had relieved his old Lands, and Estate, of Debts which affected the same the time of his entering into the second Marriage, by sums acquired during the second Marriage; yet that the Lady by no Clause in the Contract has any Right to pursue for the Liferent of the Lands relieved by such sums; and that the Lord Collingtoun might have employed the sums so acquitted, for relieving his Estate of Debts affecting the same, the time of entering into his second Marriage, notwithstanding of any clause in the Contract: By which Interloquitor I conceive myself prejudged; and that by the Claim of Right it is provided, That any person so prejudged, may appeal for remeed of Law to an higher Judicature, I do therefore by their presents. Appeal and protest from the said's Lords of Session, to the High Court of Parliament for remeed of Law as said is, and entreats your Lordships to stop the said Interloquitor till it be heard in Parliament Sic subscribitur  
M. ARESKINE,   

The Lady's Petition to the Parliament.  
Unto His Grace His Majesty's high Commissioner, And to the Right Honourable the Nobles, and Barons, and Burgesses, Assembled in Parliament. Dame Margaret Areskine, Lady : HUMBLY SHOWETH,  
THat the late Sir James Foulis of Collingtoun having long sought your Petitioner in Marriage, did offer his House and Yards, and 3000: Marks be Year, to me in Jointure: Which he confessed was all he had. Your Petitioner having at last consented to Marry, but did refuse to take the 3000 Marks: Since it was clear that his Children in his first Marriage by his first Lady, should then want altogether; Yet he said, though they should want he would secure me in that. But when I told him, I would not deal so with his Children, but Condescended to accept of his House and Yards, and the Life rend of all Sums of Money, Bands, or heritage, which he should Conquess or acquire, and of all sums of Money due to him, which he shall happen to receive during the said Marriage. And he obliges himself to Employ the same, and take the Rights thereof to himself and Your Petitioner, the longest liver of us two in Liferent: Of this he was so well pleased, that he desired it might be secured as my Lawyers should desire, which was accordingly done in as express Terms as they thought possible, upon this Marriage following. And what ever provision was made in the Petitioners Favours, in that Contract, as to my own former Estate: Yet he possessed and employed a considerable part of my Estate, to entertain his Son's Family, and to pay his former Debt After his Decease, your Petitioner little doubted of the Possession of what was so fairly Contracted; But being forced to Suit it before the now Lords of Session. They by their Interloquitor of the 29th of January last, Did Find, That the clause of the Contract did not hinder the Lord Collingtoun to Employ 〈…〉 ●●ms he acquired during the second Marriage for payment of the Debt, before he entered in the second Marriage. Though this be expressly contrary to the Tenor and Faith of the second Contract, by which he is expressly bound to Employ all Sums he should Acquire, so as your Petitioner might Life-rent them. But least the Iniquity designed should not be clear enough, since no clause in the Contract could prejudge his Creditors, or hinder them to affect these new Acquired Sums. The said's Lords by another Clause declared that if he Employed his Money to pay his Debt, and so to relieve Lands formerly mortgaged by him to Creditors yet that your Petitioner by no means could pretend to the Rent of these Lands so redeemed by the Money, which by the Faith of the Contract, was destinate for your Petitioner; by which strange Sentence all Faith of Contracts is violated, and Law which should protect Widows is wrested, to their Ruin and Fraud, and indirect Deal is not only Encouraged, but owned to be the Design of the Law; for whatever might be pretended for employing the Money acquired during the Marriage, for relieving his morgadged Estate, yet what can colour the Fraud and Iniquity of employing it so contrary to the Tenor and express Faith of the Contract, and the Equity of the Conveyance, as to force the profit of that Money to descend on the Lord Collingtoun's Son, in Defraud of his Wife, by whom he profited considerably, and Consequently was as onerous, and Just a Creditor, as he had or could have. This being so clearly to Impugn Law, Equity, Justice, and Honesty, that none who knew the late Lord Collingtoun, thinks he designed so foul a Fraud; nor could ever such an Interpretation of this Contract fall under the Prospect of so Honest a Man. Albeit your Petitioners Lawyers did fully Redargue all these Quibbles, which my Opposites Propond, and that all Lawyers who were not Blinded with Personal