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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fleming v. Foster [1868] ScotLR 6_355 (18 February 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0355.html
Cite as: [1868] ScotLR 6_355, [1868] SLR 6_355
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SCOTTISH_SLR_Court_of_Session
Page: 355↓
Court of Session First Division.
v.
Facts:
In a declarator of marriage the pursuer founded on a written acknowledgment of marriage, the authenticity of which was denied by the defender. The Lord Ordinary found the marriage proved. The defender reclaimed. Before the reclaiming note was heard, the pursuer (respondent) moved for an interim award of expenses. The defender opposed. The Court awarded £10,10s. to enable the pursuer to defend the judgment of the Lord Ordinary.
This was a declarator of marriage, in which the pursuer founded, inter alia, on a written acknowledgment of marriage subscribed by her and by the defender on the fly-leaf of a bible. The defender denied the authenticity of the writing. The Lord Ordinary, after a proof, found the marriage proved.
The defender reclaimed.
Keir, for the pursuer, asked an interim award of expenses.
Asher, for the defender, argued that such a motion was never granted, unless there was (1) a written acknowledgment, the authenticity of which was admitted, and (2) a recognition by the defender of the pursuer's status as his wife, neither of which, he contended, was found here; Sassen v. Campbell, 20th Tan. 1819, F. C.; Brown v. Burns, 5 D. 1288; and Fleming v. Corbet, 21 D. 179, were cited.
At advising—
To grant interim aliment to the pursuer of a declarator of marriage is always a very strong thing, for that is an interim recognition of her status as a married woman; but the motion here is for a sum to enable the pursuer to proceed with her action, and to defend the judgment of the Lord Ordinary. That is a much more favourable position than the other. I do not understand the pursuer's claim to be for a sum of money to cover the expenses already incurred. If that were the motion, I should not be prepared to entertain it; but I understand it to be a motion for a sum of money to be employed in defending the judgment of the Lord Ordinary, and that carries a good deal of appearance of equity with it. I don't think there is anything in the case of Fleming inconsistent with that. That was a case where the motion was made in a peculiar position of matters. The pursuer held a judgment of the Lord Ordinary in her favour, but when the case was heard on the reclaiming note, there being then no motion for expenses, the Court found that they could not pronounce judgment on the case as it stood, opened up the record and concluded proof, and remitted to the commissary for farther proof. It was after that that the pursuer made a motion for expenses, and in these circumstances the pursuer could not represent herself as being in possession of the judgment of the Lord Ordinary, for that judgment, though not formally recalled, was practically no longer a standing judgment. Besides, though the writing on which the pursuer founded was said to be dated in 1850, she made no claim for status until 1857, and in the meantime she had dealt with herself and her children as the mistress and the bastard children of the defender. But in the present case the circumstances are very different. All the length I am disposed to go, however, is to make such an award as will enable the pursuer to instruct her counsel and agent for opposing the reclaiming note, and I think £10, 10s. is sufficient for that purpose.
The other Judges concurred.
Agents for Pursuer— Macdonald & Roger, S.S.C.
Agents for Defender— Adam, Kirk, & Robertson, W.S.