Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. II.
Whether a Wife may prosecute legal Diligence, and appear for her interest in a Process, without concourse of her Husband.
Robert Napier v. John Rollock
Date: 28 July 1631 Case No. No 252.
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Robert Napier. being incarcerated upon a horning, got the same reduced against Mr Rollock, upon this reason, That his cedent Agnes Lyel, at whose instance the pursuer was denounced, was cloathed with a husband the time of the charge and denunciation used by her against the pursuer; so that although the debt was owing to her, yet she could not have used any execution against the debtor without her husband's consent and concurrence. And this was found, though the defender alledged it did not import much, seeing the husband was yet content to allow of them; for it was thought it being null ab initio. could not be helped by his posterior consent, especially the wife being at the time dead.
Fol. Dic. v. 1. p. 405. Spottiswood, p. 159.*** Durie reports the same case:
Robert Napier pursuing a reduction of a horning executed against him, at the instance of a woman called Lyel, to whom the said Robert was bound in a sum contained in his bond given to her, and whereto the said Mr John was made assignee, upon this reason, because the letters of horning were raised and executed at her instance, she then having an husband, and the letters not raised at his instance, nor the charge used and executed at his instance. This reason was found relevant, and the exception repelled, bearing, that the wife might seek her own proper debt, justly pertaining to herself, without necessity to raise the letters at the husband's instance, seeing the husband did never oppone thereto, so long as they lived together; likeas now the wife being dead, and the husband being living, consented to the charger's letters, and denunciation following upon the same; which was not respected, but the horning reduced for the reason foresaid.
