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. II.
Effect of the Dissolution of the Marriage, as to the Wife's Moveable Debts.
John Bryson v. Marjory Menzies
Date: 16 November 1698 Case No. No 81.
Debated but not determined whether an adjudication led against the husband's lands for the wife's debt, ought to fail, upon the dissolution of the marriage.
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In a competition betwixt John Bryson merchant in Glasgow, and Marjory Menzies, relict of Turner, and Dr Alexander her factor, this question occurred; where a decreet is obtained against a wife for her debt, and her husband pro interesse, and an adjudication led of the husband's lands, and then the marriage dissolves by the wife's death, if the husband or his lands be personally liable for that debt, and if it will still affect his estate; or if the same be disburdened and liberated by the dissolution of the marriage, whereby his interest ceases. The ratio dubitandi is, that the communion of goods betwixt man and wife being only of moveables, by analogy of law, the same can only be of moveable debts, so as the husband's heritable estate cannot be affected, unless the decreet had been completed by execution or payment stante matrimonio; and in a like case the husband was found not liable, 23d December 1665, Rachel Burnet contra Lepers, marked both in Dirleton and Stair's Decisions, (No 78. p. 5863); and Stair, in his Instit. lib. 1. tit. 4. § 17, says expressly, there is neither law nor decisions to make the husband's lands liable for the wife's debt, these not being in communione bonorum. On the other hand it was argued, That the diligence against the husband being brought the length of an adjudication against the husband's estate (which is processus executivus) during the standing of the marriage, it must be effectual as if he had disponed and granted bond; in which case the debt would have become the husband's own. Though the Lords, in the case of Osburn No 23. p. 5785, and several others, lately found the husband not liable for the wife's heritable debts, yet in this circumstantiate case there was some difficulty; therefore they superseded to determine that point, till the nullities objected against the adjudication were discussed; for, if it fell by these, there would be no need of the other.
Fol. Dic. v. 1. p. 391. Fountainhall, v. 2. p. 15.
