Scottish Court of Session Decisions

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Cite as: [1876] ScotLR 13_278, [1876] SLR 13_278

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SCOTTISH_SLR_Court_of_Session

Page: 278↓

Court of Session Inner House First Division.

[Sheriff of Lanarkshire.

Saturday, February 5. 1876.

13 SLR 278

Cameron

v.

M'Lean.

Subject_1Paraphernalia.

Facts:

Circumstances in which a wardrobe was held to be inter paraphernalia.

Headnote:

Mr and Mrs Cameron, three months after their marriage, ordered a wardrobe, which was delivered in three months. For the first three months the clothes of both the spouses were kept in it, but on the birth of the first child the husband's clothes were removed to another place, and ever afterwards the wardrobe was used only for the clothes of the wife and the infant. The wife had no other receptacle for her clothes. Four years after the marriage the husband became bankrupt, and his furniture was taken possession of by the trustee. The wife brought a petition for the restitution of the wardrobe as being inter paraphernalia.

The Sheriff-Substitute and Sheriff held that in the above circumstances it was not so, and refused the prayer of the petition.

The petitioner appealed to the Court of Session.

Appellant's authorities— Dicks, M. 5822; Pitcairn, M. 5825.

Respondent's authorities—Erskine, i. 6–15; Hewatt, Hume's Decisions, 210.

At advising—

Judgment:

Lord Deas—It was quite right in the trustee to retain this article and not include it in the general sale. The question is whether this wardrobe is paraphernal or not. There has been no case of the sort for a considerable period. They were more common in old times, for the ladies of those days were very jealous of certain rights of this class. But the law on this subject was perfectly well understood, and I take it to be this— First, That those articles are in their nature paraphernal which are adapted for the use and enjoyment of the female spouse as distinguished from promiscuous use. Second, That articles of promiscuous use may be made paraphernal by being gifted to the wife before or on the day of the marriage, either by the husband or by friends, and either by express or implied gift, if they are not out of keeping with the rank of the recipient. It is with the first branch only that we have to do here. It is admitted that the wife's clothes are adapted for her own, and not for promiscuous use. It seems naturally to follow that she must have some place to put them in. If this wardrobe had been used by her alone from the beginning there could not have been the slightest doubt. The only room for doubt arises from the fact that it was used by both for the first three months. But it does not appear that at first the husband had any place to put his clothes in, and I do not think that this partial use by him for the first three months is sufficient to alter the legal character of the article. It is not suggested that it is inconsistent with the rank of the spouses. The case reported by Hume is quite different. There there was a quantity of furniture, of which the chest of drawers was an article. I am therefore for recalling the interlocutor of the Sheriffs, and granting the prayer of the petition.

Lord Ardmillan—I concur. I do not think that the occasional use by the husband here could destroy the paraphernal character of the article.

Lord Mure concurred.

The Lord President was absent.

The Court granted the prayer of the petition.

Counsel:

Counsel for Petitioner (Appellant)— R. V. Campbell. Agents— T. & W. A. Laren, W.S.

Counsel for Respondent— Lang. Agents— Campbell & Smith, S.S.C.
1876

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