Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ALIMENT-HUSBAND AND WIFE.
Subject_3 Aliment to a Wife, not entitled to legal or conventional provisions, found due by the Husband's Heirs.

Mrs Barbara Lowther
v.
Murdoch M'Laine

Date: 15 December 1786

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll. IX. 456; Dict. 435.]

Justice-Clerk. It is admitted by the pursuer, that, if the marriage dissolves within year and day without there being a child born alive, the terce is not due; and that even a formal settlement by the husband will, in such a case, be good for nothing, unless the parties, having the law before their eyes, dispense with it. It would be strange, then, were the widow to be entitled to an aliment, which is the same thing as a terce. If the wife has such a right, so also must the husband. This case must have often occurred, and yet no such claim was ever made. Marriage is juris divini and juris gentium as to its constitution; but the effects of marriage will vary according to the practice of different nations.

Braxfield. The question is, “Whether is the heir of the husband bound to aliment the indigent widow?” Legal and conventional obligations fail by the dissolution of the marriage within year and day, without a living child. But the connexion between husband and wife is so close, that death cannot have the effect of leaving the wife to starve. This principle is from the very nature of man. In the case of M'Culloch against Thompson, the funds belonging to the widow were small, and the Court added to her aliment upon that principle for which I speak. A woman is as much a wife after a month as after a year or ten years: the Justice-clerk talked of the case of courtesy. I hold that an indigent husband must be provided for.

Hailes. The same rules ought to apply to husband and wife, with this difference, that our practice has been more favourable to the wife than to the husband. A continuance of the marriage for a year entitles the wife to a terce: but there must be a living child to entitle the husband to the courtesy. I never heard till now that a husband, having no right to a courtesy, could claim an aliment from the heirs of his deceased wife. That which is called the courtesy of Scotland is not peculiar to our own country. In England it is called the courtesy of England. It prevailed at a very early period in Normandy, as appears from the Grand Coustumer, in the territories of Venice, amongst the Grisons, and, if I mistake not, in the kingdom of Arragon. But I never heard that an aliment was allowed to the husband, when the circumstances of the case debarred him from the courtesy. The case of M'Culloch was not fully argued at the bar: we have been told that the parties understood one another. There was hardly any thing said unless by one judge, (that was Lord Braxfield.)

Monboddo. If I sat here as a legislator I should be clear to alter the practice of Scotland. It proceeds on a gross mistake, as if a dos and donatio propter nuptias, in the Roman law, were like a tocher and a jointure. But errors are not to be extended to consequences: the natural obligation to be alimented continues, however prematurely the marriage may have been dissolved.

Swinton. I should think it proper to inquire, first of all, Whether the pursuer be in indigence? The argument for the pursuer proceeds on the notion of a natural obligation; but that ceases by the death of the party: all that remains is a moral obligation, which law does not inforce.

Henderland. We must suppose that the husband's fortune is sufficient to afford an aliment. Our law is singular in the matter of marriage. By the old Roman law, a wife was one of the husband's family, like a daughter, and she had a share in the husband's succession. Afterwards, the obligation to provide for a daughter was laid on the father. If the wife, by the law of nature, be part of the husband's family, she must be provided by the heir: in all the cases quoted by the defender, except one, there were legal provisions.

Eskgrove. I am none of those who wish to alter the law of the land. We are sometimes forced to determine cases which have never been determined before. The doctrine of the Roman law, misunderstood, has introduced a harsh rule into our law. But we are not bound to go any farther than that rule has gone. Here there are neither legal nor conventional provisions; so we must resort to natural law. The thing pleaded, as a bar to this claim, is the very thing which makes me think that an aliment is due: a like claim would be competent at the instance of a husband in indigence. We are told that it is otherwise in the law of Normandy; but that is not our law, and, I hope, never will. I distinguish between a claim for aliment and a claim for legal provisions.

Rockville. At first I was afraid that so much could not have been said for the claim as I see there is. Without resorting to old decisions, I go to the case of M'Culloch, in 1778, which proceeds on the same principle with this claim.

President. I was not in Court when the decision in the case of M'Culloch was pronounced: if it was not an amicable one I should never have given it. I am an old man, and I do not wish to see any alteration of what I was taught in my youth to be law.

On the 15th December 1786, “The Lords repelled the defences, and sustained the claim for an aliment.”

Act. R. Cullen. Alt. Ilay Campbell.

Diss. Hailes, Justice-Clerk, Swinton, President.

N. B. Some of the judges who carried this question, told me that they did not mean that Mrs M'Laine should have any aliment, in case she married again: if so, they have shown little favour to a handsome young woman of irreproachable character.