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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maclure v. Maclure [1910] ScotLR 247 (08 December 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0247.html Cite as: [1910] SLR 247, [1910] ScotLR 247 |
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Page: 247↓
[Sheriff Court at Fort-William.
The tenant of an hotel requested his wife to remove from the hotel, but offered to pay aliment. On her refusing to do so, he raised an action in which he craved the Court to ordain her to remove from the hotel, and to interdict her from returning thereto.
Held that the pursuer was entitled to the warrant and interdict sought, — per Lord President and Lords Kin-near and Mackenzie—on the ground that he was entitled to exercise his right of property in the hotel against his wife as if she had been a third party; per Lord Johnston, agreeing with the opinion of the majority of the Judges in Colquhoun v. Colquhoun (1804), M. App. Hus. and Wife, No. 5, on the ground that the removal of his wife from his place of residence fell within the scope of his curatorial right over her.
On 10th March 1910 Malcolm Maclure, hotel-keeper, Arisaig Hotel, Arisaig, Inverness-shire, raised an action in the Sheriff Court at Fort-William against Mrs Ann M'Intyre or Maclure, his wife, residing with him in the hotel, and in the initial writ he complained that his wife was of intemperate habits, and that she refused to leave the hotel although he was willing to make her an alimentary allowance. He averred that his business of hotel-keeping was being seriously injured in consequence, and he craved the Court “to ordain the defender, his wife, to remove from the hotel at Arisaig aforesaid occupied by the pursuer, on a charge of seven days, and, in the event of her failing to remove within the above period, to grant warrant to officers of Court summarily to eject her from the said hotel, and further to interdict her from returning to said hotel or such other hotel or dwelling-house the pursuer may occupy, or from molesting or interfering with pursuer or any member of his family, and in the event of her opposing this application to find her liable in expenses.”
The following narrative is taken from the opinion of the Lord President, infra:— “In this case the pursuer is a hotel-keeper and the defender is his wife, and the crave of the writ is that the Court should ordain the defender to remove from the hotel on a charge of seven days, and in the event of her failing to remove should grant warrant to officers of Court summarily to eject her from the hotel, and further, should interdict her from returning to the hotel.
“The averments on which this crave is based explain that the defender has been for a long time persistently of intemperate habits, and that her presence in the hotel is detrimental to the business which the pursuer carries on in the hotel. The pursuer admits that the hotel is his home, and that he lives there with the defender and her children; and he offers to pay a sum of aliment at the rate of £60 per annum for so long as he excludes the defender from living with him in the hotel. The defender put in defences, in which, while admitting intemperance to a certain extent, she denied that the intemperance had been of such a character as to prevent her attending to her duties, and maintained her right to remain in family with the pursuer and the children.
The Sheriff-Substitute (Davidson), before whom the case depended, allowed a proof on this matter of the intemperance, and also on the question of the pursuer's income, and he eventually [on 23rd June 1910], after certain findings, which I may say affirm generally the pursuer's rather than the defender's view as to the intemperance, finds in law ‘That the foregoing findings in fact warrant and entitle the pursuer to remove the defender from the Arisaig hotel, and to apply for and obtain the authority of the Court to that effect; therefore ordains the defender to remove from the said hotel upon a charge of seven days from and after the date of charge; and in the event of her failing so to do grants warrant to officers of Court to summarily eject her from the said hotel, subject to the condition that the pursuer shall before extract find caution to the satisfaction of the Clerk of Court for the regular payment of £5 per month to the defender while the pursuer's circumstances continue substantially as at present, and until such time as the pursuer shall receive the defender into his house, or until the rights of the parties shall be finally settled in a court of law; further, grants interdictas craved.’ An appeal was taken against that judgment to the Sheriff (Wilson), who [on 11th August 1910] affirmed simpliciter the interlocutor of the learned Sheriff-Substitute, and the present case is an appeal from that interlocutor of the Sheriff to your Lordships.”
