Scottish Court of Session Decisions

At advising on 26th March 1942, the opinion of the consulted judges was delivered by—

LORD PRESIDENT (Normand).—An obligation undertaken in a marriage contract by one of the spouses to provide, on his or her death, an annuity to the other spouse, if then surviving, is enforceable against the obligant, if the marriage is dissolved by divorce and the obligant is the guilty party. The fiction that the guilty spouse is dead overrides the literal terms of the contract to the effect of rendering the obligation enforceable by the innocent against the guilty spouse, although it is conceived in terms which make it prestable on death. The question in the present case is whether the fiction operates to the like effect when the obligant is not the guilty spouse but some other person, generally, but not necessarily, the father of the guilty spouse. It is essential to note that the type of obligation which gives rise to this general question is not one which provides the annuity to one spouse during the subsistence of the marriage, and, on his or her death, to the other spouse, but an obligation the operation of which is suspended till the dissolution of the marriage by death. It is, accordingly, an obligation which would be more onerous if it were held that the fiction applies than if it were held that the obligation and the rights of parties under it fall to be regulated exclusively by the literal terms of the marriage contract. The broad question is whether the fiction falls to be applied in those cases where it would adversely affect the interests of parties to the marriage contract other than the guilty spouse.

We wish to make it clear that we regard it as unquestionable that the fiction must be applied in the event of divorce where, as in the usual case, the parent of a spouse has made a provision (whether by way of settling funds or by way of undertaking an obligation) which becomes effective on the celebration of the marriage so that one of the spouses becomes then or, at all events, as from a date during the subsistence of the marriage entitled to the enjoyment of an annuity which will pass on his or her death to the other spouse.

Now, the contention for the pursuer is that the question now raised

never came before this Court in any case in which a decision upon it was necessary, that there is only one case in which the decision was based on a ratio destructive of her claim, and that the ratio, as there stated, is bad in law. The case is Drummond v. Bell-Irving . The marriage contract in that case gave power to the wife, if her husband should predecease her, to withdraw and resettle one-half of the trust funds in the event of there being issue of the marriage taking a vested interest. The husband was divorced; there was a child of the marriage in existence; and the wife brought an action to have it declared that she was entitled to exercise this power. The Lord Ordinary (Lord Moncrieff) assoilzied the defenders, and the Second Division by a majority, Lord Anderson dissenting, adhered. In his opinion the Lord Ordinary said (at p. 709) "the measure of the rights conceived in an antenuptial contract in favour of the innocent spouse, which upon decree of divorce he or she becomes entitled to enforce, includes those rights, and those rights only, which he or she takes in succession to, and as following upon a forfeiture incurred by, the guilty spouse."This sentence was quoted by the Lord Justice-Clerk (with whom Lord Ormidale concurred), and he said it expressed a ground sufficient to exclude the pursuer's claims. If this sentence stood alone, or if it is isolated from its context, it is open to criticism, as the learned Dean of Faculty for the defender admitted. But it must be read in conjunction with other parts of the opinions of Lord Moncrieff and the Lord Justice-Clerk. Lord Moncrieff, for example, later in his opinion says that the innocent spouse is not entitled upon the divorce to those rights which fall to be exercised by her at the expense of parties other than the guilty spouse, and the Lord Justice-Clerk cites with approval passages from Erskine and from an opinion of Lord Kinnear which clearly show that he had in mind that the innocent spouse was entitled to claim rights under the marriage contract, not merely by way of forfeiture, but also by enforcement of obligations which the guilty spouse had undertaken. The criticism, therefore, that the case of Drummond was decided on the ground that the innocent spouse takes only what the guilty party forfeits is merely a verbal criticism. In Drummond (as in several other cases on this branch of the law) the word forfeiture is used somewhat loosely, but the meaning is really not in doubt. Both Lord Moncrieff and the Lord Justice-Clerk were clearly of the view that the innocent spouse is entitled on the divorce to the benefit of those rights only which he or she takes at the expense of the guilty spouse, either by forfeiture or by the enforcement of obligations in favour of the innocent spouse. The pursuer's counsel, however, maintained that even this proposition was inconsistent with our institutional writers and previous decisions. He did not dispute that Drummond was rightly decided, for he agreed that the rights of children of the marriage could not be adversely affected by a claim of the innocent spouse, after divorce, to those rights

and benefits which the marriage contract conferred on her upon the dissolution of the marriage by the predecease of her husband. But he distinguished between children of the marriage and parties to the contract, contending that parties to the contract were in no better position than the guilty spouse. It would, we think, be difficult to maintain this distinction between children of the marriage and parties to the contract. According to our law, the children of the marriage are treated as parties to the marriage contract. This may seem paradoxical, since they are not in existence at the date of the contract. Yet there is no way of explaining the effect which a marriage contract may have on the interests of children to be born of the marriage except on the footing that their parents contract for them. For the parents have power by the marriage contract to bind the children, and one of the chief uses of a marriage contract is to discharge the legal rights of the children to be born of the marriage. The accepted doctrine of our law is stated by Lord Fullerton in Advocate-General v. Trotter, (at p. 70) thus:—

"The peculiarity of the marriage contract, and the provisions contained in it, is that they cannot be revoked, even if both the originally contracting parties concur in the revocation. In law, the children, in spe, are held to be parties to the contract, and no direct act of the parents can impair the interests created in their favour."

There are other cases in which it has been said that the children of the marriage are parties to the marriage contract, and we note that, in one of the cases cited to us, Lord Young stated this parenthetically as a thing no one would dispute—Harveys' Judicial Factor v. Spittal's Curator ad litem, at p. 1021. No doubt there is an element of fiction in this; and, although it might be superficially logical to answer one fiction with another, and to say that the proposition that anyone who is a party to the marriage contract must submit to the adverse operation of the fiction that the guilty spouse is treated as dead cannot be well founded, because children of the marriage are parties to the contract and yet are immune from the adverse operation of the fiction, we should not be content with so refined and artificial an argument.

The pursuer's challenge of the rule laid down in Drummond requires us to consider whether there is authority which bears upon it, and, if so, whether the trend of authority is towards affirming or negativing the rule.

Counsel on each side sought to support their contentions by arguments based on the history, as presented by them, of our law of divorce and its effect on patrimonial rights at the period immediately before the Reformation, at the Reformation and immediately after it. This chapter of our legal history is exceedingly controversial, and we do not propose to enter upon it or to make any additions to the dubious historical assumptions already sufficiently represented in judicial opinions. We have failed to obtain any assistance from this

part of the able arguments addressed to us. Nor do we find any help in the Act of 1573, which deals only with the forfeiture incurred by the guilty spouse and says nothing of the rights accruing to the innocent spouse. It is with the latter that this case is concerned.

We are likewise unable to profit by the citation of the decrees pronounced in actions of divorce by the local consistorial courts in early days—Hermand's Consistorial Decisions, 1684-1777, pp. 71 et seq. It is possibly true that these decrees in their common form during the period 1684-1777 found that the wife divorced for desertion had lost and amitted her dote and tocher and all other goods and gear brought with her or agreed to be paid, nomine dotis et propter nuptias, and whatever she might have had right to jure relictœ, and that in decrees of divorce for adultery there was sometimes a finding that the pursuer hath good and undoubted title to all the provisions conceived in her favour by the contract of marriage, or an equivalent finding. But the terms of these decrees are of no value in the question before us. In the first place, it would appear that the only parties to the action of divorce were the husband and the wife, and it is quite impossible that any decree pronounced could adversely affect the interests of a father of one of the spouses, if he was not called as a defender. In the second place, we are not satisfied that the consistorial courts had jurisdiction to adjudicate upon the rights of any party except the spouses. In the third place, it is by no means clear that in the period 1684-1777 the kind of provision now before us was anything more than a rarity. In Justice v. Murray it appears from the Session Papers (Campbell's Collection) that a wife who had divorced her husband obtained a decree against her husband's father for the payment of a jointure secured to her by infeftment and falling to her on the predecease of the husband. While there are very many cases in the 17th and later centuries in which marriage provisions were contributed by the parents of the spouses, this is the only case brought to our notice in which such a provision was stipulated to become effective only on the dissolution of the marriage. The case is also peculiar because the jointure appears to have been provided in return for a payment which the wife's brother had made, not to the husband, but to the husband's father. Moreover, the decree seems to have passed by consent. In these circumstances we can attach no value to the case as authority. But it may be pertinent to note that the decree did not employ merely the words of common form, but specifically referred to the jointure. It is perhaps going too far to say that the proper inference is that the words of common form were insufficient to carry a jointure not falling to be paid by the husband. To sum up this chapter, we find that it is affected by too many doubts and uncertainties to be a useful guide. It is an admirable field for historical research, but in the meantime it is scarcely a treasure house of clear-cut rules of law.

New and more exasperating disappointment attends the search for a solution of the problem in the institutional writers. If they spoke with one voice, or if they discussed the fiction that the guilty spouse is treated as dead in such a way as to show that they had before them the question of its effect upon the interests of parties to the marriage contract other than the spouses, it would have been a different matter. But what we find are pithy and oracular pronouncements, and, unfortunately, they do not agree. To recite all the passages quoted to us would be a waste of time, and we content ourselves with some which are typical. Stair (I, iv, 20) says:—

"Marriage dissolved by divorce, either upon wilful non-adherence, (or wilful desertion), or adultery, the party injurer loseth all benefit accruing through the marriage, (as is expressly provided by the foresaid Act of Parl. 1573, c. 55, concerning non-adherence), but the party injured hath the same benefit as by the other's natural death."

The last part of this passage would, if taken at its face value, carry the pursuer's case to success. But it has to be admitted that it is too broadly stated, for conventional benefits which are not in the nature of pecuniary provisions or which can only be enjoyed by the party injured at the expense of the interests of her issue do not pass to her on divorce. There is, moreover, nothing to show that Stair had before him anything beyond those rights which the injured party might assert against the party injurer, although, of course, other parties to the marriage contract might be, and very often were, the source from which such rights were derived. Bankton (I, v, 134) is to much the same effect as Stair. But Erskine (I, vi, 46) says this:—

"The husband, if he be the party offending, not only loses the tocher, or, in other words, must not only restore to the wife the sum he received in the name of tocher, but he is also bound to make good to her all the provisions in her favour, as well legal as conventional; so that she hath immediate access to them upon the decree of divorce, though neither the legal provision of terce, nor the conventional ones secured by marriage articles, are, in the common case, due to a wife till the actual death of her husband."

It should be explained that Erskine is here speaking of divorce for desertion, but the law is the same (setting aside the disputable question of forfeiture of tocher) in divorce for adultery. If Erskine had in mind the question whether the interests of parties other than the spouses may be adversely affected, he has deliberately chosen words which limit the operation of the fiction to spouses only. But we think it is merely a speculation to suggest, as the pursuer's counsel did, that Erskine's attention had been called to our present problem, and that he intended to offer his solution. The truth is that provisions contributed by a parent of one of the spouses which are not to take effect on the celebration of the marriage but only at the decease of that spouse, survived by the other spouse, are most unusual even in modern times, and there must have been even less occasion for them in the social conditions of the seventeenth and eighteenth centuries. The only advantage which the pursuer can take from Erskine's formulation is that in recent times it was selected for quotation as the accurate formulation of the law by learned judges who did have before them cases in which the interests of third persons came in question. The tenth edition of Bell's Principles (sec. 1622) states the law thus:—

"The innocent party has the benefit of all legal and conventional provisions granted intuitu matrimonii, as if the other were dead, and whether these conventional provisions come from the guilty party or his father."

But the latter part of the proposition is merely the learned editor's condensed statement of the effect of the decision in Johnstone-Beattie's case, and must be read under reference to that case. It may be noted that Lord Fraser in his book on Husband and Wife states the effect of that decision in similarly wide terms. We shall have to consider Johnstone-Beattiewhen we come to the modern reported cases.

We were referred to the lectures delivered by Baron Hume in 1821-1822, when he held the chair of Scots Law at Edinburgh, and recently published by the Stair Society. Baron Hume adopts the view of Erskine, for he says (p. 172) that on divorce for desertion "the husband, where he is at fault, shall restore the tocher, and all of every sort he has got with his wife, and put her in possession of her provisions, lawful or conventional; and that the wife, where she is the offender, shall forfeit these provisions, and her tocher along with them, to the husband."Here the fiction is regarded as operating only between husband and wife. We are, however, unable to treat Hume's lectures as a book of institutional authority, and, since they may be referred to in other cases hereafter, and their publication may be followed by other similar publications of manuscripts hitherto unpublished, we take this opportunity of stating the reasons for our opinion on this point. Baron Hume was a very distinguished lawyer, and his treatise on the Criminal Law (published in 1797) ranks along with the other institutional works to which we pay homage in our law. But these lectures were not prepared for publication by Baron Hume, and they are not in pari casuwith a treatise written with a view to publication, although published posthumously. They are not, in our opinion, of comparable authority with his treatise on the Criminal Law, because they do not come into the world with his final approval and authority. Their historical value is high, and they are of great value in ascertaining what the law was supposed to be at the date when they were delivered by a lawyer of great eminence. In Kerr v. Martin, notes taken by his former students were referred to by learned judges as evidence of the general and understood state of the law, but they were not put upon the same plane as the works of the recognised institutional writers. Baron Hume left the chair of Scots Law in 1822 and became a Baron of Exchequer. He survived till 1838. He published his Reports of Decisions in 1829. If he had desired to publish his lectures, he had ample opportunity

for doing so, and from these dates alone the inference should be drawn that he was averse to publishing them, even if this were not known with much greater certainty from other circumstances. The publication of the lectures a century after his death by the Stair Society, for which we should be grateful, cannot be held to have made available to us and our successors a new and authoritative source of Scots law.

