Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION V.

A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. IV.

Personal Bond not binding upon a Wife, although her Husband consent.

Birch
v.
Douglas

Date: 14 January 1663
Case No. No 165.

A personal bond granted by a woman stante matrimonio, found to be ineffectual against her, though her husband had subscribed it and she had ratified it upon oath.

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Sarah Birch widow in London, charges Catharine Douglas relict of John Muir merchant, for payment of a sum of money contained in a bond granted by him and her to the charger. She suspends upon this reason, that the bond is not obligatory but null, as being granted by her stante matrimonio, during which time, no wife can validly bind herself, (though she may dispone with consent of her husband) and if she do, the bond is ipso jure null, whether it be judicially ratified by oath or not. This matter having never been decided before, was ordained to be heard in præsentia, where it was fully debated among the advocates and among the Lords themselves, from the civil law, our law and practiques, and from the consequences: From the civil law it was alleged, That a woman might renunciare beneficio senatus consulti velleiani made contra intercessiones mulierum, and oblige herself notwithstanding thereof, multo magis in this case, where an oath is interposed not to come in the contrary of the bond. From our law and practique K. James III.'s 11th Parliament, cap. 83,. it is declared, that a woman may not come in the contrary of her oath; and hence it is, that in our practique, liferenters or heritors disponing and ratifying judicially upon oath, cannot question their deed done stante matrimonio with consent of their husbands; nor can minors by the civil law, nor by our law and practique, question their deed, being ratified judicially with an oath, “That they shall not quarrel;” and the consequence of perjury is dangerous, seeing oaths ought to be kept quæ sins dispendio salutis æternæ servari possunt. It was answered, That senatusconsultum velleianum has not place among us, and it is general for all women; this by our law is only in favours of wives binding in their husbands's time, who may be presumed, ex metu reverentiali, to set their hands to bonds, not only to exhaust any fortune of their own, but to involve themselves in such burdens as they are never able to pay, and so should be rendered miserable, either for fear, or for respect to their husbands: Nor is the case of an obligement, and of a disposition by a wife, alike; because a woman facilius inducitur se obligare quam dare aut disponere, and when she gives and dispones, it is no more than she hath, but she may bind for more than she hath, in infinitum; hence it is, that if a heritrix wife should dispone with absolute warrandice, with consent of her husband, though the dispostion be valid, yet the obligation of warrandice will be null. And further, an oath adhibited to such dispositions, renders not the same valid, as being invalid by our law without an oath; for dispositions made by wives with consent of their husbands are regulariter valid, unless they be quarrelled super vi et metu, which is a legal ground to quarrel all dispositions whatsoever, made by men as well as women; but because women are more easily to be induced to dispone than men, et levior vis et metus is relevant in women than in men; therefore, to eschew all questions, the judicial oath of the wife is taken, that she was not co-acted, to cut off all ground of question whatsoever; and though a minor when he binds with consent of curators, judicially swearing not to revoke, should not be restored, the reason is, because the bond of a minor, with consent of his curators, is not ipso jure null, but eget semper restitutione in integrum super capite minoris ætatis et lesionis, and must be intented intra annos utiles; but by our law, the wife's bond is ipso jure null, without necessity of revocation or restitution, and she is in the case of a minor binding, having curators, without their consent, or of pupil-binding, whose bonds are ipso jure null, and cannot be made valid by any such oath. Likeas, there be many cases, expressly in the civil law, wherein, without question, the adhibition of an oath renders not the deed valid, and many other cases disputed among the Doctors; and oaths indeed ought to be kept, and it will be so judged in foro cæli; but some oaths are not to be authorised by civil judicatories, who are to look to the advantage of civil societies, and the public civil interest, such as this, in the case of married wives in general; and therefore, all that the civil Judge can do, is to leave the swearer to God and his own conscience.

The Lords repelled the allegeance, and found the bond null, notwithstanding of the oath.

In præsentia.

Fol. Dic. v. 1. p. 398. Gilmour, No. 61. p. 45 *** Stair reports the same case:

1663. February 18.—Birch, an English woman, pursues Catharine Douglas to pay a bond, wherein she and her umquhile husband were obliged. The defender alleged absolvitor, because it was a bond stante matrimonio given by a wife, which is null in law. It was replied, It is ratified judicially, and the defender obliged never to come in the contrary upon oath judicially, which is the strongest renunciation of that privilege of wives, and it hath been frequently found, that minors making faith, cannot be restored lesionem conscientia ex juramento violato.

The Lords having debated the case at large amongst themselves, found the bond null notwithstanding of the oath; for they thought, that where the deed needed no restitution, as in the case of minors, these deeds are valid, but the the minor may be restored; but in deeds ipso jure null, where there need no restitution, an oath cannot make that a legal deed which is none: It was won by a vote or two, many thinking that such privileges introduced by custom or statute might be renounced, and much more swore against; but that it were fit for the future, that all magistrates were prohibited to take such oaths of wives or minors, who are as easily induced to swear, as to oblige, and if they did, that they should be liable to pay the debt themselves.

Stair, v. 1. p. 181.