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In the suspension of a decree obtained before the Commissary of Kelso against a married woman for slander, condemning her in a certain sum to the pursuer, the Lords found, “that neither could personal execution against her, nor execution against the effects falling under the husband's jus mariti, pass upon it during the marriage.”
Fol. Dic. v. 1. p. 408. Kilkerran, (Husband and Wife.) No 1. p. 256.* * * C. Home reports the same case:
In the process of scandal, at Gordon's instance, against Jean Pain, for having called him a base deceitful villain, and scoundrel, &c.; the Commissary of Dumfries, upon a proof of the fact, fined her in L. 30 Scots, and assoilzied her husband. She suspended on these grounds, 1mo, That the pursuer had laid a base contrivance for keeping her husband away from a Michaelmas election of the magistrates for the burgh of Annan, by sending to acquaint him, that a friend of his was dying, whom he immediately set out to see, four armed men gripped and kept him till the election was over, which she offered to prove, as a sufficient excuse for any opprobrious language she had given him. 2do, The decreet was inept, being against a wife, stante matrimonio, for a sum of money, who, having nothing of her own, cannot have a fine imposed on her for her delict; and that it would be an inconsistency in law to allow execution to pass for levying such fines during the marriage.
The Lords found, that personal execution could not go against the wife stante matrimonio; and that the goods in communion, or what fell under the jus mariti, were not affectable for the fine; and allowed a proof before answer of the husband's being carried off.
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WIFE