Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Lady Wamphray v. The Laird
Date: 2 June 1673
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The Lady, with concourse of sundry of her friends, having raised a Reduction against her own husband, and his brother Sheins, and others, his friends, of her contract of marriage and disposition of her estate, whereof she was heretrix to him, by reason of minority and lesion; it was objected, she could pursue no actions without the concourse of her husband, much less he opposing them, and, least of all, actions against himself; that women, because of the fragility and shamefacedness befitting their sex, were, by the law of God, of nature, and of the Romans, and the municipal laws of all other nations, in manu, potestate, et custodia, vel patris vel mariti, and were sub perpetua eorum tutela vel cura; and being married, had no more personam standi in judicio without their husband, than a pupil or a minor had without the authority of his tutors or curators interposed. Yea, Gellius, Noctium Atticarum libro 10, cap. 23, tells us, that vir was mulieri judex, out of Cato. And Bodinus, p. 25, De Republica, cites the same Cato persuading the Oppian Law to the people, for reviving the power of husbands, for having their wives in perpetua tutela. Maritis reverentia est exhibenda, l. 14 D. Soluto matrimonio. See Calvinum, in Lexico, ad verbum Uxor. Charron on Wisdom, 2, cap. 46, p. 170.
It was Answered, That regulariter the husband must indeed concur in all the wife's judicial actings, yet he being naturally bound to assist her in all her lawful pursuits, if he shall refuse, the Lords, in such an emergent, or in other singular cases and special considerations as they see just, will ordain him to concur, and in case of refusal, authorize her by herself. And which is no novelty, but marked by Dury and Hadington to have been done on the 9th of January, 1623, Marshell against Zuill; yea, Dury at the 13th of July, 1638, tells us, the Lords granted inhibition to the Lady Glenbervy against her husband; and the same Dury in a case exactly parallel with ours, at the 8th of July, 1642, Inglish contra Aitkit, observes, The Lords sustained process at a wife's instance against her husband, for reducing her contract of marriage, ob minoritatem, he reclaiming and disowning the same Neither is this our law only, but also the practice of France, as Hadinton shews at the foresaid decision. And as for that allegeance, that the husband is perpetual curator to his wife, the same is false; seeing it appears, ex parag. penult, ibique Vinnio, Instil. De Excusationibus tut. et curat, that is only when she is within age
The Lords repelled the allegeance, and sustained process at her instance against her husband; only appointed her a curator ad hanc litem, to concur with her. Craigie wrought mightily for her. See her Information beside me. Vide Stair's Practiques, Tit. Of Marriage. No. 10.
