Scottish Court of Session Decisions

I do not consider that there is any good objection to the pursuer's title to sue. The defender maintained that her husband should himself have sued, and in any case that the doctor should have sued directly for his account; but if that were the only difficulty—if, for example, the pursuer was not the father of the invalid but a stranger, and if it were also clear that the defender was in law liable for her husband's aliment, I should not, I confess, have much doubt of the pursuer's title to sue. He (the pursuer) has not the less furnished the aliment and the medical attendance sued for because he has procured the same on credit and has not yet paid the debts which he has thus incurred.

The first question however is, whether it is not a sufficient answer to the pursuer's claim that he is the invalid's father, and is thus himself liable super jure naturoe to aliment his son and furnish him with the other necessaries which he requires. The defender maintains the affirmative, and I do not think it doubtful that she is right, unless it can be shown not only that the defender, as the invalid's wife, is liable for her husband's aliment, but also that she is liable primo loco, and moreover that the circumstances are such as to exclude the presumption that the aliment, &c., in question was furnished ex pietate paterna, and cannot therefore found a claim of debt against any third party.

Now, upon both of those points I am compelled to hold that the weight of argument is against the pursuer. Esto that a wife who has separate estate is on some ground or other liable to support her indigent husband, I am not able to find sufficient grounds for holding that her liability is any other higher or more primary than the father's liability. She is certainly not liable super jure naturoe. The relationship between husband and wife is one arising entirely out of contract, viz., the contract of marriage, and assuming it to be an implied incident of that contract that the wife if possessed of separate means shall be liable to aliment her indigent husband, I have not been furnished with any authority or any argument for the proposition that this liability is to be held as primary and comes before, for example, the liability of a son, or, as here, the liability of a father. But, in the next place, even if this were otherwise, and if the wife was liable primo loco, it is I think settled that except in very special cases aliment furnished by a person subsidiare liable ( e.g., a grandfather) cannot be recovered from a person primarily liable ( e.g., a father), at all events until after a demand has been made for relief, and there has been a refusal or failure on the part of the person primarily liable to do what is requisite. This doctrine is illustrated by a variety of cases which are collected in Lord Fraser's work on Parent and Child, at p. 101, and it appears to me to be conclusive against the pursuer's case so far at least as regards the period prior to 22nd April 1889.

But while these considerations may be enough for the decision of the case, I am not, I confess, satisfied that the pursuer would have here succeeded. Even if he had been a stranger, and the question had simply been the general question whether a wife with separate estate is liable to aliment her indigent husband—this is a question on which, so far as I can find, there is an almost entire absence of authority. For any data which can be appealed to appear to me to relate to a somewhat different question, viz., the liability of a wife with separate estate to contribute to the expenses of the household, e.g., her own aliment and that of her and her husband's common children. The question, therefore, which is here at issue must be considered as open, and, as I before observed, the wife's liability, if it exists, must rest entirely on contract—that is to say, must rest on something implied by law in the contract of marriage. Now, taking the contract of marriage as it stands, or rather as it stood, at common law, it was, it rather seems to me, impossible that any liability such as that suggested should attach to the wife. For at common law the wife's whole moveable estate passed upon marriage to her husband, and the fruits of her heritable estate were in the same position. She, therefore, apart from special paction, had nothing wherewith to aliment anybody, and if by special paction the spouses varied the legal incidents of their marriage, the variation required to be expressed, and only operated so far as expressed. Prior, therefore, to the recent Married Women's Property Act, I hold the suggested liability excluded by the very first principles of the marriage law, and if that was so and still is so at common law, I cannot hold that the Acts in question make any difference. For those Acts carefully express the consequences which are to follow from the changes which they introduce, and the imposition of any new liability on the wife in the case of her husband's indigence is not one of them. The law therefore on that subject remains in my opinion as before.

It was no doubt argued that because the husband was bound to aliment the wife the obligation must be reciprocal, at all events when, as now, the spouses' rights in their respective estates are in law equal. But this argument appears to me to overlook two points, viz.—(1) That at common law the nusband's position was altogether different from the wife's, he being not only the breadwinner and head of the family but having also the entire administration of the wife's estate as well as his own; and (2) that the obligation of parties being established on this footing, recent legislation cannot be held to have made any difference in respect that, as I have already stated, that legislation proceeds on the principle of expressing fully the alterations on the rights and obligations of the spouses which are to follow from the changes in the marriage law which it has introduced.

On the whole, therefore, I regret to say that I feel bound to assoilzie the defender.

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