Scottish Court of Session Decisions

In April 1906 Mrs Elizabeth Henderson or Wilkie raised this action against her husband, in which she sued him, inter alia, for £ 100.

Her averments were substantially that her father shortly after her marriage to the defender presented her with £100; that she asked her husband to lodge this sum in her bank account for her; that instead of doing so he, without any right or authority, appropriated the money to his own purposes.

The defender averred that the pursuer had given him the money as a donation, and that he had spent it with her knowledge upon mutual purposes. He further averred that the pursuer had committed adultery, on account of which he was raising divorce proceedings. The pursuer denied donation, consent to, or knowledge of, the expenditure of the £100 on mutual purposes, and adultery.

The pursuer pleaded, inter alia—“(1) The defender being due and resting-owing to the pursuer the sum of £100 and interest, decree should be granted therefor in terms of the first conclusion of the summons. (2) The said sum having been the property of the pursuer, and having been appropriated by defender without her consent, she is entitled to decree therefor as craved.”

The defender pleaded, inter alia—“(4) The sum of £100 having been gifted to the defender, decree of absolvitor should be pronounced. (5) Separatim, the said sum of £100 being a donation between spouses, and the pursuer having been guilty of adultery, she cannot sue for the return thereof.”

Subsequent to the raising of the action, on 12th May 1906, the husband raised an action of divorce against the wife on the ground of adultery, and the defender having denied adultery and averred that she was a virgin, on 21st November 1906, he brought an action of declarator of nullity of marriage on the ground of the wife's impotency. Decree of nullity of marriage was pronounced on 19th January 1907, and the wife was assoilzied in the action of divorce.

In June 1907 a proof was taken in the present action, and on 7th June the Lord Ordinary ( Mackenzie) assoilzied the defender from the petitory conclusion of the summons, and decerned.

Opinion.—“The first conclusion of this action (the only one about which there is dispute) is for payment of £100. The pursuer was married to the defender on 16th September 1902. They parted company on 6th March 1906, and decree of nullity of marriage was pronounced on 19th January 1907, in an action at the husband's instance.

The £100 sued for represents the proceeds of a cheque which the wife handed

Page: 452↓

her husband on 25th September 1902, £80 of which he paid in to his, bank account, the remaining £20 being handed to his wife, and applied, as she depones, in payment of bills in connection with her husband's business of hotel-keeper.

The facts in connection with this cheque are, in my opinion, proved to have been as follows—The money was a present from the pursuer's father to her. She had assisted him in his business before her marriage without wages, and he had promised her the present. On 24th September he took the cheque produced, drawn payable to himself and endorsed, and gave it to her in her husband's hotel. He gave it to her to keep for herself, and to bank in her own name. It appears that previously he had been asked to become cautioner for an overdraft to the defender, but had declined. He had not a good opinion of the defender's financial position, and says he gave his daughter the money to make sure she should have something in case anything happened to her husband's affairs. The defender says the pursuer's father told him that day he had handed the cheque to his daughter to give him to help in his business. This is denied by the father, who says he never told the defender he had given his daughter the cheque. I believe the evidence of the pursuer's father. The pursuer told her husband of the cheque that evening. On the following day the defender got the cheque from his wife, as she says, to lodge in bank in her name. She was unable to say whether this was to be on deposit or not. Of the £100 the pursuer received £20, which she states was applied in paying accounts in connection with the hotel business. It is not very clearly proved what was done with the money, but in the view I take it may be assumed it was so applied. Shortly afterwards, when she looked at the defender's bank book, she saw that the remaining £80 had been placed to his credit. Her evidence is that she complained of this to the defender, and continued to do so, and that she asked for a receipt. She spoke to her father about it a fortnight later and on other occasions, but he seems not to have said anything to the defender about it. I think that the pursuer must very soon have come to know that the £80 had been drawn out of the bank by the defender, and spent either on his business or in paying household accounts.

The question is whether the pursuer, who, during the time in question, occupied the position of the defender's wife, can now recover from him moneys which she must be held to have known were being applied for mutual purposes. If this were the case of a marriage dissolved by decree of divorce it would, I think, be plain from the decision in Fenton Livingstone, 44 S.L.R. 503, and the cases there referred to, that she could not.

