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Scottish Court of Session Decisions >>
M'Dougal v Aitkin. [1623] Mor 6027 (8 July 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor1506027-236.html Cite as:
[1623] Mor 6027
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VII.
After Proclamation of Banns, the Woman considered to be in the same case as if actually Married.
Subject_3 SECT. I.
What Proclamation Sufficient.
M'Dougal v. Aitkin
Date: 8 July 1623 Case No. No 236.
A gratuitous bond by a woman, after the banns were proclaimed in the church of the parish where her future husband dwelt, was sustained, because it was executed six weeks before she gave up her name to be proclaimed in the church of the parish where she had dwelt for a year before.
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Janet Stuart, relict of James Stuart, called of Jerusalem, by her bond given to John Aitkin litster in Edinburgh, as cautioner for her father, is bound to pay as cautioner foresaid, the sum of 500 merks; this bond is desired to be reduced at the instance of Andrew M'Dougal her second spouse, upon this reason, because the same was made by her, after she was contracted in marriage with the said Andrew, and after the bonds of marriage were proclaimed in the parish church of the Inch, in the west country, which was the said Andrew the pursuer's parish church, so that after that contract and proclamation, she could do no deed that might prejudge her, or the pursuer, now her husband, with whom she was then contracted, without his consent. The Lords found this reason not a relevant cause, which could take away the bond, or prejudge the creditor of his lawful debt, seeing the bond controverted was made in the town of Edinburgh; where it was alleged by the defender, that the said Janet Stuart dwelt and remained at the making thereof, and a year before; and her private contract of marriage could not prejudge the defender, who knew not the same; neither ought the proclamation of the bonds of marriage, albeit made before the obligation libelled, to prejudge him, being made only at the parish church of the Inch, and not within the church of Edinburgh, where both she and the defender then dwelt. Likeas, the defender offered to prove, that the said Janet by the space of a month after the date of the bond, gave up her banns of the marriage with the said pursuer, to be proclaimed within the church of Edinburgh. This allegeance was found relevant, and admitted by the Lords, for eliding of the foresaid reason.
Fol. Dic. v. 1. p. 404. Durie, p. 70.*** Haddington reports the same case:
A bond given by Robert Stuart and Jean Stuart his daughter, relict of James of Jerusalem, as cautioner for her father, to one Aitken, being sought to be reduced, as being made after the said Jean was contracted in marriage with Andrew M'Dougal, and their banns proclaimed in his parish kirk of the Inch, the Lords admitted an exception, that Aitken was in bona fide to take her caution, because he was ignorant of her private contract, and offered to prove that his bond was subscribed six weeks before she gave up her name to be proclaimed in Edinburgh, where she had dwelt an year immediately before.
