Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION V.

A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. IV.

Personal Bond not binding upon a Wife, although her Husband consent.

Matthew
v.
Sibbald

Date: 19 December 1626
Case No. No 163.

Found in conformity with No 160. p. 5957.

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In a suspension and reduction betwixt Matthew and Sibbald, both upon one reason, viz. for suspending and reducing of a bond made after this tenor, viz. whereby Blyth the husband, and Matthew his wife, granted them to have borrowed from Sibbald a sum of money, which they both obliged them and their heirs to pay again to the creditor at any term thereafter, upon requisition, conjunctly and severally; and obliged them both, and each one of them, and either of their heirs, to infeft the creditor in an annualrent effeiring to the principal sum, furth of the land specially mentioned in that obligation pertaining to the wife, ay and while the principal sum was repaid; upon the which bond, the wife called Matthew, after her husband's decease, being charged to infeft the creditor in an annualrent out of the said land, she having right thereto; she suspended, and reduced upon that reason, because it was a bond made by her stante matrimonio, which, after the decease of her husband, ought not to be obligatory against her;——The Lords having heard the parties dispute thereupon, they found, That albeit a woman stante matrimonio could not be obliged to do any deed which might affect the goods and gear, which might befall to her after her husband's decease, or which might make her personally obliged to perform any deed, which was to receive implement in moveable sums, by reason that during the time of the marriage, betwixt her and her husband, and while they were both living together, she has no property in mobilibus, because the same belongs to her husband; and for that part of the goods, which of the law will fall to her through her husband's death, she can do nothing therein in her husband's lifetime to prejudge her thereof, before the same fall, and before that it be thereby constant, if she will fall any or not, and what the quantity of the same is. But as concerning a woman's obligation with her husband, in things whereof the wife had any actual or other real right, as in liferent, or heritable property of land or annualrent, constituted by infeftment, the Lords found, That she might be effectually bound with her husband in things of that nature, the same being formally and legally made. And concerning this obligation controverted, the Lords found it not obligatory against the woman, but only against the husband and his heirs; because, albeit the woman was heritor of the land, whereout of the annualrent was ordained to be uplifted by the bond; yet that bond binding the husband first therein named, and then the wife nominated in the second place, to be obliged, and their heirs to give that infeftment, could not effectually bind the wife, who ought to have been bound primo loco, (if the same should have denuded her) as disponer herself, and her husband as consenter, and authorising her therein, and with his express advice and consent; and therefore this bond, binding first the husband and then the wife, and their heirs æque principaliter, ought to receive execution against the husband and his heirs, and not against the wife, who was not formally bound thereby, as said is, and therefore the letters were suspended simpliciter.

Act. Halyburton & Russel. Alt. Hope &Oliphant. Clerk, Gibson. Fol. Dic. v. 1. p. 398. Durie, p. 248. *** Spottiswood reports the same case:

In an action of suspension raised by Christian Matthew, relict of David Blyth, against Janet Sibbald, relict of Mr Henry Duncan, the Lords found, That in case a man borrow money, and he and his wife be obliged for re-payment thereof; as also they be both obliged to infeft the creditor in an annualrent effeiring thereunto forth of the land pertaining to the wife in heritage; that yet after the husband's decease, the bond made thereupon can have no execution against the wife, in respect she is not bound principaliter et primo loco therein, but only in the second place with her husband conjunctly.

Spottiswood, (Husband and Wife.) p. 159.