Scottish Court of Session Decisions

Subject_1 HORNING.

A
v.
B

1735, Feb. 1.
Case No. No. 1a.

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Lord Milton reported a bill of horning upon a decreet of scandal of the Commissaries against a wife for L.30 Scots, but assoilzieing the husband. The question was, Whether the horning should also go against the husband for his interest, and whether in point of form it would not be a nullity to charge a wife without charging her husband for his interest, in the same way as if it were an heritable debt of the wife's the husband behoved to be charged, or in the case of pupils and minors, the tutors and curators are charged for their interest, though not liable for the debt. We all agreed that neither denunciation nor caption should follow against the husband, and the President proposed that the horning should go against him, but qualified in that manner. Others thought the wife might be charged without charging the husband, so as both denunciation and caption might follow against her because the decreet was for a delict. I doubted that caption could follow against her during her marriage at any rate, because however it was originally a delict, now devenit in alium usum, it was become a civil debt, and diligence was issuing out of this Court for recovering it, though originally the Commissaries might as a part of the sentence have imprisoned her till payment. And I also doubted that in form the wife can be charged with horning without charging the husband, for no process can go against a wife though for a subject purely heritable, or wherein he has no interest jure mariti, without calling the husband; and horning is a process, and so called in our law books, and so where the horning is for a debt of the wife purely heritable the husband is always charged for his interest. However, the Court ordered the letters of horning to be issued against the wife alone, and not against the husband even for his interest.