Scottish Court of Session Decisions

This action was raised by Mr Andrew Clark, S.S.C., to recover from the defender the expenses of an action of separation and aliment which he had brought, on the instructions of the defender's wife, against her husband. The action proceeded as far as the lodging of defences when the parties were reconciled, and the defender's agent enrolled the case with a view to obtaining decree of absolvitor, and then Mr Clark moved that he should be found entitled to his expenses. This motion was refused, and he raised the present action, in which the Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 10 th December 1874.—The Lord Ordinary having heard counsel for the parties and considered the record and process: Finds that, in the circumstances averred by the pursuer, the action is not maintainable: therefore assoilzies the defender from the conclusions of the summons, and decerns: finds the pursuer liable in expenses, and remits the account to the Auditor to tax and report.

Note.—It is well settled, and was not disputed by the defender, that in conjugal actions, as, indeed, in all actions, the Court before whom they depend has very ample jurisdiction in the matter of expenses, and may, and habitually does, exercise it in favour of the agents disbursers, as well as the parties themselves. It may also be stated as a general rule that a wife pursuing an action of divorce or separation against her husband, or defending such an action at his instance, is entitled by herself or her agent to have decree against him for the expenses properly incurred by her, even when unsuccessful. There are exceptions to this rule, and whether the case falls under the rule or an exception is judged of and determined by the Court in the case itself.

In the present case the pursuer, having been employed by the defender's wife to raise an action of separation and aliment against him, which was dismissed at an early stage without expenses in the circumstances stated in the record, sues the defender for his account of expenses, either as being his own proper debt, or that of his wife, for which as her husband he is liable.

The pursuer cited no authority for such an action, and relied on the principle of liability involved in the practice of the Court to which I have referred in dealing with the matter of expenses in conjugal actions, undertaking to establish by evidence that he had reasonable grounds for accepting of the wife's employment to take proceedings against her husband.

Page: 307↓

I am of opinion that the action is not maintainable.

1st. It may be assumed, although it is not necessary to decide, that the claim is good against the wife, and that it may be enforced against any separate estate which she has or may come to have. But it does not follow that the husband is liable, and, having regard to the nature of the debt, I think he is not. 2d. It may be that the pursuer might have made his claim good against the defender by invoking the jurisdiction of the Court on the matter of expenses in the action of separation itself. But this is a peculiar jurisdiction, and is exercised in each case according to the Court's opinion of its merits and the just claims of parties, when the case itself is before the Court. 3d. The consideration which the pursuer urged—that if the husband be not subject to such a claim as this an ill-used wife may have to go without a remedy from inability to find an agent willing to incur the risk of taking up her case—is worthy of attention, but is, in my opinion, greatly overbalanced by considerations on the other side. As I have already noticed, the wife's agent may always appeal to the Court in the action which he raises for her. But to allow him to make an independent claim by action at his own instance would involve an investigation, at his instance and for his purposes, into family differences after the spouses had, as in the present case, made them up and resumed their cohabitation—a course which is, in my opinion, to be deprecated as inimical to family peace. 4th. I do not think it is desirable, on general considerations, to encourage agents to take up such cases by declaring any other liability on the part of the husband than that which the Court may, as hitherto, give effect to and enforce, according to their judgment, in the wife's own action against him.”

The pursuer reclaimed, and pleaded—“(1) The pursuer having performed the business charged for in the account founded on upon the employment of the defender's wife, he is entitled to decree therefor. (2) The defender is liable to the pursuer for said account incurred upon the employment of his wife, in respect that the action raised on her behalf was well founded on its merits, or at all events was an action which the pursuer had every reason to believe to be well founded in fact and law. (3) Generally, in the circumstances, the pursuer is entitled to decree as concluded for, with expenses.”

Authorities— Smith v. Smith, Feb. 21, 1871, 9 Macph. 538; Aitken v. Anderson, Hume 217; Masters and Seamen of Dundee v. Cockerill, Dec. 10, 1869, 8 Macph. 278; Ritchie v. Ritchie's Trustees, March 11, 1874, 1 Rettie 826; Gordon v. Sempill, 1776, M. 446; Young v. Cooper, June 9, 1828, 4 S. 81; Gray v. Meikle, Hume 217; Harman v. M'Allister's Trustees, July 6, 1826, 4 S. 799; M'Allis ter v. M'Allister's Trustees, July 5, 1822, 1 S. 548, 503 new ed.; Allsopp v. Allsopp, July 8, 1830, 8 S. 1032; Symington v. Symington, June 11, 1874, 1 Rettie 1006.

Pleaded for defender—“(1) The said action having been unnecessary, and having been raised precipitately and without probable cause, the pursuer cannot maintain the present action. (2) The said action having been abandoned by Mrs Henderson, the defender is not due the sum sued for. (8) Decree of absolvitor having been pronounced in the former action in consequence of the failure of the present pursuer to print as required by statute, the defender ought to be assoilzied, with expenses. (4) Separatim.—The account sued for being greatly overcharged, the pursuer is not entitled to decree as concluded for.”

Authorities— Maxwell v. Wallace, March 5, 1808, F. C.; Macfarlane v. Macfarlane, June 24, 1844, 16 Jur. 521; Bowman v. Bowman, Feb. 7, 1866, 4 Macph. 384; Coutts v. Coutts, June 8, 1866, 4 Macph. 802; Rae v. Adden, 9 American Rep. 175.

At advising—