Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IX.
The wife's personal privileges.
The Lady Bathgate v. Cochrann of Barbachlaw
1685.
December. Case No. No 290.
Judicial ratification does cecessarily import that the deed ratified had been delivered.
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The Lady Bathgate pursuing a poinding of the ground for her jointure, it was alleged for the other creditors, That she had disponed a part of her jointure to Bredisholm for her husband's behoof, which must operate a renunciation.
Answered for the pursuer; Though she signed such a disposition, it was never delivered, but is still in her own hand. And, 2do, Though it had been delivered, it was revocable, as donatio inter virum et uxorem.
Replied; The pursuer having compeared before a judge, and ratified the disposition, promising upon oath never to come in the contrary; that was equivalent to a delivery, and she cannot revoke in respect of the oath.
Duplied; The ratification being a part of the conveyance for making it sure, may be, and usually is done before delivery; and so cannot import delivery. 2do, The ratification is not sufficient, it not being subscribed by the wife, but only by a judge, and such a one too as had no jurisdiction in the place where it was done, viz. a sheriff-depute within the abbey.
Triplied; Oftentimes the wife doth not subscribe the ratification, but only the judge, even when he is not pro tribunali. And the wife swearing she was not compelled, clears that she was under no impressions of fear.
The Lords found the ratification did not import delivery; but did not proceed to the other points.
Harcarse, (Stante Matrimonio.) No 880. p. 249.*** Sir Patrick Home reports the same case:
1685. January.—The Lady Bathgate being infeft upon her contract of marriage in an yearly annualrent of 2500 merks, having pursued a poinding of the ground, and there being compearance made for — Cochran of Barbachlaw, it was alleged for him, That the Lady did dispone 1300 merks of the said annualrent in favour of Muirhead of Bredisholm, and did ratify the disposition judicially; and it is offered to be proved by Bredisholm's oath, that the disposition was to the behoof of her Ladyship's husband, and so was a remuneration and extinction of the annualrent pro tanto. Answered, That the disposition was never a delivered evident, being still in the pursuer's own hand; and, if it had been delivered, as it was not, yet being donatio inter virum et uxorem, it was revocable, and she now revokes the same. Replied, That the pursuer cannot allege that the disposition was not delivered, seeing she did ratify the same judicially, which is sufficient to prove the delivery; and she cannot revoke the disposition, she having judicially ratified the same upon oath. Duplied, That it was ordinary for women to ratify dispositions judicially, and yet retain the disposition and ratification in their own hands until affairs were finally ended; so that the judicial ratification cannot infer the delivery of the disposition; as also, the judicial ratification cannot be respected, seeing it is not subscribed by the principal, but only by the clerk; and it was not done before the judge competent, being done by the Sheriff of Edinburgh, within the precinct of the Abbey, which is extra territorium. Triplied, That the judicial ratification of a right must infer the delivery, as well as the registration or intimation thereof; and the ratification ought to be sustained, albeit the principal be not subscribing; because it is offered to be proved by her oath, that she compeared judicially, and ratified the disposition; and judicial ratification being actus voluntariæ jurisdictionis, may be done and expede before any judge having jurisdiction, albeit extra territorium, seeing it is not necessary it should be done pro tribunali, but in any private house, whether it be within or extra territorium. — The Lords found the allegeance of not delivering the disposition relevant, see-ing it was still in the Lady's own hands, and that it was not elided by the judicial Ratification.
