Scottish Court of Session Decisions

Solicitor-General and Mair, for him, argued—This action is incompetent because the defender is willing to receive the pursuer into his house. It is no answer to this to say that the defender has treated the pursuer with cruelty, because in that case the action should be for separation and aliment. Countess of Caithness, 25th July 1744, M. 5886; Bell v. Bell, 22d February 1812, F.C.; Anderson v. Anderson, 3d March 1819, F.C. There is no statement as to what the pursuer has been doing in the interval since 1855, and it is not competent at this distance of time to raise a simple action of aliment.

Patton and Thoms, for the pursuer, replied—The pursuer is not bound to return, if her averments are true, which must at present be assumed, for her life would not be safe. Lady Fowlis, M. 6158; Shand, 28th February 1832, 10 S. 384.

( Lord Ardmillan referred to the cases of Williamson, 27th Jan. 1860, 22 D. 599, Couper, 24th Nov. 1860, 23 D. 68; and Paterson, 14th Dec. 1861, 24 D. 215.)

In the course of the argument the defender was allowed to add the following plea:—“The action is in the circumstances averred by the pursuer incompetent, in respect there is no conclusion for a judicial separation.”

At advising,

The Lord President said—This is an action at the instance of Mrs Coutts against her husband for payment of the sum of £75 yearly, in name of aliment, from the term of Martinmas 1864. It appears that this lady has been living separate from her husband since 1855. An objection was taken by the husband to the relevancy of the action. He says he has repeatedly offered to take his wife back to live with him—that she had no good reason for going away — and that he is still willing to receive her. She says that his conduct towards her was such as justified her leaving him, and that she cannot in safety return to live with him. The husband denies all this, and objects to a claim being made against him for aliment, there being no conclusion for judicial separation. He pleads that the pursuer has not averred a relevant case to entitle her to insist in this action. Under this plea the averments of the pursuer were somewhat closely criticised, and objections of a broader kind were stated, which some of your Lordships thought amounted to a plea against the competency of the action, and the defender added a plea to this effect. This action has undoubtedly been raised under very unusual circumstances. The lady had been living separate from her husband for about nine years before it was brought. She was not doing so under any arrangement with her husband of the breach of which she complained. What she says is, that her husband's conduct amounted to sævitia; and we are asked to investigate a case which, if true, would give grounds for a judicial separation in an action containing no conclusions for separation. I am not aware that any case of this kind has ever occurred; and I am of opinion that the action ought not to be sustained. If the defender had not expressed his willingness to take the pursuer back to live with him, it would have been different. It would then have been an ordinary case of aliment. Perhaps, too, the case might have been different had it been brought immediately. But in the circumstances in which the action has been raised I think it cannot be sustained. It may be a very nice question whether it should be dealt with as an irrelevant or incompetent action. These terms may run very much into one another in their meaning. It is enough that the circumstances disclosed by the pursuer don't warrant the investigation which she seeks, there being no conclusion for separation. This will not prevent her from bringing an action for judicial separation whenever she pleases. There will be conclusions for aliment in that action, under which it will be competent for the Court to award it. This is the opinion of the Court, and in the circumstances of it we don't think it a case for finding the husband liable in the wife's expenses.