Scottish Court of Session Decisions

Subject_1 COMPETENT.
Subject_2 SECT. I.

Decree cannot be done away except by Reduction.

Miller
v.
Spang

Date: 19 June 1605
Case No. No 4.

Decree of removing had been pronounced against a woman vestita viro. In a reduction of this decree, after her husband's death, she was allowed to plead defences competent, omitted in the original action, alleging, that the omissions of her husband, who had made appearance for her, ought not to prejudice her.

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In an action betwixt Miller and Provand, for reduction of a decreet of removing, it was excepted by the defender, that he should be assoilzied from the second reason, because that this woman, now pursuer of the reduction, could not have been removed at the instance of the warner, because his father, to whom he was heir, had bound himself, by contract, to infeft her in conjunct fee in the lands libelled, by virtue whereof she was in possession, and so could not be removed at the instance of the warner, who was heir and should warn. Against the which reason it was answered, That, notwithstanding thereof, his his decreet stood, and was lawfully given; because, it being proven in foro contradictorio against this woman compearing, she could never be heard to reduce upon an exception competent and omitted, she compearing. It was replied by the pursuer of the reduction, That if any ways she compeared in that first action of removing, her compearance was by a procuratory at command of her gudeman, she being then clothed with a husband, whose omission of a defence could not prejudge her without her own consent, no more than his alienation of her liferent without her consent: Otherwise, if it was permitted to husbands to compear and omit the just defences competent to the wife, when they could not induce the wives to sell their liferents, they would suffer them to be evicted by colluded decreets given against them, compearing and omitting their best defences; which could not prejudge her; but she now being so, had place to the said exception omitted, and not proponed in the first instance, as a relevant reason of reduction in the second instance. The matter being reasoned amongst the Lords, and almost the whole members inclining to find the reason relevant and competent in the second instance, I reasoned, on the contrary opinion, ab inconvenienti to the inconvenient proponed for the wives, because rerum judi-catarum auctoritas firma immutabilis esse debet; and if this which is now libelled be admitted, and the exception founded upon the first decreet of removing be repelled, it shall not be possible to any man to obtain any sure decreet against any woman clothed with a husband; because, after that she have compeared, and defended, and vexed the party both with delays and all manner of defences in her husband's time; albeit decreet be obtained against her in foro contradicorio, yet, after her husband's decease, she shall have place to reduce the decreet upon reasons competent in the first instance, and omitted per chance wilfully to give occasion for more play; and so it shall not be possible to a man to obtain a certain decreet, and unreduceable against a woman clothed with a husband; notwithstanding whereof the Lords sustained the reason of the findings; the rather because it was founded upon the deed of the defender's father to whom he was heir.

Fol. Dic. v. 1. p. 169.* Haddington, MS. No 826.

* Lord Kames has mistaken the import of this case.