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Scottish Court of Session Decisions >>
Helen Scot v Paton her Husband. [1703] Mor 6050 (17 February 1703)
URL: http://www.bailii.org/scot/cases/ScotCS/1703/Mor1506050-257.html Cite as:
[1703] Mor 6050
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. III.
A Wife may prosecute her Husband, with a Curator ad litem.
Helen Scot v. Paton her Husband
Date: 17 February 1703 Case No. No 257.
The Court appointed curators ad lites, to prosecute for security of a wife's jointure, where her husband was vergens ad inopiam.
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Helen Scot, spouse to Thomas. Paton merchant in Glasgow, gives in a bill, representing, that, by her contract of marriage, she was provided to the liferent of a certain sum of money, and that her husband, by misfortunes and bad government, was vergens ad inopiam; and that she, and her friends, had omitted to insert a clause, empowering some person at whose instance execution should pass, and that her husband could not authorise against himself; and that it would be necessary that one be named to do diligence, and carry on a process for her security, therefore craved Samuel Maclellan might be authorised to that effect. The bill being intimated, and none returning any answer, the Lords thought the desire consonant both to the common law and the custom of other nations, and our own municipal practice; and first, by the Roman law, regulariter uxor sine consensu mariti non potest agere, nec ulla contra eam stante matrimonio currit præscriptio, nisi ubi maritus vergit ad inopiam, 1. 30. C. de jure dot. 1. 7. § 4. C. de præscriptione 30 vel 40 annor. It is so by the French law, if the husband refuse to concur with his wife in her pursuits, the Judge authorises another; and so did the Lords decide, 9th January 1623, Marshall contra Yule, observed both by Haddington and Durie, No 245. p. 6036; and accordingly the Lords authorised the said Samuel to pursue in this woman's name, as her curator ad lites, for securing her jointure against her husband and his creditors.
Fol. Dic. v. 1. p. 406. Fountainhall, v. 2. p. 181.
