Scottish Court of Session Decisions

Mrs Agnes Swift or Bonnar, 75 Main Street, Neilston, Renfrewshire, wife of Neil Bonnar, clerk, residing at 28 Langside Road, Glasgow, raised an action of separation and aliment in the Court of Session against her husband. On 3rd March 1911 the Lord Ordinary ( Ormidale), after a proof, assoilzied the defender from the conclusions of the summons, but found him liable in the expenses of the action. On 6th April 1911 the pursuer reclaimed against the Lord Ordinary's interlocutor. She thereafter presented a note to the Court craving, inter alia, an interim award of aliment at the rate of 10s. per week and a sum of £20 towards her expenses.

When the case was called in the Single Bills on 25th May 1911 counsel for the defender (respondent) objected to any award being granted, and argued — After proof the Lord Ordinary had assoilzied the defender. The pursuer could not, therefore, be said to have a prima facie case.

Page: 765↓

She must, however, show a prima facie case before any award would be granted — Fraser, Husband and Wife (2nd ed.), vol. i, 851. There was no case in which an award had been granted in circumstances like the present. Counsel referred to Petrie v. Petrie, 1910 S.C. 136, 47 S.L.R. 151, and Jaffray v. Jaffray, 1909 S.C. 577, 46 S.L.R. 458.

Argued for pursuer (reclaimer)—A wife was clearly entitled to aliment when the question whether she was entitled to live apart from her husband was in pendente. If the pursuer was refused aliment in the present circumstances it meant that she must rest content with the judgment of the Lord Ordinary and return to her husband's house. Opportunity of reclaiming would be denied her. It was the practice to make such awards where the wife was defender and reclaimer— Ritchie v. Ritchie, March 11, 1874, 1 R. 826, 11 S.L.R. 569; Montgomery v. Montgomery, October 22, 1880, 8 R. 26, 18 S.L.R. 6. There was no difference in principle where the wife was pursuer.