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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burns v. Burns [1879] ScotLR 17_223 (9 December 1879) URL: http://www.bailii.org/scot/cases/ScotCS/1879/17SLR0223.html Cite as: [1879] ScotLR 17_223, [1879] SLR 17_223 |
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Page: 223↓
In a petition by a husband for recal of inhibition and arrestments used against him by his wife on dependence of an action for separation and aliment at her instance against him, held that the diligence was competent, the summons of the depending action concluding for payment of aliment, and that recal could not in the circumstances be granted without substantial caution, there being evidence that the husband was in meditatione fugæ.
Michael Burns presented this petition to the Court for recal of inhibition and arrestments used against him by his wife on the dependence of an action at her instance against him. The summons was raised on October 30, 1879, and concluded for separation on the ground of cruelty, and for aliment to the amount of £750 per annum, to be payable quarterly in advance. On the dependence of the action, and under warrants contained in the summons, Mrs Burns on 19th November 1879 recorded a notice of inhibition against the petitioner; and on 25th November she caused arrestments to be used in the hands of Messrs Curror & Cowper, S.S.C., to the amount of £10,000, and to the amount of £3000 in the hands of the Royal Bank of Scotland, Edinburgh. The petitioner stated that Mrs Burns had left his house at Kingussie on September 24, 1879, and had not since resided with him; that since then he had paid her aliment at the rate of £150 per annum;
Page: 224↓
and he prayed the Court to recal the inhibition and arrestment, with or without caution. The respondent Mrs Burns lodged answers stating that the diligence was necessary in consequence of the petitioner being in the course of putting away his funds with the avowed intention of defeating her claims, and that she was willing to have it recalled on caution.
A letter was produced of date 17th September 1879, addressed by the petitioner to a daughter, and admitted to be in his writing, which contained these words—“Oh, my poor girls, my poor heart is sore for you all. What shame and disgrace hangs over you all. I must try and make the best of matters and leave the place, if not the country, if I can get a round sum for Mauldslie.”
A letter was also produced of date September 22, 1879, from Mr Curror, S.S.C., to Mrs Burns, in the following terms—“By request of Mr Burns I forward herein bank order in your favour for £37, 9s. 5d., as a quarter's allowance for your own use. He expects you will find a house for yourself, as he declines to live under the same roof with you again. A similar sum will be sent you quarterly, in advance, hereafter. He has not gone into explanations with me, and I only obey his instructions in forwarding the cash.”
The petitioner argued—The diligence was incompetent. Inhibition could not be used on dependence of a purely consistorial cause. The wife here was not a proper creditor, and the aliment sued for was not a proper debt, but only a contingent claim, depending subsidiarily (just as expenses in an ordinary case) upon the success of the principal demand, i.e., for separation. If the recal of the diligence were refused, that would tend to give a wife successive powers as against her husband. In the circumstances it should be recalled without caution.
Authorities—Fraser on Husband and Wife, i., 579, and authorities there, especially Fairley v. Fairley, May 21, 1814, n.r., 2 Bell's Comm. 144 (5th ed.); Glenbervie, 1638, M. 6053; Ketchen v. Grant, July 5, 1871, 9 Macph. 966; Weir v. Otto, July 19, 1870, 8 Macph. 1070; Gordon v. Duncan, March 8, 1827, 5 S. 544.
Replied for the respondent—The diligence was quite competent both on principle and in practice, the summons of the depending action containing a pecuniary conclusion for aliment, and special circumstances being averred, such as the husband being vergens ad inopiam, or, as here, in meditatione fugæ. It was a wife's proper remedy in such a case against her husband to receive aliment for herself. The diligence should not be recalled without substantial caution.
Authorities— Thomson v. Sharp, Nov. 13, 1828, 7 S. 1; Symington v. Symington, Dec. 3, 1875, 3 R. 205; Anderson v. Anderson, Nov. 18, 1848, 11 D. 118.
At advising—
I have no doubt as to the mere competency, but I also think that on the doctrine of Symington's case a wife is not entitled in suing for aliment to use diligence on dependence if the husband is solvent, and it is not shown that he had any intention of leaving the country or of putting away his funds for the purpose of not fulfilling his contract to her.
The question is, Whether there is sufficient evidence here that the defender in this action of separation and aliment is in either of these two positions? He is certainly not insolvent nor vergens ad inopiam; but we have a letter, which is admittedly in his own handwriting, and of which no intelligible explanation has been offered to take off the effect of the words used—a letter plainly showing the existence in his mind on the 17th September last of an intention to realise his funds and leave the country; and about the same time he directs his agent to write and say that he can no more live under the same roof with Mrs Burns, but will pay her a certain aliment by quarterly advances. In these circumstances I think the diligence here is justified; and being competent, the only question appears to me to be, on what conditions the petitioner is entitled to have the inhibition recalled. I am not disposed to take an extravagant view of the wife's rights, nor to measure those rights by the conclusions of her summons; but even taking the low estimate of the petitioner himself, who proposes to give her about £150 a-year, we must see that some security is granted which will give the wife a reasonable assurance of sufficient aliment in the event of his threat of leaving the country being executed. I should suggest that we should not recal this inhibition except upon caution to the extent of £4000.
Page: 225↓
Not only do I see no principle against the competency of such an inhibition, but no direct case has been referred to in which it has been found incompetent. I cannot so construe any of the cases, and I think it would require very strong authority to affirm the proposition.
The question of circumstances in this case is attended with no difficulty. If it is necessary that there should be special circumstances to justify the diligence, I think we have them here. We have the husband's statement under his own hand that he has or had it in contemplation to realise his admittedly large means and to leave the country. I think this is a case in which we should insist upon caution, and to a substantial amount; for it might be of such amount as to stand in the way of the defender in the view of his realising his estate and leaving the country. I think the amount proposed by your Lordship seems very moderate, and I do not see that anything less could be expected to effect the object in view.
The Court pronounced an interlocutor granting the prayer of the petition to the effect that the arrestments might be loosed upon caution being found to the amount of £4000.
Counsel for Petitioner—Dean of Faculty (Fraser)— Guthrie. Agents— Mason & Smith, S.S.C.
Counsel for Respondent— Lee— M'Kechnie. Agent— H. W. Cornillon, S.S.C.
