Scottish Court of Session Decisions

This was an action at the instance of William M'Ginty and Mrs Sherry, executors-dative qua next of kin of the deceased Mrs Ellen M'Alpine, wife of George M'Alpine, fish-hawker in Glasgow, against the said George M'Alpine. The pursuers sought decree ordaining the defender to render them an account of the means and estate of his deceased wife, and pay over to them the sum which that estate should be ascertained to amount to.

The pursuers averred that the deceased Mrs M'Alpine had been possessed of separate estate to a considerable amount, which had been taken possession of by the defender after her death.

The defender denied that his wife had died possessed of any separate estate.

The material facts of the case as ascertained by the proof were as follows:—In 1875, the defender George M'Alpine married Mrs Campbell, a widow, who had for some time carried on the trade of fishhawking. Prior to his marriage the defender had contracted for carting work, and at the date of the marriage he was possessed of two horses and a cart which he had used in this business. His wife brought him £22 of savings, and a pony and cart which she had used in the fish-hawking business. About three months after the marriage the defender was persuaded by his wife to give up the business of carting and to take to the business of fish-hawking, and accordingly he sold his horses and cart, which were unsuitable for the latter business. For some time after he gave up carting he accompanied his wife on her fish-hawking rounds in order to learn that business, but when he had learnt it he bought a pony and cart for his own use. After this the defender and his wife went separate rounds. Each looked after one cart, and bought the fish necessary to supply it. The wife was a most efficient saleswoman. Occasionally the wife was off work, and the defender then engaged a substitute for her. The defender's name was on both the carts, and the dealers who had supplied his wife before her marriage to him, at the request of both the spouses, rendered their accounts in the defender's name after he took to the business. The money which the spouses earned was lodged in bank in name of “George and Ellen M'Alpine, or either, or the survivor.” Mrs M'Alpine died on 11th August 1891, at which date the money in bank at the credit of the joint account amounted to £800.

By the 3rd section of the Married Women's Property Act 1877 it is provided—“3. Protection of Earnings of Married Women.—The jus mariti and right of administration of the husband shall be excluded from the wages and earnings of any married woman, acquired or gained by her after the commencement of this Act, in any employment, occupation, or trade in which she is engaged, or in any business which she carries on under her own name, and shall also be excluded from any money or property acquired by her after the commencement of this Act through the exercise of any literary, artistic, or scientific skill, and such wages, earnings, money, or property, and all investments thereof, shall be deemed to be settled to her sole separate use, and her receipts shall be a good discharge for such wages, earnings, money, or property, and investments thereof.”

On 2nd March 1892 the Lord Ordinary ( Kincairney) pronounced this interlocutor—“Finds that the defender and his wife Ellen M'Ginty or M'Alpine carried on business jointly as fish-hawkers: Finds that the business was carried on in the name of the defender: Finds that the provisions of the Married Women's Property Acts 1877 and 1881 do not apply: Finds that the said deceased Ellen M'Ginty or M'Alpine did not thereby earn any separate estate: Finds that she predeceased the defender, and that there was no issue of the marriage: Finds that the earnings of said trade now belong exclusively to the defender: Therefore repels the pleas-in-law for the pursuers, and assoilzies the defender from the conclusions of the summons, and decerns: Finds the pursuers liable to the defender in expenses, &c.

“ Note.—… I am of opinion that the defender is entitled to absolvitor.

At common law the earnings of a wife fall undoubtedly under the jus mariti of the husband, and form part of his estate when the marriage is dissolved by the death of the wife. This was so at common law, even where the wife carried on a separate business, much more when she and her husband carry on business together. The business so carried on by the wife is at common law to be regarded as the husband's business, and she as his agent or assistant— Ferguson's Trustees v. Willis, Wilson & Company, December 11, 1868, 11 R. 261, per Lord President, 266.

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The fact that the wife carried on the business before marriage, and that after marriage the spouses continued her business, can make no difference.

This case presents the speciality that the husband regarded the funds as belonging equally to himself and his wife. But that would not, I think, affect the result if the case is to be determined by the law as it stood after 1855 (18 Vict. c. 23, sec. 6), and before the Women's Property Act 1877. I think it really amounts to no more than an admission that the money constituted goods in communion, and if so, it fell under the jus mariti, and belonged exclusively to the husband at the wife's death. That would be so unless the admission of the husband could be brought up to this, that part of the money in bank was the separate estate of the wife, from which the jus mariti was excluded, which I think it cannot be.

If that be so, the next question is, whether section 3 of the Married Women's Property Act 1877 (40 and 41 Vict. c. 29) applies to a case where a wife did not carry on a separate business, but carried on a business jointly with her husband. It is a question of some importance. The section provides that the jus mariti of the husband ‘shall be excluded from the wages and earnings of any married woman acquired or gained by her after the commencement of this Act in any employment, occupation, or trade in which she is engaged, or in any business which she carries on in her own name.’

