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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v Selbie [1835] CA 13_278 (20 January 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0278.html Cite as: [1835] CA 13_278 |
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Page: 278↓
Subject_Husband and Wife—Compensation.—
1. A husband held liable for the board and maintenance of his wife in a lunatic asylum, although previously to her insanity she had left his house, and he had inhibited her, but he was aware that she had been placed there by her relations, and be did not object. 2. A party who had consented to a trust-deed for creditors, under which his debtor was to be discharged, on obtaining the concurrence of a certain number of the creditors, which he obtained—held not entitled to plead compensation on his debt, against advances made for his wife, by his debtor, subsequently to the trust-deed.
Lieutenant Selbie, R. N., married Miss Mary Smith in 1820, who possessed £700, of which one half was secured under an heritable bond, and £350 was on a bill by her brother, Alexander Smith. She was a person of weak mind, and, after repeated disagreements with her husband, she left his house, and refused to return. He used inhibition against her; and she raised an action of aliment, against which the defence was sustained that he offered to take her back to his house. Her friends afterwards became satisfied that it was expedient to place her in the Dundee Lunatic Asylum, and, on a regular medical certificate of insanity, she was admitted there. This was done without the intervention of her husband, but he was fully aware of the proceeding, and of the rate of board at the asylum, and stated no objection. At admitting her into the asylum, her brother and another party (agreeably to the rules) became cautioners for her board, and made advances, amounting to about £160. They drew bills for that amount on her husband, and indorsed them to William Scott, who raised an action for their contents.
Selbie pleaded against the claim generally, that, as his wife had separated from him, and he had used inhibition, and she had been put into the asylum without his concurrence, he ought not to be subjected in payment of the expenses incurred in maintaining her in the asylum, beyond the income arising from her own separate heritable fund of £850.
The pursuer answered, that neither the voluntary separation, nor the inhibition, discharged Selbie's liability to provide his wife in maintenance; that the interest of the heritable bond was not adequate for this purpose, and that whatever was the necessary disbursement for her maintenance, Selbie was bound to pay.
Against the bill indorsed to Scott by Alexander Smith, Selbie pleaded a special defence of compensation under Smith's bill for £350 to Mrs Selbie, and falling under the jus mariti. In answer to this, it was stated that Smith became insolvent in 1826, and that Selbie, along with his other creditors, were parties to a trust deed, in which it was stipulated, that if Smith could procure the concurrence of a certain proportion of his creditors to his
The Lord Ordinary “found the defender liable for the sum with interest, as libelled, advanced by Andrew Brown and Alexander Smith on account of the defender's wife, Mary Smith or Selbie, under deduction of the value of the articles of furniture which are admitted to have been left by Mrs Selbie in her brother's house when she was removed to the lunatic asylum at Dundee; and allowed an account of the said articles to be given in, and the defender to put in special objections to the same, if so advised.” †
Selbie reclaimed.
_________________ Footnote _________________
* Selbie separately claimed deduction for certain articles of furniture left by his wife in Smith's house.
† “ Note.—The defender's wife left his family, and, on account of her desertion, he was assoilzied from an action at her instance for aliment, as he offered to take her back and to maintain her. It appears also that he used inhibition against her. But after she became insane, and was put into the Dundee asylum, the obligation on his part to aliment her again became effectual. If he was not satisfied with the establishment where she was placed by her brother, he had it in his power to remove her. It is proved that he know where she was placed, and the sum charged by the institution for her maintenance.
“The defence of compensation is untenable, in consequence of the defender's accession to Alexander Smith's trust-deed, in virtue of which he drew a dividend, and became bound to discharge the bankrupt. It is not enough to say that he will allow the interest of his wife's money to be applied to her support. If that is not sufficient, he must make up the shortcoming.
“It is alleged that Mrs Selbie, although of a weak understanding, and addicted to intemperance, is not insane, and therefore not the proper inmate of a madhouse. But there is no offer to prove this averment. It is contrary to the medical certificate referred to; and at any rate, if her mind is in the state described by the defender, it was his duty either to take her under his own protection, and place her in a proper situation, or allow her relations to maintain her at his expense.”
The Court unanimously adhered, and awarded against him the expenses incurred since the Lord Ordinary's interlocutor.
Solicitors: D. Grant,— T. Deucher,—Agents.
