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.

Marshal
v.
Forrest and her Husband

Date: 15 February 1676
Case No. No 63.

A tutrix being afterwards married, whether her oath in a question with the minor, ought to affect her husband.

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In a pursuit at the instance of a minor against his tutrix, the pursuer having referred to the tutrix's oath, that she had intromitted with diverse particulars belonging to him, the husband of the tutrix alleged, That she could not declare in his prejudice. It was replied, That the pursuer having an action and jus quæsitum competent to him against his tutrix, he could not be in a worse case as to modum probandi by the tutrix's superinducing a husband; and that the intromission of a relict, after her husband's decease, being such as to money, bonds, and many other particulars, as could not be known to any person but to herself, nor proved but by her own oath, it were hard that the minor should be prejudged of his probation by her own deed; and the husband is not in the case where a debt is only to be constituted by the wife's oath, seeing the ground of the debt is constituted by writ, viz. by the nomination or letter of tutory; and when there is a pursuit against any person, that person cannot, by an assignation, prejudge his creditor of his probation by oath; and the minor is more privileged, seeing, by the common law, minors have a tacit hypothec of their tutor's estate; and, by out law, they ought to be favoured, at least so far as it should not be in the power of the tutrix to ruin them, by convoling ad secundas nuptias ante redditas rationes.

The Lords thought the case considerable, and ordained the tutrix to declare; reserving to themselves to consider what her declaration should import.

Reporter, Forret. Clerk, Gibson. Dirleton, No 336. p. 160. *** Gosford reports the same case:

1676. February 11.—In a count and reckoning pursued at the instance of George Marshall, against Helen Basil, his mother and tutrix, and John Forrest, who was curator to the pursuer; the charge being fitted, and the intromissions offered to be proved by the wife's oath, it was alleged, That she could not depone, in so far as her oath should militate against her husband, but only against herself, it being the uncontroverted law and practicque of this kingdom, that a wife cannot depone in prejudice of her husband; so that, unless there had been an action intented against her before her marriage, and she constituted debtor by a decreet, her husband cannot be liable for her debt; and if it were otherwise, a husband's fortune, and his children's of another marriage, might be in perpetual hazard, where her oath was to be taken in favours of her own children of a prior marriage. It was answered, That it being known to the husband that his wife was left tutrix, and was in actual administration before his marriage ante rationes redditas, he could not but foresee that by marriage here he would be liable in law to the pupil; and if her oath should not be taken, the inconvenience would be far greater, seeing she being nominated tutrix, and in familia, and having the sole custody of all money, counts, and moveables, whereof the young children were altogether ignorant therein, by marrying, before count and reckoning with her husband, if he were not liable upon her oath, pupils would be undoubtedly ruined, there being no other manner of probation, especially in this case, where she was tutrix intromitter before the late act of Parliament ordaining inventories to be made.——The Lords did find, that the charge was probable, by the wife's oath, to bind her husband, as being most consonant to law and reason, he himself having been curator, and knowing that she was tutrix, and so constituted debtor to count.

Gosford, MS. No 851. p. 539.