The latter words of the section do not apply, because the trade of fish-hawking was not carried on in Mrs M'Alpine's name at all, but in the name of the defender. All the proof points to that.

The question is, whether the words ‘wages and earnings acquired or gained in any employment, occupation, or trade’ apply. In the case of Ferguson's Trustees v. Willis, Wilson, & Company, the Lord President took occasion to state his view as to the proper interpretation of these words. He says (pp. 266–7)—‘That seems to point at the case of married women employed in business as a servant or manager or the like, and whether paid by salary or by wages, or by a share of profits, these are in future to be exempted from the husband's jus mariti.’

I am not sure that that opinion was essential to the judgment in that case, but whether it was so or not it is of course of great weight and authority. No case was quoted in which the Act was held applicable to anything but an employment or business carried on by the wife apart from her husband, and I was informed that there have been no decisions in England in which the analogous statute had been applied to such a case.

To apply the Act to every case where the earnings resulted from the joint efforts of husband and wife would give the Act an alarmingly wide application going far beyond the true scope of the statute. For example, a great many shops are kept by the husband and wife jointly; on many farms the farmer's wife contributes materially to the earnings; in fact, the Act in that case would cover a great number of the ordinary industries of life. If it had been meant that the Act should apply to such cases, there would, I think, have been some provision as to the principles on which joint earnings should be appropriated. I am of opinion that the Act does not apply to a case of trade carried on by husband and wife jointly, and that such trading does not result in any earnings from which the husband's jus mariti is excluded.

The pursuers contended, that inasmuch as the trade was originally carried on by the wife and merely continued by the husband, it should be regarded as her separate trade, and that he was to be held as merely her assistant. I think, however, that there are neither facts nor law to justify that view.

The pursuers also referred to the Married Women's Property Act 1881 (44 and 45 Vict. c. 21), and in particular to subsection 2 of section 3. The provision is that the jus mariti and right of administration shall be excluded by the preceding sections from all estate, moveable or heritable, and income thereof to which the wife may acquire right after the passing of the Act.

No attempt has been made to ascertain the portion of the whole sum which was earned after 1881. But as I think none of it truly became the property of the wife, I think the clause has no application. I do not think that in any view it refers to earnings from trade covered by the prior statute.

I am therefore of opinion that this money all belonged in law to the husband; and I would think so, even although I should hold that that was not the opinion of the husband and wife themselves. There is no hardship in this case; indeed, the result is satisfactory, for it is what both husband and wife desired to accomplish by other means, which by reason of certain special rules of our law would have been ineffectual.”

The pursuers reclaimed, and argued—Where money was deposited in bank in the name of two parties, or either, or the survivor, the presumption was that each was entitled to one-half of it— Bank of Scotland v. Robertson, January 12, 1870, 8 Macph. 391; Trotter v. Spence, January 21, 1885, 22 S.L.R. 353. The rule of these cases applied, for by the 3rd section of the Married Women's Property Act of 1877 the earnings of any occupation or trade in which a wife was engaged were protected from the husband's jus mariti. Earnings in the first part of the clause was not to be construed as merely the equivalent of wages, but included the profits of any trade in which the wife was engaged, whether under her own name or not— Ferguson's Trustee v. Willis, Neilson, & Company, December 11th 1883, per Lord Mure 270. In the present case the business in which the earnings were made was the wife's business, or at least it was a family concern in which she had a separable interest, and

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in the earnings of which she was entitled to share— Aitchison v. Aitchison, June 16th 1877, 4 R. 899. The fact that the stock belonged to the husband, and that the money was lodged in joint account, did not prove that the business was not the wife's— Ferguson's case, supra; Morrison v. Tawse's Executrix, December 18th 1888, 16 R. 247. The pursuers were therefore entitled to half the profits which had been earned by the spouses at the date of the wife's death.

Argued for the defenders—The pursuers' claim was founded on the contention that the wife had earned money in business which was separate estate belonging to her at her death, but that contention failed unless it were shown that the business in which the earnings were made had been carried on by the wife in her own name. Ferguson's case supra, per Lord President, 11 R. 267. It could however not be said that the business had been carried on under the wife's name. Further, everything supported the view that the business in which the money was earned was the husband's, and that the wife merely assisted her husband in carrying it on, for the whole stock-in-trade belonged to the husband, and the goods were purchased on his credit. Assuming that the wife could have claimed part of the earnings of the business as her separate estate, the fact that she had allowed her share to be mixed up with that of her husband was prima facie evidence that she had waived her claim— Hawkins v. Providence and Worcester Railroad Company 1876, 20 American Rep. 353.

At advising—