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. IX.

Wife's Power of Administration of her own Property, without her Husband's Consent.

Baillie of Torwoodhead
v.
Lady Lethem

Date: 18 June 1680
Case No. No 204.

Found that a wife, though living separately from her husband, has no power to oblige herself or contract debt, but can only do those necessary deeds which tend to the administration of her separate patrimony.

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In the charge given by Baillie of Torwoodhead to the Lady Lethem his mother upon her bond, the Lords declared they would hear this point in their own presence, If a bond granted by a woman cloathed with a husband was so null as that it neither bound her person nor her means, where she lived separate from her husband, (as the Lady Lethem did from Posso,) though not divorced; and where she, by an act of Privy Council, had the free disposal of her former jointure, or of a part of it, or had an aliment which neither her husband's jus mariti, nor his creditors, could reach or affect. Some thought the law, (so far as her allowance exceeded a precise aliment) should allow her to contract debt on these jointures, and she might sell her victual, and enter into contract for delivery thereof, upon which undoubtedly the buyer would get execution against her; else it would impede commerce, and none would meddle with her, whereby she might starve. And though the S. C. Velleianum annulled womens obligations, yet there was a threefold disparity: 1mo, The Senatusconsult. only secured wives against their intercessions as cautioners for others. 2do, It only related to borrowed money; whereas the bond charged on, is for furnishing necessaries to the house. 3tio, It did only strike against strangers; whereas this bond is by the mother to her own son, who having a bulimia et appetitus caninus, the mother jure naturæ ought to entertain him: And therefore some alleged, albeit during the standing of the marriage undissolved, she cannot be distressed for payment personally, by caption, &c. yet her jointures may be affected with arrestments or other diligence. Vid. Ann. Robert. rer. jud. lip. 2. c. 6.; Stair, B. tit. 4. § 16. This cause being debated in presence, on the 22d July 1680, “the Lords found a wife's bond null quoad omnes effectus, either of personal or real execution; and this, albeit the Lady had an obligement from her son that he should pay her such a price for these necessaries yearly as such persons should modify; because this put the Lady to be once the first disburser, and so had nothing but an uncertain action of repetition of the price.” But the Lords recommended to her to furnish her son ex pietate materna (for venter non habet aures, nec patitur moram) what she could spare. This was a caution of moral equity, but of no legal compulsion. A wife granting bond for borrowed money, and swearing never to quarrel it, yet both the bond and oath were found null and not obligatory, 18th Feb. 1663, Birch, No 165. p. 5962.

Fol. Dic. v. 1. p. 401. Fountainhall. v. 1. p. 102.

*** See Stair's report of this case, No 178. p. 5981.