Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. III.
A Wife may prosecute her Husband, with a Curator ad litem.
Katharine Ross, Petitioner
Date: 16 November 1704 Case No. No 258.
The Court, though they will appoint curators ad lites, to a wife to prosecute for security of her legal provisions, if her husband be vergens; still they will require evidence that he is so, but this summarily.
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Katharine Ross, spouse to John Denoon merchant in Tain, gives in a petition to the Lords, bearing, that, by her contract of marriage, there is a sum provided to herself in liferent, and her children in fee; but the writer has forgot to insert a clause, naming persons at whose instance execution should pass, for implement and performance thereof; and that her husband is now vergens ad inopiam, and his creditors are affecting his estate, whereby she may be prevented in diligence, and lose her right; therefore craving the Lords would supply that defect, and name her brother, or any other they please, to see to the execution, and securing of her provision. This case being argued amongst the Lords, some thought it could not be done summarily on a bill, without a process; else wives, instigated by bad influence and counsel, might disturb their husbands, and so were for refusing the desire of the bill: Others thought this event could not be without a remedy. Shall a wife lose her jointure for a writer's omitting that clause? and that by the common law, and the French customs, where the husband will not concur, the Judge may authorise a third party to pursue; as is observed both by Haddington and Durie, at the 10th of January 1623, Marshall contra Yule, No 245. p. 6036. For the Roman law, see 1. 30. C. de jur. dot. et 1. 7. § 4. C. de præscript. 30. vel 40 ann. And for the French law, Argentræus ad consuetudines Britanniæ Aremoricæ, art. 427. et seq. And if with us a wife were seeking an inhibition against her husband, there is no necessity of a process in that case; and to put her to it here, before she can get it executed, her husband's estate may be affected. The plurality of the Lords ordained the bill to be intimated, to see if the husband would appear and make any answer. The next question here will be, though the Lords authorise a curator ad litem to the wife, to pursue her husband, yet if they will allow the same to the bairns of the marriage while their father is in life, to oblige him to secure them also?
After sundry intimations, none appearing for the husband to make answer, the Lords resumed the consideration of the bill; and, on the one hand, thought it hard she should lose her liferent provision for the writer's omitting that clause; and, on the other hand, being unwilling to give a handle to malicious and froward wives to disturb their husbands, they remitted to the Ordinary on the bills, to examine if the husband's condition was turning worse, or if his creditors were going on in diligence, that so they might proceed, not upon her allegation, but cum causæ cognitione, and yet summarily, lest she might be prevented by anterior diligences.
Fol. Dic. v. 1. p. 406. Fountainhall, v. 2. p. 239.