concern, do look on this Sentence alike opposite to Law, as to Equity, and the Interest of Mankind: Yet no Address to the greatest part of these Judges would procure Redress or Delay to your Petitioner, whereupon I was permitted (though with Difficulty) to appeal to His Majesty, and his Parliament as the last Result and great Sanctuary of the Injured, and Oppressed: That your Grace, and Lordships, who sits in the highest Capacity of Law, should have Occasion to Vindicate the King's Laws from the stain of being a covering for Fraud, on Subtle, or Wrested Notions. And to show the Nation that Faith, Truth, and Honesty, are what Law is appointed to Sustain, and to let the People find the Judgement of the Nation, can discern Equity from Fraud, and is the best and last Refuge to the Injured; Your Petitioners Appeal in this Matter being given in the 31 January last, it could not procure so much as Delay, but Decreet was given out,  
MAY IT THEREFORE PLEASE YOUR GRACE, and Lordships, to grant warrant to Cite the Lord Collingtoun, or any others ye shall think fit, to Compeare before Your GRACE and Lordships, on 24 Hours Warning, he being a Member of your Meeting; and to call for the process, and Appeal, and to Judge therein as seems Good and Just: And in this small Case, to show the Nation, what safety they have in their own Representatives, when called by His Majesty's Sacred Authority, and what differences there is by Judging according to Equity, and express meaning of Parties, and Judging by Unthought of Subtleties. And Humbly BEGGS, That the Tenor of the Contract be considered in the plain Sense, and just effect; And Decern the Lord Collingtoun to pay the Petitioner, the Interest of what Money his Father received during the Marriage, belonging to him, and that for all Years since his Father's Death, and in time coming, during the Petitioners Life; And to remit to the Lords of Session to receive what probation Your Petitioner shall adduce, for proving what Money his Father did receive belonging to him during the Marriage, and that they may give therein Decreet accordingly, And Your Petitioner shall ever Pray, etc.  
IF the Members of Parliament, or any other persons shall be pleased to peruse the above-written Process; they may have a much surer ground to found their Judgement and Determination upon, in this Case, (which is important to the Parties, but more in the preparative to the Kingdom) Than to rely upon the bare assertion of either Party.  
It is no new thing that Parties should be persuaded of the Iniquity of any Sentence, which cuts them off, from their Hopes and Expectations; and that Complaints and Murmur should arise upon these Sentences, which always were, and may be expected; and therefore, it was ever the care of our Lawgivers, that neither the Judicatures, nor the Persons of our Judges should be Vilified or Contemned, seeing they Represent the King's Person, in the Administration of Justice: Nor that the Judges should be allowed to abuse the Authority that is committed to them, by doing Wrong or Unhonesty. Therefore shortly after the Institution of the College of Justice, it is provided by the 68 Act. 5. Parl. Ja. 5. That the Lords of Session should be had in special Honour, and that no Credit be had to any that Murmur against them: But they shall be called b●fore the King, and if they be found Culpable, they shall be punished after the quality of their fault; and if they be found Clean and Innocent; the Person complaining shall be punished with rigour, and never have Credit with the King. again. This Statute and all others, in relation to the Session are yet standing Laws, and are suitable and agreeable to that Article in the Instrument of Government. Whereby it is provided, That it is the Right and Privilege of the Subject, to protest for remeed of Law to the King and Parliament, against Sentences pronounced by the Lords of Session. Which doth not Authorise every Protestation at the pleasure of the Party; but only in these Cases, wherein Murmurs and Complaints were allowed by our Ancient Laws: And if such Protestarions be now found Injurious, the Party protesting, is punishable by the former standing Law, against unjust Murmurers and Complainers  
No Protestation for remeed of Law having formerly occurred since the Claim of Right, it is of the greatest importance, that the extent and meaning of the said Article of the Meeting of Estates be carefully and narrowly considered, that no practice follow upon it, which might tend to render the proper●y and possession of the Subject more Doubtful, Disquiet, and Unsecure, than formerly, contrary to the clear design thereof; By which it was intended, That an important right and privilege of the Subject should be asserted and declared.  