From this unusually barren and unrewarding investigation of the institutional writers it is time to turn to modern reported cases, in which, in our view, we do at last find authoritative guidance. Indeed, we think that the question is really settled for us by the important and authoritative cases of Johnstone-Beattie and Somervell's Trustee v. Dawes . In Johnstone-Beattie the husband had been divorced for adultery, and the wife claimed that she was entitled to an annuity which her husband's father had bound himself by the marriage contract to pay to the husband, whom failing, to the wife, whom failing, to the children. The annuity was assignable and had in fact been assigned, substante matrimonio, by the husband to certain creditors. It will be seen that the father was already paying the annuity in accordance with his obligation before the divorce, and in effect the only question was whether he was bound to pay after the divorce to his son's wife instead of to his son. It requires some ingenuity to discover what was the father's interest to defend the action, for the debtor in a bare pecuniary obligation is not concerned with the identity of his creditor, and the father had as little interest or title to object to paying to his daughter-in-law as he would have had to paying to his son's assignees. Lord Kinloch (the Lord Ordinary) decided in favour of the wife, and his interlocutor was affirmed by the First Division. In his opinion Lord Kinloch certainly went beyond what was necessary for the decision. He did not proceed on the ground that the father had no real interest, but rather on the ground that it was irrelevant to inquire whether he had an interest. The interest alleged by the father was that he had provided by the annuity a sum sufficient for the maintenance of his son, and that, if the annuity were made payable to the son's wife, he might be obliged to aliment his son as well as to pay the annuity. In view of the fact that the son had already assigned the annuity to creditors, this somewhat strange argument lacked plausibility. We quote two passages from the Lord Ordinary's opinion, because they represent his view adequately, and because they were commented on by Lord Thankerton in a later case. The two passages are as follows:—(p. 344) "The Lord Ordinary cannot find in such a contract a different meaning in the case of the father-in-law from what it bears in the case of the husband. If, in the latter case, provision in the case of death becomes equally provision in the case of widowhood by divorce of the husband, the

Lord Ordinary sees no reason why it should not equally be so in the former. There is no hardship in so holding; for, in entering into the contract, the father-in-law knew as much about the provisions of the law, and its identification of death and divorce, as did the husband; and must be held to have bound himself in exactly the same contemplation,"and (at p. 345) "If this be the true meaning of the obligation, the pursuer comes now to have right under it, not indeed by virtue of the express words of the contract, but by virtue of a legal implication as to the identity of death and divorce, which must be held to have been in the knowledge of the contracting parties, and in the knowledge of which all must be held to have contracted."Now, Lord Thankerton's observations on this, in Selsdon at p. 34, are very pertinent to the present case. He points out that Lord Kinloch's words must be taken, not only with the immediate context, but also in view of the subject-matter of the case, i.e., a marriage contract provision by the father to the husband, whom failing, to the wife. He also says that he knows of no decision which involves the view that divorce is identical with death, and that this view is not to be found in the opinions of the Inner House. Indeed, it is really quite settled that it is erroneous to suppose that, after divorce, the marriage contract falls to be construed as if any reference to the death of the guilty spouse meant and included a reference to his divorce. That is made clear by those cases in which children of the marriage claimed that their interests were accelerated by the operation of the fiction. In Harveys' Judicial Factor v. Spittal's Curator ad litem, Lord Kyllachy, whose opinion is entitled to the greatest respect, was the Lord Ordinary. In dealing with a claim by the children of the marriage that for the whole purposes of the marriage contract the divorced husband is to be held as dead, and therefore that their interest in the fund settled by him, the income of which was set free by the subsequent death of the innocent wife, took effect as if the guilty husband was naturally dead, Lord Kyllachy said (at p. 1019):—

"There is no authority, so far as I can find, for such an extension of the doctrine of forfeiture in divorce. It is sometimes said that as regards pecuniary consequences, the guilty husband is to be treated as if naturally dead. But this only means that he is to be so treated in a question with the wife."

In Dawson v. Smart, the child of the marriage claimed acceleration of her interest in the fund settled by the innocent spouse. The Lord Chancellor in negativing this claim said (at p. 25):—

"The contention seems to introduce both into the marriage settlement and into the statute [of 1573], words that are not there. It seeks to introduce into the settlement words limiting the property either to the death of both the spouses or to the divorce, and these latter words cannot by any reasonable construction be imported into the settlement."

Lord Robertson said (at p. 29):—

"It is nowhere said that

for all purposes the husband is held to be dead. In Stair and in all the authorities the antithesis is between injurer and injured; and part of the redress to the injured is that she gets back all she had given."

(He then goes on to cite a passage from Lord Westbury's speech in Harvey v. Farquhar, to which we shall have to recur.) But if Lord Kinloch was wrong in thinking that the marriage contract falls to be read as if death and divorce were equivalents, the argument that the father of one of the spouses, who is a party to the marriage contract, must be held to contract in contemplation of the law as Lord Kinloch stated it falls to the ground. When Johnstone-Beattie came before the First Division, counsel for the guilty husband's father relied (1) on the argument that the obligation of a third person (i.e., not a spouse) to pay the annuity was not a donatio propter nuptias,and (2) on the alleged hardship that he might have to aliment his son as well as pay the annuity to his son's wife. Lord President M'Neill deals with the first point thus (at p. 347):—

"But here the question is raised in reference to an obligation undertaken by a third party, and that, it is said, makes all the difference. Now, it appears to me that the fact that this was an obligation by a third party is not the most important circumstance in reference to such a question, but that the most important consideration is the nature of the transaction and the purposes which it was intended to serve. And seeing that this obligation was undertaken solely with reference to the intended marriage, and with a view to the comfortable sustenance of the wife, in the event of her being deprived of her husband in her father-in-law's lifetime, it appears to me that it falls within that class of rights which emerge to the wife in the event of the dissolution of the marriage by divorce, in the same manner as if the marriage were dissolved by death."

He disposes of the alleged hardship by saying:—

"There are many cases that might be figured, in which the natural or moral obligation of a father to maintain his son might be revived, after he had to all appearance fulfilled that obligation for the rest of his life. But it is not necessary to look farther than the present case, to see that that misfortune may befall a father in various ways,"

and then he goes on to refer to the son's assignation of the annuity to creditors. Now, in the case before us it is not disputed that the annuity was donatio propter nuptias,so that the argument which Lord President M'Neill met by pointing out that the fact that it was a provision by a third party was not the most important factor in the case, and that the purpose of the provision was more important, is not before us. But the Lord President does not agree with Lord Kinloch in holding that the fact that a provision was made by a third party can never be relevant. Likewise, he does not agree with Lord Kinloch in holding that the hardship which a third party might suffer, if, in a question between him and the innocent spouse, the guilty spouse were treated as dead, is irrelevant. His view was, we think, that these considerations

were relevant if the hardship could be substantiated, but he found it was non-existent, for the reason that the obligation to pay the annuity was not itself made more onerous by the operation of the fiction. He did, we think, regard as irrevelant the possibility that the operation of the fiction might in a similar case, as an incidental and indirect consequence, cause the son to have recourse to his father's common law obligation to aliment him. But if the facts that the provision is made in the form of an obligation by someone other than the spouse, and that that obligation will become directly more onerous if the fiction is applied, are relevant, then the inference is that the pursuer's claim in the present case fails. Lord Deas (p. 351) makes it clear that he attached importance to the fact that the defender—the pursuer's father-in-law—had no real interest; he says "his obligation will neither be heavier nor of longer endurance."Lord Ardmillan (p. 353) also says:—

"The whole question—the only question—is, to which of the two parties [i.e., the husband and wife] shall this onerous antenuptial provision be paid?"

We find it difficult to escape the conclusion that in a case like the present, where the question is whether the obligation undertaken by the guilty husband's father is to be made at once heavier and of longer endurance in consequence of the misconduct and divorce of his son, these learned Judges would have rejected the contentions of the pursuer, and would have held that the fiction operates between guilty spouse and innocent spouse and not between two innocent parties to the detriment of one of them. Culpa tenet suos auctores is a rule of equity deeply rooted in our jurisprudence; and another rule of equal validity and importance is that fictions of law shall not be allowed to operate against equity (Selsdon, per Lord Macmillan, at p. 42).

In Somervell's Trustee v. Dawes, the marriage settlement was complex. The husband in implement pro tanto of his part of the arrangement disponed to the wife under the Aberdeen Act a liferent annuity of £800, secured by the rents of an estate of which he was heir of entail in possession. This provision was referred to in the antenuptial marriage contract, by which the wife bound herself not to record the bond of annuity during the husband's life without his consent. The wife divorced the husband and immediately recorded the bond without the husband's consent. In a petition for disentail, the question had to be decided to what extent, if any, the wife was entitled to have provision made for the annuity in the disentail. The Lord Ordinary held that the bond of annuity became prestable in consequence of the decree of divorce as if the husband had died. The First Division held that the wife was entitled to record the bond since the husband could no longer hold her bound to stipulations in his favour made as part of the marriage settlement, all of which he forfeited. But the Division also held that she was not entitled to the

benefit of the annuity during her husband's life. Part of the reasons for this decision are not hujus loci. But in arriving at this conclusion the Court had, we think, necessarily to deal with the wife's argument (see p. 1072) that "the general rule of law was that the innocent spouse was entitled to the provisions made by the offending spouse in his or her favour as if the offending spouse were dead,"and with the counter-argument (p. 1070) that "the rule that divorce was equivalent to death as regards provisions in favour of the innocent spouse only applied in cases where the parties alone were interested. It did not apply when the interests of other parties—e.g., children—were concerned."It does not, however, matter for our purpose whether that part of the opinion dealing with this branch of the case was or was not part of the ratio decidendi. The question is not whether we are bound by the decision, for that we certainly are not. We may legitimately take account of the opinion of Lord Kinnear, in which Lord President Kinross, Lord Adam and Lord M'Laren concurred, even if it is regarded as obiter, for we are to consider the trend and weight of judicial opinion on the question at issue. There can be no question of the value and importance of an opinion of the Court which considered the case. Now, Lord Kinnear accepts the statement of the law in Erskine's Institute (I, vi, 46), already quoted; and he also cites a passage from the speech of Lord Westbury in Harvey v. Farquhar, at p. 32, to the effect:—

"The rule is that the interest provided by a marriage contract for the benefit of either of the spouses is by the adultery of the delinquent lost for the benefit of the other spouse."

This is part of the passage cited by Lord Robertson in Dawson v. Smart, and a comment must be made upon it. It appears that Lord Westbury largely re-wrote his speech when he was revising it for publication in the Law Reports (2 H. L. Sc. 192), and he then omitted this passage. The result is that the proposition which it contains cannot be deemed to have Lord Westbury's authority, but it has the authority of Lord Robertson, Lord Kinnear, Lord President Kinross, Lord Adam and Lord M'Laren, and is therefore deserving of all respect. It ought to be said that Lord Westbury uses the word "lost"in the same sense as that in which the word "forfeit"was used in Drummond. Lord Kinnear's conclusion is that the rule of law operates only through the forfeiture or through the obligations of the delinquent spouse. He then discusses the contention that the rule of law was carried farther in Johnstone-Beattie, because in that case it was applied to an obligation undertaken not by the delinquent spouse but by a third party. His conclusion on that point is that Johnstone-Beattie is "in reality an excellent illustration of the rule stated by Lord Westbury."The reason given is that the father's obligation was in no way enlarged. Accordingly, we are confirmed in the view which we have taken of Johnstone-Beattie by the

authoritative exposition of the case in Somervell's Trustee v. Dawes . It is impossible to find for the pursuer in the case before us without disapproving of the judgment of Lord Kinnear and of his brethren who concurred with him. But in our opinion that judgment is based on sound principles, and ought to be accepted as completely authoritative.

