Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Dumbar of Hemprigs v. Lord Arbuthnot
Date: 14 December 1680
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Dumbar of Hemprigs against Lord Arbuthnot being reported; the Louis found, though the debt was the Lady Arbuthnot's, the defender's stepmother, and that it was never constituted against her husband in his lifetime, yet this Lord, as heir served to him, ought to be liable for her debt in quantum either he or his father were lucrati by that marriage, with a deduction always of the onera matrimonii. And ordained the pursuer to condescend on the lucrum, and the defender on the burdens.
The words of the interlocutor, as they were dictated to the clerk, were,— “Find, albeit the marriage be dissolved, and that there was no decreet against the Lady during the marriage, yet that the defender is liable in quantum locupletior factus est beyond what is necessary ad sustinenda onera matrimonii according to the quality of the person and the estate. And ordain the pursuer to condescend on the lucrum made by the defender, and the defender to condescend on the onera matrimonii, how far the defender's estate was burdened “with that marriage, either by the Lady her liferent provision, or by provisions conceived in favours of the children to be procreated of that marriage; to be considered by the Lords at advising of the cause; and reserving to both parties to object contra producenda.” Culross, in his Decis. Jan. 1583, Allardice, shows that the Lords, in a case like this, assoilyied simpliciter.
