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. III.

The husband not liberated by the dissolution of the marriage if lucratus.

Patrick Andrew
v.
Robert Carse

Date: 25 November 1668
Case No. No 84.

A husband, after his wif's death, was sued for the price of wines sold to his wife immediately before the marriage, upon the ground that the property fell to him by the marriage. The defence that the marriage was dissolved in a few months, and the wines returned to the wife's executors, was sustained. For such part of the wine only as was consumed during the marriage, the husband was found liable; but on him lay the onus probandi.

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Patrick Andrew having sold twelve pieces of wine to Margaret Henderson, who kept a tavern, after she was proclaimed to be married to Robert Carse flesher, a part of which wines was vended before the marriage, and a part thereof vended after the marriage, but the marriage dissolving within three or four months by the wife's death, the most part of the wine remained unsold at her death; the merchant pursued the wife for the price, and the husband for his interest, some days before she died; after her death, her husband vended no more of the wine, but caused the magistrates inventory the same, and delivered the keys to them. Patrick Andrew who sold the wine, doth now pursue Robert Carse the husband for the price of the wines; who alleged absolvitor, because there was no ground in law to make him liable for his umquhile wife's contract and obligement ex empto, he being only liable jure mariti; which being dissolved by her death, he is free, for he is neither heir nor executor to her. The pursuer answered, That the husband having allowed the wife to continue the vending of the wine, she was thereby præposita negotiis mariti, and thereby her meddling must be the husband's meddling, who must be liable for the whole price, especially seeing he never made offer of the remaining wine to the pursuer, though he knew his interest, and had pursued him for the price; so that the wines having perished, it must be attributed to his fault; and the merchant, who knew not the condition thereof, cannot lose the same. 2do, The pursuer offered to prove that the defender put in his own nephew to be taverner, after he married the woman. 3tio, The ground in law that the pursuer insists on against the husband is, in quantum lucratus est, by his intromission with the wine, and price thereof, and any thing that has been lost through his fault, is alike as he had been profiter in the whole. The defender answered, That he declined not to be liable, in so far as he was profited, viz. for the price of the wine vended during the marriage, which he was content to refer to the pursuer's probation, how much was vended then; but he could not be liable for what was vended before the marriage, though after the proclamation, much less for what remained unsold after the wife's death; neither was he in any fault by not offering the wine to the pursuer, nor might he lawfully do the same, because the marriage dissolving within year and day, the property of the whole wines returned to the wife's executors, and nearest of kin; and the husband had no interest therein, as he would have had if the marriage had continued year and day; neither had the merchant any right to the wines, (the property whereof was in the wife and her executors) but had only a personal obligation for the price; and therefore he could not deliver the wine, nor meddle therewith, without vitious intromission, so that he did the most exact diligence by inventorying, and delivering the keys to the Magistrates; so that there being ten pieces of wine then in the cellar, the defender could only be liable for so much of two pieces as the pursuer should prove sold during the marriage. The pursuer answered, That the defender having once intromitted and meddled with this parcel of wine, he is in so far lucratus, and he can no more sever some puncheons unspent from the rest, nor one part of a puncheon vended from the remainder; so that he can offer nothing back of the parcel, re non integra, nor can he allege that the whole ten pieces were of the pursuer's wine, because the pursuer offered to prove, that his deceased wife bought other wine from other persons at that time; and it were against law and reason, to put the merchant, who is a stranger, to prove what was vended during the marriage, and how much of the pursuer's wine remained after the marriage, for that was the defender's part to inquire, and not the pursuer's part, who is a stranger.

The Lords found the defender not liable for that part of the wine vended before the marriage, nor yet for what remained unspent after the wife's death, seeing he inventoried and abstained; but they found the husband obliged to prove both what was spent before the marriage, and what of this wine remained after the marriage; if the pursuer proved there were other wines in the cellar; and so found the defender liable for the whole, except in so far as he proved was sold before the marriage, and remained after the wife's death.

Fol. Dic. v. 1. p. 391. Stair, v. 1. p. 565. *** Gosford reports the same case:

Robert Carse, flesher in, Edinburgh, being pursued at the instance of Patrick Andrew for the price of twelve pieces of wine, bought by his wife betwixt their contract and marriage, which was dissolved by her death, within four months thereafter, the defender was only found liable for so much as was vended in his house during the marriage, amounting only to two puncheons; but for the other ten he was assoilzied, seeing they were extant at the time of the wife's death, and offered to be delivered to the pursuer; and that notwithstanding it was alleged that he having married the wife, and lived in family with her, the wines were in his possession, and he might have disposed thereof as he pleased, and therefore was liable in payment of the price.

Gosford, MS, No 52. p. 18.