Scottish Court of Session Decisions

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.

Robert Inglis Chirurgion in Queensferry
v.
Margaret Harvey, and Archibald Ogilvy Brewer, her Husband

Date: 16 February 1715
Case No. No 68.

Found in conformity with Simpson against M'Lellan, No 64. p. 5852.

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Margaret Harvey having accepted a bill payable to Robert Inglis before the marriage, which was not protested, he now insists both against her and her husband for payment; and the Lord Ordinary having found the husband liable for the sum in the bill, it not bearing annualrent, but ordaining the pursuer to prove that the husband was lucratus by the marriage, before he could be liable therefor, the pursuer acquiesced in the first part of the interlocutor, as being consequential to a late decision 15th July 1713, Watson contra Gordons, No 3. p. 475, where the Lords found, that a bill did not bear annualrent, in respect it was not protested; and therefore contended, that this bill, for that reason, not bearing annualrent, must affect the husband, who jure mariti would have right to all bills due to his wife, and not protested, et quem sequuntur commoda, &c. But as to the second part of the bill, the pursuer reclaimed upon the following grounds:

1mo, That as the husband hath right jure mariti to moveable debts due to the wife, so he must be liable for all debts of that kind due by her; which, as being founded on natural equity, and the analogy of law, and as arising from the communion of moveables betwixt married persons, is expressly maintained by Sir George M'Kenzie, Inst. p. 35. and Viscount Stair, Inst. 1. tit. 4. § 17. 2do, The husband being an incontroulable administrator of the goods in communion, if he were not subject to the diligence of creditors, till after a tedious and uncertain process of count and reckoning, whether the husband be lucratus or not, the moveables in the mean time might be conveyed away or embezzeled, and creditors disappointed of their payments. 3tio, The husband is always found liable, even for heritable debts in quantum lucratus; therefore to make him liable for moveables only in the same manner, would take away all distinction which law and practice have made betwixt heritables and moveables.

Answered for the defenders, As to a bill's not bearing annualrent when not protested, that by the acts 1681 cap. 20, and 1696 cap. 36, bills bear annualrent, in case of not acceptance from their date, and in case of acceptance and not payment from the day of their falling due; and it was so decided 8th June 1705, Blair contra Oliphant, No 1. p. 473; and therefore the term of payment being in the present case past before the marriage, the bill is like a bond bearing annualrent; and if it were otherwise, it would be in the power of the possessor of a bill to make a third party liable or not as he thought fit. And as to the decision Watson contra Gordon, answered, That the specialty of that decison was, that the executors of the possessors of the bill were pursuing, and the debtor did not know to whom to pay, until they had made up a title, and so he was not in mora ; therefore the Lords thought it not reasonable that he should be burdened with annualrent.

As to the grounds of the petition, wirh respect to the husband's being lucratus, answered, 1mo, That the Ordinary's interlocutor is to be understood in terminis habilibus, viz. that if a man should be found liable for the sums in a bill, it must be understood to be to the extent of the moveables that jure mariti he got by the marriage. And this is certainly the meaning of all our lawyers, such as Stair, M'Kenzie, &c. writing on that subject, and is clear from Dirleton, p. 106. And as to the distinction betwixt heritables and moveables, answered, That the defenders were not concerned to argue what effect the wife's heritable debts may have against the husband's moveables, which is a point that the Viscount Stair owns to be dubious, but that it is enough for them to say, that the husband ought to be but liable for the wife's debt, in as far as he has her effects, whether heritable or moveable, which is confirmed by a third decision, Gordon contra Lady Gight, No 25. p. 5789.

‘The Lords found the husband liable for a moveable debt, whether he be lucratus or not by the marriage; but their Lordships determined nothing as to the bill in question, only reserved to the parties to be heard before the Ordinary, whether the same be heritable or moveable.’

Act. Binning. Alt. Rigg. Clerk, Gibson. Fol. Dic. v. 1. p. 390. Bruce, v. 1. No 84. p. 100.