Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0620.html
Cite as: [1884] SLR 21_620, [1884] ScotLR 21_620

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SCOTTISH_SLR_Court_of_Session

Page: 620↓

Court of Session Inner House First Division.

Friday, June 6. 1884.

[ Lord Fraser, Ordinary.

21 SLR 620

Hoey

v.

Hoey and others.

Subject_1Process
Subject_2Husband and Wife
Subject_3Divorce
Subject_4Wife's Expenses of Reclaiming-Note.
Facts:

In an action of divorce by a husband the Lord Ordinary pronounced decree of divorce, and the wife reclaimed. The Court adhered, but, on the ground that the wife had reasonable grounds for reclaiming, allowed her the expenses of the reclaiming-note against the pursuer.

Headnote:

This was an action of divorce at the instance of a husband against his wife, in which the Lord Ordinary ( Fraseb) pronounced decree against the defender. On a reclaiming-note the First Division adhered after hearing counsel for the pursuer, defender, and two co-defenders.

The defender's counsel moved for expenses.—Fraser on Husband and Wife, ii. 1235; Kirk v. Kirk, November 12, 1875, 3 R. 128; Montgomery v Montgomery, January 21, 1881, 8 R. 403.

The pursuer opposed the motion.

At advising—

Judgment:

Lord President—… As regards the defender, I am of opinion that this is not a case in which the defender was bound to be satisfied with the judgment of the Lord Ordinary, for it is one the decision in which depends upon a very careful examination of the evidence. It is not said by the Lord Ordinary that he was entirely clear in his opinion against the defender, though he came confidently to the conclusion at last, and I must say that such is the state of mind of the Judges in this Court. Therefore I think that the question falls under the rule that where the wife who is defender has a judgment of the Lord Ordinary against her, but has fair and reasonable grounds for reclaiming, the expenses in the Inner House are awarded her equally with the expenses in the Outer House.

Lord Mube and Lord Adam concurred.

Lord Deas and Lord Shand were absent.

Counsel:

Counsel for Pursuer and Respondent— Party. Agents— Stewart Gellatly & Campbell, S.S.C.

Counsel for Defender and Reclaimer— R. Johnstone— Ure. Agents— Ronald & Ritchie, S.S.C.
1884

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