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The view that the County Court Judge had a discretion in the matter was not suggested either in the arguments or in the judgments.
One of the most important Scots decisions of recent years is A. B. v. C. B. ([1914), 2 S. L. T. 107). It was an action for nullity of marriage, at the instance of a husband, on the ground that the wife was pregnant by another man at the date of the marriage. The facts found by the Lord Ordinary were, that the marriage took place on 6th September, 1913; that at that date, the wise was pregnant, by another man, of a child which was subsequently born and was alive at the date of the trial; that she concealed the pregnancy from the pursuer; and that if he had known of her condition he would not have married her. The First Division (to whom the case was reported by the Lord Ordinary) drew the inference that the wise knew, or at least suspected, her condition at the date of the marriage, and did not believe that the husband had any knowledge of it. On these facts, the Court held, that the husband was entitled to have the marriage annulled. This decision is in direct conflict with the law of England as laid down by Sir Francis Jeune, P., in Moss v. Moss (L. R. (1897), P. 263). The ground of the Scots judgment is fraudulent concealment—that a duty of disclosure lay on the wife, and that she acted fraudulently towards the husband by not informing him that she knew or suspected that she was pregnant. The decision is certainly in accordance with natural justice—the wife had been guilty of a gross fraud and the hardship to the husband is apparent. But it is not easy to discover a legal ground on which the decision can be rested without making a serious inroad on the institution of marriage. Logically, it is extremely difficult to give relief to the husband in the case under consideration, and to refuse it in the case where the wife has concealed ante-nuptial unchastity; or
in the case where she has concealed the fact that she has given birth to an illegitimate child. It is not easy to say that it is immaterial to the validity of the marriage that the wife has been unchaste, and even that she has become pregnant by that unchastity, but that it is material if the pregnancy has continued to the date of the marriage. There is no other case in which any mistake short of a mistake as to the identity of the person married has been held to invalidate a marriage. It rather looks as if a legal principle had been given up in deference to considerations of hardship. Nevertheless, even those whose legal consciences would not have allowed them to concur in the judgment will not regret the result arrived at.
Section 142 of the Companies Act was under consideration in the case of Hill v. Black ([1914), 2 S. L. T. 123). The section enacts that where a winding-up order has been made no action shall be proceeded with or commenced against the company without leave of the Court. The pursuer without obtaining leave brought an action in which he called as defenders (1) the company, (2) the liquidator, (3) and (4) trustees for two different classes of debentureholders. Neither the company nor the liquidator lodged defences, and the only defenders who appeared were the trustees for one of the classes of debenture-holders, and they maintained that the action was barred by the provision of section 142. The Court held that the section could be pleaded only by the company or the liquidator, and could not be pleaded by the trustees for the debentureholders, and accordingly the action was allowed to proceed. Lord Dundas' opinion suggests that if the company or the liquidator had taken the plea, it would have been competent to them to waive it.
In Nasmyth's Trs. v. The National Society for the Prevention of Cruelty to Children ([1914), 2 S. L. T. 146), the testator left a legacy of £500 to "the National Society for the Prevention of Cruelty to Children.” The legacy was claimed by two claimants, (1) the National Society for the Prevention of Cruelty to Children incorporated by Royal Charter and having its central office in London, and (2) the Scottish National Society for the Prevention of Cruelty to Children. Proof was allowed, and the evidence showed that the testator was a Scotsman, that all his interests were in Scotland, that he rarely visited England, and that he knew of the existence of the Scottish Society. It was not proved that he knew of the existence of the London Society. All the other objects of his bounty were Scotch. The Second Division gave judgment for the Scottish Society, being largely influenced by the consideration that a Scotsman would naturally speak of the Scottish Society as the National Society. This judgment was reversed by the House of Lords. It is difficult to resist the impression that the money did not go to the Society which the testator intended to benefit. But the name used in the will was an accurate description of the London Society and was not an accurate description of the Scottish Society. This being so, the House held that there was a strong presumption against the Society which was not accurately named, and that the evidence in the case was quite insufficient to overcome the presumption. It was argued that when once a person was accurately named in a will any further inquiry was forbidden in regard to the person who was to take the benefit. The House did not find necessary either to affirm or to reject this proposition, but the judgments of Earl Loreburn and Lord Dunedin are unfavourable to it. The decision is a salutary one, as it drives home the lesson that Courts ought not to depart from the language of the will in deference to conjectures more or less plausible as to what the testator may be supposed to have intended.
A petition by a lady for access to her pupil child was the bone of contention in Westergaard v. Westergaard ([1914), 2 S. L. T. 167). The petitioner and the respondent were domiciled in Denmark, but at the time of presenting the petition they were both resident in Scotland. They had been married in Denmark, but their marriage was dissolved by a Royal Warrant of the King of Denmark, under which the custody of the child of the marriage was given to the respondent. The Second Division held that they had no jurisdiction to entertain the petition. They had no power to review what had been judicially done in Denmark. If the Danish judgment was not final, application should be made to the Danish Court to have it varied. If the Danish judgment were final, no foreign Court could have any right to intervene. The decision does not, however, conclude the case where the application is presented in the interests of the child. In that case the Court would have power to intervene, in order to prevent the child from being injured.
In John Milligan & Co. Ltd. v. Ayr Harbour Trustees ([1914), 2 S. L. T. 82) the pursuers were shipowners in Ireland, and one of their ships, the Eveleen, arrived at Ayr for the purpose of loading coals. Owing to a trade dispute the labourers at Ayr Harbour refused to load the Eveleen. The pursuers tendered payment of the harbour dues and offered to provide labour for the loading of their ship, but the Ayr Harbour Trustees refused to allow them to import labour into the harbour. In consequence, the pursuer's ship was delayed, and the pursuers sued the harbour
trustees for damages for detention. The Lord Ordinary gave judgment for the pursuers. He held that, under the Harbour Docks and Piers Clauses Act 1847, the defenders were bound to supply labour to work the cranes, and if their ordinary staff refused to do the work, to replace them with employees who would do it; that the defenders were in breach of this duty, and that there was nothing in the circumstances which excused the non-performance. The case was a hard one for the defenders, for the Lord Ordinary held it proved that if the pursuers had been allowed to import labour, two consequences would probably have followed :-(1) The dock labourers would have used violence to the imported labourers, and possibly to the defenders' property; and (2) a general strike would have taken place at the harbour, with consequent detention of the other ships that were loading there. It is difficult to see how the defenders could have acted otherwise than they did, but they nevertheless failed to perform their statutory duty to the pursuers. If it had been impossible to perform the statutory duty they might have been excused, but although performance was difficult and inconvenient it was not impossible.
Lord Hunter's decision in Gibson v. Fotheringham (which was referred to in the August number of this review) has been affirmed by the Second Division (,2 S. L. T. 78). The case related to an agricultural reference to settle claims arising on the expiry of a lease, and it shows very clearly that in references of this kind the Court will be slow to interfere with the arbiter's decision on account of mere irregularities of procedure.
J. S. M.