A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. X.
Husband's Consent, how interponed. Natural or Legal Incapacity in the Husband.
Lady Cochran, Kilmarnock, v. The Dutchess of Hamilton
Date: 23 February 1698 Case No. No 208.
A wife assigned a bond without her husband's consent, but as to which he had renounced his jus mariti. The husband's posterior ratification of the assignation, was found sufficient to validate it.
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The Lady Cochran, as representing Lady Margaret Kennedy, her sister, pursues the Dutchess for exhibition of a bond of 50,000 merks, due by the family of Hamilton, to her. Alleged, 1mo, Instrumentum apud debitorem præsumitur solutum.2do, She had an assignation from Lady Margaret thereto, with the burden of sundry legacies, which the Dutchess had accordingly paid. Answered, The assignation was null, being granted by Lady Margaret when vestita viro, and married to Dr Burnet, now Bishop of Sarum, and he is not a consenter for his interest. Replied, In his contract of marriage, he renounced his jus mariti in this sum; likeas, after the assignation, he has granted a ratification thereof to the Dutchess, which two are sufficient to sustain the assignation. Duplied, A husband's concourse and consent to the legal deeds of his wife, must be specific as to the thing, and interposed in ipso actu, and not a general confirmation ex intervallo, which does not integrate the act; just as a tutor's concourse with his minor must be in ipso actu, § 2. Institut. De auct. Tutor. Triplied, The husband may quandocunque consent, and in such cases ratihabitio comparatur mandato, et retrotrahitur; and though, by the old law, curators could not ratify ex intervallo, yet by the law of the Code they might, l. ult. C. Ad S. C. Macedon. and Bachovius is of the same opinion; and Sande, Decis. Fris. lib. 2. definit. 4. tit. 3. shews, that a husband's consent being only solemnitatis causa, sufficit si ex intervallo adhibeatur, and he cites Gomezius and others. The Lords found Lady Margaret's assignation sufficiently validated by the antecedent renunciation, and subsequent ratification of the husband.
Fol. Dic. v. 1. p. 402. Fountainhall, v. 1. p. 827.
