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Scottish Court of Session Decisions >>
Swyne v Swyne and Lundy. [1605] Mor 6029 (7 June 1605)
URL: http://www.bailii.org/scot/cases/ScotCS/1605/Mor1506029-238.html Cite as:
[1605] Mor 6029
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VII.
After Proclamation of Banns, the Woman considered to be in the same case as if actually Married.
Subject_3 SECT. II.
After Proclamation, barred from granting Gratuitous Deeds, or Deeds to the Prejudice of her Husband.
Swyne v. Swyne and Lundy
Date: 7 June 1605 Case No. No 238.
After proclamation of banns, the wife can do no gratuitous deed to prejudice her future spouse.
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Walter Lundy and Elizabeth Swyne, his spouse, pursued John Swyne, to hear and see a bond whereby the said Elizabeth had obliged herself to pay to the said John the sum of five hundred merks, reduced, because it was made by her after, that she was contracted in marriage with the said Walter, and after the first proclamation of their banns, whereupon marriage followed, to the said John, her own brother's son, being next conjunct person to her, in defraud of the said Walter, her spouse affidat, as they termed it, without his consent, and so was null of the law, and should be reduced; 2dly, Because it was a matter of consequenee, extending to five hundred merks, subscribed only by one notary. It was answered, That the contract and proclamation of banns made no marriage; and so she being a free person unmarried, might lawfully have bound herself, without his consent, who at that time was not her husband; and alleged a practick betwixt Mr John Grahame and James Murray. Next, they offered them to prove, that in a contract of marriage betwixt the said John Swyne and one Philp, whereupon marriage followed, the said Elizabeth Swyne and Walter Lundy, his spouse, being present, both confessed the verity of the debt, in presence of the party, as an instrument taken thereupon would prove. It was answered, that the first bond being invalid, could not be supplied by that instrument given by one only notary, seeing Walter Lundy could subscribe; and in fortification of the summons, alleged the practick betwixt John Heriot, taylor in, and, his good son. In respect whereof, the Lords repelled the exception, and sustained the two reasons of the summons conjunctly to be admitted to probation.
Fol. Dic. v. 1. p. 404. Haddington MS. v. 1. No 798.
