Wife's Oath with regard to Transactions before Marriage, if relevant against the Husband.
Temple v. Lady Whitinghame
Date: 20 January 1636 Case No. No 349.
Found in conformity with Ker against Covington, No 347. supra.
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The Lady Whitinghame in her widowhood having granted a bond of 2200 merks to Patrick Temple, which was all written and subscribed with her own hand, which being desired by the said Patrick by way of action, to be registered against her, and against the Laird of Preston her second husband, upon whom she was married after the date of the said bond; the Lords assoilzied the Laird of Preston's estate from all execution which may follow against him thereupon, during his lifetime, because the said bond wanted witnesses inserted therein; neither was it admitted to sustain the bond, that the pursuer offered to prove, that it was all the Lady's proper hand writ, and offered to prove it by the Lady's oath, and also by others who knew her hand writ; and also though the pursuer replied, That there could be no suspicion of antedating of the bond as if it had been made since her marriage, because he offered to prove the real furnishing made to her, which was the cause of the bond, and also by divers ministers, and other famous witnesses who saw the bond before the marriage; and as this bond was good in law before marriage, so of no reason could her subsequent marriage prejudge the bond; which reply was repelled, and the allegeance of nullity of the bond sustained against the husband, which against him was found might not be supplied to receive any execution, either against his own goods, nor his wife's, during their living together, albeit the pursuer offered to restrict the pursuit to the goods only pertaining to the Lady, which was refused, but prejudice always to take the Lady's oath, for this effect only, viz. to work against herself, in case she survive her husband, or against such goods as might be found properly to belong to her at her decease, and no further.
Act. Graig.Alt. Gilmour.Clerk, Gibson.
Fol. Dic. v. 2. p. 241. Durie, p. 789.
