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.
Leslie v. Wallace
Date: 23 January 1708 Case No. No 65.
The husband found liable for his wife's heritable debt, contracted before the marriage, in quantum lucratus ; but in regard he had not present access to the lucrum, the tocher being liferented by another, the Lords ordained him and his wife to assign to the creditor as much thereof, to take effect when their right should commence by the liferenter's death.
Click here to view a pdf copy of this documet : PDF Copy
Mary Wallace having been bred at Mr Aitken's school, and being debtor for her education and board-wages in L. 166 Scots, and her parents being unable, Mr Alexander Leslie pays it, and takes her bond, whereto her father is consenter for that sum. She being now married to Richard Howison, and charged on her bond, she suspends on these reasons, 1mo, That she is vestita viro, and so cannot be personally liable stante matrimonio.—Answered, He craved a decreet to have effect against her on the dissolution of the marriage; which the Lords granted. 2do, This being a bond bearing annualrent, the husband can never be liable for the principal sum, because his jus mariti gives him right only to his wife's moveable sums, and so a pari, he can only be liable for her moveable debts, for quem sequitur commodum, eundem debet sequi incommodum, and no farther; as has been oft decided, betwixt Menzies and Osburn, No 23. p. 5785.; Captain Gordon and Cesnock, No 24. p. 5787. and many others.—Answered, Whatever be in that principle, it only takes place where the husband is not lucratus by the marriage; but here the husband gets 5000 merks of tocher.—Answered, This comes not by the father, but is a peculium adventitium, gifted to her by her grandfather, and affords no present benefit, being liferented by the mother.——The Lords found the husband liable in quantum lucratus ; but in regard he had not present access thereto, they ordained him and his wife to assign him to as much of that sum, to take effect when their right commences by the mother's death. The third reason of suspension was, that she was minor the time of subscribing the bond, and lesed; for though it bore an onerous cause of her education at schools, yet this is not probative; for there is nothing more easy than to insert a specious narrative of onerous causes in minor's bonds; and here, being in familia with her father, he must be liable, and by his consenting could not be auctor in rem suam.—Answered, The testificate of her baptism is no authentic proof, and the presbyterian parents did then keep their children long unbaptized, till they got a minister of their own persuasion to do it. Next, if she be so ungrateful as to deny his paying the money, and relieving her, and the onerous cause, he will prove her staying at that school, providing it be cum onere expensarum.——The Lords repelled the minority, the cause of the bond being first instructed and adminiculated to have been in rem versum, and for her board-wages.
Fol. Dic. v. 1. p. 390. Fountainhall, v. 2. p. 422.
