Scottish Court of Session Decisions

On 14th April 1906 J. Y. Cochrane, 3 Errol Terrace, Dundee, raised an action of divorce against his wife on the ground of desertion. The Lord Ordinary ( Dundas) having granted decree of divorce, the defender reclaimed, and on 2nd November 1907 the Extra Division recalled the Lord Ordinary's interlocutor and assoilzied the defender. On 2nd November 1908 the pursuer appealed to the House of Lords, and an order was granted for service of the petition upon the respondent. On 24th November 1908 the respondent presented a note to the Lord President in which she stated, inter alia—“The defender is desirous of maintaining her defence against the said appeal, but she is possessed of no funds which enable her to do so. Since the first day of August 1901 she has lived separate from

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her husband, and during the whole of that period she has maintained herself and her child by her own exertions, out of the proceeds of a licensed grocery business carried on by her, to which she succeeded on the death of her father. The profits of the said business amount to £116 per annum, and the defender has no other source of income. Out of that sum the defender has to maintain herself, her child, and a servant, and there is annexed hereto a statement setting forth the details of her annual expenditure. As that statement shows, the defender has no surplus available to meet the expenses of a litigation in the House of Lords. Recently her business has not been successful, and she is owing a number of accounts to wholesale dealers.”

The prayer of the note was as follows:—“May it please your Lordship to move the Court to decern and ordain the pursuer to pay to the defender such sum as to the Court shall seem just to account of the expenses to be incurred by her in connection with the said appeal to the House of Lords.”

Argued for defender (the wife)—It was the practice of the Court to make such awards— Symington v. Symington, June 11, 1874, 1 R. 1006, 11 S.L.R. 579; Grant v. Grant, 1904 (not reported). In Grant v. Grant the Second Division on 9th March 1904 made an award of £75, and on 20th October 1904 a further award of £500 to account of the wife's expenses as respondent in the appeal. Esto that after service of the appeal the Court was functus quoad the merits, no question as to the merits arose here, and in any case the process was still de facto in Court. This was not, as the respondent maintained, a case of interim execution in the sense of 48 Geo. III, c. 151, sec. 17, and therefore that enactment was inapplicable. The petitioner had no funds, and it would be a hardship to refuse her request seeing she had the judgment in her favour. [In reply to the Lord President, counsel for the defender stated that the sum he would suggest was £100.]

Argued for pursuer (the husband)—The appellant had consigned £200, and entered into recognisances to the extent of £500 to meet the costs of the appeal, and the petitioner should have applied to the Appeal Committee for an award. The motion was incompetent, for after the order of service the Court was functus, and could make no further orders in the case. It was usual for the Appeal Committee to make such awards—Macqueen's Appellate Jurisdiction, p. 531. Neither in Symington ( cit. supra) nor Grant ( supra) was the point discussed—the motion being granted as a matter of course. In the event of the motion being held competent, a sum of £50 would be amply sufficient.

[ Lord President—We shall consult with the other Division of the Court before giving our decision.]

At advising—