Administrator's Oath, if relevant against his Constituent?
Hopkirk v. Mary Deas
Date: 14 January 1698 Case No. No 335.
Furnishing to a minor in familia paterna of clothes and other necessaries, found not to fall by the triennial prescription, the account being attested by the minor within the three years.
Click here to view a pdf copy of this documet : PDF Copy
Crocerig reported Hopkirk merchant in Edinburgh, against Mary Deas, and Mr Alexander Wedderburn her husband, and Mr James Deas of Coldingknows, Advocate, her father, for payment of the sum of L. 241 Scots, as an account of clothes and others furnished to her, and which she had subscribed. The defence for her husband was, I cannot be liable, because he furnished to her before her marriage, when she was minor, and a daughter in familia, and had no separate estate of her own; and so her father must only be convened for that; for either the furnishing was necessary, or superfluous; if necessary, it a proper debt, burdening the father; if exorbitant and superfluous, the merchant sibe imputet quod credidat minori, and she has debito tempore revoked. Answered, This being a moveable debt due by the wife prior to her marriage, the husband by the communion of goods, becomes liable for the debt. The Lords found, if she had been sui juris et materfamilias the time of on-taking of this account, and that she wanted a father, that then it would have affected herself, and consequently her husband jure mariti; but being infamilia with her father, neither she nor her husband could be made liable for the same. Then the pursuer insisted against her father, super hoc medio, That he was bound to furnish his daughter. Alleged for Coldingknows, Merchants ought not to furnish children in familia with goods, without the parents' special warrant and order to that effect, otherwise, by their insnaring collusion bairns may be enticed to take off clothes and other furnishing, to the ruin or detriment of their parents: And Durie observes, 27th November 1624, in the case of a Baxter in Leith contra Mackison, (See Appendix.) that an account of bread furnished to his daughter for the use of his family, did not oblige, unless they proved his warrant, else children and servants might take on accounts at their pleasure; and the like was found 21st June 1634, Sir James Hamilton contra Certain Furnishers, No 211. p. 6003.—Answered, It were very rude if merchants should question Gentlemen's children their warrant for off-taking of goods in their shops, and should be put to ask, 1mo, Are you majors or minors? 2do, Have you commission from your parents for what you seek? But the rule to be followed in this case is, if the goods and ware which were bought be not superfluous or extravagant, but such as are necessary and suitable for persons of their quality to wear. See 22d February 1623, Lamb contra Tweedy, voce Recompence.—The Lords found the merchant behoved to prove the things were necessary and suitable to one of her rank and station, and no ways exorbitant; in which case, they found there was no need of the father's special warrant for the furnishing the same. Then alleged, That still he could not be liable, because he offered to prove, that at or about the time this account was furnished, he had taken off clothes and apparel sufficient for her degree. Answered, The merchant knew nothing of that, and was not prohibited to furnish, and so cannot be a loser; and he saw his daughter wearing the clothes, which was a ratihabition; for qui scit et non prohibet, is mandat ubi prohibere potuit, et non fecit. The Lords found it relevant to assoilzie the father from this pursuit, that he proved he furnished his daughter sufficiently aliunde, by paying accounts for her elsewhere to merchants, for clothes, near the time of contracting this debt. But it being objected, That two articles of this account were made up of a watch and some borrowed money; the Lords found these not necessary nor suitable, and rejected them, unless the merchant would prove the watch yet extant, or that they were in rem minoris versa. Thereafter it was contended for the father, That this merchant account was prescribed by act of Parliament, not being pursued for within the three years. Answered, The account was subscribed, which hindered the prescription. Replied, It was null, being signed by a minor without the consent of her father, who is her administrator in law; and was so found, Durie, 22d March 1634, Rhynd, No 57. p. 8942.—(See No 59. p. 2730.)—Duplied, A writ null as to some effects, yet used to be sustained to import an interruption. The Lords found her subscription to the account was sufficient interruption to the prescription. As there is a hardship on merchants to refuse children in familia goods they call for, especially when they are 18 or 20, as she was; so on the other hand, they may rent their trinkets and superfluous ware on children, when too ready to comply with their vanity and prodigality, and get their accounts subscribed or a bond for the price, and let it lie over for some years, and then pursue the father, when his mean of probation may have perished, that his sons or daughters, minors in familia at the time, were sufficiently furnished in apparel when they took off this account, and so for not proving that he shall be liable.—See Recompence.
Fol. Dic. v. 2. p. 239. Fountainhall, v. 1. p. 813.