In the first place then, the foresaid Declaration does not Warrant, nor Authorise Appeals, but only Protestations for remeed of Law. On the contrary, the same doth clearly Import a Prohibition of Appeals, by the last Provision thereof, That such Protestations shall not stop the Execution of the Sentences of the Lords. Which is equivalent, as if the Meeting of Estates had expressly discharged Appeals, seeing the plain Import of an Appeal, is to suspend all effect of the Decision or Interloquitor of that Judge, from whom the party Appeals; yet the Lady thought fit to present a Paper, Appealing from the Lords: And in her Petition, she doth not design the Paper presented by her a Protestation, but an Appeal, which is repeated in three several places of that Petition: Notwithstanding Appeals be expressly prohibited and the Lords of Session Impowered, To decide utterly in civil Causes pursued before them, without remeed of Appellation to King and Parliament, by the 62 Act. 14 Parl. King Jam. 2. And the 39 Act. 5. Parl. Ja 5. And which Acts were not Intended to be Abrogate or Rescinded by any Article in the Claim of Right.  
2 It cannot be imagined that the Meeting of Estates, did intent that a party might freely protest for remeed of Law in every ca●se, without any hazard or inconvenience, In case that Protestation were found not to proceed on just g 'ounds, for the said Article being no constitution of any new Right not formerly competent to the Subjects, But an assertion and decalaration be measured by our ancient Laws, which did allow murmur and complaints upon just grounds; in the same cases Protestations are allowed by that Article, as if the Lords should refuse to Minister Justice, or if they should not only be Judges, but Solisters, partial Counsellors, Assisters and Partakers with some of the parties, and to take Geir and Profit; in these cases, as Murmurs and Complaints were Lawful be the 26, act 5 par. Ja. 3. and 104 Act. Par. 7. Ja. 5. So are Protestations for remeed of Law: Or if the Session being a limited Judicatory, should proceed to decide in matters not falling under their Jurisdiction, As in matters of State and Government, or Crimes; or sustain themselves Judges in the first instance in adjudications of Prizes, or Divorces. As likeways, if the Lords should upon full debate decide, and thereafter upon the same grounds formerly represented super iisdem deductis, should retract that, and make a direct contrary Decision, whereby parties would always be uncertain of their Rights. For if they might once retract their Decision on the same grounds, they might do it again and again for ever; and the great Inconveniency of this was discovered by our Predecessors many ages ago, for eviting whereof by the foresaid 62 Act 14. Par. Ja. 2. All Causes were appointed to be utterly decided by the Lords of Session, but any remeed by appellation to King or Parliament, because if appeals were once allowed, it were impossible to bond the Parliament, or terminate any Decision; for the Parliament hath always power to rescind any Law that could limit them, and make contrary Decisions on the same grounds as oft as they pleased, without any Imaginable remeed. In all these cases abovementioned, Complaints and Protestations are lawful, but still with the Caution and Limitation mentioned in out ancient Laws and Acts of Parliament. viz, That if Murmurs, Complaints, or Protestations be interposed without Just and Legal Grounds authorized by the Law, the Presenters thereof are severely punishable; which is most necessary for preserving the Honour and Respect of the Supreme ordinary judicature, which bears 〈…〉  
As this is plain reason upon the one hand, so let the Consequence be considered on the other: For if such Protestations were allowed to be offered at the pleasure of any Party, they would necessarily come to proceed of course, and none who have ●he Disadvantage by the Decision, will fail to offer a Protestation, which doth not cost one Farthing of Charge; and whereby there may remain an hope and expectation, that one day, they may have that Sentence reversed; for few men can be so just and equal in their own Concerns, as to be easily convinced of the Justice of a Decision, which cuts off their Claim, or makes them liable to great Burdens or Debts: And that after great loss of Labour, Time and Money; and of those that can be convinced, there are many who will not have the Ingenuity to forbear interposing any Protestation, that may support the Interest of their Cause, right or wrong.  