In Montgomery v. Zarifi, Viscount Haldane stated (at p. 133) what we respectfully think is the law, thus:—

"It is now settled, by decision of this House (Dawson v. Smart ), that the principle does not render the guilty party constructively dead as regards rights in property in questions with third persons, but merely confers on the other spouse the right to forfeit for his own benefit all pecuniary advantages which belonged to the guilty consort as part of the provision made for the marriage."

Here it is clear that Lord Haldane is using the word and the idea of forfeiture in the broad sense in which they were also used in Drummond v. Bell-Irving .

On consideration of the authorities, we come to the conclusion that they are overwhelmingly in favour of the view that the fiction that the guilty spouse is dead applies in questions between the innocent and the guilty spouse, and that it does not apply in questions between the innocent spouse and parties to the marriage contract other than the guilty spouse. Johnstone-Beattie is authority for the proposition that the guilty spouse forfeits in favour of the innocent spouse an annuity provision even when it arises from an obligation granted by some party other than the spouses themselves. It is not authority for the proposition that the innocent spouse is entitled to enforce against such a party an obligation to pay an annuity which was not enjoyed by the guilty spouse and was payable only on his or her death.

The pursuer's counsel endeavoured to buttress his argument by referring to the wife's discharge of her legal rights partly in consideration of the undertaking given by the husband's father. We think that in the end he gave up this point. But, in any case, we are of opinion that there is no substance in it. It is perfectly competent for a wife to surrender her legal rights in return for benefits which will accrue to her only on her husband's death and not upon his divorce, and the Court will not examine the contract to discover whether the considerations hinc inde balance one another. If the law is what we think it is, the wife in this case did by contract abandon her legal rights for a consideration, a part of which did not accrue to her immediate possession on divorce. The defender's counsel, on the other hand, sought to establish the proposition that the predominant purpose of the fiction is to penalise the guilty spouse and not to provide for the innocent spouse after divorce, and he pointed to many passages in

the institutional writers and in judicial opinions where the divorced spouse is described as the guilty, or the injurer, or the offender, in contrast with the innocent, injured, or offended spouse, and he reminded us that adultery was in earlier times a crime. Our view is that the true purpose of the fiction, as it has been expounded in judicial decisions and opinions, is to deprive the guilty spouse of all legal rights against the estate of the innocent spouse and of all conventional provisions made by or on behalf of the innocent spouse in consideration of the marriage, and to make available to the innocent spouse the legal and conventional provisions so far as that can be done at the expense of the guilty spouse, but not at the expense of innocent parties. The operation of the fiction ought not to be extended beyond the purposes for which it was devised, nor should it be extended beyond the limits within which it has been in use to be applied. We think that the Lord Chancellor intended to utter a warning against any further extension when he said, in Harvey v. Farquhar, that it appeared to have been tried to the utmost in Johnstone-Beattie.

For these reasons, our conclusion is that Drummond v. Bell-Irving was not only rightly decided, but that the ratio decidendi was sound in principle, although it is not formulated with exact precision in the single sentence which was selected for quotation from the Lord Ordinary's opinion by the Lord Justice-Clerk. We find no inconsistency between it and the decision of the Inner House in Johnstone-Beattie.

LORD JUSTICE-CLERK (Cooper).—This reclaiming motion was appointed to be reheard before a larger Court because of the difficulty and importance of the question which it raised as to the patrimonial consequences of divorce, and because of the challenge directed by the reclaimer against the ratio decidendiof Drummond v. Bell-Irving .

The material facts are so fully rehearsed by the Lord Ordinary that I need only refer to the summary contained in the introductory portion of his opinion. The reclaimer's claim to payment, as from the date of divorce, of the annuity which the father of her former husband obliged himself in the marriage contract to pay to trustees for her behoof "in the event of the wife surviving the husband and there being no issue of the marriage alive at the husband's death"has been rejected by the Lord Ordinary because he felt himself bound by the ratio of Drummond v. Bell-Irving .

Drummond v. Bell-Irving is accurately rubricked as having decided that "the measure of the rights conceived in an antenuptial contract of marriage in favour of an innocent spouse, which upon decree of divorce he or she becomes entitled to enforce, includes those rights, and those rights only, which he or she takes in succession to, and as following upon a forfeiture incurred by, the guilty spouse."The rule

as thus phrased has already found its way into the latest editions of several text-books.

It is possible at the outset to curtail the limits of controversy by recording the admission of the Dean of Faculty that the above formula required to be amended. It was conceded—and the concession could not be withheld—that the rule as stated must in any event be widened so as to admit the claim of the innocent spouse to conventional provisions flowing from the personal obligation of the guilty spouse; for such an obligation is clearly prestable on divorce, and it cannot be said that its implement involves any element of "succession to, and forfeiture by,"the guilty spouse.

Pursuant to this concession, the Dean of Faculty invited us to find the true rule in a combination of Lord Moncrieff's formula with a sentence from the opinion of Lord Kinnear in Somervell's Trustee v. Dawes . Upon this footing, the rule as re-edited would assume the following form:—An innocent spouse on divorce is entitled to the benefit of only those conventional provisions which he or she takes (a) in succession to, and as following upon a forfeiture incurred by, the guilty spouse, or (b) as a result of an obligation assumed personally by the guilty spouse. Before the debate concluded, the process of generalisation and simplification had been carried a stage farther, and the rule as eventually submitted for our scrutiny is that the innocent spouse can take nothing on divorce except at the expense of the guilty spouse.

I pause to observe that these successive refinements affect more than mere phraseology, and that by the time we have reached the new rule in its final form we have passed completely outside the range of Drummond v. Bell-Irving . Lord Moncrieff's opinion affords, to my mind, ample evidence that he used the word "forfeiture"accurately and in its normal sense; while the Lord Justice-Clerk, before accepting and repeating Lord Moncrieff's formula as the chosen ground of judgment in the Inner House, expressly abstained from pronouncing upon the argument that "the rule of law … has no application where … the person who would suffer is not the guilty spouse but … a third party."I am therefore of opinion that it necessarily follows from the abandonment of the attempt to defend the ratio of Drummond v. Bell-Irving, and from the substitution for that ratio of a different rule upon which the Court in that case reserved their opinion, (a) that the ratio in Drummond's case falls to be disapproved, and (b) that the respondent's third and fourth pleas in law (which echo the language of that ratio) should be repelled.

As now restated, the rule takes its place as an essential limitation on the benefits taken by an innocent spouse upon divorce. Its practical significance is confined to the case where the source of a conventional provision is the obligation of the parent of a spouse (or other person in loco parentis). In such a case the rule would operate

to exclude the innocent spouse from taking any benefit which had not already been enjoyed by the delinquent spouse—in other words, the innocent spouse, in order to assert a claim with success, must either have been substituted to the guilty spouse, or else vested along with the guilty spouse in some form of conjunct right. This is in essence the position assumed by Lord Curriehill in his dissenting judgment in Johnstone-Beattie, and, if the rule is sound, there is no safe resting point short of this position.

The rule was sought to be justified in principle by the alleged dominance of the motive of penalty or forfeiture. Any rights that accrue to the innocent spouse must be regarded—so the argument implied—as merely accidental by-products of the punishment of matrimonial guilt, or as a repercussion from the penalty inflicted on the offender. To borrow the language of Lord Anderson in his dissenting judgment in Drummond, "the rule has no concern with benefits and advantages, but only with penalties and forfeitures."

There are two overhead considerations which seem to warrant at least the exercise of considerable caution in examining this new solution of an old problem. (First) Divorce and its patrimonial consequences have filled a large chapter of Scots law for close on four hundred years. During that long period the doctrine has been expounded and discussed by all our institutional writers and by many authors of high repute, both ancient and modern. Nevertheless, it is true to say that not one of those who have set out to deal comprehensively with the whole doctrine ever evolved the simple generalised concept of the new rule, which, if it be sound, supersedes much cumbrous explanation and removes many difficulties. The point is far from conclusive; but it is a little surprising that so easy and attractive a principle should so long have eluded generations of jurists whose talents for scientific generalisation have illuminated so many other branches of the law. But the matter does not end there. The new rule, if it be accurate, gives expression to an essential qualification of the rights of the innocent spouse; and yet the statement of these rights has been made again and again by the highest authorities without adjecting any such qualification. Were it possible to assert that the factual background has altered and that it is only in recent days that the lawyer has been brought face to face with a novel aspect of the doctrine, this criticism would lose its force. But it seems impossible to make any such assumption. Conventional provisions in antenuptial marriage contracts, although changing in type, have been very familiar since the days of Stair and Dallas, and have been characterised from the earliest times by the inclusion as contracting parties of the fathers of the intending spouses (or other persons in loco parentis) contributing, or undertaking to contribute, the whole or a large part of the conventional provisions (Dallas' Styles, pp. 724 et seq.). Stair, in his Decisions, reports at least six cases in

which one or both of the fathers of the spouses were contributing parties to a marriage contract. A single section of Morison's Dictionary entitled "Provision to Heirs and Children"contains reports of seven such decisions from the 17th century and eight from the 18th. Between 1800 and 1833 there are twelve reported cases arising out of the obligations so undertaken by parents. Accordingly, if the point has been missed (as it must have been if the new rule is sound), the plea is not available that the need never arose for examining it, and our authoritative writers must be convicted, not only of failing to detect the key to the doctrine, but of having omitted from their formulations of it a qualification indispensable to accuracy. Equally, if it were possible to say that the early doctrines had suffered modification under the impact of changing social conceptions, it would be easier to discard or modify all but 20th century formulations of the law. But it is plainly impossible to suggest that we should to-day be more indifferent to the interests of the innocent spouse and more exclusively concerned with the punishment of the guilty than our forefathers were in the days when notour adultery was a capital offence. Such changes in the general outlook as can be detected point definitely in the opposite direction, as the case of Selsdon has shown. In the early days amongst the propertied classes in Scotland, when estates were normally entailed and the family had little or no independent fortune apart from their expectations from the head of the house, the only source to which a wife could look for sustenance after she had divorced her husband, and so been made prematurely a widow, must often have been the conventional provisions derived from her father or father-in-law in a marriage contract. To exclude or curtail her access to such provisions would often be tantamount to denying her the right to divorce, for it would be a remedy which she could not afford. I find it very difficult to believe that practical considerations such as these never crossed the minds of our judges and jurists, or that they determined to submerge them beneath their devotion to a theoretical dominance of the motive of penalty. On the contrary, I consider that, when they were dealing with the benefit which emerged to the innocent spouse, they were thinking exclusively or primarily of that benefit, and were unaffected by any views as to reciprocity with, or repercussion from, penalty.

(Second) The new rule in effect requires that the guilty spouse's loss or forfeiture must be determined before the rights of the innocent can be ascertained. But there is another rule which emerges from a different current of authority, beginning with Harveys' Judicial Factor and ending with M'Grady's Trustees, to the effect that the measure of the forfeiture incurred by the guilty spouse is the benefit to the innocent spouse. If these two rules are placed side by side, it will

be seen that a doctrine which ought to be statable in terms so plain that transactions can be negotiated with confidence as to the legal results which will follow is in danger of being brought perilously near to the point at which it ceases to be capable of practical application; for each side of the question will be equipped with a finger-post directing the inquirer to begin at the other side.

It was possibly considerations such as these that led our legal writers to resist the temptation to over-simplify and rationalise the law, and to present it, as they invariably do, not in one compressed formula, but in two separate chapters—one dealing with the consequences to the guilty spouse and the other dealing with the consequences to the innocent. With the single exception of Erskine (Inst. I, vi, 46-7), whose exposition is mainly based on the Act of 1573, c. 55, and primarily concerned with the consequences to the guilty spouse, the two-fold aspect of the doctrine is everywhere uppermost in the expositions of the early writers, and everywhere coupled with the conception of the fictional death of the guilty spouse as the source and measure of the benefits to the innocent—a convenient expression of the basic idea which first appeared in Murray v. Livingston, and still held the field in the latest House of Lords decision of Wright v. Bryson .Since there are necessarily two spouses to be considered, there must be a dual doctrine, and there is necessarily an antithesis between the one chapter and the other. But duality does not necessarily import mutuality, nor does antithesis infer reciprocity. Of all the earlier writers it may be said that there is nothing in their pronouncements in the least degree unfavourable to the reclaimer's contention, and that, with the exception of Erskine, every one is inaccurate if the reclaimer is wrong. The alleged inaccuracy becomes more pronounced in Fraser, Husband and Wife (2nd ed.), vol. ii, p. 1217; Bell's Prin., sec. 1622; and Walton, Husband and Wife (2nd ed.), p. 201; and, even if these works are treated as no more than evidence of the general understanding of the rule, they show that the limitation now sought to be introduced will run counter to the impressions which have prevailed for over two generations. It is noteworthy that it was to Stair's exposition and not to Erskine's that Lord President Inglis turned in Fraser v. Walker, and the same course was taken by the House of Lords in Harvey v. Farquhar, Montgomery v. Zarifi, and Selsdon v. Selsdon .

