Scottish Court of Session Decisions

This was a petition for execution, pending appeal to the House of Lords.

On June 12th 1867 the petitioner raised an action of declarator of marriage against James Ogilvie Tod Forster, then residing at Findrassie House, near Elgin. On the 5th January 1867 the Lord Ordinary ( Manor) pronounced an interlocutor, in which he found the marriage proved, ordained the defender to adhere to the pursuer as his wife, and in the event of non-adherence to make payment to her of the sum of £60 per annum, as aliment for herself and their lawful child, beginning the first term's payment at Whitsunday 1866; and found the defender liable in expenses.

The defender reclaimed; but the Court, on the 25th May 1869, adhered, with additional expenses; and on July 7th 1869 decerned against the defender for the taxed amount of expenses (£215, 7s. 2d.) in name of the agents disbursers.

On 16th May 1871, nearly two years after the judgment of the Court of Session, the defender presented an appeal to the House of Lords against the interlocutors of 5th January and 25th May 1869, and sundry other interlocutors pronounced in the cause, but not against the decerniture for expenses.

On the 14th June 1871 the present petition was presented. It narrated the procedure in the cause,

Page: 570↓

and recited the Act 48 Geo. III. c. 151, sec. 17, which declares—“That when any appeal is lodged in the House of Lords, a copy of the petition of appeal shall be laid by the respondents before the Judges of the Division to which the cause belongs, and the said Division, or any four of the Judges thereof, shall have power to regulate all matters relative to interim possession or execution and payment of costs or expenses already incurred according to their sound discretion, and having a just regard to the interests of the parties as they may be affected by the affirmance or reversal of the judgment or decree appealed from.”

It was further stated that the petitioner was unable to find caution to repay the sums she might recover, in the event of interlocutors recited being reversed in the House of Lords. The prayer of the petition was as follows:—“May it therefore please your Lordships to allow execution to proceed on the said extract decree, to the effect of enabling the petitioner, notwithstanding said appeal, to recover payment from the appellant of the said sum of £60 sterling per annum for the aliment of the petitioner as his lawful wife, and of their said child James Ogilvie Tod Forster, born on or about the 30th day of November 1866, payable to her at two terms in the year—Whitsunday and Martinmas—by equal portions, in advance, beginning the first term's payment of said aliment as at the term of Whitsunday 1866 for the half year from and after that date, and the next term's payment at the term of Martinmas thereafter for the half year then following, and so forth at the said two terms during their joint lives, or at least until such time as the said James Ogilvie Tod Forster shall adhere to your petitioner and perform the several duties incumbent on him as her lawful husband; together with interest thereon at the rate of five per centum per annum of the termly payments thereof from the time they respectively fell, or shall in future fall due, during the not-payment; as also to recover from the said appellant the sum of £215, 7s. 2d. of expenses, with the sum of £1, 3s. 8d. as the dues of extract, and this, in the circumstances, without having to find caution to repeat the same in the event of the interlocutors above recited being reversed; or to do otherwise in the premises as to your Lordships shall seem proper.”

Keir, for the petitioner, referred to the following cases:— Sassen v. Campbell, 22d June 1824, 3 S. 163; Melrose, 10th July 1830, 8 S. 1054, and 8th July 1831, 9 S. 902; Maidment, 5th July 1816, F.C.; Paterson, 2d March 1847, 11 D. 905.

Asher, for the respondent, argued—To give aliment, without caution to repeat, is in reality not interim execution, but final execution; for the petitioner is not in a position to repeat. The principles which guide the Court in the exercise of their discretion under 48 Geo. III. c. 151, sect. 17, are stated by Lord Ivory, in Gray v. Low, March 12th, 1859, 21 D. 723—“There can be no interim execution in regard to what cannot be replaced in the same position in which it was before the interim execution was granted.” The cases cited for the petitioner are not in point. Her claim on the respondent is entirely founded on the declarator of marriage. She has no claim at all upon him, unless she establishes that she is his wife. There is no case in which there has been a declarator of marriage appealed to the House of Lords in which interim execution has been granted without caution. There are cases of an award of aliment; but these cases are wholly different from the present, in which the sole claim to aliment is the relation in dispute. Take the case of Melrose, 10th July 1830. There a widow brought an action against her husband's trustees, and was found entitled to £3500. Pending appeal, interim execution, to a comparatively small extent, was granted against the trust-estate without caution. But she was the truster's widow, and that was not disputed; and therefore she had a claim to be supported out of his estate. The all but universal practice of the Court is to grant interim execution only on caution. The exceptions will be found to be cases where the party has a claim to aliment independent of success in the suit under appeal. To give the petitioner aliment as craved would be to recognise her status of wife, while that is the question under appeal.

In answer to a question by the Court, counsel for the respondent stated that his client was out of the kingdom, and his address unknown to his agents.

At advising—