Scottish Court of Session Decisions

The Lord Ordinary ( Fraser) pronounced this interlocutor:—“Finds that on 3d July 1879 the suspender received a charge to implement the decree set forth in the record at the instance of the female respondent without the concurrence of her husband: Finds that the suspender was imprisoned in the Tolbooth of Stirling on 11th March 1881 at the instance of the female respondent by virtue of a fiat of imprisonment obtained on a decree and charge in her name: Finds that the sums decerned for by said decree, and for payment of which the said charge was given, followed by imprisonment, fell under the jus mariti of the female respondent's husband James Houston, and therefore he ought to have been a party insisting in the said charge: Finds that after the present note of suspension and liberation was presented the said James Houston gave in answers to the same concurring in and adopting the proceedings of his wife: Finds that the objection to the diligence proceeding in the name of a married woman without her husband's concurrence is thereby obviated: Therefore repels the reasons of suspension and liberation: Finds neither party entitled to expenses, and decerns.”

He added this note:—“From the conflicting statements of the parties it does not appear whether James Houston, the husband, was sisted as a party to the action of filiation and aliment instituted by the female respondent against the suspender in the Sheriff Court. Even though he had been a party to that action, the objection would still remain, that the charge was in the name of the married woman alone. Nothing can be clearer than that diligence at the instance of a wife without her husband's concurrence is null ( Napier v. Rollock, M. 6047;. Jeffrey v. Matheson, June 28, 1826, 4 S. 765), and this was even found though the debt sought to be recovered was one from which the jus mariti had been excluded ( Wight v. Dewar, March 9, 1827, 5 S. 549). In the present case the sums sought to be recovered did fall under the jus mariti—although they were decerned for as inlying expenses incurred by the female respondent, and for alimentlfor the support of her illegitimate child, they cannot be regarded in any other light than as ordinary debts due to the wife. A husband is liable for the aliment of his wife's bastard children had to other men before marriage ( Aitken v. Anderson, Hume, p. 217), and the money due by these other men to the wife is just of the same character of debt which the jus mariti carries.

“But assuming all this, there is a series of decisions which establishes that although a wife raises diligence in her own name, without her husband's concurrence at first, the objection thereto may be obviated by his subsequent concurrence, as was given in this case. On the same page in Morison's Dictionary (p. 6047) there will be found two cases where opposite judgments on this point were given. A man being incarcerated upon a horning used at the instance of a married woman without her husband's concurrence, it was found null ‘though the defender alleged it did not import much, seeing the husband was yet content to allow of them; for it was thought that it being null ab initio could not be helped by his posterior consent, especially the wife being at the time dead’ ( Napier v. Rollock, supra). In the other case an arrestment at the wife's instance was sustained though without her husband, because his subsequent consent validated the act, and that her not being integra persona in judicio without her husband was introduced in her favour, and so ought not to be detorted to his prejudice; and therefore repelled the nullity and sustained the arrestment’ ( Hepburn. v. Blair's Children, Jan. 29, 1702). The doctrine here laid down is the sound one, viz., that the protection of the interests of the husband is the reason for denying to the wife power to interfere with any moneys, which although originally due to her, were acquired by him in virtue of his marital rights; and therefore where he appears in Court after the objection is taken, and concurs in the wife's action, it is right to hold the objection thereby removed. There are two recent cases in support of this view. The husband's concurrence in the first of these ( Borthwick v. Urquhart, 7 S. 420) was given in a process of suspension and interdict of the diligence used in name of the wife. Lord Corehouse's finding, which was adhered to by the Court, was, ‘that the poinding though executed in the name of Margaret Urquhart alone was validated by the consent of her husband subsequently interponed.’ In Lyle v. Macgowan or Mackay, 23d January 1849, 11 D. 404, the husband again gave his concurrence to the proceedings of his wife in the process of suspension of the charge at her instance; and again, it was determined that the concurrence of the husband though given after the execution of the diligence barred all objection, Lord Fullerton remarking as follows It has been said that it would be a strong thing to sustain this diligence, but it would be much stronger, with these authorities before us, to refuse to give effect to it.’ The result of the authorities, therefore, is that the reasons of suspension must be repelled, but as the challenge was a good one until the husband appeared in this process, no expenses have been found due to either party.”