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. II.

Effect of the Dissolution of the Marriage, as to the Wife's Moveable Debts.

Wilkie
v.
Stuart and Morison

Date: 23 January 1678
Case No. No 80.

Upon a decree obtained against a wife, horning, denunciation, and arrestment, followed. After this, the wife died. Found that poinding or decree of furthcoming not having proceeded during the marriage, the husband was free.

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Agnes Wilkie having pursued Christian Morison, spouse to George Stuart, as heir to Henry Morison, to fulfil the contract of marriage betwixt the said umquhile Henry Morison and the said Agnes, and recovered a decreet against the said Christian aud the said George Stuart her husband for his interest; whereupon she arrested certain sums belonging to George, and charged and denounced him upon the decreet; and Christian Morison being now dead, she insists now against the said George, as being liable jure mariti, not only by the decreet against him as husband, but by the arrestment and horning; and also against Mr Henry Morison as heir to Christian. It was alleged for George Stuart absolvitor, because he being liable, and decerned only jure mariti, his wife being dead, and that interest ceasing before poinding or decreet, for making furthcoming, he and his means are now free; for by our law, there is a communion of moveable goods and debts between man and wife, by an universal society in moveables; so that without consideration of what moveables or debts either party had before their marriage the moveable debts of either affect the whole moveables of both, if execution be used during the marriage, poinding or adjudging these goods or moveable sums to the creditor of either husband or wife; but after the death of either party, that universal society of moveables is dissolved; and law hath determined the division thus, “That the wife has the third, if the children be forisfamiliate, and the half if there be none;” the husband's moveable debts being taken off the whole head; and therefore George Stuart can be liable no further than as to his defunct wife's share of the moveables, which must proceed by confirmation of her testament; and can be liable no further, as being lucratus by the marriage, in so far as the benefit arising from the marriage exceeds onera matrimonii, and the hazard of the wife's provision; that being only competent when the wife has no other estate; but here the wife has a visible estate, whereunto Mr Henry Morison succeeds, and should be first discust; for marriage inferring an universal society, and importing a legal assignation, whereby the husband may freely dispone of the whole moveables, during the, marriage; that assignation is most favourable, and though in some part it were gratuitous, yet it were only quarrelable by the creditors preceding the marriage, as being fraudulent in their prejudice; which could not take place if there were another visible way to affect the estate, so that the wife by the marriage was not rendered solvent.

The Lords found, that seeing, poinding, or decreet for making furthcoming, did not proceed during the marriage, whereby the moveable rights of the husband were transmitted to the wife's creditor, that he was free, notwithstanding the decreet, arrestment, and horning; albeit the creditor might insist against the donatar of the husband's escheat, for the debt of the wife contained in the horning, for which the husband was denounced; and therefore sustained no process against the husband until the heir of the wife were first discust.

Fol. Dic. v. 1. p. 391. Stair, v. 2. p. 601.