Scottish Court of Session Decisions

In 1882 Janet Sandison or James obtained decree of separation against her husband William James, and also decree for aliment at the rate of £25 per annum.

On 15th September 1884 James executed a trust-deed for behoof of his creditors, in favour of Mr John Irvine, Lerwick. The trustee entered into possession of his whole estate, and paid the creditors in full.

On 8th July 1885 an arrestment on the decree for aliment was used in the hands of the trustee for the sum of £100 more or less, and after that the trustee paid to the wife the arrears of aliment then due, with interest, and the half-year's aliment due and payable for the current period at Whitsunday 1886.

James then presented this petition for recal of the arrestments, stating there was no debt then due to his wife; that the trustee refused to deliver up the balance of the estate then in his hands—amounting to about £250—until the arrestments were withdrawn or recalled; and that this sum was the sole capital he had.

Mrs James lodged answers to the petition, in which she submitted that in the special circumstances of the case the arrestments should not be recalled except upon consignation of £100, or sufficient caution being found therefor.

The answers contained the following

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statements:—“From the time when the respondent found it necessary to raise said action of separation and aliment, and both before and after she obtained decree therein, the petitioner has systematically attempted to defeat the respondent's just rights, and to conceal his estate from her. During the progress of the litigation the petitioner sold off his stock-in-trade, and sailed from Lerwick with the proceeds thereof, for the purpose, as the respondent believes and avers, of preventing her securing payment of any aliment. This design having been frustrated by use of inhibition against his heritage, he at the proof attempted to establish that said heritage was subject to a burden for nearly its full value, in favour of an alleged partner in business, Felix M'Shane; but the Lord Ordinary (Adam) considered that the alleged burden was only a device to defeat the respondent's claims, and the respondent believes and avers that Mr Irvine did not admit the alleged debt to a ranking on the petitioner's estate. Aliment was accordingly decerned for at the rate of £25 per annum, payable half-yearly, but the petitioner has been very irregular in his payments. The aliment due at Whitsunday and Martinmas 1884 was not paid till April 1885, and the respondent believes and avers that she would not have got payment even then had she not inhibited the petitioner from dealing with his heritage, and had not the trust-deed above mentioned been executed.

In the month of March 1884 the petitioner's heritable property in Lerwick was discovered to be on fire. On the previous evening the petitioner had gone to Scalloway, leaving the said Felix M'Shane in charge. In consequence of suspicious circumstances connected with the said fire, the petitioner and M'Shane were apprehended on a criminal charge of fire-raising or attempted fire-raising, and after a trial before the Sheriff and jury were convicted and sentenced to a lengthened term of imprisonment. It is believed and averred that the petitioner committed the said act of fire-raising in order to defraud the insurance company, and also, by uplifting the insurance money, to defeat the claims of the respondent and other creditors, although he was perfectly solvent, and doing a fairly lucrative business.

The respondent humbly submits that the prayer of the petition should not be granted, except on caution or consignation as aforesaid, and that on the following grounds:—( First) The petitioner's actings hitherto justify an apprehension that he will not in the immediate future duly meet the respondent's just claims: ( Second) In view of the great trouble and expense the respondent has already had in recovering her aliment, it is reasonable to assume that she will never receive her future aliment if the arrestments be unconditionally recalled, more especially as the defender's heritage has now been sold, and there is no other estate to attach by diligence: ( Third) The petitioner is a travelling hawker or dealer, moving about the country, and he is or was recently in Orkney; accordingly, the respondent, when her aliment becomes due, may never know where to find him: And ( Fourth) The reversion of the funds in the trustee's hands, over and above the said sum of £100, is amply sufficient to meet the petitioner's business requirements.”

The petitioner argued that it was incompetent for a wife to arrest the funds of her husband for aliment which was not due. The arrestments should be recalled unconditionally— Symington v. Symington, Dec. 3, 1875, 5 R. 205. Diligence at the wife's instance was only competent in cases where it could be averred that the husband intended to withdraw from the jurisdiction of the Court— Anderson v. Anderson, Nov. 18, 1848, 11 D. 118.

The respondent argued that the point here raised had been reserved in Symington's case, per Lord President, 5 R. 207. There had been a course of conduct which showed that the petitioner had been trying to put away his estate. This was the same as the case of Burns v. Burns, Dec. 9, 1879, 7 R. 355. In the circumstances there should be caution or consignation of £100.