While it is impossible to discover in the institutional writers unequivocal proof of the fact that the precise aspect of the problem now in question was present to their minds, I cannot accept the respondent's invitation to discard their contribution to the present case. To my mind, their uniform silence on a topic with which they

might reasonably have been expected to deal, and their uniform omission of all reference to a qualification now represented as crucial and as rooted in the historical origins of the doctrine, are factors, albeit not conclusive factors, in the present argument. It is important to remember that, as each step has been taken in the later developments and elaboration of the doctrine, the Court has invariably purported to act in harmony with, and within the framework of, the classical statements of the law, and especially the rule as formulated by Stair, and I know of no case in which the decision proceeded upon the view that Stair's formulation was either inaccurate or incomplete.

Of the earlier legal writers cited by the reclaimer, I attach importance to the views expressed by Mackenzie in his Observations on the Act 1573, cap. 55, More in his Notes to Stair, and Lord Ivory in his Notes to Erskine; and in the same category I would place the Lectures of Baron Hume, with regard to which I agree with your Lordship in the chair in thinking that, while they have no claim to the veneration attaching to our recognised institutional works, they are entitled to be regarded in the light in which they were viewed by the consulted judges in Kerr v. Martin, that is, as "authority of very great weight"and as "decisive evidence of the general and understood state of the law"at the time when Baron Hume lectured.

Before turning to the cases, it is necessary to refer briefly to the learned historical argument which we heard. The fuller light which has latterly been shed on Scots law, and canon law as practised in Scotland during the 16th century, enables us to say that many of the arguments from the supposed history of the doctrine which can be found in the reports are unsupported by evidence; but it is not yet sufficiently strong to justify us in replacing the invalidated arguments by positive and reliable statements. There is one negative conclusion which I think it is possible to draw, viz., that there is little support in the early history for the suggestion of the dominance of the motive of penalty. The story does not begin with the Act of 1573, cap. 55. Neither the conception embodied in that Act nor the language in which it is expressed was new in 1573, for both can be traced backwards, on the one hand, to the consequences following the dissolution of a marriage within a year and a day without issue (Balfour's Practicks, p. 100), and, on the other hand, to the pre-Reformation divorce a mensa et thoro; and in both these fields, if there was any dominant conception, it was a desire to effect restitutio in integrum on the annulment of a marriage or its premature termination. Except to this limited extent, I am unable to derive assistance from the researches of counsel into pre-Reformation law, for, by the time the doctrine emerges in Scots law as a working principle, its historical origins have been left far behind.

I now come to the reported decisions. The judicial dicta are

legion, but there is no case which as an express decision can be said to be exactly in point. Unfortunately, the great majority of the dicta were pronounced in relation to cases which did not raise the issue now in controversy, and they cannot be legitimately invoked by either side of the present dispute. Thus, I cannot confidently rely for guidance in this case upon observations (such as those of Lord Haldane in Montgomery v. Zarifi ) which are directed to ascertaining the measure of the forfeiture incurred by the guilty spouse; nor to dicta (such as those of Lord Kyllachy in Harveys' Judicial Factor or of Lord Robertson in Dawson v. Smart ) which are directed to showing that it is the "party injured,"and not the children of the "party injured,"who takes the benefit on the fictional death; nor to opinions (such as those in Selsdon v. Selsdon ) which are framed to justify the conclusion that the fiction of death does not apply to the quantification of the claims which the fictional death brings into being. As regards the dictum of Lord Westbury in Harvey v. Farquhar, on which so much ingenuity was lavished, I would venture one observation. As a limited and partial statement of the rule as applied to the facts then before the House, the dictum is, if I may humbly say so, unexceptionable. It may legitimately be used, as Lord Kinnear used it in Somervell's Trustee v. Dawes, as a method of expressing one of two different and contrasted aspects of a wider principle. It may also be used, as Lord Robertson used it in Dawson v. Smart, in proof of the proposition that divorce is not for all purposes identical with death, and that the forfeiture incurred by the delinquent is a limited forfeiture. But if it is sought to be transformed into a generalised statement of the whole doctrine, it is used for a purpose and with implications which, I am persuaded, Lord Westbury would have disclaimed; and it was doubtless because he foresaw the risk of such misuse that he deleted the passage from his revised opinion. In the end of the day I have found only two cases which call for close examination, viz., Johnstone-Beattie and Somervell's Trustee v. Dawes .u

There is no question that Johnstone-Beattie was correctly decided, for it has been cited and quoted too often down to very recent times to be open to challenge. The question is—How much is implied in the decision, and would the decision have been to the opposite effect but for the fact that in that case the annuity provided by the father was payable initially to the guilty spouse? Having repeatedly studied the report, I have come to the conclusion that the opinions of the Lord Ordinary (Lord Kinloch), Lord President M'Neill and Lord Deas contain nothing to show that it was essential to their decision that the provision was of this type, or that there should be

no "hardship"to the father, and much to suggest that the crucial question present to their minds was whether, for the purposes of determining the rights to conventional provisions which arise on divorce, a distinction should be drawn between obligations undertaken by the guilty spouse personally and obligations undertaken on his behalf intuitu matrimonii in the marriage contract by his father. If I am right, the case is an authority in favour of the reclaimer. One thing is clear, viz., that Lord Fraser and the editors of Bell's Principles and Walton's Husband and Wife understood the case in the sense which I suggest, and so also, it would appear, did Lord Hunter in M'Grady's Trustees, Lord Hunter and Lord Blackburn in Selsdon, and Lord Thankerton in Selsdon.

Somervell's Trustee v. Dawes is an authority for the proposition that divorce of a husband does not accelerate the wife's right to payment of an Aberdeen Act annuity (a) because there is no personal obligation on the husband and (b) because the grantee's rights are determined solely by her infeftment. The reclaimer does not attack this decision, for it does not affect her position. But it is necessary to examine the opinion of the Court as delivered by Lord Kinnear, for it contains several passages upon which the respondent relied. Lord Kinnear was careful to emphasise that there are two different aspects of the rule and that it operates in two ways, (a) through forfeiture, and (b)independently of forfeiture, through obligation. Since in the case of an Aberdeen Act annuity no question of either forfeiture or obligation can arise, that was enough for the decision of the case. His Lordship proceeds, however, to discuss the contention which had evidently been submitted in argument that the rule had been "carried further in Johnstone-Beattie because in that case it was applied to an obligation undertaken not by the delinquent spouse but by a third person."I do not see how the acceptance of this contention could have affected the position in relation to an Aberdeen Act annuity, and neither did Lord Kinnear; but, after summarising the facts of Johnstone-Beattie, Lord Kinnear certainly says with reference to that decision (at p. 1076):—

"It was entirely in accordance with Lord Westbury's doctrine to hold that the delinquent husband had forfeited for the benefit of the wife the interest which during his lifetime was primarily intended for him; and, on the other hand, the wife's interest fell directly within the class of rights which are held to emerge to her at once upon being separated from a delinquent husband by his divorce."

This passage seems to me to be capable of two meanings—(a) that the decision in Johnstone-Beattie could only be explained and defended on the principle of forfeiture, or (b) that Johnstone-Beattie was an example of bothaspects of the rule, forfeiture and obligation. Lord Kinnear quoted from the relevant

passages in the second edition of Fraser on Husband and Wife; and, if he meant to express the view that Johnstone-Beattie had been misunderstood and that the obligation of the father of one of the spouses undertaken intuitu matrimonii in the marriage contract was not in any way equivalent to the obligation of the delinquent spouse, it is very strange that he did not correct Lord Fraser's explicit contradictory statement vouched by a reference to Johnstone-Beattie; and it is not unfair to add that, if Lord Kinnear intended to effect this notable qualification upon the meaning and result of Johnstone-Beattie, it has taken thirty years for that intention to be discovered.

In the result I have failed to discover in the history of the doctrine, in the expositions by our legal writers, in the trend of judicial opinion or in the broad equities of the situation any warrant for refusing to an innocent spouse on divorce the benefit of an onerous conventional provision in an antenuptial contract solely upon the ground (a) that the obligor is not the guilty spouse but the father of the guilty spouse, or (b) that the enforcement of the obligation on fictional death will be more onerous to the obligor than its enforcement on natural death. On the contrary, I find strong support for the opposite view in the ratio decidendi of Johnstone-Beattie, and especially in the opinions of Lord Kinloch, Lord Deas, and, to a less marked extent, Lord President M'Neill, whose reasoning, if I must choose, I prefer to that of Lord Kinnear. I cannot but think that an element of fallacy was introduced into the argument by the references to possible hardship to "innocent third parties."The use of the word "innocent"revives the notion of the dominance of the element of penalty, and tends not merely to subordinate but to exclude the equally important element of benefit. And the use of the term "third parties"can best be answered by a quotation from Lord Deas in Johnstone-Beattie in a passage (at p. 350) which could in terms be applied to the facts of the present case, and which I respectfully adopt. "Neither the father of the husband,"he said, "nor the father of the wife, when they become parties to the antenuptial contract of marriage of a child, can be regarded in any proper sense as third parties. They are parties deeply and directly interested, not only as regards their feelings, but as regards their fortunes, upon which their children, in the ordinary case, have claims, both natural and legal. The contract is onerous with the parents equally as with the spouses. The whole four parties onerously contract with each other. The marriage itself is an onerous consideration, and here there were, besides, mutual onerous considerations of a pecuniary kind undertaken by each of the parents to a large amount."

For these reasons, I am of opinion that the ratio of Drummond v. Bell-Irving should be disapproved, and that the reclaiming motion should be granted.

LORD MACKAY .—This case was one in which we consulted three other judges because of the difficulty occasioned by a case of Drummond decided by our own Division, differently constituted, in 1930.

The House of Lords in 1928, dealing with the judgments of superior or co-ordinate Courts and their binding effect, used this language:

"Now, when any tribunal is bound by the judgment of another Court, either superior or co-ordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear—as is the case in most instances—what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding."

—per Lord Dunedin in Great Western Railway Co. v. Owners of S.S. Mostyn . His Lordship added:

"But if it is not clear, then I do not think it is part of the tribunal's duty to spell out with great difficulty a ratio decidendi in order to be bound by it."

That is, in my opinion, very sound law in both its generality and in the warning expressed. Lord Shaw, at p. 82, used similar words, and Lord Phillimore at p. 94.

Now, here the learned Lord Ordinary, it is not disputed, felt himself hampered, and finally inhibited from giving effect to his probable view of the question on its merits between the parties, by the decision in Drummond. He thought that a ratio was laid down therein which, as Lord Ordinary, he must apply. To that ratio I shall return, but, in short, the Lord Ordinary regarded it as implying, or indeed expressing in words, that an innocent wife after obtaining divorce cannot claim or acquire anything as effeiring to her, but and unless it be something which the guilty husband has "forfeited."When the case came before us sitting as a Division, we were pressed with the same absolute limit. Indeed, my notes bear that the reclaiming counsel began with the obstacle of Drummond, and occupied his long speech almost entirely with an historical survey endeavouring to show that Drummond's decision would not stand with the cases and the writers. The reply, also very full, did not, I think, deal with any more special point, but we were pressed to apply Drummond, and to throw out the suit as governed by Drummond, or at least by its ratio. So much of an obstacle did we consider the ratio that (while several of us thought that other grounds than those taken in 1930 might well have supported the decision in Drummond v. Bell-Irving itself) this fuller Court was convoked. The inevitable first question, then, with which the Court must deal necessarily is:—Is a certain general ratio laid down and at the root of Drummond; and is it to be approved and applied? To this question I apply myself in the first part of this opinion.

I.—I am firmly of opinion that the Lord Ordinary in Drummond's case, rejecting all other proffered solutions, formulated with care and with the utmost precaution against being misunderstood a

limiting measure for the rights of an innocent spouse flowing from her successful divorce. These rights arise from the common law as to the legal provisions normally open to a widow on her spouse's death, and as to any "conventional"provisions stipulated against the death, as in both cases acted upon by the "civil death"of the erring spouse. The Lord Ordinary begins, as I will begin, with the statement that the consequences "depend on law which has been recognised as settled for some 300 years."Quoting meantime no more than Lord Deas in 1867 and Lord Westbury (one and only one of three English law lords sitting) in 1872, he reached this conclusion:—

"The measure of the rights conceived in an antenuptial contract in favour of the innocent spouse, which upon decree of divorce he or she becomes entitled to enforce, includes those rights, and those rights only, which he or she takes in succession to, and as following upon a forfeiture incurred by, the guilty spouse."