Argued for the appellant (the defender)—The action was incompetent. There was no authority for it, and the decree which the pursuer sought was radically opposed to the matrimonial obligation to adhere at bed and board. The Court would not interfere with the fulfilment of that obligation except by a decree of separation or divorce— Chalmers v. Chalmers, March 4, 1868, 6 Macph. 547, Lord President Inglis at 550, 5 S.L.R. 357; Fraser, Husband and Wife, 877; Erskine, i, 6, 19; Stair, i, 4, 9. The pursuer was not entitled to a separation or divorce, but the decree here sought would have the same effect as a decree of separation or divorce, for it would compel the wife to live apart. There was no authority for such a decree. The case of Colquhoun v. Colquhoun, 1804, M. App. 1, Husband and Wife, No. 5, relied on by
Page: 248↓
the pursuer, merely decided that the Court would not take any active steps to interfere with a husband in his actings towards his wife. In the same way, although the Court would enjoin the duty of adherence in an action of adherence, it would not actually enforce specific performance of the duty, and a fortiori it would never intervene by a decree such as the pursuer sought which would specifically authorise a breach of the duty of adherence. The other case relied on by the pursuer, viz., Webster or M'Intyre v. M'lntyre, Hume's Session Papers, Summer 1820, No. 26, also did not support his contention, because in that case the house was not the home, and the question in it was merely one of property. If the decree which the pursuer sought were granted, it would make it impossible ever after for the defender to obtain a separation or divorce on the ground of desertion. With regard to the pursuer's right of property in the hotel, whatever this right might be, it could not determine the question in the present case, which was one of status. Moreover, all rights of property were qualified by any contracts the owner of the property might have entered into, and the pursuer's right of property in the hotel must be held to be qualified by the contract involved in his marriage. In any event the pursuer's right of property as well as his curatorial right must necessarily suffer limitation if it encroached on the equally well-founded duty of adherence. Nimme-quen v. Teviot, 1703, 4 Brown's Supp. 568, was referred to. Argued for the respondent (the pursuer)—This was a perfectly competent action — Webster or M'Intyre v. M'lntyre, cit. sup.; Fraser, Husband and Wife, 870. The paramount right of each of the spouses was absolute liberty— The Queen v. Jackson, [1891], 1 Q.B. 671, Lord Chancellor Halsbury at 680—and the law had no special regard for the matrimonial home. The case of Colquhoun ( cit. sup.) recognised the right of a husband to put his wife out of the house, and it supported the pursuer's contention that the rights of a husband in his property were not different from those of other owners of property. In giving assistance to a husband in connection with his civil rights there would be no trenching on the consistorial rights of either spouse and the decree which the pursuer sought would not be res judicata on any question of status. It would not entitle the pursuer to neglect his conjugal duty of going to see his wife and cohabiting with her from time to time, and it would not bar an action of separation or divorce at her instance— M'Ewan v. M'Ewan, 1908 S.C. 1263, 45 S.L.R. 923. Mackenzie v. Mackenzie, December 21, 1892, 20 R. 636, aff. May 16, 1895, 22 R. (H.L.) 32, 30 S.L.R. 276, and 32 S.L.R. 455, was referred to.
At advising—
In the first place, the matter appears to me to be really settled by the authority of the case of Colquhoun. That case was decided long ago, but its authority has never been doubted. It has been quoted as the ruling authority by, I think, all writers on the subject since that date, and it was accepted by the late Lord Fraser as an authority in his well-known work on Husband and Wife. The circumstances in Colquhoun were that Colquhoun intimated to his wife that he did not intend to allow her to come into his house, and that he invited her to take up her abode in a separate residence which he had procured for her in Edinburgh. Lady Colquhoun then raised an action in which she asked the Court to interdict Colquhoun from keeping her out of his own residence, but that petition was refused. Now your Lordships will see that the circumstances there are really precisely the same as in the present case, with just these two differences—first, that the offer to the lady there was the offer of a specific dwelling-place, whereas here, on the other hand, she had been offered money to procure herself lodgings. I think that that obviously cannot make any difference. The second difference is that, so far as the Court proceedings were concerned, Lady Colquhoun in that case was the petitioner, and here the husband is the petitioner or pursuer. It was argued to us at the Bar that that did make a difference, and that the Court should do nothing to aid the husband in excluding the wife from his house. As to this I think that it would be a very curious result that the determination of the matter should depend upon the mere accident of who stood pursuer before the Court. In other words, that Colquhoun having been clever enough or strong enough to manage to keep his wife out of the house, should then be successful in resisting any efforts which she made in asking the Court to put her in again; while, on the other hand, in a case where a husband did not, as it is phrased in one of the books, take his wife by the shoulders and put her out, he should not have the assistance of the Court simply because he did not choose, so to speak, to assault his wife. I do not think that that is a state of matters that would commend itself to us; and accordingly I confess that I think that Colquhoun is a direct authority upon the point.
But I should like to say a word or two more about the case of Colquhoun, for this reason: The actual judgment is merely given in result, but there is a long report in Morison which purports more or less to give the observations of the Judges upon both sides (for there was a division in the
Page: 249↓
Accordingly I think—and I would say this with great confidence were it not for the eminence of the learned judges who long ago decided the case upon the other ground—that it is safer to rest the matter upon the mere right of property, and not to mix it up with that with which, in my opinion, it has nothing to do, namely, the question of the inter-conjugal relations which are enforced by consistorial process. Of course it follows for similar reasons that a wife could have the assistance of the Court in turning her husband out of a house which belonged to her. No doubt the exact opposite of this was decided in the old case of Webster, which is not reported; but then that decision was given at a time when the jus mariti was in full force, and one can easily see that that case was decided simply on the ground that the husband through his jus mariti had such a regulation of his wife's property that he could insist upon her quitting her own house. But now that the jus mariti no longer exists, I think that the result would be exactly the opposite.
