Scottish Court of Session Decisions

Mrs Christina Nish raised this action in the Sheriff Court at Edinburgh, in January 1894, against the executor of her deceased husband, for recovery, inter alia, of certain small sums of money which she alleged had been paid by her out of her own estate during the marriage in satisfaction of debts due by her husband.

Proof was allowed. It appeared that Mr and Mrs Nish were married on 20th September 1883. Mr Nish died in October 1892. The pursuer deponed that the sums for which she sued had been paid by her out of her own estate. They had been paid respectively in 1885, 1888, and 1890, in satisfaction of (1) a shorthand writer's account incurred by her husband, who was a solicitor, in the course of his practice; (2) the interest due on a small loan obtained by her husband on the security of real estate belonging to him ; and (3) legal expenses incurred by her husband in connection with the mortgage. She had never asked repayment during her husband's life. She expected that her husband would leave her his whole estate. In corroboration of her claim pursuer produced receipts for the said alleged payments made by her on her husband's behalf. The receipts bore that the sums paid had been received from her.

Upon July 24th 1894 the Sheriff-Substitute ( Rutherfurd) found in fact and in law that the pursuer had failed to prove that the sums sued for were “debts due to her by her husband at the time of his death,” and therefore dismissed the action.

On appeal, the Sheriff ( Blair) recalled this interlocutor, and decerned against the defender for payment of the sums sued for.

Page: 226↓

The defender appealed, and argued—The defender had only her own evidence to show that she had paid the sums sued for out of her own estate, and that was not sufficient proof to rebut the presumption that if a wife advanced money it was for the use of the spouses, and not as a creditor. The long delay in bringing the action was also against the pursuer's claim as good— Annand's Trustees v. Annand, February 6, 1869, 7 Macph. 526; Fairbairn v. Fairbairn, March 18, 1868, 6 Macph. 640 ; Hutchison v. Hutchison's Trustees, June 10, 1842, 4 D. 1399; February 1, 1843, 5 D. 469; Tennent v. Tennent's Executor, June 28, 1889, 16 R. 876; Edward v. Cheyne, March 12, 1888, 15 R. (H. of L.) 37.

The respondent argued—The pursuer was entitled to have a proof prout de jure in support of her averments, and had proved that she had paid the sums sued for out of her own estate. As regarded the delay in bringing the action, it was satisfactorily accounted for by the pursuer's expectation that she was to succeed to her husband's whole estate. It was proved that the money was paid to the various persons who claimed it as creditors, and the wife took the receipts in her own name, and that raised a presumption that the wife intended to make herself the creditor of the husband—Dickson on Evidence, p. 190.

At advising—