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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Andrew Symington (Petitioner) v. Mrs Edmonston or Symington (Respondent) [1875] ScotLR 13_124 (3 December 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/13SLR0124.html Cite as: [1875] SLR 13_124, [1875] ScotLR 13_124 |
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Page: 124↓
Expenses.
A wife raised an action of separation and aliment against her husband, and obtained decree for a sum of aliment, payable half-yearly. She used the diligences of inhibition and of arrestment (1) upon the dependence of the action proceeding upon the warrant in the will of the summons; and (2) upon the decree of the Court, and maintained that she was entitled to have these kept up as security for future aliment. Held that the diligences, being for a future debt, were incompetent where it was not stated that the debtor was vergens ad inopiam, or no parallel circumstance was alleged.
The wife was found entitled to the expenses of opposing the husband's petition for recall of diligence.
Opinion per Lord President, that diligence for future debt must proceed by bill, and not upon the warrant inserted in the will of the summons.
This was a petition at the instance of Andrew James Symington to obtain the recall of certain inhibitions and arrestments used by his wife (1) on the dependence of, and (2) on the decree pronounced in her favour in a prior action of separation and aliment at her instance against the petitioner (reported ante, vol. xi. pp. 369, 579, and vol. xii. p. 416), and on the dependence of an existing action of payment, also raised by her against the petitioner.
The petitioner, by a judgment of the First Division of the Court in the above-mentioned first action, dated 20th March 1874, had been found liable to pay to the respondent the sum of £100 of yearly aliment, payable half-yearly and in advance, under deduction of such sums of aliment as she had received since Whitsunday 1873. The respondent had been found entitled to the custody of the children of the marriage, five in number, during their pupilarities, so long as the Court made no different order, and the petitioner was ordered to pay £25 of aliment yearly for each child so long as they should remain with their mother. This interlocutor, on appeal to the House of Lords, was affirmed, except that the present
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petitioner was found entitled to the custody of the three male children. He was still found liable to the respondent in aliment at the rate of £25 per annum for each of the female children. On the dependence of the action above referred to, and in virtue of warrants contained in the summons therein, the respondent, on 10th April 1873, used inhibition against the petitioner, and caused arrestments to be used to the amount of £5000 in the hands of several parties; and in virtue of an extract of the decree pronounced by their Lordships in said action, the respondent again, on 1st April 1874, caused arrestments to be used in the hands of the same parties to the amount of £838, 5s. 9
d. 1 2 The petitioner stated in the petition that he had paid to the respondent all sums for aliment and maintenance for herself and her children due down to the term of Martinmas 1875. The expenses to her in the Court of Session were taxed at £584, Is. 8d., which were paid on 25th July 1874; and the sum of £100, to enable her to meet the appeal taken by him to the House of Lords, was also paid. Her expenses in the House of Lords had been taxed at £573, 19s. 4d., in order to pay which (under deduction of the foresaid sum of £100) the petitioner proposed to sell his villa; but on application to his wife she refused, except on condition that the petitioner undertook to pay a claim of £600 made in action raised on 9th October 1875, at the instance of the respondent, with concurrence of Messrs Maclay, Murray & Spens, writers, Glasgow, and others, for payment of sums said to have been incurred by the respondent, her brother, and agents employed by her in this country and in America in relation to the decree pronounced by the Court. Upon the dependence of this action, and in virtue of warrants contained in the summons, the respondent on 12th October again used inhibition and caused arrestments to be made against the petitioner. The petitioner further stated that the inhibition and arrestments used under both actions had occasioned him great hardship and inconvenience, that his whole funds and estate were thereby locked up, and he was practically powerless to make his capital available for the support of himself, his wife, and children, whereby he would inevitably be ruined unless the inhibitions and arrestments were recalled. He prayed therefore that the inhibitions and arrestments should be recalled without caution, but said he was willing, if it was considered necessary, to find caution to a limited extent.
