Scottish Court of Session Decisions

The respondent's agents having enrolled the case for approval of the Auditor's report on the respondent's account of expenses, and having moved for decree in their own names as agents-disbursers, the petitioner objected, stating that since the last calling the respondent had failed to obtemper the order of the Court by delivering up the child to him in terms of the interlocutor of 13th May, and had, as he was informed, left the country, taking the child with her. He submitted that in these circumstances the petitioner should not be required to pay the expenses of a litigation with his wife in which he had succeeded, at least until she should obey the order of Court pronounced in his favour. He also maintained that the motion should not be granted because he was entitled to follow up the child and recover the expense of so doing from the wife's separate estate, and then set off the amount against the expenses found due by him— Portobello Pier Co. v. Clift, 16th Mar. 1877, 4 R. 685.

The respondent's counsel argued—That inasmuch as the wife's agents were in no way to blame for the disappearance of the petitioner's wife and child, the expenses which had been disbursed on her behalf, and to which she had been found entitled, ought to be paid them in accordance with the usual custom.

At advising—