3 Suppose then this Inevitable Consequence, that every decreet did contain in the Bosom of it, a protestation for rescinding thereof by the King in Parliament; with what assurance or quiet, could any man enjoy his fortune, which at any time had been called in question, or might become debatable in any time by past, or to come? How should any man know to regulate himself in the expense of his Living, the education or provision of his Children, or in the Management of any of his Affairs? For suppose the usual ways of Inhibition, Arreistment, or other Diligence upon the grounds of any process had been used, and that the Judge ordinary had annulled all upon payment, or other ground of Law, yet the interposing Protestation would so fetter that party who was once under diligence, that to the end of the World, he could not dispose upon any part of his Estate heretable or movable, that was at any time under Diligence; because, if that Sentence of the Lords, by which the diligence was found extinct, should come to be reduced, the diligence would revive. And all Acquirers for whatever cause, become liable to restitution, and tho' it came never to be reversed, yet the possibility thereof would so burdened, nor dispose of any part of his Estate for payment of his other Debts.  
4. It is the aim and Intention of the Law of all Nations,  aliquis tandem sit finis litium: And therefore every Nation hath their several forms of Process, to which every party must comply: And very often, it falls out in every Nation, that those who have really and truly material Justice on their part, do justly succumb in their Cause for neglect of these Forms; for whom the Law provides no remedy, but only gives them warning of their danger, and tells them, Vigilantibus, non dormientibus, jura subveniunt; Other Cases again are so dubious, that upon full debate, the Judges and Learned Lawyers of every Nation, are divided in their Opinions; so that the Decisions of most Important Causes are often carried but by one or two Votes, (tho' it was far otherways in this Case) Yet it is generally thought every where, more secure, to rest in the Decision of the most doubtful Case, than to leave parties unsettled in their Rights and possessions: And ofttimes it happens, that through the disadvantage of Indistinct and unclear representation of Cases, the same Judge may determine otherways, than he would have done, if the Case had been fully and clearly represented: And frequently points are mentioned in Debates so overly, that they are neither noticed nor regarded by the opposite Advocats, nor the Lords at deciding; and yet being once mentioned, they would be competent in a Review, where being Illustrate, they might appear more important, than all that was debated, or under consideration at the time of the Decision; and so might be a ground to annul what was done most justly upon the grounds urged, and under Consideration, whereby the Justice and Integrity of the Lords might be tarnished by the Faults and Omissions of Parties or Procurators. And if by Protestations such doubtful Cases were brought in without limitation, to be debated before a different Judicatory proceeding by different forms, and in a distinct view and in another light; it were impossible for a debate, o● what might be t●● consequences o● a contrary Decision, to hundreds of Third parties, who had no Interest or concern the time of the first Sentence. Nor can any person foresee all that might follow upon such a sudden alteration, as to allow unlimited Protestations in any Case; only this much is plain, that the evident evil Consequences are so many, as would render every man uncertain in his enjoyments; not knowing at what time, some one of these Consequences might reach him, which would at one blow, strick at the root of all the quiet and secure Enjoyments and Possessions of the Liedges.  
But to return from these more remote Considerations anent the import of unlimited Protestations in general, to the particular Case in hand, suppose that Protestations were in every Case allowed; yet it seems highly unreasonable, that the same should be admitted otherwise, than in terms of respect to the Lords, and in moderation; or that Parties should be admitted to affix such injurious and reflecting Characters upon their Decisions, as the Petition contains, as if any Decision of the Lords should be so grossly absurd, As to violate the Faith of all Contracts, and to wrest Law to the ruin and defraud of Widows; and not only to encourage indirect Deal, but to own the design of Law to be such, and to deliver a Decision that equally impugns Law, Equity and Honesty. These expressions all contained in the Petition are so harsh and rude, that if they were allowed at a Parties pleasure, it would deprive the Lords of the benefit of that Credit, Respect, and Honour, which is due to them by many former Laws, several times reiterate in every Reign, since the Institution of the College of Justice; and which were thought necessary in the former and present Ages, not so much for regard to the Persons of the Judges, as to the Interest and Security of the People, that these to whom the final determination of all civil Causes, in the ordinary Administration Justice was committed, might not be overawed, by the Influence and Humour of any person until upon legal Trial, they were Convicted to have done Wrong or Vnhonesty, as the Law bears  
And as this method is not allowable in any Case, so for clearing the Injury and Injustice thereof in this; the same is desired either to be considered, as it is stated in the Process above mentioned: Or if any person be unwilling to bestow so much labour, let it be considered in a more general view, what rational probability can arise from the Circumstances of the Judges and Parties, that they should be guilty of such gross Iniquity, in prejudice of the Lady ? As the Petition proports.  
