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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wylie v Smith. [1834] CA 13_40 (15 November 1834)
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Cite as: [1834] CA 13_40
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SCOTTISH_Shaw_Court_of_Session
Page: 40↓
v.
Et e contra.
Subject_Husband and Wife—Aliment—Trust—Expenses.—
An intromitter with the estate of a husband, against whom a decree of aliment had been obtained by his wife, but of which he was pursuing a reduction, liable to have interim award of aliment pronounced against him pending the discussion. 2. No defence by the husband's trustee who had sisted himself, against an award towards expenses of process, that he has no trust-funds in his hands.
After the judgment in this case, mentioned ante, XII. 903, (which see,) Wylie craved from the Lord Ordinary an interim award of aliment, and a payment towards the expenses of process, there having been no aliment paid since 1827, and only a small sum £10 towards expenses in March, 1833. Smith, in his character of trustee on John Hamilton's estate, objected that it had not yet been determined that this estate was debtor to Hugh at all, and that, until this was done, there could be no termini habiles for a decree of aliment out of it for behoof of Hugh's wife, that in his character of trustee on Hugh's estate, he had no funds; and, therefore, that the decree should be limited, so as not to attach to him personally. To this, it was answered, that, by the judgments already mentioned, John Hamilton and his trustee were decided to have been intromitters with what was truly the property of Hugh, and that it lay on them to show the estate discharged, which they had not done, and therefore they were properly liable to be subjected in an interim decree for aliment; and, 2. That although decree for aliment could only pass against Smith qua trustee, yet having sisted himself as a party to the process, he thereby became personally liable for expenses, against payment of which it was no defence to allege want of trust-funds.
The Lord Ordinary, in the process of reduction of the Commissary's decree, pronounced this interlocutor, adding the subjoined note: * “Or-
_________________ Footnote _________________
* “No aliment whatever has been paid to the wife since 1827, although the decreet of the Commissaries, of that date, was not brought under reduction till October, 1832; and the pursuers have not yet advanced one step towards making good their reasons of reduction. The Lord Ordinary has awarded but one year's aliment, ad interim, out of the seven years' aliment that are in arrear.
“With regard to the expenses of process, the defender has received nothing beyond a sum of £10, awarded by Lord Moncreiff so long ago as 6th March, 1833. There has been a great deal of litigation during the intervening sixteen months; and the pursuers now profess an intention immediately to proceed to a full investigation before the accountant. An advance of £50, therefore, on the eve of the long vacation, seems no more than is necessary. The trustee was sisted as a conjunct pursuer, along with the husband, on the motion of the defender, and on the express ground that the trustee alone had any interest in the funds withheld, and that she was entitled to have a solvent party to answer for expenses. There seems no doubt, therefore, that decreet must go out against him personally, as the actual litigant, for the expenses of process, and in so far as he has trust funds, for the interim aliment.”
dains the pursuers, within fourteen days from this date, to pay to the said defender the sum of £60 sterling of interim aliment; and also a farther sum of £50 towards defraying the expenses of this litigation, and decerns: and allows an interim decreet for those several sums to go out and be extracted, if not paid within the time specified.” At the same time, in the relative process of reduction at Wylie's instance, he pronounced as follows, adding the note below: * “Having already, of this date, given decreet in a relative action for the sum of £60 of interim aliment against the present defenders, Hugh Hamilton and John Smith, as trustee for the creditors of the said Hugh, finds, that John Hamilton, and the said John Smith, as trustee for John Hamilton and his creditors, are liable in this action for the said sum of interim aliment, along with the said Hugh Hamilton, and the trustee for his creditors; and, therefore, ordains the
_________________ Footnote _________________
* “The Lord Ordinary conceives, that in this interlocutor he is following up the interlocutor of Lord Moncreiff of the 24th May last—since adhered to by the Court, and the note annexed to that judgment. Hugh Hamilton and his trustee—who is also trustee for John Hamilton—maintain that they have no funds to answer the wife's claim for aliment, and seek, on this ground, to reduce the decreet of the Commissaries; and, in the mean time, they discharge John of all claims competent to Hugh against him, and convey to him all Hugh's interest in a certain property left them by a relation—which property John immediately conveys over to their common trustee, for behoof of his, John's creditors. There are the strongest appearances of a concerted scheme, between the brothers and their trustee, to defeat the legal claims of the wife—and the discharge and conveyance by Hugh to John have accordingly been finally reduced by the judgment already referred to. The other conveyance by John to his trustee, has only been found liable to reduction, unless the present defenders can prove, by legal evidence, that the original conveyance by Hugh—now finally reduced—was truly fair and onerous, in consequence of advances actually made by John previous to its date—of which proof, it has been decided, that the burden lies wholly on these defenders.
“The result, in short, is, that as things now stand, it is to be presumed that the property conveyed, or released, by Hugh to John, and by John to his trustee, is truly the property of Hugh, and answerable as such to his wife's claim for aliment under her decree. This presumption may be rebutted by clear proof that Hugh has already received the full value of his share from John; and this is what the defenders are called upon and permitted to prove. But in the mean time, the wife gets no aliment, and the brothers and their common trustee must be in various litigations. The present claim is for an interim allowance; and as nothing has yet been done by the defenders to establish the facts they aver, the Lord Ordinary thinks that both Hugh Hamilton and his trustee, who are said to have nothing, and the brother, and the same trustee, who hold the property presumptively liable for such aliment, should be made liable, conjunctly and severally, for such interim payment. From the concluding part of Lord Moncreiff's note of 24th May, this seems also to have been his impression. The report of the accountant, so far from being ‘nearly ready,’ is not yet in preparation—it being admitted that, up to this time, not a single order has been issued by the accountant, and report of the investigation begun.”
whole of the defenders aforesaid, conjunctly and severally, to make payment to the pursuer of the said sum of £60, within fourteen days from the date hereof, and decerns; and allows an interim decreet to go out and be extracted for the said sum, if not paid within the time specified.”
Smith and others reclaimed.
The other Judges concurring—
The Court refused the reclaiming notes in both cases.
Solicitors: John Ronald, S.S.C.— Wotherspoon and Mack, W.S.—Agents.