I venture to indicate my own view here and now upon the 300-year-old and settled law in this manner: But for the four words "and those rights only"interpolated by Lord Moncrieff in the above sentence I would be entirely at one. There is, and can be, no doubt (a) that rights by contract accruing "in succession to"a husband on his death do accrue on his civil death to the innocent wife; (b) that there are included, also, rights under the contract made in respect of the marriage which the husband has, by force of statute or by legal construction, lost or tyned or forfeited. But the only question which has stopped the Lord Ordinary, and which has probably stopped all advisers on such matters since 1930, is that thrown up by the words "those rights only."I am, without having entertained the least hesitation, of opinion that these four words cannot stand the fire of criticism, and have notably failed to do so here. So that in the middle of his opening speech on the main topic of law, Mr Strachan was stopped by the intervention of the Dean of Faculty, and by the Court's consequent invitation to him to proceed to his second point. It is enough, then, here to record that there are a fair number of conceded or already adjudicated consequences which render the Drummond position untenable upon examination. The simplest, but not the only, instance is that the contract may proceed (there being no, or few, present possessions) by the one spouse whose error has dissolved the union making a provision by way of a personal obligation only—either, it may be, to provide by paying into the trust future funds, or simpliciter by an obligation to pay to the widow, binding upon his representatives. Clearly, it is to be stated that such obligations are "accelerated,"to use a convenient, if not wholly accurate, word. Another case is one stated as early as 1867 by one of the judges, where the only provision for the sustenance of the wife and children of the projected marriage is a fund contributed in specie in the hands of the trustee, but one originating entirely from the father of the bridegroom.

Could it be argued that the "civil death"did not permit the premature widow to take her provision out of such a fund? It was not contended. There are other similar instances which occur to one, but these are enough, as the concession was most fully and frankly given.

It is then right, and very important, that what so took place in open Court should be reflected in this judgment of ours, as the action was expressly sent here to reconsider Drummond. I therefore give a moment more to consider a little further the said Lord Ordinary's further formulation. In doing so it will also help me to dispose of certain dicta (for they were no more) which have caused more heart-searching than they were value for. That Lord Ordinary adds to the former two cases a reference only to Lord Robertson in Dawson v. Smart, and to Harveys' Judicial Factor. Neither form of expression goes any distance to support his limiting view. The case of Harveys' Factor is an authority against the view under discussion. The claim in the multiplepoinding was made by a curator ad litem for the child of the marriage. It was not concerned with the spouse who had obtained her decree. For she had obtained all her rights and had lived them out, and was dead. The Lord Ordinary (Kyllachy) simply repeats in one sentence the law as established from the time of Stair. Here it is:

"Her provisions—legal and conventional—take effect as if she were a widow, and for this reason, that she has by her husband's misconduct been made, in effect, a widow."

As the sole qualification (and it is truly no qualification) of that generality he held that he is "only to be treated as dead in a question with the wife."When the wife herself exhausts her life-rent of funds set apart, the children are not benefited by taking after her death the liferent of the husband who survived her. Lord Kyllachy's views were affirmed in omnibus by Lord Rutherfurd Clark and the Lord Justice-Clerk. They are all against the "limiting measure"of Lord Moncrieff. To anticipate here for a moment part of the ultimate argument, Lord Kyllachy, near the foot of p. 1019, distinguished what "came from the wife's side"and what "came from the husband's."Next I turn to Lord Robertson's expressions in the House in Dawson.One wonders sometimes what has come of the excellent law that things said by judges (even if not entirely obiter) fall to be read secundum subjectam materiem, and that to read them in any wider sense is dangerous and false law. After the divorce of the innocent wife, and that granted upon the ground of desertion, the rights were duly adjusted right up to the juncture when the wife died. The daughter now became pursuer of an issue, stated in terms of a question of law in a special case, seeking to show that, even after the wife's death, the husband had "forfeited"

for the benefit of her, his child, his ultimate liferent of still existent funds. The statute of 1573, chapter 55, was alone cited and founded upon, just because the whole question at issue was one of forfeiture, or nothing. Pleaders for the parties therefore omitted nothing when they let all other questions at common law, and upon the other ground of adultery, slide by. The Lord Chancellor therefore thought it sufficient to proceed on statutory construction, and to say that "civil death"was not to be found in the statute, either expressly or by implication. He did not, however, in any sense vary or disapprove the earliest statement of the law, as early as 1575, which stated the ratio as that of civiliter mortuus. Lord Shand also goes upon pure construction, and one sentence contains his ratio: (at p. 26) "There is no transfer of rights to any other party, or any enactment that the rights of children or beneficiaries are to be thereby created or enlarged."Lord Davey in the House took two points, both rather different—I need not go into them—but they depended rather on the doctrine of resulting trust to the settlor or truster. The judgment of the House, accordingly, did not come near touching the point in the present, or Drummond's, facts. Now for Lord Robertson. In my judgment, the whole passage relied upon has been mis-read, and almost contorted out of the meaning it bore in relation to the matter de quo quœrebatur. His only pronouncement of any generality subsumes the correctitude of Lord Stair's formula:

"In Stair and in all the authorities the antithesis is between injurer and injured; and part of the redress to the injured is that she gets back all she had given."

He then cites also Lord Westbury's much-canvassed passage. But I have italicised in the sentence the word "part."Lord Robertson clearly expressed himself, as I also now express myself, that the taking of forfeited provisions is only a "part"of all that comes to the wife by accrual from the fact that her husband is civiliter dead. Pass on to the second passage. It surely in equal degree is mis-read. "There is, as far as I am aware, no warrant in authority and none in principle for holding that the divorce takes anything from the husband that it does not give to the wife. And the strange result of the appellants' contention is that, invoking a principle conceived in favour of the wife, they use it to give money originally coming from the wife to a third party to whom she never gave it."The italics are mine. They suffice. Now, these and some other passages have referred to and quoted Lord Westbury; the question is, to what effect, and for what purpose? I find no need to seek to exclude from view a passage eliminated by his Lordship himself (as shown from W. T. S. Daniel's History of the Law Reports, p. 313) on his stipulated revision of his pronouncement. All that is needed is to say that this passage also was riven from the proper context. If we are to quote from Macpherson's report,we must also quote it whole, not truncate it. And, so cited, Lord Westbury—a Chancery judge

of eminence who had here come to Scottish divorce law for the first time—in the very opening accepts the law laid down by "Your Lordships,"and says that he has "little to add."Now, those two earlier judges had stated the general law to be that which I shall in the sequel adopt. They, in effect, also said that Lord Stair's formulation (in the case of adultery) had stood for 300 years, and was unshakable. So also then must Lord Westbury be read. They also quote without sign of disapproval the case of Johnstone-Beattie. For my part, I feel it vain to endeavour to extract any limited formulation from the expression made use of by Lord Westbury, merely as an addition to the law of his predecessors in delivery, in such circumstances, especially as the only point argued to the full bench was an attempt to convince it that Lord Stair was wrong in applying much the same ratio to adultery cases as was statutory in desertion cases. There is one thing further to be said of the so often canvassed passage. I do feel that it is the very first indication of an attempt, which became a little dangerous, to reduce a congeries of decided doctrines down to a single rule under the words "The rule is——."In truth, as your Lordship in the chair of this Division has pointed out, the minimum statement of the rule has always been two-sided at the least; it cannot in my opinion be conformably to principle reduced to one formula.

When Drummond went to the Inner House, I find only one citation super-added to these I have dealt with, viz., the judgment of the First Division enounced by Lord Kinnear in Somervell's Trustee v. Dawes . If there is one thing clear in this body of citation, it is that Lord Kinnear's opinion is directly fatal to the views of Lord Alness and of Lord Moncrieff.

The result is that the foundation for Lord Alness's dictum in the Inner House (1930 S. C., at p. 719), that the proposition affirmed by the Lord Ordinary was fully documented by the institutional and judicial pronouncements, simply cannot be sustained at this time of day. I am quite shortly of opinion that the pretended cleavage since 1867 between Lord Westbury, Lord Robertson and Lord Kinnear on one side, and on the other side Lord Deas, Lord Stair and others, who have formulated the broader proposition, simply does not exist. Even if there were a simulacrum or shadow of such competing formulaæ, it disappears when the dicta are read accurately and in their context.

For these reasons, I approve the motion that the ratio of Drummond should be overruled; so that Lords Ordinary in future, and advisers of parties in future, will no longer be clogged by a supposed "equation"or "mutuality"or "parallelism"of events which is not proved to exist.

II.—When Mr Strachan was invited to address himself to his further argument upon the facts of the case and the remedies arising to the wife upon the specific conventional rights represented in the

two documents (of antenuptial character) printed in the appendix, pp. 14 to 31 and 32 to 41, he had in my judgment an easy case upon the deeds. His difficulties began to assume one form only, namely, a suggestion of a new general rule or exclusion. This at first was vague and difficult, in my view, for all the Court. It gradually unfolded itself, and the shape taken was either (a) that parents of intended spouses are not parties to, or are "third parties"to, the contract, and therefore are not liable to be penalised by the effects of the breach by their children of the marriage vow, in respect of which they either contribute funds or promise funds; alternatively, (b) that the father of the husband here was, upon the deeds, a "third party,"and that it would be an excessive hardship to hold his provision for the marriage and its issue to be accelerated by his son's misdemeanour.

On the more particular form of application of this novel doctrine, I feel no difficulty. It would be difficult to figure a case where, more obviously than here, the parents were active inducers by their words and by their contributions, which were obviously "provisions intuitu matrimonii,"to the union of their children and the institution of a new house. As this topic has occupied less attention, I adventure only a quick summary: (1) the two deeds, Scottish and English, are fairly strict counterparts; (2) reading them together, the spouses had plainly small or no assets, and contributed nothing of substantial property from themselves at all; (3) the whole provisions made came from (to use again Lord Kyllachy's words) "the husband's side of the house"and "the wife's side of the house"; and in either case were furnished by the respective parent; (4) these provisions were roughly equated, and were to stand, in the words of the deed, as "the husband's fund"and as "the wife's fund"over against each other. To fulfil this description there is nothing—whether property or obligation—derived from either spouse, only the fathers' provisions; (5) the deeds will hardly bear reading otherwise, for, after a preliminary narrative that the two principals have agreed to solemnise their marriage with all convenient speed, we get the clause "and (C) In contemplation of said marriage, and in pursuance of the arrangements made upon the treaty therefor, and having regard also to the settlement in English form by or on behalf of the wife, … the parties hereto (the wife with the consent and approbation of Mr Fortington, her father …) have respectively agreed to make the settlement and others hereinafter contained. THEREFORE the parties hereto do each for their respective interests hereby AGREE, PROVIDE AND DECLARE.…"The word "parties"in this phrase included all the four participants; (6) lastly, there is on both sides as a counterpart a renunciation of all rights at law. The husband as against his own father, "accepts in satisfaction pro tanto of all claims for legitim or other legal claim competent under any present or future law against the estate of Lord Kinnaird,"and again "agrees and undertakes for himself and his issue that no claim for legitim shall be made,"Parallel to that, the lady "accepts in lieu and full satisfaction of terce, dower, jus relictœ,mournings, aliment, and every other right on the decease of her husband."

I do not think enough attention has been paid to these important provisions. It is surely impossible (in my final opinion it isimpossible) to say that limited trust funds supplied by the father-in-law, eked out by personal obligations to add to them (article 5) or, in lieu of adding, to pay for the support and sustenance of a widow annual instalments of an annuity, do not make the parent who stipulates for such sweeping renunciations a party to the contract in the very fullest sense. In my opinion, therefore, to say that Lord Kinnaird or Mr Fortington are "third parties"to this contract is to strain words almost beyond the sense they can bear.

Now, it is only here that the new, and (as I think) hitherto unsupported, formulation of a proposed new "rule"comes in. Even if all to which I have pointed be true, it may yet be said that if there exists, established by authority or plain upon principle, a "rule of law"that in all cases a parent, or other person in loco parentis, making himself bound by a prenuptial contract is a stranger or a "third party"to it, and that therefore his part is not subject to the accruing right of a premature widow, then no qualities—not even the surrender of all legal rights against such parents—can overcome that stubborn rule.

It was here, then, that Mr Strachan found his only difficulties, and it is alone the supposed new "rule"that has divided the Court. I have paid respectful attention to the substitute rule. From the beginning I had great difficulties in finding any formulation suitable to it. As your Lordship has pointed out, there are rights flowing from a parent in such deeds which are not challenged as falling fully within the innocent wife's accretions. Such rights are (1) where a parent has actually conveyed estate to the trusts, and put it out of his control; and (2) where he has obliged himself to make forthcoming or simpliciter to pay to his own child, and then afterwards, and in succession to his or her right, to the son or daughter-in-law. These cases are conceded as beyond recall.

