Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VI.
A married woman's deeds in what cases effectual against her husband.
Subject_3 SECT. II.
How far Prępositura presumed to extend.
Lady Boyd v. Ld Airth, &c
1582.
June. Case No. No 217.
A wife is presumed to be pręposita negotiis domesticis viri; but this presumption was not extended to a lady tercer granting discharges of her terce duties, which it was found she could not do, without consent of her present husband.
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The Lairds of Airth, Kilsyth, &c. were pursued by the Lady Boyd, and James Fleming her husband for his interest, as cautioners for the Laird of Boyd her son, to pay to her certain yearly duties, in victuals, capons, and silver, because the Laird her son was obliged, by virtue of an obligation registered in the books of Council. The foresaid cautioners being charged obtained suspension, alleging, That they had made payment of the said duties to the Lady, and produced her acquittances and discharges thereupon. It was objected against the discharges and acquittances, That they were not sufficient, because the said Lady being clad with a husband, it was necessary to have his consent to the said discharges. To the which it was answered, That albeit the said Lady was clad with a husband, yet she intromitted with, and took up the duties of her own conjunct fee by herself, et fuit præposita omnibus hissce negotiis, and gave acquittances and discharges by herself, without her husband. To this was answered, That albeit mulier et uxor possunt profici aliquibus negotiis, et exercere ea quæ spectant ad rem domesticam gubernandam; tamen in rebus magni momenti, et ubi requiritur scriptura, it is necessary to have the consent of the husband, and unto the giving of discharges and acquittances.——The Lords, after long reasoning, repelled the reasons of the summons, and found, by interlocutor, that a wife might not give acquittances and discharges, without the advice and consent of her husband, quia vir est caput uxoris, et de jure nostro, durante matrimonio, maritus est dominus omnium bonorum.
