Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. I.
Cannot pursue without being authorised by her Husband, or a curator ad lites if the Husband decline.
Marshall v. Marshall and Yule
Date: 9 January 1623 Case No. No 245.
The Lords sustained an action at the instance of a wife without consent of her husband, implement of a contract in her own favour.
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In a suspension raised by Marshall contra Marshall and his Son, and Yule spouse to his son, for suspending of the charge raised at their instance, upon the contract of marriage, wherein the supender was obliged to procure to his son during his lifetime, and to the said Yule his son's future spouse during her lifetime, a rental of certain lands, as the contract of marriage bears, the Lords found, that the spouse might seek implement of that part of the contract conceived in her own favours, and raise charges thereupon at her own instance, or at the instance of any person whom she would constitute for her to that effect, and which procuratory the Lords would authorise, and sustained the charge so raised and action so intented, or to be intented thereupon; albeit the husband should refuse to concur with the spouse, or to authorise her, and albeit the husband, and the wife also with him, had discharged that contract in that part, and granted the same fulfilled; for the Lords declared, that the discharge, if it was granted by the husband's self alone, could not prejudge his wife; and if it was granted by her with her said husband, it sicklike ought not to prejudge her, being done ob reverentiam maritalem, they living then together, and now she coming against the same, and revoking it; therefore sustained the charges raised at her instance. See Vis et metus.
Act. Hamilton.Alt. Nicolson et Miller.Clerk, Gilson.
Fol. Dic. v. 1. p. 405. Durie, p. 40.*** Haddington reports the same case:
John Yule being bound by contract of marriage, to purchase from the Lord Semple, a sufficient rental of a 14 shilling land in Glasfurd, to his son John Yule, and his future spouse, was charged to do it by Marshall, assignee constitute by John Yule younger, and his wife; the suspension bore that the charger could have no right, because it was not transmissible. He answered, that he only sought execution, to the behoof of John Yule younger, and his wife, because the son being unwilling propter reverentiam paternam to charge his father, had used the charger's name. It was then replied, that no charge could have execution to the son's behoof, because it was offered to be proved by his oath, that he had discharged his father of that part of the contract, which was found relevant. Next it was alleged against the charges for the wife, that none could be used to her hehoof, stante matrimonio, without her husband, who concurred not, and she could not infeft, not being authorised by her husband, without whom she could not stand in judgment. I proponed to the Lords, that the husband was naturally obliged to give his consent, and authorise his wife in her lawful pursuits, not hurtful to him, and in effect was loco curatoris, who refusing to authorise his minor in his lawful causes might be removed, or another might be offered by the Judge, to assist the minor judicially in his lawful and profitable pursuit, and the like reason was militant betwixt the husband and wife, chiefly since the delay of her action might make her condition worse in case her debtor died, or because irresponsible, and that in France, wives requiring their husbands to authorise them, persuit being refused, were allowed by the Courts of parliament to pursue proprio nomine, itiam reluctante marito, he shewing no reason of his refusal; and that this assignee declaring his charges to be to the behoof of the contractors, his assignation was only procuratio in rem constituentis, which The Lords found just and expedient; because the assignation being that they made the pursuer assignee to charge, to obtain them rentals, and my (Lord of Chester added judiciously,) that the assignation made by the husband and her, and to obtain them rentalled, was a legal authorising of the pursuit to her behoof. In respect whereof, The Lords found the letters orderly proceeded.
