Mary (Hepburn) Nisbet (1769 - abt. 1823)

Born 29 Dec 1769 in Birsay, Orkney, Scotland

Wife of Alexander Nisbet — married 11 Jan 1807 in Haddington, East Lothian, Scotland, United Kingdom

Biography

Mary was born in 1769, the daughter of Thomas Hepburn and Jean Sutherland. Mary Hepburn was baptized 30 Dec 1769 at Birsay, Orkney, Scotland^[1]

She married Alexander Nisbet in 1807. Mary passed away in 1823. ante-nuptial contract of marriage (in January, 1807), between Alexander Nisbet and Mary Hepburn

Children

• Jean Nisbet was born about 1808. Jean died about 1858 approx. She married William Proudfit about 1834 . William died about 1845 (See William Proudfit for the continuation of this line.)
• Alexander Nisbet was born before Sep 1817 as his father died Dec 1816. Alexander died about 1856
• Jessie Nisbet was born about 1812. Jessie died about 1854 in Usa. She married Nicol Sommerville about 1834 . (See Nicol Sommerville for the continuation of this line.)

Extracts and Documents

MRS NISBET V. GEORGE RENNIE. No. 172. Dec. 18 1818.

HUSBAND AND WIFE.—Jus Mariti.—The wife's heritable bond does not come under the jus mariti, though the contents are paid, and mingled for a time with the husband's funds, and are afterwards lent on a promissory-note — payable to herself.

By ante-nuptial contract of marriage (in January, 1807), between Alexander Nisbet and Mary Hepburn, she assigned the sum of £500 to him as tocher; and it was declared, with respect to a further sum of £500 which belonged to her, that this shall be no part of the tocher, but shall be retained by, and vested in the name of John Hepburn, her brother, " for behoof of the child or children that may be procreated of the present marriage, equally among them, share and share alike, in fee; whom failing, to the said Mary Hepburn's own nearest heirs, in case she should die before her said promised husband; the said Alexander Nisbet hereby expressly renouncing his jus mariti over the same."

In January, 1811, John Hepburn, secured this last £500, with £97, 10s of interest, by heritable bond over his lands of Sydserf. The bond proceeded on the narrative of the said provision in the contract of marriage; and the obligatory clause was thus :—" I, the said John Hepburn, do hereby (with the special advice and consent of the said Mary Hepburn and Alexander Nisbet, spouses, and of the said Alexander Nisbet himself, as taking burden on him for the said Mary Hepburn, and as administrator-in-law for the children procreated, or which may be procreated of the said marriage, in token whereof, they have subscribed these presents), further bind and oblige myself and my foresaids, to maim payment to the said Alexander Nisbet, and his foresaids, in lieu and place of me, the said John Hepburn, in trust, for behalf of himself, the said Alexander Nisbet, and the others having interest, in terms of the 'said contract, of the foresaid principal sum of £597, 10s., being the other half of the foresaid accumulated sum of £1195 sterling, next before specified, and that at and upon the foresaid term of Whitsunday next.

In 1815, Mr Hepburn sold the lands of Sydserf to Mr Walker, who, on 17th May, 1816, of his own accord paid in this portion of the price to the Bank of Scotland's Office, at Edinburgh, of which he was a director. The sum was thence transferred by Mr Walker, to the Credit of Mr Nisbet's accompt with the branch of that Bank at Haddington ; and Mr Walker received in return, an assignation to the heritable bond. On 7th June, 1816, with Mrs Nisbet's consent, this money was lent to George Rennie, on his promissory-note, which was taken payable to Mrs Alexander Nisbet, spouse to Alexander Nisbet, flesher, Haddington.

Mr Nisbet died in December, 1816; and his widow having been named factrix loco tutoris to their children, she, for their interest and her own, brought an action against Mr Rennie, for the contents of the said note. In defence, Mr Rennie pleaded compensation on debts, to the amount of £215, due to him by Mr Nisbet- His argument was to this effect :—That, like any other moveable debt due to Mrs Nisbet, the contents of this promissory-note fell to Mr Nisbet jure mariti : That she had previously put an end to the exclusion of his jus mariti, by letting the money be lent on a bond payable to him, Mr Nisbet, as trustee for her behoof; and that, when paid in to Mr Nisbet's cash accompt with the Bank, this sum was blended with the rest of his cash there,—was placed at his discretion,—and thus became attachable for his debts.

The Lord Ordinary (Gillies), sustained the plea of compensation.

On advising a petition and answers, the Court altered this interlocutor, and repelled that plea. It was observed on the Bench, that this money was traced, distinctly, from the time of the marriage down to the present day, and into the hands of Mr Rennie. Under the contract of marriage, Mrs Nisbet and her children were obviously the owners of the money ; and she herself had not done any thing to abandon or impair either their interest or her own : Were the provisions of the contract in their favour to be evacuated by the husband's acts of management, or Mr Walker's, without her consent?.—Mr Rennie could not have given credit to Mr Nisbet on the faith of this money ; for he must have been fully aware of her interest in it ; else, why did he give his note for it to herself personally, and not to Mr Nisbet ? In this view, the ease of Gardner v. the Royal Bank (22d June, 1815), was a precedent in point, in her favour; for the judgment went on this ground, that the Bank were sufficiently warned of Mrs Gardner's interest in the fund, and were bound to attend to it.

For Mrs Rennie, Robt. Forsyth. ^[2]

Sources

1. ↑ Scotland Births and Baptisms
2. ↑ Decisions of the Court of Session, 1781-1822: By Scotland. Court of Session, David Hume