Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Ramsay of Idington and Fairholm v. The Lord Mordington and his Creditors
Date: 15 November 1694
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In their concluded cause it came to be debated, Whether the contract betwixt old Dr Sibbald, and Anna de Malvairn, his wife, proved that their separation was by a judicial sentence, seeing it only bore it narrativè; and if their assertion could prove against a third party;—which the Lords thought it could not. But it stuck with severals, that this assignation, though in rigore juris null, being signed by a wife vestita viro, without his consent, was supplied in that defect by the posterior contract, and was confirmed by the husband's dying without ever quarrelling it; and that there was none competing who derived a right either from the wife or husband, or their heirs; and it was jus tertii to others. Yet the Lords, by a plurality, found this production did not satisfy the terms of the act, and points admitted thereto by the interlocutor; and therefore assoilyied. See Dury, 14th March 1634, Gib; where a voluntary contract between a man and his wife is sustained where there was no separation by a sentence.