Accordingly I think that the judgment of the Sheriff is right. But his interlocutor is not quite right. The crave of the pursuer, I think, goes too far. After asking that the defender should be ordained to remove and that a warrant should be granted to eject her, the crave proceeds, “and further, to interdict her from returning to said hotel or such other hotel or dwelling-house the pursuer may occupy, or from molesting or interfering with the pursuer or any member of his family.” I think that that goes too far. In the first place, to interdict her from “such other hotel or dwelling-house” is looking too much to the future. One does not know that she would molest him in any other hotel or dwelling-house; and accordingly I think those events must be left until they occur. And then “from molesting or interfering with the pursuer or any member of his family” is also inexpedient, more especially as there are here children of very tender years. Now it is quite clear that we are not here in any consistorial matter, and therefore we are not to decide, and cannot decide, upon the question of access to children. That, if parties do not agree about it, will have to be regulated in the ordinary way in a consistorial application.
I should like to add also that although, as I have put it, the matter depends upon patrimonial rights and nothing else, still I do not think this Court is ever bound to exercise an equitable jurisdiction (which it always does when it deals with interdict) without being sure that the result of its own judgment is not necessarily to cause another wrong; and accordingly I think here that we should not have pronounced such an order if there had not been at the same time an undertaking on the part of the husband to give a certain sum in name of aliment to the wife. The Sheriff-Substitute has thought that the sum preferred is sufficient, and that is quite enough, I think, for the Court. But here again I would point out that we are not sitting in a consistorial application, and that the question of the true amount of aliment is one that necessarily must be left open. If the parties do not agree with what has been done, it must be left open for determination in a proper process.
Page: 250↓
I propose therefore that your Lordships should recal the interlocutor as it stands and repeat the interlocutor down to “grants warrant to summarily eject her from the said hotel,” and grant interdict against her returning to the said hotel, and there stop. I do not think it is necessary to put in the matter about finding caution to the satisfaction of the Court, because I think we shall be content if we get now, from the counsel at the bar, an undertaking that the sum of £60 a-year will be regularly paid until, of course, either the husband takes the wife back again, or the wife has the matter settled by an application in Court. I understand that counsel will give that undertaking; and for the rest I think the interlocutor should stand.
I agree that it is very material to keep in view that this is not a consistorial action and that we are not in a position to deal with or to determine the rights as between husband and wife at all. If it is necessary, this may be determined, in so far as it is necessary, in a proper action for that purpose. We are not to decide anything as to the defender's right to maintenance, or to the custody of her children or access to her children, or the extent to which the duty of adherence may be enjoined upon the husband. All these are matters for a different process. But in the meantime the pursuer is entitled to protect his home and his business from the disastrous intrusion which she makes.
Further, the Court ought not to interfere if their action in preventing a public impropriety in one direction is to result in a shock to public decency in another. They must, I think, require assurance that if they intervene to remove the wife from her husband's house her immediate wants will be provided for until she can have these regulated either by agreement or by a proper action for aliment.
It is true that there is no direct example of an application precisely the same as the present, but I think that the course which your Lordship proposes to take is in accordance with the judgment in the cases of Colquhoun and Webster to which I have referred.
But the fact that the Sheriff has entered upon the question of provision for the wife's wants, too much as if he were determining a question of permanent aliment, necessitates the alteration of his interlocutor which your Lordship has suggested. Otherwise he has, I think, come to a just conclusion in the case before him.
I should like, however, to point out that in my opinion the matters are in a different position now from what they were when the case of Colquhoun was decided. Since the passing of the Married Women's Property Act it is quite possible that the wife may be proprietor, and she may desire to
Page: 251↓
The Court pronounced this interlocutor—
“… Recal the interlocutors of the Sheriff and Sheriff-Substitute dated respectively 11th August 1910 and 23rd June 1910: Find in fact that the pursuer is tenant of the Arisaig Hotel described in the initial writ, and has requested the defender to remove from said hotel, but she declines to remove: Find in law that the pursuer is entitled to a warrant ordaining the defender to remove from said hotel: Therefore of new ordain the defender to remove from said hotel, and that on a charge of seven days: Interdict her from returning thereto: Remit to the Sheriff to proceed as accords: Of new find the pursuer liable in expenses of process prior to said 23rd June 1910, subject to modification by the Sheriff-Substitute if he shall think proper after taxation: Grant authority to him to modify and decern for said expenses accordingly: Quoad ultra find no expenses due to or by either party, and decern.”
Counsel for the Pursuer (Respondent) — Maclennan, K.C. — Black. Agents — Forrester & Davidson, W.S.
Counsel for the Defender (Appellant) Constable, K.C.— James Stevenson. Agents— P. Gardiner Gillespie & Gillespie, S.S.C.
