Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IX.
The wife's personal privileges.
Stuart v. Bannerman
Date: 16 February 1633 Case No. No 281.
A horning against a wife vestita viro found null, though the decree on which it proceeded was given against her ob proprium delictum.
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A decreet of ejection being obtained at the instance of William Kairney, against umquhile Robert Stuart and Christian Bannerman his spouse, for ejecting him out of the lands of ———, set in tack to the said William by them; the said lands being the said Christian Bannerman's conjunct-fee lands, provided to her by another called Stuart, who was her prior husband; and they having suspended that decreet, the letters were found orderly proceeded against them both, whereupon they both being denounced rebels, James Stuart is donatar to both their escheats. The second husband being then also dead before the obtaining of the gift, and he seeking declarator against the said relict, the Lords found the horning null, and that no declarator could pass thereon, and that the woman's escheat fell not by that horning, seeing it was done and executed against her, she then having a husband, in whose lifetime no horning could be effectually used against the wife, for then she was under the power of her husband, who ought to have defended her, and she had no person to suspend or relax, or do any deed, but as her husband should please to do for her; neither was it respected, where it was replied, that the decreet was given against her ex proprio facto, et ob proprium delictum, and in her own conjunct-fee lands; for it was found, that even in that case, that stante matrimonio, albeit the woman should fault as well as the man, yet the husband was liable therefor; and that no civil execution by horning could be validly executed against the wife therefor, till after the husband's death; and the said nullity was received summarily, without necessity to reduce thereupon. This would appear to give great liberty to wives to do wrong, their husbands living; and if the husband should die before reparation of the wrong, that no redress should be had of the relict; albeit in bonds, or contracting of debts it may so hold; but the case may appear otherwise in deeds unwarrantably done by the wife herself, which in the case above-written may be thought the more hard, where the wife was still rebel unrelaxed after her husband's decease, and the wrong noways shown to be purged after two sentences standing; but here the party obtainer of the sentence of ejection compeared not, nor was party in the cause, but only the donatar.
Act. Stuart.Alt. Absent.
Fol. Dic. v. 1. p. 408. Durie, p. 674.
*** See Spottiswood's report of this case, No 10. p. 5734.