Collingtoun had no near Interest, or contingency by Relation, or otherways, to any person on the Bench, or in the State; and that which in all former times has created Fears and Jealousies of corruption and Iniquity, hath either been personal Interest with, or by the Party, or Court Influence: On the other hand, the Lady  wanted not a Relation either upon the Bench, or in the State; and particularly she is in that near degree of Consanguinity with the sole Secretary of State, now His Majesty's High Commissioner, that in Law she is reckoned in the place of a Parent to him: And tho' that Noble person is endued with more Integrity, Honour & Justice, than in the least to design, or countenance the over-awing of the Bench: Yet the Lords nether were, nor could be Ignorant, that her Interest was sufficiently regarded, and that she did not want a just Support and Countenance of her Friends and Relations; withal not above one or two of the Lords were Personally known to the King, or could be supposed to have their Advancement in Places, without the Influence of the Secretary; and it would appear, they had very carly forgot their gratitude, if they could in so few Weeks after their Advancement, be guilty of such gross Iniquity to the near Relation of so eminent a Person, by whom they were so lately Obliged. And tho' they could have forgot their Gratitude, and also the Oath of God that lay upon them, and all without they did so far neglect their Interest, as to Disoblige a person, whose Favour might be so useful, in supporting them, or promoving their farther Interest? Besides, were they Ignorant that there were many envious Beholders, to observe their Halting, especially in the beginning of their Administration: And what was to entice them to all this gross Iniquity? Let the World but consider, if the Decision had run on the other side, and that Collingtoun had Interposed a Protestation. What Influence might these general considerations have obtained in the minds of these who are only fit or willing to receive a general view? But the Decision in this case, did carry so little presumption of any bias or corruption, that it gave a general satisfaction; and nothing could have more reasonably vindicat the reputation of the Integrity and Justice of the Lords in the eyes of all indifferent Persons, it being thereby evident, they could not be influenced by any interest or by-end; And it is not questioned, but the great Persons who have Relation to the Lady will find it their Interest and Credit to support the Lords, in determining according to their Consciences, and that they will look upon it as a great Honour to them, That during their influence, The Judges of the Land were not overawed or afraid by the Interest of any party, to determine according to the Law and their Judgements, as it is recorded of one of the greatest of our Kings, that the Lords having in his own presence, Determined Against his interest, He rejoiced in the Integrity of his Judges, neglecting his loss.  
And whereas the Petition asserts, that the Lady's Lawyers did redargue all the quibbles of her opposites to the Conviction of all Lawyers, who were not blinded with personal Concern, for proving this also, there is still the same Authority, The Lady's assertion. And that which she is pleased to call Quibbles, is a continued train of uniform Decisions, in the cases of clauses of Conquesce to Wives and Children, for the space of above sixty years, By all which, the Lords have followed one constant Rule, That such Clauses do not hinder a Husband or Father to use a during his Life, albeit these should wholly exhaust the Conquesce at his Death, As appears by the Abbreviat of Decisions above mentioned, whereof many more of the like Import could have been produced. And it is strange, that all Lawyers not blinded with personal Concern, should be so much convinced of my Ladies Right, seeing the Lords were so unanimous in a different Opinion, and that their personal Interest for Collingtoun, could not justly be suspected. And the Lady, in all the freedom she takes with them doth not brand them with Ignorance, that they did not understand her Case; nor doth she pretend, that it was not fully and maturely considered (the same being debated in Presentiâ three entire days; and after Informations, another day spent in Advising) only the Judges were So prone to Iniquity, that surpassing the example of all others, they practised unjustice for unjustice sake, without the least bait or allurement to engage them to it.  
And lastly all the Iniquity that my Lady Complains of, Is this, That Collingtoun succeeded to his Father's Estate, which was relieved by his purchase, during the Marriage whereof she Craves the Liferent.  
