Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION III.

Mutual Duties betwixt Husband and Wife.
Subject_3 SECT. I.

Husband bound to aliment and provide for his Wife.

Campbell
v.
The Laird of Ebden

Date: 25 July 1676
Case No. No 97.

Found in conformity with No 95. supra.

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Lillias Campbell pursues the Laird of Ebden for payment of an account of ware taken off by his Lady, acknowledged by her ticket under her hand, subscribed with her hand, subjoined to the count. The defender alleged, That the Subscription wants witnesses, and therefore at least the receiving of the goods must be proved by witnesses. 2do, That his Lady was inhibited before this account, and thereby the lieges to contract with her. It was answered, That merchants are not obliged to look registers for inhibitions. 2do, That the furniture was competent for a person of the Lady's quality, and therefore must be understood to be necessary, unless the husband prove that his Lady was otherwise competently provided, as was found in the case of the Earl of Monteith, No 95. p. 5879. though his Lady doth not cohabit with him.

Which the Lords sustained.

Fol. Dic. v. 1. p. 392. Stair, v. 2. p. 458. *** Gosford reports the same case:

There being an action before the Bailies of Edinburgh, at the instance of the said Lillias and Robert Brown, her assignee, against the Lady Abden and Her spouse, for his interest, for payment of L. 352, conform to her ticket, subscribed by her at the foot of a merchant account, for merchant ware taken up by her, which was advocated of consent; it was alleged for the Lady's husband, that he could not be decerned to make payment, first, because he offered to prove she was sufficiently provided aliunde in cloaths or other necessaries that she would stand in need of; 2do, That he had served inhibition against her before the taking on of the said debt and account; 3tio, That the ticket being subscribed by the wife only, without his consent, or witnesses, was not binding against them, unless it were proved by witnesses, that the whole particulars were delivered. It was replied to the first, That a merchant account confessed to be only for abuilziements and necessaries suitable to the quality of a wife, was binding against the hasband, seeing merchants cannot know that they are otherwise provided; and if it were otherwise found, it would obstruct all trade and commerce. It was answered to the second, That inhibitions cannot be extended to debar merchants to furnish ware and abuilziements to wives. And to the third it was answered, That merchants accounts are privileged as to the probation, and need not those solemnities requisite in bonds for borrowed money, seeing their count books being subscribed by the party receiver, are Obligatory in law without witnesses, both against the subscribers and their heirs, and against the husbands, who are liable jure mariti for their entertainment. The Lords did find the subscribed ticket obligatory against the husband, unless he would offer to prove that the wife was publicly inhibited at the market cross where the merchant lived, and that she was aliunde sufficiently provided with all necessaries; upon that reason, that without inhibition it was impossible they could know her condition, and so the trust of merchants would be in hazard; and that albeit they were inhibited, yet if they we not sufficiently provided aliunde, husband had no damage, being bound in law provide them; but it being proved that they were inhibited and provided, they found that the husband could not be liable; arid that being not proved, they found that the ticket subscribed without solemnities was obligatory against the husband, seeing merchants who keep shops are not supposed to have witnesses who know that the particulars were delivered, which Often is done by themselves only, having no servant present, and many times but women servants, or one at the most.

Gosford MS. p. 565. No. 884.