Subject_1 HUSBAND and WIFE. Subject_2 DIVISION III.
Mutual Duties betwixt Husband and Wife.
Subject_3 SECT. II.
Husband liable for his Wife's aliment, unless insolvent.
Creditors of Ogilvy of Newgrange v. David Scot of Hedderwick
Date: 10 November 1687 Case No. No 106.
The creditors of a husband attached his whole funds, and particularly, a confiderable jus mariti he had in his wife's effects. Found that the creditors were not bound to aliment his wife, stante matrimonio, but that they must find caution to aliment her after her husband's death.
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Alexander Forrester of Milnhill, James Alstoun, and other creditors of Ogilvy of Newgrange, their action against David Scot of Hedderwick being debated upon the 8th, was this day advised. The case was, in Hedderwick's contract of maariage with Grahame of Craigie's daughter, his lands were tailzied to the heir-male; and, in case of a daughter, 8000 merks are provided to her. There happened to be only one daughter of the marriage, and she ran away with Francis Ogilvy of Newgrange, when she was about 15 or 16 years of age, for which there was a Council process raised. Newgrange being in great debts, his foresaid creditors arrest the 8000 merks in her father Hedderwick's hands, and pursue him for making forthcoming.—It was alleged for him; 1mo, It was but a destination of succession to this 8000 merks, in case he did not otherwise dispose on it; but, ita est, she had proved ungrateful, and married without his consent; and being thus disobliged, he was not bound to pay it. 2do, This being a provision for his daughter, and come in place of her tocher, in law dos was correlatum to a jointure, et pari passu ambulant. See Durie, 27th July 1633, Gordon, No 23. p. 4460. And seeing the husband was not able to secure her in her jointure, there was no reason that he or his creditors should have the tocher, the one being the mutual cause of the other, and naturally implied therein; and that such tacit conditions were as strong as express ones; as, 1mo, In the case where all things return, the marriage dissolving intra annum; 2do, Where a bond is given for the price of lands, which, though it be simple, yet, ex natura rei, it must purge incumbrances. And there are three decisions in Durie, viz. 21st November 1623, Logan, No. 46. p. 4386. 28th June 1637, Galbraith, No. 47. p. 4387. and 29th January 1639, Graham, No. 23. p. 4226. where the assignee to a tocher, the arrester, and the appriser thereof, are all found liable to secure it by caution for the Wife's liferent use: And Faber. in tit. C. De jure dot. defin. 10, 12, 21, and 30, shews the Parliament of Savoy found, that a husband's creditors could not so affect the wife's tocher where the husband was poor, but with burden of the wife's liferent. And though daughters after 25 might marry without their father's consent, yet if they did it within that age, it was justa exhæereditationis causa, et non tenebatur eas dotare. Perez, ad tit. C. De dot. promiss. num 11.
Answered for the Creditors, This 8000 merks was a specific obligement and sum, and so not a mere destination. 2do, They, as creditors, were not concerned to secure her in her jointure; but her father might pursue the husband, either to grant one, or they might rely on the legal provision of a terce; and if she had made an ill bargain, that would not impede them who are her husband's creditors legally to affect, by their, diligence of arrestment, what was certainly his jure mariti, seeing it bore not annualrent; and that this was so found, 8th February 1670, Cathcart, voce Mutual Contract. 3tio, The Lawyers and decisions cited, did not meet, being where there was a jointure provided in a contract of marriage, whereas there was none here.
The Lords made a great difference if the husband had right to the tocher by voluntary conveyance and assignation; for then they thought it was probable there would, or should be provisions also adjected for the wife's security; and where he had it only jure mariti, by the legal assignation. The President considered it as a dangerous preparative, if men's children were debauched from them, and that their husbands or their creditors should claim the benefit of their mother's contract matrimonial; which, as it would render their daughters miserable on the one hand, so it might tempt them to be undutiful, and to dispose of themselves, thinking they cannot be deprived of it: And it were rational to make an act of Parliament, that they give bond to pay L. 1000 Sterling, if their parents dissent from their marriage; and that children marrying within 25, or such like age, without their parents' consent, should lose any benefit they could expect by them. At last, having balanced all inconveniences, the Lords found the provision of 8000 merks, due to the Lady Newgrange by her father the suspender's contract of marriage, as the only child and daughter thereof, does belong to Newgrange, the husband, and is affectable by the diligence of Alexander Forrester, his creditor, the arrester; and that, during the marriage, the wife has no interest therein for her aliment; but that, after the dissolution thereof, she ought to have the annualrents of the said principal sum for her liferent provision. And therefore find, that the sums ought to be made forthcoming to the charger, in so far as concerns his debt, he finding caution to the Lady to pay her the annualrents in the event foresaid, conform to the sums he recovers. And, as to the determination of the preference betwixt the charger, and the other creditors of Newgrange, called in the summons of multiple-poinding, produced and repeated by the suspender, ordain them to produce their interests in this process, to be determined by the Ordinary. Or otherwise, if they do not, find the letters orderly proceeded at the instance of Alexander Forrester, and prefer him as to these sums, to the other creditors called in the multiple-poinding.
Fol. Dic. v. 1. p. 393. Fountainhall, v. 1. p. 476.
*** See Harcarse's report of this case, No 116. p. 5907.
