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.
Simpson v. M'Lellan
1682.
December. Case No. No 64.
The husband is liable indefinitely for moveable debts due by his wife before marriage, without regard whether any thing came by the wife or not. See No 68. p. 5855.
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William M'Lellan being charged at the instance of lsobel Simpson, for payment of a sum contained in a bond granted by his wife before the marriage, he suspended upon this reason, that he being convened only pro interesse as husband, he could not be liable for his wife's debts, but only in quantum he was lucratus by the marriage; but so it is, he had not gotten so much benefit by the marriage as the sum would amount to, and was content to renounce in favour of the pursuer, all the right he had to his wife's goods jure mariti, or otherwise; but also to make furthcoming whatever means he got with her, for the charger's use; as also the ground in law upon which the husband is liable for the wife's debt, is only because by the marriage there is a communion; and therefore law infers that there should be a communion of debts. And seeing bonds granted by the wife before the marriage bearing annualrent, being heritable, do not fall under the jus mariti, nor the communion of goods; so neither should bonds granted by the wife before the marriage, bearing annualrent, fall under the communion of debts; so that, seeing the bond bears annualrent, the husband cannot be liable for the same, but at most for the bygone annualrent.—Answered, That albeit he was only convened pro interesse as husband, yet the husband is always liable for the wife's debts, especially seeing the marriage is still subsisting; for the husband and wife being eadem persona in law, he is as well liable for the wife's debts as she is herself; and execution for the wife's debt must take effect against the husband and his goods during the subsistence of the marriage, he being the head of the wife, and dominus bonorum. And however a creditor of the wife's should recover a debt against the husband for his interest, yet if no execution follow thereupon before the wife's decease, he will not be farther liable, nor can the creditors use any farther execution against him, seeing his interest ceases by decease of the wife; but if the marriage be still subsisting, and the wife alive, he is liable for her debt whether he be lucratus by the marriage or not.——The Lords repelled the defence, and found the husband liable for the debt,
Fol. Dic. v. 1. p. 390. Sir P. Home, MS. v. 1. No 302.*** Harcarse reports the same case:
One found liable jure mariti for his wife's debt, contracted before her marriage, though he had no benefit or tocher by her.
