Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. II.
Whether a Wife may prosecute legal Diligence, and appear for her interest in a Process, without concourse of her Husband.
Hepburn v. Blair's Children
Date: 29 January 1702 Case No. No 253.
An arrestment was sustained though it was objected, that the letters of arrestment being raised at the instance of a woman, on a bond due to herself, did not mention her husband, for his interest, though the summons of furthcoming ran in the names of both.
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I reported the competition betwixt Patrick Hepburn, arrester of a sum due by the Laird of Lundie to Thomas Row, and the Children of Dean of Guild Blair, as donatars to the said Row's escheat; who objected against Hepburn's arrestment, that it was null, in so far as the ground of the debt being a bond granted by the said Thomas Row to Mary Jack for 400 merks, wherein she is designed spouse to Patrick Hepburn apothecary in Edinburgh, and so it was his jure mariti, yet she raises horning on it singly in her own name, and arrests in Lundie's hand likewise in her own name, without mentioning the concourse of her husband; femme coverte can do nothing validly in judicial acts without her husband, this arrestment was clearly null. Answered, The writer by mistake had raised the horning in her name only, which inadvertency gave rise to the messenger's falling into the same error of arresting in her name, without mentioning the husband for his interest; but this defect was fully and abundantly supplied by the summons of furthcoming raised in his name, as well as his wife's, which redintegrates the arrestment, and accordingly the decreet goes forth in both their names. Replied, Nullities cannot be so made up; for esto a woman should inhibit in her own name, would the husband pursuing a reduction ex capite inhibitionis validate that null inhibition? For a married woman has neither persona standi in judicio for pursuing nor defending, except where she is authorised by her husband; and, if he refuse, on application, the Judge can nominate another as her curator; and so it is done in the Parliament of Paris, and it has been so decided with us, 9th and 10th of January 1623, Marshall, No 245. p. 6036, recorded both by Haddington and Durie: And the husband's posterior concourse Was not found found sufficient to validate letters raised by the wife, 27th July 1631, Rollock, No 252. p. 6047. The Lords thought a wife might be considered as a minor qui potest meliorem suam conditionem facere sine auctoritate curatoris et tutoris, and that his subsequent consent validated the act; and that her not being integra persona in judicio without her husband, was introduced in his favour, and so ought not to be detorted to his prejudice; and therefore repelled the nullity, and sustained the arrestment.
Fol. Dic. v. 1. p. 406. Fountainhall, v. 2. p. 141.
