Scottish Court of Session Decisions

John Durham Thomson, retired master mariner, Inglewood, Byfleet, Surrey, presented a petition for recall of arrestments in the following circumstances:—The petitioner, who was married, was in receipt of an alimentary provision of about £200 a—year, being the income of a certain fund held for him in liferent by the testamentary trustees of Alexander Thomson, wholesale stationer, Bank Street, Dundee, the petitioner's father. In 1904 his first wife ad raised an action of divorce against

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him, in which she obtained interim decree for a sum of £20 to account of expenses. Decree of divorce was subsequently pronounced in her favour, and decree for £33, 7s. 2d., being the balance of the taxed amount of the expenses of her action was granted in favour of Messrs Gordon, Petrie, & Shand, S.S.C., as agents disbursers. The total amount of expenses in which the petitioner was thus found liable with dues of extract was £56, 2s. 2d. Arrestments were laid on by the petitioner's wife and by Messrs Gordon, Petrie, & Shand against the petitioner, in the hands of his father's trustees, whereby it was sought to attach the income payable to the petitioner as stated above.

Answers were lodged in the present petition by Mrs Thomson and by Messrs Gordon, Petrie, & Shand.

At the date of the petition the petitioner, who had no means of subsistence other than the provision referred to, was married to a second wife, by whom he had one child. There were four children of the first marriage. It was stated at the bar that the petitioner was about 60 years of age.

At the calling of the petition in Summar Roll, argued for the petitioner—The alimentary provision was of reasonable amount and the arrestments should therefore be recalled— Livingstone v. Livingstone, November 5, 1886, 14 R. 43, 24 S.L.R. 30; Dick v. Russell, December 24, 1887, 15 R. 261, 25 S.L.R. 281; Blackwood v. Boyd, 1677, M. 10, 390. The provision could not be cut down without inquiry, and the onus was on the respondents to show that it was excessive.

Argued for the respondents—The onus was on the petitioner to justify the amount of the provision in question, which could not be protected from creditors so far as beyond reasonable aliment— Haydon v. Forrest's Trustees, 3 S.L.T. 286; A B v. Sloan, June 30, 1824, 3 S. 133 (195); Leslie v. Cumming & Spence, February 20, 1900, 2 F. 643, 37 S.L.R. 444; Hurst v. Beveridge, March 3, 1900, 2 F. 702, 37 S.L.R. 501, Bell's Com. i. 125. £1 a-week had been fixed by statute as a reasonable allowance for a working man and the petitioner required little more—Wages Arrestment Limitation (Scotland) Act 1870 (32 and 33 Vict. c. 63).