It were improper and tedious, to repeat the satisfying answers in this place, which are fully contained in the informations abovementioned. Only if the lady's own Petition be ducly considered, it may furnish no small evidence, that this was no such Iniquity, as is contended. For, 1 The Petition bears That the deceased Collingtoun offered a Jointure of 3000 marks yearly, which was all he had, but she did refuse to accept of that, because thereby the Children of the first Marriage would altogether want, and therefore she did only take a general clause of Conquesce in the terms foresaid. Can any thing then be more clear, than this acknowledgement, that it was the design of Parties, that the Heirs of the Lord Collingtoun should succeed to his Estate of Collingtoun? And the very terms of the Contract, beside the present acknowledgement bears, that the Conquesce during the Marriage, should belong to 〈…〉 which failing to Colingtouns other Heirs, who are to succeed to his other Estate. So that still it was in prospect, that the Heirs of the first Marriage, should succeed to the Estate of Collingtoun, And that the Lady would not deal so with them, as to prejudge them of that Succession, even during her life. This being once acknowledged, how can it be controverted that by the design of the communing and contract, the Defunct was allowed to relieve these Lands, that his Son might succeed?  it is imported and acknowledged by every step of the Lady's process, her Summons, and all the Debate on either hand, That Collingtouns debt at the time of his Marriage, did exceed the value of his whole Estate, So that it was impossible that his Son could succeed to any part of the Estate, unless the debt were paid. And if the Lady had that Justice and Affection to the Children, as she expresses in her Petition, that she would not hinder them to succeed, wherein did this bounty consist? Unless the Defunct had been allowed to relieve his Estate, Without which their succession thereto, (which the Lady he●self designed) was utterly impossible; And if any farther evidence were needful, let this be considered, that the Lady takes the Lifrent of the House and Yeards by her Contract, which she doth possess, and she refuses a Jointure of 3000 marks out of that Estate in special, or by a general obligement, which would have been a Debt affecting the Defuncts Heirs; why was all this done, and a clause of Conquesce accepted in place thereof, if there had been any project for binding up the Defunct from relieving, his own Estate? Did ever any Lawyer lay a clause of Conquesce in whatsoever terms conceived, in the Balance with a Special Obligement to a Wife? The one being the Most, and the other the Le●st effectual of all obligements.  
2 Collingtoun did not succeed to his Father's small Estate, which the lady's Petition owns to be but 3000 marks yearly, nor was it relieved by his Father's means, but by his Lady's Portion, which was very considerable, and all that his Fa her could contribute for relief thereof, was not valuable; This Estate in Anno. ●●●●. A● which time, his Father had only enjoyed his Salary, as a Lord of the Session, and a part of his Lady's Jointure, for a few years, which was no Fond to Enrich and Enable him to pay any Considerable Debt, after deduction of the expenses of the Family, and the Education of his Children, upon whom he bestowed liberally. And it will not be pretended that Collingtoun could be liable for any deed of his Fathers, by misapplication of Conquesce or otherwise, after he was provided and secured to the Estate by his contract of Marriage. And if the Defuncts Conquesce were but generally known▪ there would not be ground to make so great a struggle about the Liferent of it. But the true rise of the Difficulty is in this, that Collingtoun never heard or understood any thing of the Lady's claim, during his Father's Life, and thereby was not upon his Guard to provide against it, or to keep his proper acquisition by his Lady, separate from his Father's Interest; but having lived in a perfect and entire Confidence and friendship with his Father, and suffered his lady's portion to be applied, for the payment of his Father's Debt at his pleasure, without taking assignation to one shilling of what was paid, yea without so much as mentioning, from whom the Money was received, the difficulty of clearing what was paid by his own Money, makes him the more concerned to Defend, and the Lady more earnest to pursue, she hoping by the process, to have reached not only the Liferent of her Husband's Conquest, but likeways of this Collingtouns Portion with his Lady, which is far from the Kindness, and Just Inclinations, expressed in the lady's Petition, to have been communed at the Contract of Marriage, in favours of the Defuncts Heirs and Children.   
FINIS.