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.
Anne Byers v. Her Husband's Creditors
Date: 28 July 1708 Case No. No 249.
A write, is a competition with her husband's creditors, raised a reduction of her contract of marriage, upon minority and lesion. It was objected, that she could not insist without her husband's consent. The Lords repelled the objection.
Click here to view a pdf copy of this documet : PDF Copy
Anne Byers having a land-interest in St Cuthbert's parish, to the value of 10,000 merks, marries, about her age of 17, Alexander Reid, son to Mr James Reid of Northbrae, and in her contract of marriage dispones to him her whole heritage, and he provides her in a jointure of 600 merks. Shortly after this, it breaks out that what by his own debt, and as cautioner for his father, he is obæratus; and he flies first to the Abbey, and then out of the kingdom, and takes on to be a soldier in Flanders, and his creditors seize upon his wile's estate, and reduce her to beggary. Upon this she raises a reduction of her own contract-matrimonial, and revoked within 25 years, upon the plain reason of minority and lesion, that she disponed all away and got nothing, but her husband has deserted her, and his creditors have swallowed up her fortune, and left her and two children miserable; and though 600 merks be named in her contract for liferent jointure, yet there is not one sixpence left her to possess. Answered for the Creditors, That being married, she has not personam standi in judicio without her husband, who integrates her right, and much less to pursue him. Replied, It is true, a wife cannot pursue regulariter without her husband's concourse and consent, but where the controversy is with himself, law cannot be without a remedy, and the Lords nominate her procurator or any other, to be her curator, and authorise her in the process. This is not only our practice, Marishall contra Yule, No 245. p. 6036, but also the custom of Sovereign Courts abroad, as particularly the Parliament of Paris. See Bertrand Argentræus ad consuetud. Britanniæ Aremoricæ, L. 30.C. De jure dot. and l. 7. § 4. C. De præscript, 30 vel 40 annor. The Lords allowed her procurator to concur in this process, and to authorise her therein. The next defence against the reduction was, that minors may lawfully enter into contracts of marriage, and dispone their heritage for a mutual onerous cause corresponding thereto; and here lesion be pretended, for she is competently provided in a jointure, when the same exists by his death. Answered, This was but a mere sound, for she effectually denudes of an heritable estate worth ten thousand merks causa data sed non secuta, which is now absorbed by her husband's creditors; whereas his provision to her of a jointure is a mere non ens and a name, having nothing left him either for her liferent, or her children's provisions; for a bankrupt's engagements never can prove effectual to take off lesion. The Lords repelled the defence, and found the minority and lesion proved, and reduced the contract in so far as concerned the disposition she had given of Her own estate; but this does not take from the husband and his creditors the jus mariti to the rents of the lands during the standing of the marriage. On a process, the Lords would probably modify an aliment to her out of her own lands, so long as her husband deserts her.—See Minor.
Fol. Dic. v. 1. p. 405. Fountainhall. v. 2. p. 458.*** Forbes reports the same case:
In a reduction at the instance of Anne Byers, against Alexander Reid her husband, for reducing their contract of marriage upon minority and lesion; the Lords sustained this reason of reduction, that the pursuer had, in the 17th year of her age, disponed the property of her heritage to the defender, who was obæratus, and not in a condition to secure any suitable provision to her effectually.
