Parents, Tutors, &c. taking money under the name of a Gratification.
Johnston v. Murray
Date: 3 July 1696 Case No. No 11.
Objected to a bond, that it was granted by a husband for obtaining the grantees' consent to his marriage. The bond was sustained.
This bond was signed between the date of the contract and the solemnization of the marriage.
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Halcraig reported, Johnston of Newton against George Murray of Murriewhat, being a pursuit on a 400 merk bond, granted by the charger's sister, Murriewhat's wife, to him; and the grounds whereon he contended the husband was liable for it, were these, that though it was granted by a wife, stante matrimonio, yet it was written by the husband, and he was one of the two subscribing witnesses in it, and had paid annualrent for it. Answered, Whatever he did to please his wife, yet it was plain, that a bond granted by a wife vestita viro, was ipso jure null; and esto that the husband's being writer and witness therein, imported both his knowledge and consent, yet that no ways validates the deed in law; for a bond granted by a wife with her husband's consent is no more obligatory either on her or her husband, than without it. It is true, if it be in relation to heritage, she may so bind herself, but not quoad sums of money. The Lords considered what could be the meaning and import of such a bond, which behoved to be either simplicity or design; and therefore to expiscate, if there was any fraud, they ordained the pursuer to condescend on the onerous cause of the bond, to the effect they might consider, if there were ground to examine the other witnesses, and communers present; and if it was asserted, That her bond was as good as his own, if he wrote it, &c. then the Lords inclined to find the husband liable.
There was a second debt, for which he was pursued, viz. a 500 merk bond, taken by him from the husband, at the time of the marriage, which was alleged to be for obtaining his consent thereto; which is a dishonest and unlawful gratification, being dated betwixt the signing the contract and solemnization of the marriage; and which has been reprobated by the Lords by several decisions, as 20th July 1664, Laird of Clerkington against Stuart, voce Succession; and 23d June 1680, Hamilton contra Borthwick, No 10, supra. Answered, He opponed the bond granted by him when major sciens et prudens, and whatever the wife and children might quarrel the same as contra pacta dotalia et fidem tabularum nuptialium, yet it was always good against the granter and subscriber; as was found, within these two years, betwixt Hamilton of Hill, and Hamilton of Raplock. The Lords sustained the bond against the husband who granted it.
Fol. Dic. v. 2. p. 20. Fountainhall, v. 1. p. 725.
