Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IX.
The wife's personal privileges.
Isabel Freebairn and Muir her Husband v. Helen Grant
Date: 8 December 1749 Case No. No 296.
Where a wife is pursued for a delict, she cannot wave the defence that the husband was not called.
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A decree of the Commissary of Glasgow, obtained at the instance of Isabel Freebairn against Helen Grant, decerning her “To stand at the court-door for half an hour, with a label above her head acknowledging her crime, in uttering certain injurious expressions against the said Isabel, and to subscribe a recantation, all under the penalty of L. 10 Sterling; and afterwards decerning in the penalty as incurred;” was suspended on this ground, that though James Howie, husband of the said Helen Grant, had, on the day on which she was appointed to give obedience, presented a petition, setting furth, That about the commencement of this process, he had been married to the defender, and that the process could not proceed till he was called; the Commissary, without enquiring into the truth of the allegeance, disregarded this objection, and ‘found the penalty incurred.’
When the suspension came to be discussed, rather than be at more trouble about the matter, Helen, the suspender, submitted to make an acknowledgement of the injury in the commissary-court, in presence of the chargers, in which the chargers acquiesced; and it being appointed by interlocutor of the Ordinary to be done, it was done accordingly.
Thereafter the chargers enrolled the cause, and insisted for expenses, which the Ordinary found due to take effect at the dissolution of the marriage. Against which the chargers reclaimed, and insisted that the husband should also be found liable; but upon advising the same, with the answers, the marriage being instructed by a decree of the Sheriff of Lanark, fining the parties for a clandestine marriage, the Lords, without entering upon the question, whether or not the husband should be liable for the expenses, supposing the injury to have been committed before the marriage, found, ‘that the process could not proceed, the husband not being called, which objection the wife could not wave’
