A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. V.
Bonds of Provision by Wives.
Baillie v. The Lady Letham
Date: 22 July 1680 Case No. No 178.
A wife's obligation to furnish, weekly provisions to her son, and to prosecute his pleas, on condition of being repaid at the end of the pleas, was found null, though she was possessed of a sum not affectable by her husband.
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The Lady Letham having granted bond to her second son the Laird of Torwood-head, to furnish him weekly a certain proportion of vivers, and to prosecute his pleas at law, he gave a back-bond, that so soon as his pleas were determined, he should pay her the ordinary rate for the vivers she was to furnish. He charges upon this bond. She suspends and raiseth reduction, upon this reason, that it is a bond granted by a wife stante matrimonio, which is null, and hath no effect against her, either in her husband's life, or thereafter. The charger answered, That this bond bearing expressly an obligment upon the medlers with the rents to pay this provision weekly, was no more than a pension, and that for an equivalent satisfaction, which a wife might validly do, as well as she might sell her victual, or grant tack of her liferent-lands reserved, seeing she hath a separate provision modified by the council, in which she hath the full administration, and as to which she is in the same condition as a widow. The defender replied, that our law hath made no exception, but declared all bonds granted by wives null, either for payment of sums, or doing of deeds relating to their heritage; which being a privilege to secure them against their weakness and impressions by their husbands, hath been ever preserved without exception, and that even though the husband should consent; and this case is more favourable than ordinary, this Lady having got aliment, because of her husband's atrocity, which is but moderate, and could not be affected by her unquestionable debts contracted before her marriage, being appointed ad quotidianum victum et amictum, and so could be affected with no obligment, but for these ends. It was duplied, that this aliment is 14 chalders of victual, and may be retrenched in favours of a son, who though married, his whole estate is apprised and possest, and himself is an indigent person, under continual sickness, and weakness of mind.
The Lords found the bond null, notwithstanding of the specialities alleged but recommended to the Lady ex pietate materna, to supply her indigent son, in so far as her own aliment could allow it.
Fol. Dic. v. 1 p. 399. Stair, v. 2. p. 787.
*** See Fountainhall's report of this case, No 204. p. 4998.
