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Scottish Court of Session Decisions >>
Mr David Aiton v L. Halkerton. [1629] Mor 5952 (21 December 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor1405952-151.html Cite as:
[1629] Mor 5952
A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. I.
Furnishings to a wife whom her husband is bound to aliment.
Mr David Aiton v. L Halkerton.
Date: 21 December 1629 Case No. No 151.
A wife was found not liable for money furnished to her for her aliment in her great necessity, tho' it was advanced upon her own credit.
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The Laird of Halkerton consigning a sum modified to his wife for her entertainment, which was claimed by the said Mr David, as arrested for satisfaction of a debt of 300 merks owing to him by the Lady, conform to her bond, and which sum he alleged he had furnished to her for her aliment in her great necessity, and which he referred to her oath; and she contending, That that sum was in law due to be paid by her husband, who in law was bound to entertain her, and that a bond made by her, having an husband, was null wanting his consent, and could not be obligatory against her; and the other answering, That he had no action upon that bond against the husband, not being made by him, neither could he prove that the money was furnished for his wife's use, because that probation which in law is good against herself, viz. her oath, is not relevant, and will not be admitted to prove against him, and he has no other probation, and so he cannot prevail against the husband, whereas she may prevail against him in pursuing him for her entertainment; for she wanting the same, and not being furnished by her husband, the Judge in law will modify and decern the husband to pay; and albeit he might quarrel the bond for want of his consent and subscription, yet it is not proper to allege and oppone her own deed for a sum, so profitably converted to her use; notwithstanding whereof the Lords ordained the wife to be answered of the money consigned, and found that the creditor upon that bond could not pursue the Lady, until he had pursued the husband, and after the discussing of the husband, they would find what was due to be done to the creditor by either of them, and in the mean time found no process against the wife upon the foresaid bond.
Act. Aiton.Alt. Lermonth & Gilmour.Clerk, Gibson.
Fol. Dic. v. 1. p. 397. Durie, p. 477.
