Scottish Court of Session Decisions

Subject_1 HOMOLOGATION.
Subject_2 SECT. IV.

Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.

Sinclair of Balcraigie
v.
Richardson and her Spouse

Date: 8 November 1677
Case No. No 29.

In a pursuit on a bond granted by a wife during marriage, it was alleged she had homologated it, by giving it up in a confirmed testament. This the Lords repelled, thinking it hard to prejudge an ignorant woman, who knew no better than to follow the advice of her procurator, who gave up that debt.

Click here to view a pdf copy of this documet : PDF Copy

Elizabeth Richardson, and Alexander Barclay, her present husband, are charged by Sinclair to pay a sum contained in a bond granted by her, and——her first husband, and which she judicially ratified upon oath. They suspend, 1mo, Because the bond quoad the wife is ipso jure null, being granted stante matrimonio; and the oath could not validate it, especially it bearing borrowed money. Answered, 1mo, The oath not being sinful ought to be kept; Capitulum octavum, Extra, De jure-jurando, Omne juramentum quod non vergit in salutis eternæ dispendium est servandum. 2do, The bond is the price of her wedding clothes. 3tio, She has homologated it, for she has given it up in the confirmed testament.—The Lords sustained the reason, and repelled the answer; and found the oath could not be obligatory, ubi accedit obligationi de jure prohibitæ. Found the 2d answer relevant to elide the reason, and assigned a day to prove it was for the marriage clothes, and would not put them to a new process for the same. Repelled the 3d of the homologation, it being hard to prejudge an ignorant woman, who knows no better but to follow the advice of her procurators, who gave up this debt.

Fol. Dic. v. 1. p. 379. Fountainhall, MS. *** Stair reports the same case:

Mr John Sinclair (pursues), as assignee by Major Nairn to a bond of 330 merks granted by Elizabeth Richardson, and umquhile John Robertson her first husband. The said Elizabeth and her present husband suspend, on this reason, that the bond being granted by the said Elizabeth, then a wife, is ipso jure null. It was answered, That she had judicially ratified the bond, and sworn never to come in the contrary. It was replied, That such ratifications or oaths, whatever they can work for exclusion of defences competent against valid rights, yet they cannot validate a right ipso jure null, as this bond is, which, if it had been considered by the Lords, they would not have ordained horning or process upon it, though no party had appeared. The charger further alleged, That the true cause of this bond, (though it bore borrowed money) was Elizabeth Richardson's bridal clothes, taken off by Major Nairn, and profitably employed to her use, and therefore being in rem versam before she was married, the bond granted therefor, though after she was married, ought to be sustained. It was answered, That this bond was null, and was not a sufficient ground of a charge, and therefore the letters ought to be suspended, reserving the action for bridal clothes, as accords. It was replied for the charger, That the Lords, by their ordinary custom, do sustain defective decreets and charges of horning as libels, and allow parties to reply or give in special charges, as this charger now doth, upon the true cause of the bond, applied to the suspender's use, and insists likewise on this special charge, that it is beyond doubt the husband subscribed the bond, and the said Elizabeth Richardson is confirmed executrix-dative. The suspenders duplied, That she is a privileged creditor for implement of her contract of marriage, which will exhaust the inventory. It was triplied for the charger, That if she had confirmed herself executrix creditrix for implement of her contract, she would have a preference; but that she hath not done, but simply confirmed as executrix dative, and she herself hath given up this bond as a debt, whereby it is debitum testamentarium, and so is preferable to all other debts, especially to her who gave it up, and not her own debt, and thereby preferred it to her own. It was answered, That the giving up of a debt was only to diminish the quot, and no ways to pass from a privilege, it being then uncertain how far the inventory would reach, and testamentary debts are only such as are given up by the defuncts, and not by executors, and even then do only secure the executor when paying bona fide, without sentence, before the intenting of any other cause; and albeit the suspender hath not confirmed herself executrix qua creditrix, yet as she might have compeared in any process against her husband's executor-dative, and craved preference, so may she much more, being executrix-dative herself, propone preference by way of exception.

The Lords found, that albeit the bond be null, as subscribed by a wife, and not validated by a judicial oath or ratification, yet they sustained it in quantum in rem versam, without the necessity of a distinct process, and allowed such probation as was competent for instructing the true cause thereof, but if it was only by the wife's oath, they reserved to themselves, whether it should be effectual against her husband, or against herself; and found likewise, the allegeance relevant upon the preference of the contract of marriage to this debt, albeit the relict was confirmed executrix creditrix, and gave not up the provision in her contract as a debt, but did give it up as a debt in the inventory. See Husband and Wife.

Stair, v. 2. p. 555.