Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VI.
A married woman's deeds in what cases effectual against her husband.
Subject_3 SECT. II.
How far Prępositura presumed to extend.
Arnot v. Stevenson
Date: 19 November 1698 Case No. No 222.
An apprentice, who was bound, not by his father, but by his mother, deserted after two years service. In a pursuit against the father, for the remainder of the apprentice-fee, (the mother having paid part of it,) it was found that the prępositura could not be extended to such deeds, and that the father's knowledge and silence could not infer consent.
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In a pursuit at the instance of Archibald Arnot, apothecary in Kirkcaldy, against one Stevenson, for payment of 100 merks yet resting of his son's apprentice-fee, and for damages through his running away and deserting his service; there being no written indentures, he offered to prove by the defender's oath, that though he did not bind his son apprentice to the pursuer, yet his wife, who did, was præposita negotiis. mariti, which was sufficient to bind him to fulfil. He depones, That his wife did indeed buy and sell and take in the money, but he never gave her the power of binding or loosing; and particularly, he was dissatisfied with her putting his son apprentice to this pursuer. When this oath came to be advised, it was alleged, That the boy had staid two years with his master in his father's view, who never reclaimed; which taciturnity must imply an acquiescence and homologation of his wife's bargain; and there was 100 merks of the apprentice-fee paid.—The Lores considered it was not the husband but the wife who had paid that 100 merks; and that a man may be silent at the management and actings of an imperious wife, and yet must not be construed to approve of the same, else she may bring him into inconveniences enough; and therefore they found her præpositation quoad the power of binding her son apprentice not proved, and assoilzied the husband; seeing it was easy for the master to have entered into a written contract with his apprentice's father; and since he did not, sibi imputet that he has followed only the mother's faith, who should not dispose of their children's callings and educations without the father's consent.
December 1.—A bill having been given in against the interlocutor mentioned 19th November 1698, between Arnot and Stevenson, alleging, That he had alimented the apprentice for two years, for which he had only received 100 merks, and this being in rem versum to the father, who was bound jure naturæ to entertain his son, he must be liable for the remanent apprentice-fee.—It was answered, He had the boy's service, which might compense the aliment.—Replied, An apprentice's service is little beneficial the two first years; for then the master is at the greatest trouble in teaching him the mystery of his trade.
———The Lords would not give it as apprentice-fee, but allowed the 100 merks by way of aliment, the father being thereby lucratus.
Fol. Dic. v. 1. p. 403. Fountainhall, v. 2. p. 16. & 21.
