Scottish Court of Session Decisions

The pursuer Mary Ann Sawers or Jameson was married to the defender John Jameson, fruiterer in Edinburgh, on 4th June 1879, and they continued to live together as married persons until 26th April 1885, when, as was admitted in this action, the defender left the pursuer in the house where they were living, and did not again cohabit with her, having resolved to live separate from her in consequence of their disagreements. A child had been born of the marriage in April 1880. At the time of this action this child was living with and supported by the defender.

In June 1885 Mrs Jameson raised this action of adherence and aliment against Jameson. By minute lodged at closing the record the conclusion for adherence was deleted, and the summons then asked the Court to declare “that the defender as the husband of the pursuer has deserted her,” and that he should be ordained to pay £80 a-year as aliment to her.

The Lord Ordinary allowed a proof. The evidence for the pursuer was directed to show that the income of the defender was at least £300 a-year, while the evidence for the defender was to the effect that his income was only £105 per annum.

The defender offered aliment at 15s. a-week, the pursuer, however, not to continue to have the use of the house.

The Lord Ordinary ( M'Laren) issued the following interlocutor:—“Decerns against the defender for £15 of aliment past due to the pursuer as at the date of this decree; and decerns against him also for payment of future aliment to her at the rate of £65 yearly, commencing as at the date hereof, and payable quarterly in advance so long as the defender shall live separate from the pursuer, his wife, with interest thereon at the rate of five per cent. on each quarterly payment as it falls due until paid, &c.

“ Note,—It is difficult to estimate the income of a trader who does not keep books, but there are ways of coming near it. Mrs Jameson thinks that when she was in the shop and having access to the books they had a profit of £300 a-year; and she had also the means of knowing to some extent what sum they were in the habit of spending on their living. Apparently whatever profit they made was spent, because Mr Jameson says he has not saved any money, and has not been able to pay off debt. Therefore I assume the business could not be worth more than £300, and apparently is now worth less, because the gross turnover has been decreasing during the last three years. But whether the estimate made by Mr Romanes [an accountant who on the basis of the turnover in the business, estimated the gross profit at £524, and the defender's income, after deducting business expenses, at about £109] is to be taken as reliable depends entirely upon the opinion that one may form as to the gross profits, and as to these we have nothing but opinions. I must say I was not at all surprised at the evidence given for the pursuer, that the gross profits would be about one-third of the turnover, because we know that in a trade concerned with perishable articles like vegetables and fruit you must have a large gross profit to compensate for the risks incident to that kind of business; and in the hands of skilful men who know how to buy, such a business may realise a very handsome percentage of profit. That is the result of their own exertions and knowledge of business; and I should not be at all surprised if this business was worth fully £300 a-year in the hands of a man like Mr Jameson, who knows how to manage it. It may be that, owing to these unhappy domestic differences, he may not have been giving so much attention to economical buying during the last year as before; that, of course, may be made up to him afterwards; but I think I cannot quite accept the estimate of £109, and that a mean between the estimate brought out by Mr Romanes, without apparently any assistance except some documents, and the sum of £300 suggested by Mrs Jameson, would not be unfair—that is to say, that I might take the business as worth £200 a-year, on a fair average of years, looking forward as well as backward. Now, there are many cases where even a man in the position of a workman earning weekly wages has been made to contribute as much as 15s. a-week to his wife's support, and I do not think I can accept the offer here made as satisfactory or suitable to a lady in Mrs Jameson's position, the wife of a respectable dealer in this city. But wishing not to award an excessive sum, because I may be mistaken about the value of the business, I shall give a yearly or quarterly sum to represent 25s. a-week. That will come to between £60 and £70; and I shall make it payable monthly or quarterly as may be desired.”

The defender reclaimed, and argued—Even assuming that the Lord Ordinary had taken the defender's income fairly at £200 per annum, he had given too large a portion of it as aliment. In no case had more than one-fourth of the income been given as aliment to the wife only, and in the case of Lang the Lord President had laid it down that that was the proper proportion— Lang v. Lang, 27th October 1868, 7 Macph. 24. In other cases the same proportion had been given— Crombie v. Crombie, 19th May 1868, 6 Macph. 776; M'Millan v. M'Millan, 20th July 1874, 9 Macph. 1067; Grahame v. Grahame, 19th July 1878, 5 R. 1093.

Argued for the pursuer—The Lord Ordinary had under-estimated the income of the defender, but the amount of aliment that he had given was a fair amount considering the income, and his interlocutor should be adhered to.