Scottish Court of Session Decisions

In February 1868 the wife of John Webster, a commission agent in Glasgow, died, and her sister, the claimant in this case, came to live in his house and take care of the child of the marriage. She became attached to him, and in consequence of his requests she consented after a time to go to Norway (where marriage between such relations is not forbidden by law) with him, and they went through a form of marriage at Christiana, in the British Consul's office there, on the 21st May 1869. He represented to her, as she stated in this action, that the marriage being then valid by the law of Norway, would be valid in Scotland. Thereafter they returned to Scotland and lived together for thirteen years as man and wife at a villa at Helensburgh which belonged to her. She borrowed various sums of money on the security of the villa, which money was applied in the housekeeping. They lived together till 1882, when they agreed to separate, and they entered into a minute of agreement of separation, executed on the 14th of August 1882. By this agreement John Webster agreed to pay the claimant, who was designed in the agreement as “Mrs Isabella M'Diarmid or Webster, the wife of the said John Webster,” the sum of £1 sterling per week regularly “during the joint lives of the parties, and so long as they continue to live separate.” On her part Mrs Webster agreed that she would not molest or disturb him, or “endeavour to compel him to live with her, or to compel restitution of conjugal rights, or compel him to allow her more or greater aliment than is hereinbefore provided.” She also agreed not to contract debt in his name. The claimant then lived separate from him, letting her house. Shortly afterwards Webster married another woman. On the 24th March 1886 his estates were sequestrated by the Sheriff of Lanarkshire, and William Couper Tait, C.A., was appointed trustee in the sequestration. Before his sequestration the bankrupt had failed to make the promised payment of £1 weekly with punctuality, and a considerable sum of aliment was due.

On 22d July 1886 the claimant made a claim upon John Webster's sequestrated estate for £500 as the capitalised sum of an annuity of £52 sterling per annum during the life of the claimant, who

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was then 67 years of age, in implement of the agreement of 1882. The trustee rejected the claim in toto, “in respect that the claimant is not the wife of the bankrupt, and that the claim is one which cannot be ranked under the Bankruptcy Statute.” The claimant appealed to the Sheriff, and a record was made up, in which the above facts were stated.

The claimant pleaded—“(1) Assuming that the appellant is not the wife of the bankrupt according to the law of Scotland, the agreement founded on is valid and effectual, both in form and in substance, and being both probative and duly stamped, constitutes the appellant a creditor of the bankrupt. (3) No objection having been taken by the respondent to the agreement, either in form or substance, the first reason assigned for rejecting the claim, viz., that the appellant is not the wife of the bankrupt, is the very reason why the claim should have been admitted. (6) Either the bankrupt and the appellant for the foresaid thirteen years were lawfully married persons, or they lived during that period in a state of concubinage; in the former case, the agreement founded on might not be valid to the effect of securing a ranking on the bankrupt estates, in the latter it certainly is. (7) Assuming that the appellant lived during the former period in a state of concubinage with the bankrupt according to the law of Scotland, the appellant having been induced so to do on the misrepresentation of the bankrupt, she is entitled to reparation for the injury she has sustained thereby.”

The Sheriff-Substitute ( Erskine Murray) recalled the deliverance of the trustee, and ordained him to rank the claimant in terms of her claim, and found neither party entitled to expenses.

“ Note.—[ After stating the facts as above given.]—“Now, while it is true that, legally, appellant is not the bankrupt's wife, it is clear that there was an obligation on him to make such a provision. This is not like an agreement void ob turpem causam in consequence of its being granted as the price of prostitution. Even in a case of ordinary irregular connection, it has been held that ‘a compensation for injury already sustained’ is not voidable. See Bell's Principles, sec. 37, and Bell's Illustrations, i., pp. 59 to 61, and especially the case of Gibson v. Dickie, therein referred to on p. 61. In Gibson's case the man bound himself to pay back to the woman certain sums she had given him, besides paying so much a-year for her life; in the present case there is no obligation to repay the moneys received through advances on her property, but only the aliment, so even had this been a case of irregular connection, it would have been the stronger of the two. But when there is taken into consideration the fact that, after having gone through the form of a marriage with appellant, and lived thirteen years with her, and resided in her house, and got advances of money thereon, Webster left her for the purpose of marrying another, the wrong done her was so great and manifest that Webster's obligations to make compensation was clear, and the compensation under the agreement was noway excessive. The fact that appellant is called his wife in the agreement does not alter the case. It is argued for the trustee that to sustain the claim would be to put her in a better position than a legal wife of the bankrupt, but this is not so, for the claim of a legal wife would not come to an end by bankruptcy, whereas a simple claim of compensation for an injury does.”

The trustee appealed to the Court of Session, and argued—The bond that had been granted for payment of the annuity was reducible. If two persons lived together without being married, and the man granted a bond to the woman on the cessation of the illicit intercourse, that bond might be good in law, as granted for reparation to the woman. But the case was different if the woman was a prostitute, or the persons were knowingly living in adultery. That had been decided in the case of Hamilton v. De Gares, 1765, M. 9471; Bell's Commentaries, i. 318; Hamilton v. Main, June 3, 1823, 2 S. 356 (N.E. 313). The same principle applied here as in the case of persons living in adultery, as they were within the forbidden degrees and could not marry. The bond in the case of Hamilton v. De Gares was “probably,” according to the report, given on account of the cessation of the illicit intercourse, and that case was therefore an exact parallel to this case. The agreement therefore was reducible because granted ob turpem causam, and the trustee did right in refusing to rank the woman as a creditor in the sequestration— Durham v. Blackwood, 1622, M. 9470; Young v. Johnson & Wright, May 19, 1880, 7 R. 760.

Argued for the respondent—This case was different from that of Hamilton v. De Gares, inasmuch as the bond there was truly granted in respect of the woman having lived in adultery with the granter, while here it was for the cessation of the irregular connection, and therefore fell under the ordinary rule by which it was admitted that the bond was good, as the parties here were not living in adultery, nor was the woman a prostitute. If however, the case of Hamilton should be construed as the appellant did it, and should be held to apply, then the bona fides of the woman here took this case out of the ruling in that case. The parties had gone to Norway to be married, and there was nothing to show that the woman did not think, as she averred, that a marriage which was legal in Norway would be legal in Scotland afterwards.

At advising—