Mrs Symington lodged answers admitting the use of the inhibitions and arrestments, and stating they were the only security she had for (1) aliment at the rate of £100 a year from and after Martinmas 1875; (2) £25 a year for each of the two children committed to her charge from and after Martinmas 1875; (3) the House of Lords expenses, amounting (after deducting the £100 paid to account by direction of the Court), along with the Court of Session expenses, to £473,19s. 4d; (4) £663, 0s. 3
d. of expenses sued for in the action at her instance, with consent of Maclay, Murray & Spens, and others. She further stated that the property attached was not sufficient to meet the claims against it, and that the petitioner's whole property was not attached by the diligences. She had no objection to the arrestments being loosed and the inhibitions being recalled upon caution, but not otherwise. 1 2 In the course of the discussion the petitioner paid the House of Lords expenses, and offered caution for £300 in the second action, which was accepted. The only question which remained was the validity of the diligences in the first action for future sums of aliment.
The petitioners argued—Diligence for debts not due, and that might never become due, was not competent. In any case the Court must grant leave before such a diligence could have effect, and the debtor must be stated to be vergens ad inopiam. The aliment was a future debt, and the fact of the Court giving decree did not make a difference. A wife was not entitled to use an arrestment on the dependence of action of divorce. The Personal Diligence Act, 1 and 2 Vic. c. 114, secs. 1 and 16, empowering the insertion of warrants in the will of the summons, had only reference to an ordinary debt.
Authorities— M'Gregor v. Howie, Feb. 25, 1837, 15 S. 681, 12 Scot. Jur. 334; Meres & Ainsworth v. York Buildings Co., Feb. 27, 1728, M. 800, 1 Pat. App. 10; Bennett v. Fraser, June 21, 1834, 12 S. 60; Erskine's Inst. iii. 6, 10; Bell's Comm. ii. 144.
The respondent argued—She was entitled to secure future aliment, on the authority of Macdonald v. Elder Macleod. No authority was adduced to show that the diligences were incompetent. The debt was not altogether future. It was not a bargain ex contractu of the parties upon which the diligence was used, but a decree of the court, containing a warrant. It was not the practice to insert in the will of a summons a statement that the debtor was vergens ad inopiam, and the object of the Personal Diligence Act was to introduce a short form. In any case, the addition of vergeus ad inopiam was only a circumstance which favored the use of diligence for a future debt. .
Authorities—Bell's Comm. (Maclaren's edition) i, 354; Macdonald $ Elder v. Macleod, Jan. 15, 1811, F.C.; Dove v. Henderson, Jan. 11, 1865, 3 Macph. 339; Act 1 and 2 Vic. cap. 114, secs. 1 and 16; Act 31 and 32 Vic. cap. 100, sec. 18; Balfour's Practicks, 476; Bell's Comm. (Maclaren), ii, 70.
At advising—
By our interlocutor of 20th March 1874 we found the petitioner in the present case liable in payment to the present respondent in the sum of £100 of yearly aliment, payable half-yearly in advance, under deduction of such sums of aliment as she had received since the term of Whitsunday 1873; and in regard to the children, we found that the respondent was entitled to their custody during their respective pupillarities, so long as no other or different order might be made by the Court. We further found the petitioner liable to the respondent in aliment at the rate of £25 a year for each of the children, so long as they should remain in her custody. The only variation which the House of Lords made in our judgment on appeal was in regard to the custody of two of the children. But in all other respects the interlocutor stands. The husband is liable to pay £100 per annum to his wife as long as she
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One of the general principles of our law is that diligence cannot be used for security of a future debt unless upon the allegation that the debtor is vergens ad inopiam. But in that case diligence merely anticipates what might be done at the time of the decree, so as to secure the debt against other creditors. This seems to have constituted the only difference between arrestment on dependence and arrestment in execution.
The pursuer in the action of separation and aliment has not alleged that the defender is vergens ad inopiam. She had no opportunity of making such an allegation, because her warrant for diligence is contained in the summons, and she did not adopt the course of applying by bill. It rather appears to me that if such diligence is to be used on the dependence of an action in security of a debt not then due, the creditor must proceed by a bill, so as to give the debtor an opportunity of answering the allegation of vergens ad inopiam instead of proceeding to use diligence simply by warrant obtained on the action itself.
