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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Millan v. M'Millan [1871] ScotLR 8_688 (20 July 1871) URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0688.html Cite as: [1871] SLR 8_688, [1871] ScotLR 8_688 |
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Page: 688↓
A husband in receipt of an annual income of £640 having deserted his wife, found liable to her for aliment at the rate of £140 per annum; but arrears of aliment refused, on the ground that the husband was liable for the debts contracted by his wife for her maintenance.
This was an action raised in October by Mrs M'Millan against her husband, who was a pawnbroker in Glasgow, for decree of £150 per annum as aliment from the term of Martinmas “next, 1870,” and also for £50 as aliment from the date of the pursuer's being excluded from the defender's house till that term.
After a proof, the Lord Ordinary ( Jerviswoode) pronounced an interlocutor in the following terms:—“Finds that on or about the 12th July 1870 the defender removed or excluded the pursuer from the house in which, at the said date, they had their residence as married persons, and thereafter refused, and still refuses, to admit the pursuer to the said house, or to receive her therein: Finds that the defender has not established by proof facts relevant or sufficient to warrant or to justify such refusal; and with reference to the foresaid findings, finds as matter of law that the defender is liable in aliment to the pursuer; and farther finds it proved that the defender is in receipt and in possession of an annual income of £640 or thereby: Finds, with reference to the preceding findings, that the defender is liable in payment to the pursuer in aliment at the rate of £140 sterling per annum, payable to her at the terms, and in advance, as concluded for in the summons; and is also liable in payment to her of the sum of £46 sterling, in name of aliment, from the said 13th day of July 1870 until the term of Martinmas thereafter, together with interest at 5 per centum per annum on each of the said termly payments, as concluded for in the summons, and decerns for payment accordingly—but under deduction always of the sums of aliment already decerned for in favour of the pursuer.”
The defender reclaimed.
Fraser and Black argued that the amount given by the Lord Ordinary was excessive. Arrears of aliment should not be given, as the husband was responsible for the debts contracted by his wife; Donald v. Donald, 22 D. 1118; Macnaughton, 12 D. 703.
Shand and R. V. Campbell for the respondent.
As to the arrears, it is a wholesome rule that a wife's allowance is not to be increased on account of debts for which her husband is liable. The husband here has no defence against payment of the accounts referred to, if the furnishings were made and justly charged.
I would therefore propose that the interlocutor of the Lord ordinary be altered as to the arrears, in respect the husband is liable for all his wife's just debts already incurred. Quoad ultra I would adhere.
The other Judges concurred.
Solicitors: Agent for Pursuer— T. F. Weir, S.S.C.
Agents for Defender— Muir & Fleming, S.S.C.
