Subject_1 HUSBAND and WIFE. Subject_2 DIVISION II.
Extent of the Husband's liability for the Wife's debts contracted before Marriage.
Subject_3 SECT. I.
Personal debts. - Annualrent of heritable debts. - Liable for heritable debts in qnantum lucratus.
Weir v. Parkhill
Date: 3 November 1738 Case No. No 70.
A disposition omnium bonorum by a wife to a husband in a contract of marriage, renders the husband liable to implement all conditions of the grant, tanquam quilibet.
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By the contract of marriage between John Parkhill and Mary Weir, relict of Malcolm M'Gibbon musician in Edinburgh, she, in consideration of the provisions made in her favour, “disponed to her future husband, in name of dote and tocher, all lands, heritages, debts, and sums of money, heritable or moveable, goods and gear, and others whatsoever pertaining or due to her any manner of way, &c,” But with the reservation of a power and faculty to her to “dispose of the sum of 10,000 merks to such person or persons as she should think fit.”
And Mary Weir having assigned this 10,000 merks to John Weir her brother; in an action at the instance of a creditor of Mary Weir's, brought after her death, both against John Weir and John Parkhill, the only question being, Which of the two should be found ultimately liable to the creditor? the Lords found, ‘That John Parkhill not having alleged that there were not sufficient effects intromitted with by him to pay the debts and answer the faculty, he was liable to the debts, and also to implement the faculty, to the extent of the subjects received by him.’
Wherever an universitas bonorum is conveyed, it implies the burden of debts to the extent of the subject received, quia bona tantum sunt quæ supersunt debitis deductis: Nor does it alter the case that it is in a contract of marriage: For although where the husband is only, qua such, bound for his wife's moveable debts, the obligation upon him ceases by the dissolution of the marriage, except in so far as he is lucratus, yet where he takes from the wife a disposition omnium bonorum, he becomes liable tanquam quilibet.
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