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Scottish Court of Session Decisions >>
Sir James Cunningham v Thomas Dalmahoy. [1662] Mor 5870 (1 February 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor1405870-082.html Cite as:
[1662] Mor 5870
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.
Sir James Cunningham v. Thomas Dalmahoy
Date: 1 February 1662 Case No. No 82.
A husband found liable in his wife's debt, though not established against him during the marriage.
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Sir James Cunninghame pursues Thomas Dalmahoy, and the tenants of Pollomount, to make payment to him of the mails and duties of the lands of Pollomount, resting at the death of the late Dutchess of Hamilton, because she had granted bond of L. 500 Sterling to the pursuer, to be paid after her death; and for security thereof, had assigned the mails and duties of her liferent lands of Pollomount, which should happen to be due at the time of her death. It was alleged for Thomas Dalmahoy her second husband, absolvitor, because these mails and duties belonged to him jure mariti, neither can he be liable for this debt jure mariti, because it was not established against him during the lady's life; neither could be, because the term of payment was after her death. The pursuer answered, That he did not insist against Thomas Dalmahoy as husband, but as intromitter with the rents of Pollomount, due at the Dutchess' death, wherewith he hath meddled since, which could not belong to him, jure mariti, being assigned before the marriage; and if they could belong to him jure mariti, yet it must be with the burden of this debt.
The Lords repelled the defence, in respect of the reply, for they thought a a husband, albeit he was not liable simply for his wife's debt, post solutionem matrimonii, yet that he should have no more of the wife's means, jure mariti, but what was free of debt, and so behoved to pay her debt, so far as he enjoyed of her means.
Fol. Dic. v. 1. p. 391. Stair, v. 1. p. 90.
*** See Gilmour's report of this case, No 55. p. 2816.
