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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A. v. B. and C [1867] ScotLR 5_186 (18 January 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0186.html
Cite as: [1867] ScotLR 5_186, [1867] SLR 5_186
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SCOTTISH_SLR_Court_of_Session
Page: 186↓
Court of Session Outer House.
v.
Facts:
Circumstances in which decree of divorce granted in absence of the defender, and the co-defender found liable in expenses.
This was an action of divorce at the instance of the husband against the wife and another, on the ground of adultery. There was no appearance for the defender. For the co-defender appearance was made, and a proof led. At the debate on the proof no serious question was raised as to the alleged adultery having been proved, but, with regard to the expenses,
Scott and Brand, for the pursuer, argued that he was entitled to decree for expenses against the co-defender, in respect (1) he knew the defender was a married woman; (2) he had caused the expense by a wrong in which he was directly concerned; and (3) it is the rule in England, unless in very exceptional cases, to hold the co-defenders liable in expenses.
Page: 187↓
Mair, for the co-defender, in reply, maintained (1) that there was no sufficient proof of the co-defender having known at the time of his alleged adultery with the defender that she was married; (2) that in similar cases in England the co-defender had not been held liable in expenses ( Boddington v. Boddington and Teagle v. Teagle, L. J. vol. 28, P. & M. C., pp. 53 and 55; Priske, L. J. vol. 29, P. & M. C., p. 195); and (3) that the wrong committed by him was not of a kind for which he could be made liable as he met the defender in a house of ill-fame.
The Lord Ordinary issued the following interlocutor and note, giving the pursuer decree for his expenses:—
“ Edinburgh, 15 th January 1868.—The Lord Ordinary, having heard parties' procurators, and made avizandum, and considered the proof adduced, and whole process: Finds facts and circumstances proved sufficient to infer that the defender committed adultery with the co-defender: Finds her guilty with him accordingly; therefore divorces and separates the defender from the pursuer, his society, fellowship, and company in all time coming: Finds and declares in terms of the conclusions of the libel, and decerns: Finds the co-defender liable to the pursuer in expenses of process: Allows the account thereof to be lodged; and remits to the auditor to tax the same as between agent and client, and to report. W. Penney.”
Note.—It was maintained for the co-defender that there was no proof of his knowing the defender to be a married woman at the time when he committed adultery with her, and that therefore he should not be found liable in expenses. There is no direct proof of such knowledge on his part. But it appears to the Lord Ordinary to be fairly inferred from the proof; and no evidence was led by the co-defender tending to establish the contrary. The case is not one of seduction or of breach of friendship towards the husband, from whom his wife had for some time lived separate. But it seems to the Lord Ordinary that, according to a sound principle, and that which apparently prevails in England, the co-defender must, unless in an exceptional case, always reimburse the expenses incurred in obtaining redress against a wrongful act in which he was directly participant. ( Evans v. Evans and Robinson, Law Journal, vol. 20, N.S., Probate and Matrimonial Cases, p. 136.)
(Initialed) W. P.”