Scottish Court of Session Decisions

Lord Cowan—(After animadverting on the disgraceful conduct of the defender and co-defender) I can see no objection to the course proposed by your Lordship in conjoining the two cases, and deciding them both at this time; on either case, individually, I have formed a clear opinion that the adultery has been proved.

Lord Benholme—I look upon the proof in both cases as perfectly decisive, and concur in the course proposed to be adopted.

Lord Neaves—Under the first action I regard it as demonstrated beyond the possibility of doubt, that a guilty attachment existed between the defender and co-defender. With regard to the second action, nothing can be more infatuated than their conduct. These acts of adultery being thus established, and it being of course competent only once to pronounce a decree of divorce, I am of opinion, with your Lordship in the chair that such decree should be pronounced in the conjoined actions.

The counsel for the pursuer thereupon asked the Court to decern against the co-respondent for the whole expenses of process. He rested his demand on the seventh section of the Conjugal Rights Act, 1861, which is as follows:—“In every action of divorce for adultery at the instance of the husband, it shall be competent to cite, either at the commencement or during the dependence thereof, as co-defender along with the wife, the person with whom she is alleged to have committed adultery; and it shall be lawful for the Court, in such action, to decern against the person with whom the wife is proved to have committed adultery for the payment of the whole or any part of the expenses of process, provided he has been cited as aforesaid, and the same shall be taxed as between agent and client.” It was admitted that husband was formally liable for the wife's expenses, but in terms of the section quoted it was argued that decree should be given against the co-defender, not merely for the pursuer's expenses, but also for the expenses incurred by his wife in defending the action.

For the defender it was maintained that she was entitled to decree for her expenses against her husband (as being his wife until the decree was pronounced), and that she had no interest in the matter as to who might be ultimately liable therefor.

The co-defender asked in the first place for modification of the expenses, on the ground that the pursuer had failed to prove some of his averments in the first action; and, in the next place, that the section above quoted had reference only to his expenses, and those of the pursuer as against him, and therefore that decree should not be given against him for the expenses of the wife, which did not properly fall under the Act.

After considering the matter, the Court pronounced the following interlocutors—

“7 th February 1873.—… In the first action recal the interlocutor reclaimed against: Find it established by the proof in that case that the defender and the co-defender committed adultery on the occasions libelled in the third and fourth sub-divisions of the 12th article of the condescendence. In the second action, Find that it is established by the proof that the defender and co-defender Committed adultery, first, in the co-defender's house in Glasgow, secondly, in Mrs Wishart's house in Millport, and, thirdly, in the house No. 4 Soho Street, Glasgow, at the times libelled: therefore in the conjoined actions, Find the defender guilty of adultery accordingly: therefore de—vorce and separate the defender, Elizabeth Peacock or Andrews, from the pursuer, Robert Andrews, his society, fellowship, and company, in all time coming: further, Find and declare that the defender has forfeited all the rights and privileges of a lawful wife, and that the said pursuer is entitled to live single, or to marry any free woman, as if he had never been married to the defender, or as if she had been naturally dead: Find the co-defender liable to the pursuer in expenses, as well of those incurred by the pursuer himself as of those for which the pursuer may be liable in respect of the expenses of the defender: further, Find that the pursuer is liable to pay the expenses incurred by the defender; and remit to the auditor to tax the expenses now found due as between agent and client, and to report, and decern.

22 d February 1873.—… Approve of the Auditor's report upon the defender Mrs Elizabeth Peacock or Andrews' account of expenses; and decern for payment to her by the pursuer of £253, 6s. 2d., under deduction of £120, 4s. 9d. paid to account, leaving a balance now payable to her of £133, 1s. 5d; and allow this decreet to go out and be extracted in name of Messrs Campbell & Smith, S.S.C., the agents disbursers.

22d February 1873.—… Approve of the Auditor's report upon the account of expenses; and decern for payment by the co-defender Joseph Stirling to the pursuer of the whole expenses incurred by him, amounting to £809, 17s. 9d.”