Scottish Court of Session Decisions

This was an appeal front the Sheriff-court of Forfarshire, at the instance of Mrs Margaret Philips or Hood, against the Sheriff's interlocutors pronounced in an action for aliment brought by her against her husband, the respondent, William Hood, a guard on the Caledonian Railway at Aberdeen, afterwards a carter in Brechin, and now, since the date of the summons, residing in Brazil, or elsewhere abroad.

It appeared from the condescendence lodged in the Sheriff-court that in April 1867 the appellant had been obliged to separate from her husband in consequence of his alleged ill-treatment of her, and of his alleged drunken habits. A minute or memorandum of agreement of separation between them was duly executed. This agreement set forth as the cause of separation, simply, “dissimilarity of temper and other circumstances,” and in it the respondent agreed to permit his wife and children to occupy certain premises, and undertook to pay her weekly in name of aliment and support for herself and children, at the rate of nine shillings a week. The parties accordingly did live apart from the date of this minute of agreement, but Mrs Hood did not receive her aliment in terms of the agreement. Accordingly, on Nov. 4th 1868, she raised a summons in the Sheriff-court of Forfar, concluding for aliment under the deed of separation, up to the date of the action, under deduction of certain sums paid. In Nov. 1869 she was obliged to apply for a meditatione fugœ warrant against her husband, which was refused, and at the same time raised another action for aliment from the 4th Nov. 1868, in the same Sheriff-court.

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It was in this action that the present appeal was taken.

The respondent's statements went to shew that at the date of the separation, he was a guard on the Caledonian Railway, residing at Aberdeen, and that at first he had paid the stipulated aliment, at least partially. That he had in March 1868 been discharged from the service of the railway company, and then became unable to continue the said payments; that he had gone to his native place, Brechin, where he had ultimately obtained employment at a very much reduced rate of wage, and had been unable to resume his payments to his wife, especially as he had been burdened in addition with the payment of debts incurred by her. That in consequence of her proceedings against him he had lost his employment at Brechin, and was now at Liverpool, endeavouring to obtain an appointment on the railway in Brazil, which he hoped shortly to get. While unable to pay his wife the stipulated aliment, he had several times, judicially and otherwise, recalled the agreement of separation, and offered to take her and their children to his house. This offer he again repeated in this action, and stated his readiness to take them with him to Brazil, in the event of his obtaining the situation which he expected. The appellant replied that these offers, and especially this last one, were quite elusory, and were made for the purpose of evading his legal obligations. In point of fact, since the raising of this action, the respondent had left the country without making any provision for his wife and children, either for their support here or for their joining him abroad. And farther, that though he might have, through his ill-conduct, lost certain situations, he had lately succeeded to a considerable sum of money, amounting to more than two hundred pounds, and therefore was quite able to make the requisite provisions for herself and children.

Such is a narrative of the circumstances in this case, but an objection was taken in the Sheriff-court to the relevancy and competency of the summons. It concluded for the sum of nine shillings weekly, “in name of aliment and support” for herself and two children—“from and since the 4th day of Nov. 1868, and that in one sum, so far as now due and payable up to the date of the present summons, and thereafter weekly, so long as the said William Hood shall, as he has done during the period libelled, live apart and separate from the pursuer and her said children, or shall fail to find security for the future aliment,” &c.

Against this summons the respondent took the following preliminary pleas:—“(1) There is no jurisdiction in this (the Sheriff) Court to entertain an action for permanent aliment at the instance of a wife against her husband. (2) The summons is irrelevant, no ground which the law recognises as sufficient to justify the pursuer in separating from, and remaining separate from her husband being libelled. (8) Generally, the action is incompetent, and the summons irrelevant and defective, and ought to be dismissed.

The Sheriff-Substitute ( Robertson) found “that the summons did not set forth the grounds of action, and that it is, as laid, vague and irrelevant, and, in respect the action is one between husband and wife, and in respect cruelty is averred in the pursuer's condescendence, which, if proved, will justify the Court awarding interim aliment, allows the pursuer to amend her summons if so advised,” &c. In his note the Sheriff-Substitute adverted to the fact that no litigant in the Sheriff-court has any right to trust to a condescendence for disclosing his grounds of action, as a condescendence is entirely in the discretion of the Court.

On appeal the Sheriff ( Maitland Heriot) sustained the appeal, adhered to the interlocutor appealed against so far as it found the summons to be vague and irrelevant, but recalled the remainder, and dismissed the action, on the ground, as stated in his note, that this summons was so very irrelevant and confused that it seemed “hopeless to cure matters by any amendment.”

Against this interlocutor the pursuer appealed to the First Division of the Court of Session. When the case came up for hearing, the Court, before answer, allowed the appellant to lodge a minute of the amendments which she proposed to make on the summons. This was done, and the summons as amended concluded for the same sum “in name of interim aliment,” instead of merely aliment, and that “so long as the said William Hood shall, as he has done during the period libelled, fail to provide for the future aliment and support of the pursuer and said children, and so long as such aliment may be required by them, or until a permanent arrangement of the rights and interests of the parties shall be made by a competent court, which aliment, primo, is due under and in virtue of a certain minute or contract of separation between the defender and the pursuer, dated 5 th April 1867; secundo, is, separatim due in consequence of the defender having, through cruelty to the pursuer, dangerous to her health and life, compelled her and the said children to live separate from him since a date anterior to said 4 th day of November 1868; and, tertio, is in any event due in consequence of the defender having, since a date anterior to said 4 th day of November 1868, wrongfully failed to provide for the aliment and support of the pursuer and the children foresaid, &c.”

These amendments the Court allowed.

Black, for the appellant, pleaded that the action as originally laid was competent, and referred to Ersk. 1, 5, 30, for the principle, and to Soutar's Styles as evidence, of the practice. He admitted, however, that the existing practice in some Sheriff-courts was contrary, and accordingly, in deference to this, the action had been confined to interim aliment. He submitted that under the contract of separation, voluntary though it was, he was entitled to arrears of aliment, and to interim aliment until there should be a bona fide proposal of the husband to provide for his wife at bed and board with himself. He relied upon the following cases— Reid v. Black, Hume, p. 5; M'Leod v. Telfer, Hume, p. 18; Hamilton v. Wylie, 8th July 1824, F. C., p. 583; Grahame v. Grahame, 4 S. 670; Braick, 8 S. 284; Kelly v. Kelly, 9 S. 871; Williamson, 22 D. 599; Cowper, 23 D. 68; Paterson v. Paterson, 24 D. 216; Coutts, 4 Macph. 802.

Fraser, for the respondent, argued, upon the case of Bell v. Bell, 22d February 1812, F.C., that the appellant could not sue upon the contract at all, there having been no judicial separation. It was a purely voluntary contract, which might be ended at the will of either party, and its only effect is to give the husband the plea of personal bar to the wife's claiming more than the aliment agreed upon. He admitted that, were the respondent unwillingly to take back his wife, the Court might give decree for aliment; but he contended, on the principle of Hamilton v. Wylie, 8th July 1824, F.C., he, offering to receive back his wife, could not be held so liable. The cases of Donald v. Donald,

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22 D. 1118, and Malcolm v. Malcolm, Hume p. 2, were also referred to.

At advising—