It has been maintained, however, that the case here, being one of nullity, is different. That it must be held there never was a marriage— nec vir, nec uxor, nec nuptiœ, nec matrimonium, nec dos intelligitur—Fraser, Husband and Wife, i, 149; Ersk. Inst. i, 6, 43—and accordingly that there must be mutual restitution of property. I am of opinion that the principle of the case above referred to applies to moneys spent on mutual purposes during the period the pursuer and defender believed they were married persons. I am accordingly of opinion that the defender is entitled to be assoilzied from the petitory conclusion.

It was suggested that, as the decree in the nullity case only ordained the wife to make restitution to the husband, the former could not insist in her present demand. That, however, appears to me not tenable. There is nothing in the decree to prevent her claiming restitution if otherwise entitled to it.

Parties have agreed that the pursuer is entitled to decree for delivery of the articles specified under the heads (1), (2), and (4) of the minute.”

The pursuer reclaimed, and argued—The pursuer was entitled to the £100 on the simple ground that the money was her private property and had been illegally appropriated by the defender. The evidence showed that she never made a donation of it to the defender; that she never knew that it was being spent on mutual purposes, if it was so spent, of which there was no evidence; that she repeatedly asked the defender to repay it, and that he never did. The case therefore involved no intricate questions of law, but depended for its solution upon the elementary proposition that a person to whom another entrusts a sum of money for a special purpose (in the present case, that it might be lodged in bank) must perform that purpose or else produce the money. A wife was a good creditor against her husband even when her funds were immixed with his—Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. cap. 21), section 1 (4). The Lord Ordinary, however, apparently thought that the case involved a consideration of the question of what was the effect of a decree of nullity upon the patrimonial interests of parties. Even if it did, the result was the same to the pursuer. The effect of a decree of nullity was stated by Ersk. Inst. i, 6, 43, as follows, (approved by Fraser, Husband and Wife, vol. i, 149)—“as marriages in themselves void can have no legal effects, everything must, on a declarator of their nullity, return hinc inde to its former condition;” see also A B v. C B's Trustees, 1907, 15 S.L.T. 108. Accordingly, even if the £100 had in any way got into the husband's hands legitimately for matrimonial purposes, at the dissolution of the marriage it reverted, ipso facto, to the wife. There was this radical difference between a marriage dissolved by decree of nullity and one dissolved by decree of divorce, viz., that in the former case there never had been, in the latter there had been, a marriage; hence the doctrine of Fenton Livingstone, 44 S.L.R. 503, was inapplicable to a marriage dissolved by decree of nullity. That case apparently

Page: 453↓

settled that on the dissolution of a marriage by divorce a spouse could not recover a donation of money which had been spent on mutual purposes; that doctrine was however inapplicable to a marriage dissolved on the ground of nullity, for there having been no marriage there could have been no proper mutual purposes. Even, however, if there were not this distinction, Fenton Livingstone did not help the defender, for he had failed to prove three facts held essential in that case, viz.—(1) That there was donation. (2) That there had been expenditure on mutual purposes. (3) That the money was no longer extant. Hedderwick v. Morison, November 22, 1901, 4 F. 163, 39 S.L.R. 124, and Hutchison v. Hutchison's Trustees, June 10, 1842, 4 D. 1399, were quite different, for there the wife had herself expended the money on household purposes.

Argued for the respondent—The facts showed that the wife had made a donation of the money, and that it had, with her knowledge and consent, been spent on mutual purposes. Under these circumstances she could not recover it— Fenton Livingstone, cit. sup.; Hedderwick, cit. sup.; Hutchison, cit. sup. There was in a question like the present no distinction between true spouses subsequently divorced, parties who erroneously thought they were spouses and who were subsequently separated by decree of nullity, and parties who had knowingly lived together in concubinage and subsequently separated. While they were together they had mutual purposes, and in regard to such matters as donations, &c., their attitude of mind was similar. This was a case of consumption and not immixture of funds, and therefore the Married Women's Property Act 1881, sec. 1 (4), had nothing to do with the case.