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. IV.
Only subsidiarie liable after the dissolution of the marriage, although lucratus.
Matheson v. Warriston
Date: 28 March 1629 Case No. No 87.
A second husband found subsidiarie liable, for intromissions of his wife as a tutrix, while she had a former husband.
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James Matheson convened Margaret Crawford his mother, who was tutrix testamentar left to him by his father, and Thomas Kincaid of Warriston, her husband, for his interest, to make him payment of the duties of certain acres in Broughton be longing to him, and wherewith she intromitted during all the time of his minority as tutrix.—Alleged, That after her first husband's decease she was married certain years to Thomas Kay, who intromitted as her husband with these duties; in respect whereof his heirs and executors were only conveneable for these years, and not her husband who now is.—Replied, She having once intromitted as tutrix, and after her marriage with Thomas Kay continued that same intromission, she must be liable for the duties of these years, and her present husband; quia quæ se gessit pro tutrice, et qui se gerit pro tutore, tenentur in omnibus et per omnia tanquam tutor.———The Lords found. That the pursuer ought first to discuss the heirs and executors of Thomas Kay for the duties of these years; after which, if they were not responsal, he might have his recourse against the tutrix and her present husband.
Fol. Dic. v. 1. p. 392. Spottiswood, (Tutor & Curator.) p. 346.*** Durie reports the same case:
A son pursuing his mother, who was made his tutrix, and her present husband, with whom she was married the time of the pursuit, for payment of the particulars intromitted with by her, in the time of his pupilarity for diverse years, in which she was married with another second husband in these years; and the present third husband alleging, That he could not be convened for these years wherein she was married with another husband, seeing that husband intromitted with the pupil's estate these years, and whose heirs and executors ought to pay the same to him, and ought to be called therefor, and not this third husband; specially seeing the wife having married that husband, she by that second marriage fell from her tutory, and by the law was removed therefrom, whereby the intromission had by her or her husband could not be ascribed to her tutory, but the husband's heirs or executors ought to be answerable therefor.———The Lords found, That this third husband, now defender, could not be convened for any Intromission had by wife, or her second husband, in these years wherein they had intromission the time of their marriage, before that the heirs and executors of that second husband were called and discussed; whom the Lords found, that the minor ought to pursue therefor, Primo loco, and discuss them before he could have and action against her third husband for the same; and found, if it should be tried by that pursuit, and discussing of them, that they should be found non solvendo, and that no payment might be recovered from them, that then the minor's action against the wife and her third husband should revive and convalesce to him; also the Lords found that the said third husband, and his wife, might be convened for the intromission had by her in these years which preceded her second marriage, and wherein she was then tutrix, after the decease of her said first, husband, father to the pursuer, and which pursuer was her own son, for which years the action was found proper to the pursuer against his said mother, and against her said present third husband; and that it was not necessary for him to pursue the heirs and executors of the second husband therefor, seeing the action was proper a gainst herself, she being then tutrix in these years, and consequently against her present husband.
