Scottish Court of Session Decisions

This was an action of separation and aliment by a wife against her husband, on the ground of cruelty. The Lord Ordinary ( Gifford) allowed the pursuer a proof, and thereafter pronounced this interlocutor:—“The Lord Ordinary having called the cause, and no appearance being now made for the pursuer to proceed with the proof, the defender's counsel moved for absolvitor, and counsel having appeared for John A. Gillespie, S.S.C., the pursuer's former agent in the cause, and craved to be allowed to sist him as a party to the effect of recovering his expenses from the defender, continues both motions till to-morrow.”

The following Note was then given in for John A. Gillespie:—“The said John Adam Gillespie, agent disburser for the pursuer in this action, stated that the conclusion of this action had been obviated, and could not now be insisted in, by an arrangement come to between the parties themselves, under which the pursuer has returned to live in family with the defender. He therefore moved, and hereby moves, the Court to find him entitled to his expenses in said action, and for that purpose, if necessary, to sist him as a party to this action, and to remit to the auditor to tax his account of expenses, and to report; or to do otherwise in the premises as may seem fit.”

The Lord Ordinary pronounced the following interlocutor:—

“18 th November 1870.—The Lord Ordinary having heard the counsel for John A. Gillespie, S.S.C., and for the defender in the action, and considered the record and the note for Mr Gillespie, No. 8 of process, sists the said John A. Gillespie as a party to the process, to the effect of enabling him to maintain his claim for expenses against the defender; and before further answer, and on the motion of the said John A. Gillespie, allows him a proof that the expenses claimed by him were incurred by him on reasonable grounds, and to the defender a conjunct probation: Appoints the proof to proceed before the Lord Ordinary on Friday, 2d December, at one o'clock afternoon, and grants diligence against witnesses and havers.

Note.—In a proper consistorial cause like the present, it seems plain that a wife cannot deprive her agent of his claim against the husband for expenses merely by condoning or becoming reconciled to her husband. On the other hand, if the action has been from the first an utterly groundless one, and if this should have been known to the agent, or if the agent had, at his own hand, knowingly continued the litigation after the reconciliation of the spouses, this may deprive the agent of his claim for expenses. Now, on all these points the parties are directly at issue, and however unwilling the Lord Ordinary may be to get into a proof merely about the question of expenses, he feels it impossible satisfactorily to dispose of that question without some kind of evidence. The evidence, however, may and ought to be very short indeed, for the Lord Ordinary certainly will not, in the absence of the wife, try the proper merits of the action.”

The defender reclaimed.

Dundas Grant for him.

Campbell Smith for respondent.

At advising—