The learned Dean of Faculty traversed the history of the development of this law chiefly with a view to discussing whether the dominant idea which underlay it was (a) the idea of punishment for a crime, or (b) the idea of sustentation or sustenance for the successful spouse. For my part, if I thought such conception of a dominance of idea to be in point at all, I should unhesitatingly affirm that, while both conceptions may to some degree perhaps underlie the rights of various sorts conferred by the Scottish doctrine, whichever is the dominant idea it is certainly not that of "punishment."The mere fact that the accrual of the rights of courtesy and terce was found to have effect upon the "civil death,""as if she were naturally dead,"as early as the year 1589 (Lord Innerwick v. The Lady ) seems to militate

against any theory of mere punishment. This is simply a right emerging to one widowed, and because presumably the relict of an heiress is entitled to support out of the heiress's estate.

I find quite clearly that the ruling or governing conception was from the earliest time the support in a compulsory viduity. All "provisions made intuitu matrimonii"contemplate inherently that the consortium set up is one where the spouse and family share as a unity. That consortium having by fault of one side of the house been prematurely done away with, that side of the house cannot cry hardship that "provisions"take immediate effect. Rather the surprise would be if they had to await for fructuation or operative effect the time when in other circumstances the natural death of one or of the other of two now unconnected parties would have dissolved a bond that is no longer there. I find that the conception of "civiliter dead"appears in the precedents as early as 1575, whereas the earliest citation for the conception of punishment or penalty was given us as the year 1782.

As regards history and authority, I have had the great advantage of reading the full demonstration given by your Lordship in the chair of the Second Division, by Lord Wark, and also by Lord Jamieson, of the strong and constant current of authority from Viscount Stair, through Bell's Principles, Fraser in both his editions, for each of which he was responsible, and on to the writer in the original Green's Encyclopædia, to Professor Walton and his editor, and down to the present day in Wright v. Bryson . I adopt that showing. I desire also to concur fully in the observations of your Lordship in our chair as to the value of Hume's Lectures. There are a few remarks, however, which I venture to hope may be worth separate notice. (a) I personally assign a good deal of special weight, in view of the acute controversy as to the effect of the judgment in 1867, to the place in that tradition of Mr John S. More, advocate and antiquary, whose Notes on Stair were published to the world in 1832. The body of these notes to volume i is of 279 pages, and the work carries almost the authority of a separate Institution. More was not content with annotating his Stair at I, iv, 20 (p. 59), but he added a similar formulation of his own at Note B on p. xxvii. And it runs thus—wholly independent of any reference to forfeiture,—"The wife, where she is the injured party, enjoys her jointure, or her other provisions, legal or conventional, as if her husband were dead.… The rights of the parties are fixed as at the date of the decree of divorce, which puts an end to the jus mariti."I place a similar stress upon the position and date of Professor Bell, who was responsible for editions of the Principles up to the 4th, 1839, the next edition being that of Shaw in 1860. In all these early editions the phrase stood out stark and clear. "Paragraph 1622. Of divorce as a mode of dissolving marriage, the effects are that the innocent party hath the

benefit of all legal and conventional provisions."Much light is to be gathered from the order, or from the conjunctival connections, in which authors state their propositions. Thus Lord Fraser (2nd ed.) passes on to the positive side by the use of the word "Further"; Lord Stair approaches it by the conjunction "but"; Bankton puts the positive proposition first, and only by a subsequent sentence passes to the measure of forfeiture. More's statement is as I have cited above. (b) As to the matter of the early history which was opened, while I am not disposed to go fully into the questions which seem to have puzzled many minds, I may point out that, out of at least fifty judges who have treated of this doctrine, one or two only (and the number is significant) introduced their consideration by the assumption that the history took the form of a gradual extension by unknown precedents of the rule laid down for desertion by the 1573 statute to the other case of adultery. If that were so, it was a little tempting to limit the legal consequences of adultery by the statutory words. In point of fact, that history is now shown to be erroneous. We now have Lord Hermand's famous MS., so long the resort of pleaders before the Commissary Courts, in the Stair Society Publication No. 6. As George Fergusson, Hermand served in that Court for twenty-four years, from 1775 to 1799, and his collection of judgments therein extends from the year 1684 to the year 1777. Let me recall that that Court had the sole and privative jurisdiction at first instance of all consistorial matters and also over marriage contracts. Therefore both the practice, the forms in common use, and a consistent trend rerum judicatarum in that Consistorial Court seem of great importance for correct history. I derive from this volume two matters of special value. The actual decisions, in 1694 of Lady M'Kenzie v. Bruce of Clackmannan, and in 1704 of Eliz-Macintosh v. Farquhar of Mown, both to be found on p. 72, show that the Commissioners were in familiar use to deal with patrimonial consequences in their decreet, where marriage contracts were in issue, and that their declarator so given ran in the same form as Stair and Bell. This affords also the obvious explanation of the case of Justice v. Murray . There the undisputed, and indeed obtempered, decree, which was to exactly the same effect, was pronounced in the Consistorial Court against a parent, and it preceded the actual recorded decision upon the subject of tocher. The fact that that is so has seemed, to me at least, to displace an assumption made by one of the judges that in the appropriate cases the parents concerned were not called or allotted a locus in that old Court. I think they plainly were.

The other remark historically comes from this. Lord Hermand reports in the year 1705 a decision of the Commissaries (Mrs Barbara Wauchop v. Sir Geo. Seaton, p. 50), where Roman Catholics were concerned. I cannot delay to show by full quotation, but plainly

the whole question as to the pre-Reformation or pre-1575 attitude of the Catholic Courts to the question of full divorce on the ground of adultery was debated. One party pled in bar a Canon of the Council of Trent, quoting from Sanchez, 10, 18, No. 10. The other opponed that "the general canon law does not reprobate divorce upon the head of adultery": and that "the Council of Trent is not universally binding, but only where … published."It never was published, they said, in Scotland. On these reasonings the Court repelled the objection. That is, in result, the particular Council of Trent was rejected as not received in Scotland even in Catholic times. I shall not suggest that your Lordships should follow me in this question, but I do think that, as there was a question as to whether Lord Robertson was correct in saying that he found instances of divorce as early as 1540, and as the question of the historical origin of cases on adultery was canvassed, I should supply my own solution. That it was not true in history to say that the matter had ultimate origin in 1573 seems to me to follow clearly from the case of Countess of Argyll v. The Earl, and Tenants of Dollar . The date is December 19th, 1573. Plainly, the Countess had been already divorced for her "fault"before the statute. It was pled for her "that she should tyne no more, neither land nor other thing, but only so meikle as was given to her, or obtained by reason of the said marriage; and so this tack cannot come under this decreet."If a wealthy Countess who had been divorced could not plead higher, then both divorce on that ground and certain consequences of it upon property were already beyond praying for in the year 1573. It may be urged that the "fault"of the Countess spoken of was not really infidelity, but that the action was in some sort of way an anticipation of the statute, although intented long before. That does not make much difference in the history. I do not think anyone has explained away the case of Janet Auchinlech v. James Stewart, which is reported in Morison out of its calendar order. It bears to be at least a genuine early instance of actual divorce, with one-sided results. Lastly, I may be pardoned for making reference to the most enlightening remarks of the learned editor of Craig's Jus Feudale and of Hope's Major Practicks. I refer to passages in his edition of the later book (Introduction, p. xv). We get the following useful references: Craig, thirty years before Hope, had used the phrase "It is the date of natural death or of civil death in consequence of a criminal sentence … which counts."He had stated that (contrary to what was later held) enjoyment of the terce did not follow; but he distinguished that consequence, and laid it down that the wife is "entitled … to a bare liferent only."Lord Clyde explains to us that Craig by "bare liferent"meant the wife's liferent provision by way of marriage contract, as distinguished from the liferent estate conferred on her by a conjunct infeftment. There is also referred to, and

stands printed in the first Compartment of Hope's Part II, Title 8, (in para. 4), a decision that an infeftment of lands granted by a husband stante matrimonio is revocable during his lifetime, "bot, efter his deceis, or efter decreit of divorcement given against him for adultrie, it may not be revocked."It is true, however, that neither name nor date is appended to this decision. It does not, however, appear to have proceeded by way of analogy to desertion cases, seeing that the two forms of "death,"actual and civil, are coupled together. The dates of Hope's Decisions are from 1605 to 1631. Thirdly, the learned editor himself, on p. xv, uses this language:—

"Hope omits to throw any light on the extension of the patrimonial consequences of divorce beyond forfeiture by the guilty spouse … so as to confer on the injured spouse the positive right (so soon to be definitely formulated by Stair) to the immediate enjoyment of all matrimonial provisions in his or her favour, whether legal or conventional, on the footing of the civil death of the guilty spouse."

I would beg leave at this point to emphasise that (apart from Johnstone-Beattie) I am not endeavouring to propound in these old times absolutely binding formulations of the law as I now find it to be, but rather seeking to cumulate weighty indications of authority, all, as I think, in that same sense. If there were completely binding authorities of such old dates, we should not have had this further debate. From all we can cull, the historical process was not one of gradual expansion of a doctrine to embrace new territories, but depended on a simple and early assumption of the civil death of the contract-breaker, a ratio which was early settled and duly applied as cases arose. The conception of a civil death, of course and from the first, was equally applicable to a severance of relations by a breach of fidelity as to the later admitted breach of "diversioun fra other's company."After what your Lordships have said, I shall avoid saying anything more on the specific authorities so much canvassed, other than Johnstone-Beattie. But I think that Lord Kinloch and others rightly used the pointers given by cases like Thom v. Thom and Macalister v. Macalister, and other like material.

Now, in the last place, in relation to this case of Johnstone-Beattie, which has been cited, referred to, and sometimes discussed, in no less than seven more recent decisions, and never with a word of disapproval, I have many times re-read the opinions with the utmost care. My conclusions are as follows. First of all, it has stood for seventy-six years, and a practice must have been founded upon it. (Per Lord Dunedin, Lord Johnston, and Lord Mackenzie in Governors of George Heriot's Trust v. Paton's Trustees, and reported as to common law decisions in several recent cases.) It is rather odd that in Heriot'scase, and so in others, as in the Privy Council decision in Migneault v. Malo, it is nearly always a period of seventy years that is in question.

But this, of course, is mere accident. The point is just of long acceptance. Secondly, search and re-read with anxiety as I can, I have been unable to recover the supposed divergence of ratio decidendi between the Outer House judge and each of the three Inner House judges in the majority. Indeed, Lord Ardmillan closes by saying:

"On this question I have formed a clear opinion in concurrence with your Lordship in the chair, with Lord Deas, and with the Lord Ordinary."

Was he in error? I am persuaded he was not. Thirdly, what was the point on which all agreed? I find it to be just the very point which is now, during the course of Mr Strachan's speech, for the first time reopened. I find among the principal of the points argued in the Inner House this report given by the law reporter:

"That, however, does not include an obligation by a third party to pay an annuity, such an obligation being in no sense a donation. The donations referred to by the Act are donations between the spouses; and in the same way the passages from Stair, Bankton, and Bell's Principles, quoted by the Lord Ordinary, refer to provisions by the spouses to each other, not to provisions by third parties"

(p. 345). The identical argument was repelled by Lord Kinloch; in his opinion I find these two passages:

"The defender … maintained that it only applied to the case of legal provisions, such as terce, and of such conventional provisions as were made by the spouses for one another, but not to a conventional provision made by a third party, as in this case."

Again, "The Lord Ordinary does not find the authorities to have drawn any distinction between conventional provisions by the husband and those by a third party, such as the husband's father. The reverse is emphatically the case."Lastly, I have re-read my notes in vain, and teased my memory in vain, to recover the supposed three-fold and attackable grounds which these four eminent judges are supposed to have advanced. One and all, in my opinion, they rejected the proposed limitation, as well as the view (very limited in scope) supported by the dissentient judge. That view I read as being, not the broad distinction at present suggested, but this very limited one:

"A mere personal obligation"

(he says) "in which during his life the husband was the sole creditor"; and, having indicated a probable dissent on his part upon that ground, he went on to give his only actual ground thus, that the husband could not "tyne"under the Act that which was "provided absolutely to him … But here the right has been transferred. … and the question is, are the rights of the assignees forfeited. …?"For my part I regret (but I am bound to say it) that I disagree equally with Lord Curriehill in his conception of a right "provided absolutely to the husband"and with his ignoring of the fact that assignatus utitur jure auctoris. Taking this view of the question argued and decided in Johnstone-Beattie (which has not been disapproved, and which we are not asked to overrule), it seems enough0

to say that in the present instance, as in the case of Johnstone-Beattie, the right in obligationeprovided in an onerous contract by a father cannot escape being held to be a right justly describable in the words of these judges:

"This is in short an obligation propter nuptias."

It is accordingly wholly unnecessary to rely solely upon the last sentence of paragraph 3 of Lord Deas, and upon the answer given in the first sentence of his following paragraph. But it is only right that I should say that, if any possible difference could be found between these three judges, I think Lord Deas was in all respects sound and accurate in principle.

