Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
John Dicksone v. Bessy Short
Date: 26 June 1677
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One Bessy Short and her husband having granted a bond for a certain sum of money to one John Dicksone, tailor in the Potterrow of Edinburgh; many years after the husband's death, she, being charged to pay the sum, suspended and raised reduction on this ground, that the bond was ipso jure null, being granted by a woman clad with a husband, and could never affect her, being tuta exceptione Senatus-con-sulti Vetteiani, but only her husband's representatives. Whereunto I Answered for Dicksone, the charger, that she behoved still to be liable, notwithstanding her revocation, because she since her husband's decease has acknowledged the debt, and taken it upon her, and homologated and ratified the bond, in so far as she has paid sundry years annualrents of it since his death; and as a minor may preclude himself of the benefit of restitution in integrum against deeds done to his lesion in his minority, by ratifying the same either expressly or implicitly, by paying annualrent, (as has been decided,—See Dury, penult. July, 1630, Johnstoun,) so may a woman when she becomes a free person.
Replied,—There is a great disparity, for a minor's obligation is not ipso jure null, but a married woman's is; el non-ens nequit ratificari, nam non datur cui ac-cedat.
Duplied,—The obligation of a minor wanting curators is ipso jure null, and yet he may ratify it.
This being taken to interlocutor, the Lords, before answer, ordained her to produce the discharges of the annualrents paid; to the effect they might advise and consider, quo animo, she paid it, whether se obligandi or ex errore, for ignorantia juris in muliere est excusabilis, L. D. de juris et facti ignorantia; and this in regard it was alleged, that what she had paid was out of mere simplicity and ignorance, not knowing she was not obliged.
Then the charger, 2do, et separatim, answered, She ought still to be liable, because he offered him to prove the debt contained in the bond charged on was originally her own before the marriage, and that her husband only pro interesse granted this bond; and so she was in lucro captando, not in damno vitando. 3tio, That she was executor or intromitter with her husband's goods.
Both thir were found relevant, per se, and referred to her oath; and she neither compearing to depone, nor producing the discharges, the term was circumduced, and the letters found orderly proceeded.
For the weakness of homologations, vide supra, November, 1676, No. 508, § 4. See Craig, p. 305.
