A husband is liable for expense of successful declarator of marriage against himself. Special costs given in such case do not bar the wife's agent from recovering the whole money laid out by him.
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Angus M'Alister of Loup having denied his marriage with Jean M'Donald she brought a declarator thereof. The Commissaries decerned in her favour, with L. 80 of costs; and the House of Lords affirmed the decree with L. 100 costs.
Colquhoun Grant, her agent, having expended L. 104 over and above these two sums, in the necessary conduct of the cause, brought an action for repayment against Mr M'Alister, as liable for his wife's necessary and just debts.
Objected for Mr M'Alister, 1mo, He cannot be liable for a debt contracted against his consent, and in prosecuting himself; 2do, The costs given by the Commissaries and House of Lords are taxative, and exclude higher costs.
Answered to the last for Mr Grant; He does not ask repayment on the footing of costs, but on the footing of money necessarily expended for a wife, and for which, as such, the husband is liable.
‘The Lords found Mr M'Alister liable.’
Act. Lockhart, J. Dalrymple.Alt. Jo. Campbell, Ferguson.
Fol. Dic. v. 3. p. 199. Fac. Col. No 97. p. 219.
