Scottish Court of Session Decisions

Lieutenant Selbie, R. N., married Miss Mary Smith in 1820, who possessed £700, of which one half was secured under an heritable bond, and £350 was on a bill by her brother, Alexander Smith. She was a person of weak mind, and, after repeated disagreements with her husband, she left his house, and refused to return. He used inhibition against her; and she raised an action of aliment, against which the defence was sustained that he offered to take her back to his house. Her friends afterwards became satisfied that it was expedient to place her in the Dundee Lunatic Asylum, and, on a regular medical certificate of insanity, she was admitted there. This was done without the intervention of her husband, but he was fully aware of the proceeding, and of the rate of board at the asylum, and stated no objection. At admitting her into the asylum, her brother and another party (agreeably to the rules) became cautioners for her board, and made advances, amounting to about £160. They drew bills for that amount on her husband, and indorsed them to William Scott, who raised an action for their contents.

Selbie pleaded against the claim generally, that, as his wife had separated from him, and he had used inhibition, and she had been put into the asylum without his concurrence, he ought not to be subjected in payment of the expenses incurred in maintaining her in the asylum, beyond the income arising from her own separate heritable fund of £850.

The pursuer answered, that neither the voluntary separation, nor the inhibition, discharged Selbie's liability to provide his wife in maintenance; that the interest of the heritable bond was not adequate for this purpose, and that whatever was the necessary disbursement for her maintenance, Selbie was bound to pay.

Against the bill indorsed to Scott by Alexander Smith, Selbie pleaded a special defence of compensation under Smith's bill for £350 to Mrs Selbie, and falling under the jus mariti. In answer to this, it was stated that Smith became insolvent in 1826, and that Selbie, along with his other creditors, were parties to a trust deed, in which it was stipulated, that if Smith could procure the concurrence of a certain proportion of his creditors to his discharge, he should be discharged of all Ms debts prior to the trust-deed; and that the certificate of the trustee should be good evidence of the requisite concurrence. Smith had procured the requisite certified concurrence by his creditors, and they all signed the discharge except Selbie, who, however, had drawn a composition on the bill for £350. Smith's, advances for Mrs Selbie were subsequent to the date of the trust. It was therefore pleaded by Scott, that the whole debt of £350 was discharged under the trust, and that as the advances by Smith were subsequent to it, they were not subject to any set off whatever. ^*

The Lord Ordinary “found the defender liable for the sum with interest, as libelled, advanced by Andrew Brown and Alexander Smith on account of the defender's wife, Mary Smith or Selbie, under deduction of the value of the articles of furniture which are admitted to have been left by Mrs Selbie in her brother's house when she was removed to the lunatic asylum at Dundee; and allowed an account of the said articles to be given in, and the defender to put in special objections to the same, if so advised.” ^†

Selbie reclaimed.