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Scottish Court of Session Decisions >>
Earl of Argyle v His Lady. [1695] Mor 6054 (7 November 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Mor1506054-263.html Cite as:
[1695] Mor 6054
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. IV.
A Wife may prosecute Legal Diligence against her Husband, without being authorised by a Curator.
Earl of Argyle v. His Lady
Date: 7 November 1695 Case No. No 263.
A wife may use diligence against her husband for payment of a separate aliment, without being authorised by a curator.
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She had charged him on a bond of aliment of 8000 merks per annum, during the time of their living separately. His reasons were, 1mo, It was deposited in the King's Advocate's hands, on terms. This being denied by my Lord Advocate, was past from. 2do, That she had been factrix for several years for her Lord, and had not counted for her intromission. This not being a liquid compensation, was also past from. So the two reasons insisted on were; 1mo, That a wife could not summarily charge her husband, unless she were authorised by a curator, or that the bond had been in a third party's name, that execution might pass in their name, as is provided in contracts-matrimonial. Answered, During their living separately, as an aliment may subsist, so likewise must the diligence for making it effectual. The second reason was, he had offered to cohabit with her, and required her by way of instrument to come and stay at Inverary, and all things should be provided for her accommodation. Answered, This sham offer does not bear that the Earl would stay in family with her; and the term charged for being Lammas last, and the offer long subsequent thereto, it cannot affect that term, or stop its payment. The Lords refused the bill, and repelled the reasons, nemine contradicente, quoad the Lammas-term.
Fol. Dic. v. 1. p. 407. Fountainhall, v. 1. p. 676.
