Scottish Court of Session Decisions

Lord President—The case of the Portobello Pier Company v. Clift does not, I think, apply now, for the subject-matter of the two actions with which we are now dealing is different. The first action—in which the husband was successful—was a process instituted for the purpose of enforcing payment of aliment previously decerned for, by warrant of imprisonment. The Sheriff refused to grant such warrant, and the Court on appeal adhered to the Sheriff's decision. That process was instituted entirely for the purpose of carrying into execution the decree for aliment, and a decree for aliment can only be enforced when the spouses are separate. The second action was brought for the purpose of having it declared that the causes of separation were at an end, and that the husband was entitled to have that asserted, and to ask his wife to return to him, and there was a conclusion for adherence. That is a different process altogether from the first. An action to enforce payment of aliment during separation, and a process to put an end to the separation, are two things which may have some relation to one another, but cannot be said to be concerned with the same subject-matter.

I think therefore we should grant decree in name of the agent disburser.

Lord Shand—I agree. It appears to me that the Portobello Pier Company v. Clift is an exceptional case, and that the present is not a case to be taken out of the general rule.

The original action differed altogether in its circumstances from the present. The subject-matter of allegation there was whether the wife was entitled to obtain the decree of separation which she did obtain, and which has subsisted for some time. The last action proceeds on the footing that the first decree was rightly granted, but should be recalled because of a change of circumstances. The subject-matter of this action is, I think, quite different from that of the original action, and if that applies to the original action, it applies much more to the intermediate action to enforce payment of aliment on the additional ground stated by your Lordship.

Lord Adam concurred.

Lord M'Laren—Our law recognises the agent disburser as a proper creditor in a decree for expenses, and therefore he is always entitled to obtain decree in his own name unless the result would be to prejudice his client, as might happen if he had already advanced the amount of expenses or part of them, or were thereby deprived of his right to set off expenses due to him against them for which he had been found liable.

The case of Clift only recognises the principle that where two actions, either going on concurrently, or the one following the other, are identical in the subject-matter with which they are concerned, the expenses found due to one party in the one action may be set off against the expenses found due by him in the other action, just as may be done in the same action. And the competing parties are not to be prejudiced by each agent getting decree in his own name.

It occurs to me that the two cases with which we are now dealing are concerned with separate subject-matter. The question in the first action related to the personal protection of one party against imprisonment, and that was the only matter in contention. The second action related to the right of the party to have his wife restored to his society.