A horning against a wife, stante matrimonio, found null by exception.
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James Stuart pursued a general declarator of Christian Bannerman her escheat. Alleged, No declarator against her, because the horning was against her stante matrimonio, and so quoad eam null. Replied, The horning must stand good, proceeding upon a cause which was the proper fact and violence of the defender, viz. an ejection committed by her. 2do, It cannot be taken away so summarily, but must abide reduction, because it proceeds upon a decreet of ejection recovered against her and her husband; which they having suspended, the letters were found orderly proceeded against them compearing; and so the horning being founded upon decreets standing unreduced, cannot be taken away via exceptionis. Duplied, The horning and decreets are all null, in respect of her who was for the time cloathed with a husband. The Lords found the exception relevant. Yet afterwards the King's Advocate, lest it should prejudge the King in other cases, made the parties pass from their allegeances with consent, and got the interlocutor cancelled.
Spottiswood, p. 153.
*** This case is reported by Durie, voce Husband And Wife.
