Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION VIII.

The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. I.

Cannot pursue without being authorised by her Husband, or a curator ad lites if the Husband decline.

Gardiner
v.
Colvil

Date: 16 November 1667
Case No. No 246.

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In an action Gardiner against Colvil, the pursuer being ejected during her husband's absence out of the country, and when it was supposed he was dead,

The Lords sustained the pursuit, though the time of the advising the probation, it was offered to be proved that he was living; and did declare, that albeit the husband were at the bar, they would give the wife the benefit of juramentum in litem, in respect of the wrong done by the defender, and the particulars and quantities could not otherwise be proved.

Act. Longformacus. Alt. Wallace. Reporter, Castlehill. Fol. Dic. v. 1. p. 405. Dirleton, No 105. p. 44. *** Stair reports the same case.

Chalmers and her children pursue Hugh Colvil and others, for ejecting them out of their house and lands of Ladykirk, and spuilzie of their goods therein. The libel being admitted to probation, not only a witness deponed, that he saw the defender open the pursuer's doors, they being absent in Edinburgh, and the keys with them, and cast out their goods and enter in possession, who was admitted, cum nota, as being interested as tenant, and concurring with these pursuers, in a pursuit with the same defenders before the council, upon the same ground; the rest of the witnesses proved, that the pursuers were in possession at or about the time libelled, and that they went to Edinburgh, and locked their doors and took away the keys; and some of them deponed, that the night before the defender's entry, they saw the doors locked, and that the next day after they saw Hugh Colvil and several others in the house, and several goods that were in the house cast out of the door, and that Hugh continued in possession, and took in the goods again.

Which the Lords found sufficient to prove the ejection and spuilzie, seeing the defender did not instruct that he entered by authority of law.

The defender alleged at advising the cause, that the pursuer had a husband, who within this month was seen at Air, and offered to prove by his oath, that he had ceded the possession being warned, and gave warrant to the defender to enter, and therefore, he being dominus bonorum, his wife and bairns had no interest to pursue, and though they had, his oath was sufficient to instruct the lawfulness of the defender's possession, and that the wife's oath in litem could not be taken, to esteem her husband's goods. It was answered, that it was notourly known, that the husband had been two years out of the country, and having gone sea, was commonly reputed dead, and therefore the wife being in natural possession, might lawfully pursue this action; neither was it relevant that the husband promised to quit the possession, which being but an obligation, could not warrant the defender, brevi manu, to cast them out, unless he had been present, or consented to the entry, or had given a renunciation of his possession, with a warrant to enter brevi manu.

The Lords, in respect both parties acknowledged, that the husband had been a great while absent, found the action competent to the wife; and found that the husband's ceding the possession, as was alleged, was not relevant, and ordained the wife's oath, as to the quantity and value of the goods spulzied, to be taken, and granted diligenee to the defender to cite the husband, if they could find him, to the same diet to give his oath, reserving to the Lords what the wife's oath could work, as to the estimation of the goods, without the husband's oath.

Stair, v. 1. p. 485.