But there being no such allegation here, we must proceed on the assumption that the debtor is not vergens ad inopiam. When we pronounced our decision we gave the pursuer all the remedies to which we thought she was entitled, and if we had thought that she was entitled to more, that was the time for us to give them and for her to apply for them. If we had thought that she was entitled to security we would have given her security. That is not an uncommon practice in special circumstances, where the defender has only one source of income. It is not uncommon for the Court to order consignation for his wife's aliment of an annuity or pension on which the husband has to depend for his living. If he had an annuity, we would require him to secure part of it for his wife's aliment. But there is nothing of the kind in the present case. If the diligence is to stand as a security for the whole future aliment of the wife, it must follow that the pursuer of such an action was entitled to create for herself a security which the Court held not to be necessary when they adjusted the rights of the parties at the separation. The opinion I hold is opposed to this view.
I think that a lady who is separated from her husband, as she does not thereby cease to be his wife, must follow his fortunes just as a wife who is not separated must, and if he should by unforeseen occurrences fall into poverty, that is just the misfortune of the whole family. I should be very slow to hold that because a wife is separated from her husband, she is entitled to have her aliment secured, so as to give her a preference for life over all her husband's creditors. That would be a very anomalous consequence of diligence used upon the dependence of an action of this kind. But still more anomalous consequences would follow if the arrestment was to cover future aliment—the debtors in whose hands the arrestments were in would require to keep the money in their hands during the whole time of the wife's life, and to pay her yearly and termly the amount of her aliment. By what means would she enforce her rights? In the present case she would require to bring a furthcoming at Whitsunday and Martinmas yearly, it may be for the next twenty years. This would be a proceeding of an extraordinary character, never seen before, and entirely inconsistent with legal principle. I don't think that a creditor can by arresting money in the hands of his debtor's debtor convert him into a trustee for his interest. Arrestments are often used in the hands of persons such as bankers, who would make very good trustees. But are bankers against their will to be converted into trustees? If the arrestments were used in the hands of traders or mercantile companies are they to continue to act as custodiers and remain in the position of debtors to the husband? Are they to be called upon to pay at every Whitsunday and Martinmas when the wife brings a furthcoming? That would place people in trade in a most extraordinary position. I do not think that they are to be turned into trustees without their own consent. It would interfere with the whole business of life, and the consequences of sustaining this diligence are so anomalous and monstrous that I do not see how we can uphold it. For all that is due and bygone the diligence is competent, but for future debts I think we cannot lay it down too distinctly that the diligence is incompetent unless the debtor is vergens ad inopiam, or there be other circumstances of a parallel kind. I can quite conceive circumstances in which the diligence would be fairly used, as if the defender in an action of separation were in meditatione fugœ, although quite solvent. He might intend to remove his effects beyond the power of his creditors, but there is no case of that kind here, and I think, therefore, that on the grounds I have stated the diligence ought to be recalled.
Mackintosh moved for expenses, on the ground that the respondent was justified in appearing to oppose the petition, and that caution had only been offered at the close of the discussion.
Fraser opposed the motion. The Court had laid down in the case of Donald v. Donald, 30th March 1863, 1 Macph. 741, that there was no general rule in such matters, and each case must be decided on its own merits. The wife was here seeking to maintain a diligence against her husband in very unusual circumstances. It was only on the ground of necessity that in actions between husband and wife the Court compelled the husband to bear his wife's expenses. There has been no such necessity.
The Court found the respondent entitled to expenses, taxed as between party and party, and pronounced the following interlocutor—
“The Lords having resumed consideration of the petition with the answers for Mrs Symington, No. 5 of process, and heard counsel, in respect all the debts secured by the diligence used on the dependence of the action of separation and aliment have been
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paid, with the exception of sums of aliment to become due in the future, Recal the inhibition and arrestments used by the respondent on the dependence of the said action, and also the arrestments used by her in execution of the decree pronounced in said action: Further, on caution to the amount of £300, recal the inhibition and arrestments used on the dependence of the second action raised by the respondent, and the other parties mentioned in the petition, against the petitioner, and grant warrant for marking both of the said inhibitions as discharged in the Register of Inhibitions, and decern: And find the respondent entitled to expenses, taxed as between party and party, and remit to the Auditor to tax the amount of said expenses and report.”
Counsel for Petitioner— Fraser— Scott. Agent— John Galletly, S.S.C.
Counsel for Respondent— Asher— Mackintosh. Agents— Messrs J. & R. D. Ross, W.S.