Scottish Court of Session Decisions

The petitioners in this case, Mr and Mrs Carmichael, were married in 1857. By their marriage-contract Mr Carmichael undertook to secure his wife in an annuity of £100 in case she should survive him, and for that purpose conveyed certain policies of insurance to the marriage-contract trustees. She, on the other hand, conveyed to the trustees her whole estate—the income during the subsistence of the marriage to be paid to her “on receipts signed by herself without the consent of her promised spouse, whose jus mariti and right of administration are hereby expressly excluded;” and the capital on the dissolution of the marriage to go to her, her heirs and assignees, she having power to test.

The petition related to £505 stock of the City of Glasgow Bank which at the date of the liquidation stood in the name of Mrs Carmichael. The names of both spouses were placed on the list of contributories, and the object of the petition was to have that of Mrs Carmichael removed. The general features of the case and the arguments were similar to those in the case of Steedman, reported immediately above.

The following joint minute of admissions explains the peculiarities:—“(1) That on or about 23d November 1857 there were transferred to the female petitioner, exclusive of the jus mariti of the other petitioner, fifteen shares of the capital stock of the City of Glasgow Bank, of £10 each, fully paid up; and on or about 31st March 1859 there was transferred to her a second lot of fifteen shares of the said capital stock—also exclusive of her husband's jus mariti. That these transfers were accepted by the female petitioner with consent of her husband, and were signed by them both. (2) That on or about 10th July 1858 there were transferred to Mrs Carmichael fifteen shares of the said capital stock, fully paid up, the transfer of which was also accepted by her with consent of her said husband, and was signed by them both. That in this transfer her husband's jus mariti was not excluded. That in the year 1864 the City of Glasgow Bank sent out circulars to its shareholders inviting them to accept allotments of new stock; that such a letter was sent to Mrs Carmichael, and that the letter accepting £100 of new stock, No. 12 of process, which is signed by the male petitioner ‘Jane Anne Carmichael, p. J. Car michael, 1 Granby Terrace,’ was thereupon sent to the head office of the bank; that her husband's jus mariti was not excluded as regards the £100 of stock so allotted and accepted. (3) That the said stock was purchased by, and the price thereof paid out of, funds belonging to the said John Carmichael, being savings laid past from his business, which he intended by taking the transfer in his wife's name to settle as a provision on her; that the warrants for the dividends accruing on said stock were signed by him as for his wife, and the dividends received and applied by him to his own uses. That it was the custom of the bank when stock was held as in the present case, to pay dividends on the receipt of either husband or wife; and the officials were also in the habit of paying dividends on the receipt of the shareholder's agent, where such agent was known to them. (4) That at the dates the said stock was acquired the bank knew that the female petitioner was a married woman, but they were not informed and were not aware that the cash paid therefor belonged to her husband, or that the dividends falling due thereon were retained by him.”

The original entry in stock ledger No. 4 of these various parcels of stock was headed—“Mrs Jane Anne Brown or Carmichael, spouse of John Carmichael, commission agent, residing at No. 415 St Vincent Street, Glasgow, excluding the jus mariti of her said husband.” But in ledger No. 5 it became—“Mrs Jane Anne Brown or Carmichael, spouse of John Carmichael, commission agent, and residing at No. 10 Hillhead Gardens, Glasgow,” and this last form of entry was continued into the ledger which was current when the bank failed.

On the 23d October 1878, after the liquidation had commenced, Mr Carmichael executed a revocation in these terms:—“I, John Carmichael, commission agent in Glasgow, considering that in the year 1860 I made a gift to my wife Mrs Anna Brown or Carmichael of certain sums of money, which sums were invested in the purchase of £405 of the City of Glasgow Bank stock. In the year 1864 I made a further gift to my said wife of certain sums of money, which sums were also invested in the purchase of £100 of the stock of the said bank; and further, considering that the said gift was inter virum et uxorem, and is consequently revocable by me, therefore I do hereby revoke and recall the same. In witness whereof, &c.

John Cabmichael.”