| Aitken v. Orr |
11 Feb 1802
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Title, Property right, Husband who raises action in the name of his wife |
Jean Aitken originally left her property to her sisters, Mary and Margaret Aitken, but 14 days before her death and on her deathbed, she changed her will and instead left all of her property to her niece, Mary Hugh Orr, the daughter of petitioner Margaret Aitken by a former husband. Mary and Margaret Aitken, as well as their husbands, brought an action of reduction against Mary Hugh Orr. Mary Orr claimed that the Aitkens had not produced proof of their original claim to the inheritance, and also that their husbands had brought the claim in their names without their consent. The Aitkens sisters husbands were ordered to produce written statements in their wives' hand writing indicating their consent, but the date the statements were due to the court passed without their submission. The Lord Ordinary held that the case should be dismissed in favor of the defenders, because the wives may be obligated to produce their concurrence to exercise their right. The Aitken sisters then objected to this ruling claiming that there is a legal presumption that husbands have the authority to speak for their wives, since married women are considered to have the same legal status as minors, and their husbands are their guardians. The marginalia notes that on 11 of February, 1802, the claim was "refused without [?]." |
| Dr William Park of Langlands, v. Robert Craig in Barkip |
15 Nov 1771
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Land dispute, Title |
William Park of Langlands, pursuer, claims that the lands of Barkip belong to him. Robert Craig Sr., defender, claims that he has the right to possess half of the lands of Barkip based on a heritable bond dating back to 1726. William Craig, brother of Robert Craig Sr. had the other half but after his death, his oldest son Robert Craig Jr. inherited it. William Park of Mainshill, the pursuer's father, granted a heritable bond to John Hamilton of Auchinvole. This bond apparently stipulated that Park's ancestors would give up the lands of Barkip if the bond was not paid on time. The bond was due in Martinmas 1732. Park claims that the bond was paid in part. He argues that the defenders only have an encumbrance on the lands of Barkip in the form of a debt, and not a right in the lands themselves. Park sets forth a distinction between "termly failzies" (real property obligations) and "ordinary penalties" (personal obligations). Park alleges that the process that put Craig in possession of the lands of Barkip was improper, thus he brings an action of reduction and declarator of extinction of the adjudication to defender. |
