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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macallan v. Alexander [1888] ScotLR 25_606_1 (7 July 1888)
URL: http://www.bailii.org/scot/cases/ScotCS/1888/25SLR0606_1.html
Cite as: [1888] ScotLR 25_606_1, [1888] SLR 25_606_1
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SCOTTISH_SLR_Court_of_Session
Page: 606↓
Court of Session Inner House First Division.
[Sheriff of Aberdeen, Kincardine, and Banff.
v.
Facts:
Held that a husband who had married subsequent to the Married Women's Property Act, 1877, and who had not been lucratus by the marriage, was not liable to aliment his mother-in-law.
The Married Women's Property Act, 1877, provides by sec. 4—“In any marriage which takes place after the commencement of this Act the liability of the husband for the antenuptial debts of his wife shall be limited to the value of any property which he shall have received from, through, or in right of his wife at or before or subsequent to the marriage.”…
Mrs Ann Angus or Macallan, a widow, residing in Gerrard Street, Aberdeen, raised an action in the Sheriff Court at Aberdeen against William
Page: 607↓
Alexander, Holbora Street, Aberdeen, her son-in-law, praying that he should be ordained to pay her aliment at the rate of two shillings per week from 28th September 1887. She stated that she could earn two or three shillings per week, but that she had two young children entirely dependent upon her. The defender stated that he was married on 15th December 1882 to the pursuer's daughter, that he was not lucratus by the marriage, that he had a wife and three children to support, and that his wages were nineteen shillings per week.
These statements were admitted by the pursuer.
She pleaded that the defender being her son-in-law was bound to contribute to her maintenance as she was in indigent circumstances.
The defender pleaded, that as he was married subsequent to the passing of the Married Women's Property Acts, 1877 and 1881, and was not lucratus by the marriage, he was not bound to aliment his mother-in-law.
On 31st December 1887 the Sheriff-Substitute ( Brown) sustained the 1st plea-in-law for the defender, and assoilzied him from the conclusions of the action.
The pursuer appealed, and on 9th March 1888 the Sheriff ( Guthrie Smith) dismissed the appeal, and affirmed the interlocutor of the Sheriff-Substitute.
The pursuer appealed to the Court of Session, and argued that the Married Women's Property Act, 1877, did not relieve the defender of the liability he was under at common law— Moir v. Reid, July 13, 1868, 4 Macph. 1060; Foulis v. Fairbairn, July 20, 1887, 14 R. 1088; 40 and 41 Vict. cap. 29, sec. 4; 44 and 45 Vict. cap. 21, sec. 1, sub-sec. 3; Stair, i. iii., 5.
Counsel for the respondent was not called upon, but reference was made to the case of Wishart & Dalziel v. City of Glasgow Bank, March 14, 1879, 6 R. 823.
At advising—
By the judgment of this Court in the cases of Moir and Foulis we held that the husband of a woman who is in law liable to support her parents became liable for this burden, and for this reason, that he became responsible for his wife's antenuptial debts of all kinds, and among these antenuptial debts was the obligation to support her parents.
The liability to contribute arose not from contract but from natural obligation. It was, as Lord Shand pointed out, very much the same as if the wife had prior to her marriage undertaken a cautionary obligation upon which, however, she had not been sued till after her marriage. The debt nevertheless remained an antenuptial one.
This case in some respects resembles the case of Wishart, 8 R. 74, which we decided some time ago, where a party held certain shares in a bank upon which during his lifetime no calls were made. His executors were, however, called upon to make heavy payments, and we held that the debt was one which was due and resting-owing from the deceased although it was not enforced till after his death.
The clause of the statute upon which the judgment of the Sheriffs is founded is this—[ His Lordship here read the clause of the statute above quoted.] For the reasons I have stated, namely, that this is an antenuptial debt of the wife's, and that the respondent got nothing at or by his marriage, I am for adhering to the Sheriff's interlocutor.
The Court refused the appeal.
Counsel for the Appellant— J. P. Grant. Agent— J. D. Turnbull, S. S.C.
Counsel for the Respondent— Craigie. Agents— Lyle & Wallace, Solicitors.