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.

Fisher
v.
Ker

Date: 27 January 1665
Case No. No 166.

Found in conformity with the above.

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Umquhile Alexander Haliburton of Coldingknows and Margaret Ker his spouse, by their bond dated the 5th May 1651, are obliged conjunctly and severally to make payment to Isobel Lithgow, of the sum of 1200 merks principal, with annualrents and expenses, who having assigned the debt to Mr Michael Fisher, after the decease of Alexander Haliburton, he charged Margaret Ker for payment, who suspends upon this reason, That the bond was subscribed by her stante matrimonio, and so not obligatory against her. To which it was answered, 1mo, She had ratified judicially; 2do, That her husband having obliged himself and his successors to pay, the mother had disponed to his wife his whole lands and heritages, and so being successor to him, must be liable; likeas, the charger has intented action of reduction of the disposition. The Lords found the wife's subscription null, and therefore suspended the letters simpliciter, notwithstanding of the judicial oath and ratification, without prejudice to the charger to pursue for reduction as accords of the disposition, which was not made to the relict, but to Sir Andrew Ker of Cavers.

Fol. Dic. v. 1. p. 398. Newbyth, MS. p. 21. *** Gilmour reports the same case:

Alexander Haliburton of Coldingknows and Margaret Ker his spouse, were obliged by their bond to pay to Isobel Lithgow the sum of 1200 merks; which she having assigned to Mr Michael Fisher her eldest son, he charges the said Margaret after her husband's death; who suspends upon this reason, that the bond is null, being made by her stante matrimonio, at which time she could not oblige herself effectually. It was answered, That she did ratify the same judicially with an oath not to quarrel. Replied, A ratification and an oath cannot make a null bond valid, both being done eadem facilitate; as was found January 1663, betwixt Douglas and Birch, No 165. p. 5961. Duplied, The suspender was in effect præposita negotiis mariti, and had had the management of all, being but a simple man, to whom no neighbour nor other would trust any thing without her: Likeas, her power was such with him, that she caused him dispone his whole estate to her brother, Sir Andrew Ker younger of Cavers, reserving her liferent, and upon condition that the fee should also come to her in some cases mentioned in the disposition; so that she having bound herself and sworn, and got in effect his estate to her and her's, she ought to be liable notwithstanding of the practique which meets not.

Gilmour, No 128. p. 93.