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.
Hacket v. Gordon
Date: 8 July 1673 Case No. No 247.
An action was not sustained at the instance of a wife, though the summons was raised in her name and her husband for his interest, she not being authorised by her husband's consent, but the Lords declared they would authorise her to insist by herself, if her husband referred to concur.
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Christian Hacket as one of the heirs portioners of her father, pursues reduction of a disposition of lands made by her father to Gordon of Chapletoun as being on death-bed. The defender alleged no process, because the pursuer being a wife, was not authorised by her husband's concourse, without whom she can pursue no action, unless she were particularly authorised by the Lords, as in actions against the husband. It was answered, That the summons was raised at the instance of the husband for his interest, and if the defender produce any warrant to disclaim, which they must instantly verify, and which he pretends to be a ratification by the husband, in that case the Lords ought in justice to authorise the wife to insist, this being an heritable right, wherein the husband could have no more interest but by his jus mariti, and the courtesy, and the wife declares, that the reduction shall proceed with reservation of any right flowing from the husband.
The Lords found that the husband behoved to be in processu, but if he refused concourse, the Lords would authorise the wife to insist to reduce the right, in so far as the husband had no interest further than his jus mariti, and the courtesy.
Fol. Dic. v. 1. p. 405. Stair, v. 2. p. 206.Gosford reports the same case:
1673. July 9.—In a pursuit of reduction, at the said Christian's interest, of a disposition of land made by the father ex capite lecti, against the two sisters, in whose favours the same was granted, they being all apparent heirs portioners, it was alleged for the defenders, That the pursuer being married, and not authorised by her husband, who had disclaimed this same, could not be sustained at her instance. It was answered, That the pursuer insisting only for clearing of her own interest as heir portioner, and not for any thing that belonged to her husband jure mariti, and against a third party, she may pursue proprio nomine, and needs not to be authorised but where the action is intented against her own husband, quo casu upon a petition the Lords are in use to give warrant to a procurator to concur with her in that pursuit. —The Lords did find, That where a wife hath just cause to pursue, if it be proved instanter that the husband disclaims the pursuit, that the Lords may give warrant to another to compear and concur with her; but if that he do not appear, she must call for a concurrence, and cite him as a defender.
