Scottish Court of Session Decisions

Mrs Martin raised an action in the Sheriff Court at Glasgow for the purpose of obtaining interim aliment from her husband until the rights of parties should be determined by a competent Court, The husband's defence was a denial of the ill-treatment upon which the action was founded. and an offer to receive the pursuer into his house.

After proof, the Sheriff-Substitute assoilzied, but the Sheriff Principal found ill-treatment proved, and decerned for aliment. The husband advocated, and, after an interlocutor against him from the Lord Ordinary, the Inner House pronounced an interlocutor on 28th June 1866, finding ill-treatment proved, decerning for certain sums of expenses ad interim, and for interim aliment until the farther consideration of the case. Quoad ultra the case was superseded until the third sederunt day in November last, in order that the wife, if so advised, might raise an action of separation and aliment. No such action was raised by the wife, and no step was taken by either party in the case. The parties are both about eighty years of age.

Messrs M'Gregor & Barclay, S.S.C., who had been the wife's agents, now compeared in the case, and craved the Court so to dispose of the case as to give them decree for expenses, and to allow the decree for expenses in the Sheriff Court to be extracted. The grounds upon which the rested their application were that the husband had not paid the interim aliment allowed by the last interlocutor of the Court, although he had paid the expenses thereby decerned for; that the wife, without consulting the compearers, had returned to her husband's house, and that consequently the action had been put an end to, and no separation and aliment could be raised.

Fraser and Gebbie, for compearers.

R. V. Campbell, for the husband, admitted that the wife had returned to the husband's house, and stated that she had returned acknowledging she was ill-advised in raising the action, and referring to a son and daughter as having been the real domini litis. He contended that the agents' remedy was to try their right to expenses either against the defender or the son and daughter by an action at their own instance. Neither of the parties was moving in this suit; if the pursuer was not going on, the defender was not asking absolvitor, and the agents, being mere third parties, should not be allowed to interpose and to proceed with a suit affecting the personal relations of husband and wife with a view to getting decree for expenses. 1. The ordinary rule was that agents were allowed to proceed with a case notwithstanding a compromise when an interlocutor was pronounced necessarily implying expenses. No such interlocutor existed here, for the Court clearly intended the pursuer's right to expenses to be contingent upon her proceeding to raise a separation and upon her success in showing grounds for that remedy. Farther, the case was out of the principle of the rule. The wife had taken no benefit by the interlocutor of Court, and had simply accepted a tender which the defender had made from the very first. Then it was not suggested that there had been any fraud or collusion between the parties to defeat the agents' claim. It was monstrous to say that an agent's consent was required to every amicable compromise between the parties to a lawsuit. On the contrary, both in England and Scotland, it was the law that his right to the expenses, which might be decerned for in a suit, was subject to the contingency of a compromise without fraud. 2. The ordinary rule did not apply. No case had been found in which the agents of a party in a consistorial action had been allowed to proceed with the action notwithstanding a compromise. There was reason to limit the agensts' right in such actions (1) because, in actions of this class, the wife's expenses might, if the Court thought fit, be provided for in advance by interim decrees; and (2) because of the personal nature of the conclusions.

At advising,