For these reasons I shall advise your Lordship in the chair of this Division, if it be in accordance with the majority of the votes, (a) that, upon the first part, the case of Drummond be overruled, and (b) that, upon the second part, the suggested substituted rule should be refused; and accordingly, that decree should be pronounced in terms of the conclusions of the summons, subject to any improvements which may be suggested as fit to be made.

LORD WARK .—The question in this case is whether the ratio of the judgment in Drummond v. Bell-Irving is sound. In that case the Lord Ordinary (Lord Moncrieff) laid it down that the measure of the rights conceived in an antenuptial contract of marriage in favour of an innocent spouse, which upon decree of divorce he or she becomes entitled to enforce, includes those rights, and those rights only, which he or she takes in succession to, and as following upon a forfeiture incurred by, the guilty spouse. In that case an antenuptial marriage contract gave power to the wife, in the event of her husband predeceasing her, to withdraw and re-settle one-half of the trust funds which had been contributed by her father. The wife, having divorced her husband, claimed to be entitled to re-settle this half as if the husband had predeceased her. The action was defended upon various grounds; among others, on the ground that the provision in question was not one by way of provision to the wife, but was merely a power of appointment; but the majority of the Court found it unnecessary to deal with these, and placed their judgment solely upon the doctrine above referred to, which had been enunciated by the Lord Ordinary. In the present case, which is one of an annuity undertaken by the husband's father to be paid to the wife in the event of the wife surviving the husband and there being no issue of the marriage alive at the husband's death, the Lord Ordinary, applying, as he was bound to do, the ratio of Drummond,has rejected the wife's claim to payment of this annuity.

The argument of the Dean of Faculty on behalf of the defender and respondent was based on the view that the dominant idea in the adjustment of the rights of spouses upon divorce is that of forfeiture

by, or penalty upon, the guilty spouse. But, before the argument for the reclaimer had advanced very far, the Dean of Faculty conceded that the doctrine, as stated in Drummond, was too narrow in respect that it omitted to take account of personal obligations of the guilty spouse, which undoubtedly become exigible on divorce. This was an inevitable concession, but, in my opinion, it results, not merely in an insubstantial modification, but in a very serious expansion of the limiting rule laid down in Drummond, which, as Lord Anderson pointed out, "has no concern with benefits and advantages, but only with penalties and forfeitures."

We have had an exhaustive discussion of the authorities, both the institutional writers and the decisions. As a result of these, I have come to the same conclusion as the Lord Justice-Clerk, and concur in his Lordship's reasoning. I should have been content to add nothing more, were it not that the consulted judges are of a different opinion. In view of that fact, I think it right to add certain observations of my own. In my opinion, the authorities do not support the view that forfeiture or penalty is the dominant idea in the adjustment of the innocent spouse's rights. From the time that the law with regard to these rights is first formulated in the institutional writers, there are two principles which distinctly appear. They are that the innocent spouse is entitled to his or her rights, legal or conventional, as if the other were dead; and that the guilty spouse loses all benefit that otherwise might accrue through the dissolution of the marriage. The order in which these two principles are stated varies. Stair, Erskine and Fraser mention first the loss to the guilty party. Bankton and Bell give precedence to the rights of the innocent party. But there is no trace in any of these writers of the view that the provisions which the innocent party is entitled to enjoy are only those which are forfeited or undertaken by the guilty party. Erskine, in the passage cited and founded on in Drummond, seems to come near it, but he is thinking only of the effects upon the guilty spouse imposed by the Act of 1573, cap. 55, as to divorce for desertion.

The contention of the pursuer is that the claims of the innocent spouse are not restricted to those which depend on the consideration of forfeiture, but extend to all legal and all conventional provisions which would have opened to her on the dissolution of the marriage by the death of the guilty spouse. That is the rule as stated by Bankton, and, as I have already remarked and as Lord Anderson pointed out in his dissenting opinion in Drummond, he puts in the forefront the position of the innocent spouse, the notion of punishment of the offending spouse being, on his statement, a secondary consideration.

The rule as expressed by Stair has been the subject of consideration on several occasions in the House of Lords, in Harvey v. Farquhar,

Dawson v. Smart, Montgomery v. Zarifi, Selsdon v. Selsdon, and Wright v. Bryson, but none of the dicta founded on appears to me to be of much assistance, since in none of these cases were the minds of the noble and learned Lords directed to the kind of question raised in this case. The passage from Lord Westbury in Harvey v. Farquhar, founded on by the Lord Justice-Clerk in Drummond, was excised from his original opinion on revisal. It therefore does not appear to have the authority of Lord Westbury. But it was adopted by Lord Robertson in Dawson v. Smart, who applied it by saying that there is no warrant or authority for holding that the divorce takes anything from the husband that it does not give to the wife. This dictum is in no wise hostile to the reclaimer's argument. It is directed towards quite a different problem, namely, whether a provision in favour of a child payable on the death of the survivor of his parents is accelerated by a divorce between them. The case was one in which the doctrine that "the party injured hath the same benefit as by the other's natural death"could not apply; and the Court was concerned entirely with the forfeiture imposed upon the guilty party. In Montgomery v. Zarifi the question was whether the innocent husband was entitled to his conventional provisions out of funds settled by the wife in a marriage settlement which declared that the rights of parties should be governed by the law of England. It was held that he was not so entitled. The Scottish rule of law, as expressed by Stair, was approved by all the noble Lords as a correct statement of the law of Scotland. Lord Haldane referred (at p. 133) to Dawson v. Smart as establishing that the principle enunciated by Stair "does not render the guilty party constructively dead as regards rights in property in questions with third persons, but merely confers on the other spouse the right to forfeit for his own benefit all pecuniary advantages which belonged to the guilty consort as part of the provision made for the marriage. It is only to the extent of the interests that thus accrue to the innocent party that anything passes from the guilty one as though dead."His Lordship was dealing, as was Lord Robertson in Dawson v. Smart, with the extent of the penalty imposed, as a result of divorce, upon the guilty party; and I cannot think that anything approaching the present question was before his mind. There is, however, a passage in the speech of Lord Dunedin dealing with the effect of Stair's doctrine upon the marriage settlement. He refers to the old case of Justice v. Murray as showing that the innocent spouse does not take as a consequence of divorce rights which, by the contract, are conferred on the guilty spouse alone. He says (at p. 139):

"This clearly shows that the right given to the innocent spouse on divorce is only to what he or she would get

by the death of the guilty spouse—under the contract if there is one, legal rights as at death if there is none—and not a right by forfeiture and transfer to whatever the guilty spouse enjoyed."

As a result of repeated study of the authorities to which we were referred, I have come to the conclusion that the only two decisions which deal with the question raised in this case are Johnstone-Beattie v. Johnstone and Somervell's Trustee v. Dawes . Johnstone-Beattie v. Johnstone is a decision of the highest authority. It has been repeatedly referred to with approval in the House of Lords, most recently by Lord Shaw in Montgomery v. Zarifi, and by Lord Thankerton in Selsdon. The case is distinguishable on the facts, because the obligation to pay an annuity undertaken by the husband's father in the marriage contract was to pay to the husband, whom failing, to the wife. But I cannot find that the judgment of the Court attached importance to this fact. The question upon which their decision was asked was whether the doctrine that, on divorce, the innocent spouse is entitled to her conventional provisions extended to a provision made for her in the marriage contract, not by her husband, but by his father on his behalf; and the decision was that it did so extend. The grounds upon which the Lord Ordinary and the majority in the Inner House proceeded were these: (1) The provision was made in the marriage contract of the spouses, to which the defender was a party; (2) It was intended to secure a provision for the wife on her survivance of the husband; (3) Having regard to its nature and the purposes it was intended to serve, it falls within the class of rights which emerge to the wife in the event of the dissolution of the marriage by divorce in the same manner as if the marriage were dissolved by death. All these propositions are to be found clearly expressed in the judgment of Lord President M'Neill, and I do not find that any different views are expressed by Lord Deas and Lord Ardmillan. In Montgomery v. Zarifi, Lord Shaw (at p. 142) quoted this passage from the opinion of Lord President M'Neill:

"Here the question is raised in reference to an obligation undertaken by a third party, and that, it is said, makes all the difference. Now, it appears to me that the fact that this was an obligation by a third party is not the most important circumstance in reference to such a question, but that the most important consideration is the nature of the transaction, and the purposes which it was intended to serve. And seeing that this obligation was undertaken solely with reference to the intended marriage, and with a view to the comfortable sustenance of the wife, in the event of her being deprived of her husband in her father-in-law's lifetime, it appears to me that it falls within that class of rights which emerge to the wife in the event of the dissolution of the marriage by divorce, in the same manner as if the marriage were dissolved by death."

Lord Shaw added:

"That

was a case in which the erring spouse was the husband, and in which the wife was put by the result of the law in the same position as if he was dead, and so a provision for her comfortable sustenance in that event fitted naturally into the doctrine of the Scots law. But the true principle is where Lord President [M'Neill] put it, namely, that the important consideration is the nature of the transaction and the purposes which it was intended to serve.'"

In Selsdon v. Selsdon, Lord Thankerton quotes the same passage from Lord President M'Neill with approval. He also quotes two passages from the opinion of Lord Kinloch to the effect that, in construing the marriage contract, a different meaning cannot be given in the case of the father-in-law from what it bears in the case of the husband; and that there is no hardship in so doing, since the father-in-law must be held to have bound himself in knowledge of the law; and, as I understand him, he approves of these passages as correct statements of the law of Scotland. It is no doubt the fact that the hardship pled by the father-in-law in Johnstone-Beattie was not the same as that pled in this case. The burden of the obligation in the contract was not increased, since the right to payment was merely transferred from the husband to the wife. The plea of hardship was that the defender, if he had to pay the annuity to the wife, might also have to support the husband. Here the plea is that the obligation to pay the wife will emerge earlier than the term fixed by the contract, namely, the death of the husband. But, as I read the judgments of Lord Kinloch and of the majority in the Inner House, they all consider the plea of hardship to be irrelevant, and hold that the obligation in the marriage contract must be construed in the light of what they hold to be the rule of law which regulates the innocent wife's rights on divorce, namely, that she is entitled to her conventional provisions as if her erring husband were dead. Lord Deas says (at p. 350):

"The question is whether the general rule of our law that divorce for adultery entitles the innocent spouse to his or her marriage provisions, legal and conventional, in the same way as if the offending spouse were naturally dead, does or does not apply to this annuity. I know of neither principle nor authority for making it an exception."

He is not moved by the argument as to hardship, not because he thinks there may be no hardship, but because the obligation to pay the annuity was "an onerous obligation undertaken to other parties even more emphatically than to the son, and the father, in granting it, must be assumed to have had in view that he might have to implement it towards them, although his natural liability to keep his son from actual want remained behind."Lord Deas notes the fact that, except as regards this contingent liability, the father had no interest to resist payment to the wife, since his obligation would be neither heavier nor of longer endurance on the one footing than on the other. But I cannot find anything in his grounds of judgment

to lead me to think that his opinion would have been in any way different had the application of the doctrine of Stair resulted, as it does in the present case, in the obligation emerging earlier than would have been the case otherwise. Nor can I find in the judgment of Lord Ardmillan any material difference from the reasoning of the Lord President and Lord Deas. I therefore regard the decision in Johnstone-Beattie as being a direct authority in favour of the reclaimer in this case.

The other and later case is Somervell's Trustee v. Dawes . A question arose in that case as to whether the right of an innocent wife to her conventional provisions on divorce extended to a bond of annuity granted under the Aberdeen Actby her husband, who was heir of entail in possession, providing an annuity to her during her survivance of the granter. It was held that her right did not so extend, in respect that the bond imposed no personal obligation upon the husband, and that her right was measured by her infeftment. The Lord Ordinary (Pearson) held that the wife was entitled to the annuity as from the date of the divorce. The Inner House reversed that decision, the judgment of the Court being given by Lord Kinnear. After referring to Erskine (I, vi, 46), to Lord Westbury in Harvey v. Farquhar, and to Fraser on Husband and Wife (vol. ii, p. 1216), he says that the rule of law operates only through the forfeiture or through the obligation. He then refers to Johnstone-Beattie as an excellent illustration of forfeiture by the delinquent spouse, and says (at p. 1076):

"The Lord President points out that the circumstance of the annuity being provided by the husband's father was of very little importance: and it is obvious that the father's liability was in no way enlarged. The really material consideration was the nature of the obligation, and the purpose it was intended to serve. It was an obligation undertaken only with reference to the intended marriage, and with a view to the comfortable sustenance of the spouses while they were living together, and of the wife, after she should be deprived of her husband. It was entirely in accordance with Lord Westbury's doctrine to hold that the delinquent husband had forfeited for the benefit of the wife the interest which during his lifetime was primarily intended for him; and on the other hand, the wife's interest fell directly within the class of rights which are held to emerge to her at once upon being separated from a delinquent husband by his divorce."

