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Scottish Court of Session Decisions >>
Finlay v Hamilton. [1748] Mor 6051 (5 February 1748)
URL: http://www.bailii.org/scot/cases/ScotCS/1748/Mor1506051-259.html Cite as:
[1748] Mor 6051
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.
Finlay v. Hamilton
Date: 5 February 1748 Case No. No 259.
The Lords authorise the wife, when she is to pursue, and the husband will not concur.
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Anna Finlay having pursued John Hamilton, her husband's brother, before the Sheriff of Lanark for beating her, the Sheriff ‘Sustained the objection to the instance, that her husband did not concur.’
But upon a bill of advocation, the Lords ‘Directed the Ordinary to remit the cause with an instruction, that the Sheriff should authorise her to carry on the action.’
Fol. Dic. v. 3. p. 284. Kilkerran, (Husband and Wife.) No 14. p. 267.*** D. Falconer reports the same case:
Anne Finlay, spouse to William Hamilton, having, with concourse of the procurator-fiscal of Lanark, raised a process before the Sheriff against John her husband's brother, for beating and maltreating her, the Judge sustained the defence made against the instance, that her husband refused to authorise her therein.
A bill of advocation being presented, the Lord Ordinary refused it; but on a petition and answers, the Lords remitted the cause, with instruction, that the Sheriff should authorise her to carry on the action.
It was prayed by the defendant, that before she were authorised to proceed, she should find caution for expenses, in case she should be found liable therein; which was refused.
Act. Lockhart.Alt. R. Dundas.Clerk, Gibson.
D. Falconer, v. 1. No 235. p. 321.
