Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent lying out unentered
1677.
June.
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A man is married on a woman that is apparent heir to lands, either burgage or without burgh. She, to defraud her husband either of the jus mariti or the courtesy, lies out and will not enter. Quæritur, quid juris, Is there no remedy in law to force a malicious woman to do what is just? Sir George Lockhart thought, the husband by his marriage, had a rational and well founded interest whereon to compel her to enter; only the law had not provided for that case, not being frequent nor casus cogitatus. Yet it had supplied the ordinary case where apparent heirs lay out to prejudge creditors, by charging them to enter heir within 40 days, conform to the 104th act Parliament 1540. See my marginal notes on it. That the husband was quodammodo a creditor, and ex æquitate prætoria the method of that act might be extended to him, and the defect made up, that the wife ex suo dolo non lucretur,—neither prejudge his jus maritale nor curiale.