His Lordship then went on to say that he saw no reason to apply the doctrine to an Aberdeen Act annuity, which does not depend upon the husband's obligation or provide or reserve for him any benefit which he can forfeit or retain. On the other hand, he points out that the wife's right does not stand on contract but upon a completed infeftment, and must be measured by that infeftment. There was thus no room for the application of either branch of the doctrine of Stair in the

circumstances of that case, and I think it is significant that Lord Kinnear disposes of the case after a consideration of both branches of that doctrine. I do not read his opinion as in any way disapproving of the ratio of the decision in Johnstone-Beattie, which, as I have already said, appears to me directly to support the argument of the reclaimer. If he can be read as disapproving of the ratio of that decision, I am respectfully unable to agree with him.

Sitting as we are in a larger Court, we are, of course, not bound by either of the two decisions to which I have referred. In my opinion, however, the ratio of the judgment in Johnstone-Beattie, which has been so often under notice in later cases and has never been disapproved, is sound and is in accordance with the understanding of Scottish lawyers for two centuries as to the meaning of Stair's doctrine as applied to a marriage contract. I agree with the consulted judges that no real help is to be derived by seeking to go back farther than Stair into an examination of the forms or decisions of Courts other than this Court. I also agree with them that the question raised in the case was never decided in the earlier cases before Johnstone-Beattie. But it is, I think, of some importance that in these cases—and notably in Thom v. Thom —the general rule was recognised to be that the party injured enjoys the same rights on divorce as on the death of the other. So far as provisions for the sustenance of the wife in her antenuptial marriage contract are concerned, I can see no ground in principle for refusing to recognise her right to these, whether undertaken by the husband or by his father on his behalf. The nature and purpose of the provision was the sustenance of the wife if, and when, she became a widow, and, as Lord Kyllachy remarked in Harveys' Judicial Factor v. Spittal's Curator, (at p. 1019), "Her provisions—legal and conventional—take effect as if she were a widow, and for this reason, that she has by her husband's misconduct been made, in effect, a widow."In my opinion, the reclaimer is entitled to succeed.

LORD JAMIESON .—In deciding in favour of the defender, the Lord Ordinary held himself bound by the ratio decidendi in Drummond v. Bell-Irving .The Dean of Faculty did not, before us, seek to maintain in its entirety the rule of law there formulated by Lord Moncrieff and approved by the majority in the Inner House. But he argued that, as the basis of the law affecting the property rights of spouses on divorce was to penalise the guilty spouse, the innocent spouse was entitled only to such conventional provisions as, although not necessarily forfeited by the offender, would in some way impose a pecuniary penalty on him or her. Penalty, he said, was the dominant idea underlying the law and having its origin in the Act of 1573. The practical result of giving effect to the argument would

be to exclude from the conventional provisions to which an innocent spouse is entitled all such as have not actually been forfeited by the guilty spouse, or have not arisen from obligations entered into by him or her personally.

I am not satisfied that the Act of 1573 can be regarded as the foundation of the law. The penalties imposed by it were derived from the decrees of the Commissary Courts, and contemporaneously with it we find effect being given to divorce for adultery operating as fictional death, rendering irrevocable a donation by one spouse to the other made stante matrimonio and bringing into immediate emergence legal rights—Murray v. Livingston; Innerwick. It is true that the Act, in terms, deals only with the forfeiture incurred by the guilty spouse. It leaves to implication the correlative rights of the innocent party, and it is to the law as it developed that one must look to ascertain what these rights are. The Act deals only with the tocher and donationes propter nuptias, and in the early days such marriage contracts as were entered into made provision only with regard to these and the manner in which they were to be invested. But by the time of Stair and the other institutional writers more complex provisions were in use in such contracts, and conventional provisions had begun to be accepted in lieu of legal rights. Examples of such may be found in the cases noted in Murray on the Property of Married Persons, p. 90. Further, just as the tocher was in use to be provided by the wife's relatives, I think it is a fair assumption that other patrimonial provisions came to be made by their fathers on behalf of spouses. Such was the case in Justice v. Murray . It was in such circumstances that the institutional writers came to formulate their expositions of the law.

Stair, in the passage which has throughout received judicial authority as accurate, states the law in two propositions, the rights accruing to the injured party as on the other's natural death being stated not as consequential on, but in antithesis to, the loss of benefits suffered by the party injurer. Two distinct conceptions are involved, for the law does not automatically transfer all the benefits enjoyed by the offender to the innocent spouse. "The right given to the innocent spouse on divorce is only to what he or she would get by the death of the guilty spouse—under contract if there is one, legal rights as at death if there is none—and not a right by forfeiture and transfer to whatever the guilty spouse enjoyed"—Montgomery v. Zarifi, per Lord Dunedin, at p. 139. Stair was followed by Bankton and Bell, and none of them states any qualification or restriction of the rights to which the injured party is entitled; on the contrary, Bell describes these as "alllegal and conventional provisions granted intuitu matrimonii."I cannot think that the expositions of these writers can be regarded as either inaccurate or

incomplete, nor can I find in them any suggestion that the basis of the innocent party's rights, legal or conventional, is to penalise the guilty spouse. Erskine alone, while stating that an injured wife is entitled to all her conventional provisions, places on the guilty husband the duty of making them good to her.

These formulations by the institutional writers of the rights of the injured spouse to conventional provisions, without attaching any qualification, have stood for centuries. Professor More states in equally unqualified terms the rights of the injured party to be the same as if the other were naturally dead—More's Notes, p. xxvii. And the later editors and writers have all accepted the case of Johnstone-Beattie as deciding that the rule applies whether the conventional provisions come from the guilty parties themselves or from their fathers—Bell's Prin., sec. 1622; Erskine, I, vi, 48 note; Fraser, Husband and Wife (2nd ed.), vol. ii, p. 1217; Walton (2nd ed.), p. 201.

In Johnstone-Beattie, the Lord Ordinary (Lord Kinloch), after stating the general principle that an innocent wife was entitled to all the provisions contained in her antenuptial contract in exactly the same way as if her husband were dead, rejected the argument that the principle applied only to legal provisions and such conventional provisions as were made by the spouses for one another, and held that the husband's father in entering into an onerous obligation must be taken to have known as much about the provisions of the law as did the husband himself. When the case came before the Inner House, the argument presented was that the institutional writers had only dealt with provisions by the spouses to each other. It is important to keep that in view in reading the opinion of the Lord President, when he said that the fact that the obligation was one by a third party was not the most important consideration. His view was that an onerous obligation undertaken solely with reference to the intended marriage and for the comfortable sustenance of the wife, in the event of her being deprived of her husband, must receive effect even although entered into by a third party. Lord Deas held that the annuity undertaken to be provided by the father was not an exception to the general rule. He expressed the view that the fathers of spouses, when they become parties to their children's marriage contracts, cannot in any proper sense be regarded as third parties, and pointed out that the institutional writers made no distinction between provisions by them and those made by the spouses themselves. The opinions of the majority contain no trace of the decision having been influenced by the fact that the guilty husband had forfeited his right to the annuity. The Court regarded the case from the point of view of what were the rights of the innocent wife, and gave no consideration to there having been a forfeiture by the husband.

The case was referred to at some length by Lord Kinnear in his opinion, in which the other judges concurred, in

Somervell's Trustee v. Dawes . The question raised in that case was whether a wife on divorcing her husband had immediate right to a bond of annuity under the Aberdeen Actgranted by him in her favour. The ground of decision was that her infeftment was the measure of her right, and that, there being no personal obligation by her husband, the divorce did not give her an immediate right to the annuity. Lord Kinnear, after referring to the two aspects of the rule, that it operated through forfeiture or through the obligation of the delinquent spouse, said that this had been carried farther in Johnstone-Beattie, and applied to an obligation undertaken by a third party. He went on to point out that it was in accordance with the rule stated by Lord Westbury in Harvey v. Farquhar to hold that the delinquent husband had forfeited for the benefit of the wife the interest primarily intended for him during his lifetime, but he added (at p. 1076):

"On the other hand, the wife's interest fell directly within the class of rights which are held to emerge to her at once upon being separated from a delinquent husband by his divorce."

I do not think that anything said by Lord Kinnear detracts from the decision in Johnstone-Beattie or its value as bearing on the present problem. The case of Somervell's Trustee was concerned only with a provision made by the husband, and raised no question concerning an obligation undertaken by a third party. The observations on the case of Johnstone-Beattie were therefore obiter.They are none the less entitled to great weight, more especially as they were concurred in by all the members of a strong Court. But if they are to be read as meaning that the decision in Johnstone-Beattie was in any way based on the husband's having forfeited his right to the annuity, I am respectfully unable to agree.

The case of Johnstone-Beattie was fully canvassed by Lord Thankerton in Selsdon, and with approval. He pointed out that certain dicta of Lord Kinloch, which have been criticised as being too widely stated, were quite correct if read secundum subjectam materiam, and in particular the reference to divorce being identified with death. The problem there, as here, was concerned only with the patrimonial rights of the spouses, and these the innocent spouse takes as if the other were naturally dead. It is thus not in point to say that divorce is not equivalent to death for all purposes, and that the rights of children and of others who are not contracting parties are not affected. They are not. But it is impossible to say that the position of parties to the contract other than the spouses is left untouched by the event of a divorce. A provision in favour of the guilty spouse made by the parent of the other is forfeited. If in the present case the pursuer and not her husband had been divorced, she would have forfeited all right to the annuity, and it seems a strange result that the defender

in such case would have reaped benefit under one branch of the rule, but should escape from his obligation under the other.

The rule as stated by Lord Westbury in his speech in Harvey v. Farquhar, but deleted by his Lordship in revising his opinion for the law reports, and which was quoted by Lord Kinnear in Somervell's Trustee, was approved by Lord Robertson in Dawson v. Smart . It deals merely with one aspect of the result following on divorce, and not that with which this case is concerned. I do not regard anything that was said in either of the cases, or in the subsequent cases in the House of Lords, as excluding from the conventional provisions to which an injured spouse is entitled such as are provided by the father of the guilty spouse but not forfeited by the latter. The opinions in each case must be read in light of the question arising for decision. In the former of these cases the question of forfeiture alone, in the form the case took, was being considered. The question was whether a husband divorced for adultery had forfeited his right to provisions in his favour, in the same way as in divorce for desertion. The latter involved the rights not of contracting parties, but of a child of the marriage, and Lord Robertson pointed out that the guilty spouse was not for all purposes to be held as dead, but that it was the injured party who has the same benefit as by the other's natural death. It is significant that in none of the cases was there any criticism of, or any limitation sought to be placed on, Lord Stair's second proposition.

It cannot be said that the question in issue is directly covered by decision, but the ratio decidendi in Johnstone-Beattie appears to me to be conclusively in favour of the pursuer. To uphold the rule formulated in Drummond, even in the modified form suggested, would appear to me to run contrary not only to the reasoning in Johnstone-Beattie, but to what has for centuries been recognised as the meaning to be attached to the institutional writers, and to ascribe to them a limitation definitely put forward in argument and not accepted by the Court in that case. I can see no good reason either in law or in equity for so doing. In many, if not in the majority of, marriage contracts the patrimonial provisions are, as in the present case, made not by the spouses themselves but by their fathers or others in loco parentis. I agree with Lord Deas that one in such a position who enters into an onerous obligation with reference to the intended marriage of his son or daughter cannot in any proper sense be regarded as a third party. He contracts on behalf of his child. Viewed from the standpoint of the injured spouse entitled to his or her conventional rights as if the other were naturally dead, there is no logical reason for differentiating between an obligation so undertaken and one personally entered into by the guilty party.

Nor, viewed from the standpoint of the father, is there any reason for differentiating an obligation to provide an annuity to his son's wife on the son's death from a provision to give her in that event the income of funds settled in trust for the benefit of the son during his lifetime, or the sole interest in a conjunct right to be enjoyed by the spouses during their lives. The income of the £10,000 contributed by the defender as "the husband's fund"in this case was intended as a provision for his son during his life, but the effect of the son's divorce was to bring into operation the right of the pursuer thereto, a right which in terms of the contract she would have been entitled to only on his natural death. Why should the same result not come into operation as regards the further annual sum which the defender undertook to provide as part of the income of that fund? The answer suggested is that it would inflict hardship on him in having to implement his obligation at an earlier date than he had contracted to do. But would he? He must be assumed to have known, when contracting, that, if his son were divorced, the pursuer's right to the income of "the husband's fund"would emerge, and similarly he must be assumed to have known that she would then become entitled to the annual addition to that income which he had agreed to provide. Further, the plea of hardship on the father was put forward and rejected in Johnstone-Beattie.

For these reasons I am unable to give effect to the defender's argument that the conventional patrimonial provisions to which an innocent spouse is entitled on divorce are limited to those which have either been forfeited or personally undertaken by the guilty spouse. In my view, the obligation undertaken by the defender is not excluded from the benefits to which the pursuer became entitled.