Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Aberdeen and Kincardine in an action of count and reckoning at the instance of the appellant Robert Ferguson, flesher, New Deer, against Alexander Thomson, farmer, and Hugh Walker, merchant, as the executors acting under a settlement of the deceased James Jack, and also against Margaret Jack, formerly wife of the pursuer (appellant), who was sisted as defender on 2d February 1876. The summons asked for count and reckoning that the share of the moveable estate of James Jack (who died on 16th July 1872) falling to Margaret Jack or Ferguson, as one of his lawful children and next-of-kin, to which the pursuer acquired right jure mariti, might be truly ascertained. There was an alternative conclusion for payment of £29, 14s. 5d., with interest from 20th December 1872. From the minute sisting Margaret Jack as a defender it appeared that the pursuer was divorced from her in respect of his adultery, on 19th December 1874. The defenders pleaded, no title to sue in respect of the divorce, and it was also pleaded that, as a condition of obtaining decree the pursuer was bound to make a reasonable provision for Margaret Jack, under the Conjugal Rights (Scotland) Amendment Act 1861 (24th and 25th Vict. c. 86, sec. 16).

The Sheriff-Substitute ( Comrie Thomson), on 22d February 1876, sustained the plea of no title, and dismissed the action, adding the following note:—

“ Note.—The pursuer Robert Ferguson was for several years prior to 19th December 1874 the husband of Margaret Jack. At that date he was divorced from her on the ground of his adultery. Her father James Jack had made a settlement in October 1868, and he died in July 1872. The object of the present action is to enable the pursuer to obtain from the executors of the father of the woman who was his wife her share of the succession. I am of opinion that he is not entitled to get it. It may be true that the sum sued for vested in the wife prior to the dissolution of the marriage, and that it might have been then claimed by the husband, as his marital rights were not excluded; but, in point of fact, he did not get possession of it, and I put my judgment on this broad ground, that having been divorced, and being the guilty party, he can take no benefit through the marriage or through the dissolution of the marriage.

The words used by Stair seem to me to set forth the existing law of Scotland on the subject—‘When marriage is dissolved by divorce, the party injuring loseth all benefit accruing through the marriage, but the party injured hath the same benefit as by the other's natural death.’

I accordingly deal with the wife here as if she were a spouse surviving the death of her husband. The question of the rights of the husband's creditors is not raised.

The defenders have stated a plea founded upon the provisions of the 16th section of the Conjugal Rights Amendment Act 1861, which declares that “when a married woman succeeds to property, or acquires right to it by donation, bequest, or any other means than by the exercise of her own industry, the husband shall not be entitled to claim the same as falling within his marital rights, except on the condition of making a reasonable provision therefrom for the support and maintenance of his wife.”

The wife's claim is barred if before she makes it the husband shall have obtained ‘complete and lawful’ possession of the property. In the present instance the husband had obtained no sort of possession of the wife's interest in her father's succession. But since the property sued for vested in the wife, the pursuer was sequestrated, and the trustee for his creditors became assignee to all his assets, including what he got through his wife; but I am of opinion that the ‘complete and lawful’ possession mentioned in the statute was not obtained by the creditors, unless the property had been attached either by a decree of forthcoming or by poinding and sale.

“In the view, however, that I take of the case, it is unnecessary to go into this matter further, as I base my decision on the broader ground indicated above.”

On appeal, the Sheriff ( Guthrie Smith) adhered, adding in a note—“The pursuer maintains that the decree had no retroactive effect, as it simply terminated his rights under the marriage. It, however, does more; it operated a complete forfeiture of them—‘the guilty spouse is thereby cut off from all right or privilege that he or she may have as a spouse’— Ritchie v. Ritchie's Trustees, 5th June 1874. It follows that, as regards this legacy, the wife herself is the only party now in titulo to uplift and discharge it, because although it may have vested prior to the decree, he never obtained possession of it, and the effect of the decree was to deprive him not only of the status of a husband, but of all the rights and privileges coming to him in that character.”

The pursuer appealed to the Court of Session, and argued—The forfeiture operated by divorce is confined to legal and conventional provisions, Harvey v. Farquhar, 22 Feb. 1872, 10 Macph. (H. of L.) 26; Ritchie v. Ritchie's Trustees, 6th June 1874, 1 Ret. 987. The party injured is to have the same benefit as by the other's death—Act 1573, cap. 55; Erskine i. 6, 46; Stair i. 4, 20–1, and Brodie's note, p. 41. The wife could not take at death the whole sum falling under jus mariti. If the sum fell due before divorce, the jus mariti could not now be required as a title to recover. It was further argued that as the pursuer had been under sequestration, but had now by an onerous transaction been reinvested in his estate, the wife's claim to a reasonable provision was excluded. Sequestration is by the Bankruptcy Act declared to be equivalent to an arrestment in execution and decree of forthcoming, and to a completed poinding—Bankruptcy Act 1856, secs. 102, 108. Under section 16 of the Conjugal Rights Act the wife's claim may be defeated by

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the creditor of the husband who has used adjudication or arrestment and has obtained decree of forthcoming or has poinded and reported a sale.

The respondent argued—The cases—such as Justice v. Murray (Mor. 334)—excepting tocher paid in cash from the general rule of forfeiture, were decided on the principle of immixtion. Here there was a mere right to claim, which was cut off by divorce. As regards the second point, the decision of Lord Mackenzie in Miller v. Learmonth, 21st Nov. 1871, 10 Macph. (H. of L.) 107, was wrong, being inconsistent with the doctrine of tantum et tale affirmed in Fleming v. Howden, L. R., 1 Sc. Ap. 327, and 6 Macph. (H. of L.) 113; Fraser on Husband and Wife, 2d ed., 833. The trustee had not reduced into possession.

At advising—