Scottish Court of Session Decisions

This was an action resulting from the previous case of separation, and aliment between the parties (March 20, 1874, 11 Scot. Law Rep. 369, 1 R. 871; June 11, 1874, 11 Scot. Law Rep. 579, 1 R. 1007; H. of L. 2 R. 41). It was brought by Mrs Symington against her husband, from whom she had obtained decree of separation on the ground of adultery, for payment of £633 in name of expenses incurred by her in carrying into execution the decree of the Court in that action.

On the day previous to judgment being pronounced by the Inner House the defender had left this country, and had taken the children, five in number, with him. Mrs Symington thereupon took means to have him traced and found, with a view to the recovery of the children. He was followed to several places on the Continent, and latterly to America, where legal proceedings were instituted on Mrs Symington's behalf, and she eventually obtained possession of the children. The sum sued for was the amount of the expenses incurred.

The pursuer pleaded that the defender was liable, as the debts were incurred (1) for necessary purposes; and (2) in consequence of the wrongful proceedings of the defender.

The defender pleaded, inter alia, that he was not liable, in respect that the principal judgment

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in the process of separation was suspended and was in abeyance till the disposal of the appeal to the House of Lords, and further that he was not liable for any part of the expense incurred in carrying out interim execution.

A proof was allowed and took place, and thereafter the Lord Ordinary pronounced an interlocutor in which, after certain findings of fact, he further found “as matters of law—(1) That the facts being as above set forth, the pursuer was not entitled to use or impledge the credit of the defender in the proceedings which resulted in the expenses that are now the subject of suit, as for as necessary; and (2) that the expenses, so far as incurred under or in relation to the order for interim execution, are not recoverable from the defender, as the application for and the use of that order was a privilege which she used at her own risk: Therefore sustains the defences, assoilzies the defender, and decerns: Finds no expenses due either to or by either the pursuer or the defender, and decerns.

“ Note.—Even had the Lord Ordinary sustained the grounds of action, he could not have sanctioned the incurring of all the expenses which is covered by the conclusions of the summons. The pursuer's anxiety may so far be excused; but there is a measure of moderation which must be exacted even from those the circumstances of whose position rather stimulate zeal than impose discretion: As, however, the defender has upon far wider grounds been assoilzied, it is unnecessary to analyse the accounts for the purpose of pointing out what was properly and what was improperly incurred. As the pursuer was separated judicially from the defender, she was not entitled to use or to pledge his credit in the incurring of the debt in which the action has originated: Aliment she had; action on the judgment of the Court was suspended by the appeal to the House of Lords; and the interim execution was a privilege, and not a necessity. To say otherwise would be in effect to say that it is necessary to act upon a judgment which in the Court of last resort was found to be so far erroneous, and which for that reason was so far in this case to a material extent varied.

The Lord Ordinary is aware of no authority for throwing the expense of proceedings on an order for interim execution upon the party against whom these have been used. And so to do in a case in which the judgment in furtherance of which that order had been granted was to a material extent varied would, he thinks, violate the principle upon which orders for interim execution are obtained, and inflict unmerited hardship on those who were forced to fulfil a judgment before it was final.”

The pursuer reclaimed, and argued that she was entitled to succeed (1) as in a case of wife v. husband; (2) as a successful litigant carrying out the orders of the Court. The defender had been guilty of contempt of Court in removing the children.

Authorities— Cardross v. Lord Buchan, December 17, 1842, 5 D. 343; Clark v. Henderson, February 6, 1875, 2 R. 428; Paul ( Petitioner), March 8, 1838, 16 S. 822; Necredy v. Taylor, June 7, 1873, 7 L.R. (Irish), C.L. 256; Bazeley v. Forder, July 3, 1868, L.R. 3 Q.B. 559; Wilson v. Ford, January 23, 1868, L.R. 3 Exch. 63; Brown v. Ackroyd, January 16, 1856, 25 L.R. Q.B. 193; Patrick v. Shedden, April 29, 1853, 22 L.J. Q.B. 283; Paul v. Roy, February 12, 1852, 21 L.J. Ch. 361.

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