Scottish Court of Session Decisions

This was an action at the instance of Mrs Taylor against the trustees under a trust-disposition, granted by her husband for behoof of his creditors, for declarator that the rents of certain lands which belonged to her in liferent and her children in fee did not exceed a reasonable provision for her support and maintenance, in terms of Section 16 of the Conjugal Rights (Scotland) Amendment Act 1861.

The property in question came into the possession of Mrs Taylor in 1842, under a deed in which neither the jus mariti nor right of administration of her husband were excluded.

She alleged (Conds. 7 and 9) that she continued therefrom, down till the time that her husband granted a trust-disposition in favour of his creditors, to uplift and receive the rents of the said subjects and to grant receipts therefor in her own name, and kept the funds distinct from those of her husband.

The defender pleaded—“2 The provisions of the Conjugal Rights Act have no application to the present case, in respect that—1st The pursuer succeeded to the liferent of the subjects in question before the statute came into operation. 2d The right to the rent of said subjects during their joint lives had vested jure mariti in the husband of the pursuer, and was in his lawful possession, within the meaning of the statute, before the present claim was made by the pursuer.”

The section in question is as follows:—“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, or his creditors, or any other person claiming under or through him, shall not be entitled to claim the same as falling within the communis bonorum, or under the jus mariti or husband's right of administration, except on the condition of making therefrom a reasonable provision for the support and maintenance of the wife.… provided always that no claim for such provision shall be competent to the wife if before it be made by her the husband, or his disponee or assignee, shall have obtained complete and lawful possession of the property, or, in the case of a creditor of the husband, where he has, before such claim is made by the wife, attached the property by decree of adjudication or arrestment, and followed up the said arrestment by obtaining thereon decree of furthcoming, or has poinded or carried through and reported a sale thereof.”

The Lord Ordinary ( Mure) pronounced this interlocutor:—

“2 d March 1871.—The Lord Ordinary having heard parties' procurators on the second plea in law for the defenders, and considered the closed record and productions—before answer, allows the pursuer a proof of her averments in articles 7 and 9 of the condescendence, and to the defenders a conjunct probation; and appoints the proof to be taken on a day to be afterwards fixed.

Note—The claim made by the pursuer in this case appears to the Lord Ordinary to fall within the general policy and spirit of the provisions of the Conjugal Rights Amendment Act; and assuming the allegations relative to the manner in which the pursuer has been allowed to draw and administer the rents of the property in question, from 1842 to 1869, to be established, the Lord Ordinary, as at present advised, would entertain great doubts whether her claim to a reasonable provision under the 16th section of the Statute can be repelled simply because the deed under which the property was acquired came into operation before the passing of the Act.

The main ground on which it appears to be laid down in Dwarris on Statutes, and other authorities relied on by the defenders, that Acts of Parliament are not to be construed as having any

Page: 590↓

retroactive effect, is the apprehension that such a construction might operate unjustly as between parties who have contracted with reference to a different law from that enacted by the Statute. But that difficulty appears to have been disregarded in the case of Fowler, 10th November 1829, 6 Bingham, p. 258; and in the case of Reid, 3d March 1863, the judgment in this Court seems to have proceeded upon the ground that as the Act was an amending and remedial one, it must be construed so as to carry out the main object intended, even if the effect be to some extent retrospective, unless the words of the Statute necessarily exclude that construction. Now, one leading object of the Conjugal Rights Act was to amend the law relative to the administration and disposal of property belonging to married women in the lifetime of their husbands. But if, in a case like the present, where it is alleged that the rents of a property belonging to a married woman have for a series of years, and for eight years after the date of the Conjugal Rights Act, been drawn and expended by her without any interference on the part of her husband, he or his creditors were now to be held entitled to claim the whole rents as falling under the jus mariti, the remedial operation of the 16th section of the Act would in all such cases be defeated; and this is a result which ought, in the opinion of the Lord Ordinary, to be avoided unless there is some very clear and imperative provision of the statute to that effect.

But the operation of the 16th section of the Act is not, in express terms, limited to the case of married women succeeding to property ‘after the passing of the Act,’ as the remedy provided by the 12th section is, in the case of the widows of parties dying infeft in property held burgage. There is a marked distinction between the sections in this respect; and as the words used in the 16th section are open to construction, the Lord Ordinary is at present disposed to think that the construction must be adopted which is most in consistency with the special object and spirit of the Act, and that the solution of the question here raised will mainly depend upon whether, at the time it was raised, the husband or his disponees had obtained that complete possession of the property which the proviso at the end of the 16th section requires in order to exclude the wife's claim. The Lord Ordinary has therefore allowed a proof before answer on this point; and the proof has been limited to this, because he understood parties were agreed in wishing the question raised in the second plea in law disposed of before that relative to the amount of the provision claimed was entered upon.”

The defenders reclaimed.

Watson and Asher for them.

The Court unanimously repelled the first branch of the defenders' second plea above quoted, and quoad ultra sustained the interlocutor of the Lord Ordinary.

Their Lordships were unanimously of opinion that the statute, being a remedial one, should be construed liberally. The grievance under which women suffered in having their inheritance carried away to pay their husband's debts was as serious in the case of successions which had opened prior to the passing of the Act as in those which opened afterwards. The whole spirit and intention of the Act showed that it was intended to have a retrospective effect.