Scottish Court of Session Decisions

This was an action for interim aliment, at the instance of a wife against her husband, in which the conclusion was for a sum in name of interim aliment, “until the rights of parties are permanently fixed by the Supreme Court,” the defender having deserted the pursuer and her children, and ceased to provide for them, notwithstanding that he earned wages at the rate of £12 per month.

The defender stated a preliminary plea that the action was incompetent in the Sheriff Court. The defence on the merits was as follows:—“A denial that the defender has ceased to provide for his wife and children. The defender was abroad following his employment of a steam-ship engineer for twenty-two months, and on his return he found the pursuer occupying a small hired room, and that a deal of valuable furniture and effects which he had left with her was all either sold or pawned, although he had never failed to make her ample remittances for the support of herself and the children, and had to pay, on his return, accounts for provisions, &c., incurred by her in his name in his absence. The pursuer chose to displenish the defender's house in his absence, and his means do not enable him instantly to refurnish a house; but he has never refused to provide her with an aliment, although the sum concluded for is ridiculously extravagant. He has offered her, in the meantime, and did so before this action was raised, and still offers her, 7s. a-week, and he has, besides his three children by the pursuer, his children by a former marriage to support, and the pursuer is very able as a needlewoman to earn as much as support herself. As to the children, for whom aliment is sought by the pursuer, they were, before the date of this action, taken by the defender to live, at his expense, with a sister of his, and it was the pursuer's own fault if that did not take place sooner, as the pursuer refused to give up the children. The defender is ready to take the pursuer to reside in family with him.”

The Sheriff-Substitute pronounced an interlocutor allowing interim aliment at the rate of 7s. per week.

On appeal, the Sheriff (W. G. Dickson) pronounced this interlocutor and note:—

“ Glasgow, 13 th February 1874.—Having heard parties' procurators on the defender's appeal, which the defender's procurator stated was directed only against the decree of 15th October last for interim aliment, for the reasons stated in the note, adheres to the interlocutor appealed against, and dismisses the appeal.

Note.—The rate of interim aliment allowed in the Sheriff-Substitute's interlocutor is that which the defender states in the Minute of Defence he is willing to allow the pursuer. It was not pretended at the discussion to-day that the defender is really prepared to take the pursuer back into his family, although that is stated in the Minute of Defence. The only ground on which his procurator resisted the decree for interim aliment was, that the pursuer had kept certain furniture belonging to him, which she refused to give up. The pursuer denied that statement. She must be allowed a sufficient sum for her maintenance while that matter is under discussion.”

The defender appealed, and argued—The action was not competent in the Sheriff Court, but only in the Consistorial Courts. The Act 11 Geo. IV. and 1 Will. IV. cap. 69, s. 32, enacting that “action of aliment may be instituted, heard, and determined in any Sheriff Court of Scotland,” only applied to actions of aliment other than those of actions between husband and wife, as between them the aliment was incidental to another action, which was not competent in the Sheriff Court. At all events, the Sheriff, in cases of this sort, had no greater power than the Court of Session had before the consistorial jurisdiction was transferred to it in 1830. Before that, if a husband deserted his wife, or turned her out of the house, and offered no defence, or did not appear, the Court of Session would grant interim interdict. But if the husband appeared in Court and denied the desertion or alleged cruelty, there arose consistorial questions, to be inquired into by a competent Court, before aliment could be awarded. In such a case the Court of Session would have refused to interfere. This was a case of this latter sort, and therefore it was not competent in the Sheriff Court.

Authorities— Lang v. Lang, April 19, 1869; 13 Journal of Jurisprudence, p. 351; M'Gregor and Barclay v. Martin, 12th March 1867, 5 Macph. 583. Rennie v. Rennie, 7th Feb. 1863, 1 Macph. 389; Bel, v. Bell, 22d Feb. 1812, F.C.; Anderson v. Anderson 3d March 1819, F.C.; Jackson v. Jackson, 3d March 1825, 2 Shaw, 610; Benson v. Benson, 15th Feb. 1854, 16 D. 555.

The pursuer was not called on.

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