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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Christie v. Christie and Another [1919] ScotLR 513 (28 June 1919)
URL: http://www.bailii.org/scot/cases/ScotCS/1919/56SLR0513.html
Cite as: [1919] SLR 513, [1919] ScotLR 513
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
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v.
Facts:
In a sheriff court a wife and her child craved decree against the husband, (1) that he was bound to adhere to her and to ordain him to adhere, and for payment to her of £1 per week during the joint lives of her and her husband or until they should adhere to each other, and (2) for payment of 10s. per week to the child till the husband should provide the child with suitable maintenance or till the child could support himself. The parties lodged a joint minute settling the action upon the following terms:—“( First) that the defender pay to the pursuers £1 per week from and after 10th December 1917, ( second) that the female pursuer should have the custody of the child …, ( third) that the defender pay the pursuers' agent … the sum of £10, 10s. in name of expenses… The Sheriff-Substitute interponed authority to the joint minute, and (1) granted decree against the husband “for payment to the pursuers of aliment at the rate of £1 weekly during the joint lives” of the husband and wife and “until the further orders of the Court, reserving to either party at any time to apply to
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the Court for any further order or orders which may be necessary,” (2) found the wife entitled to the custody of the child of the marriage, and (3) decerned for the sum of expenses against the husband. The husband now brought an action of reduction of the interlocutor of the Sheriff-Substitute, and, averring that he had never authorised a settlement of the action, challenged the interlocutor as incompetent on the ground (1) that it had been pronounced in a consistorial cause without proof, (2) that it awarded aliment during the joint lives of the spouses, and (3) that it dealt with custody though there was no conclusion for custody in the action. Held that the interlocutor was competent (1) in respect that the parties had given up the action in so far as it was an action of adherence and therefore consistorial in nature, (2) in respect that, properly read, the interlocutor merely awarded aliment in hoc statu and not for the period of the joint lives of the parties, and (3) in respect that the decree for custody was in terms of the agreement of parties; and proof allowed on the question of the authority to settle the action.
James Christie, coal miner, 37 Standburn Avonbridge, pursuer, brought an action against Marion M'Millan or Christie, his wife, and John Christie, the pupil child of the marriage, residing with Mrs Christie, defenders, concluding for reduction of an interlocutor dated 11th January 1918, pronounced by the Sheriff-Substitute at Falkirk ( Moffatt) in an action of adherence and aliment by the defenders against the pursuer.
The parties averred—“(Cond. 2) On or about the beginning of November 1917 the present defenders raised an action of adherence and for aliment against the present pursuer in the Sheriff Court of Stirling, Dumbarton, and Clackmannan at Falkirk. The crave of the initial writ was as follows viz.—‘The pursuers crave the Court—( First) To find and declare that the pursuer Marion M'Millan or Christie, being the lawful wife of the defender, the defender is bound to adhere to her and to cohabit with her, and to treat and entertain her at bed and board as his wife; and to ordain the defender to adhere to the said Marion M'Millan or Christie and to cohabit with her, and treat and entertain her at bed and board his wife, and that during their joint lives and to grant a decree against the defender for payment to her of the sum of £1 sterling per week, weekly and in advance as from the date of citation hereon, during the joint lives of the said Mary M'Millan or Chrisitie and the defender or until they adhere each other: ( Second) To grant a decree against the defender for payment to the pursuer the said John Christie of the sum 10s. per week, weekly and in advance from the date of citation hereon till he shall provide the said John Christie with suitable maintenance or till the said John Christie can support himself, with interest on said respective weekly payments at the rate of five per centum per annum from the date on which the same respectively become due until payment, with expenses. (Signed) Andrew Hunter, solicitor, Falkirk, agent for pursuers.’ (Cond. 3) The present pursuer lodged defences in said action, and after certain procedure the record in said action was closed, and a proof was allowed to the parties of their respective averments, to proceed on 16th January 1918. … (Cond. 4) The present pursuer's law agent in said action was Mr William Stevenson, solicitor, Falkirk, who was instructed by the present pursuer to defend the same. The present pursuer had no intention of settling the said action nor did he do so, and the said Mr William Stevenson had no instructions from the present pursuer to settle the same on his behalf. Notwithstanding this, however, the said law agent on or about 11th January 1918 signed a joint minute along with the law agent for the pursuers in said action in the following terms, viz.—‘Hunter for pursuers and Stevenson for defender concurred in stating that the parties had agreed to settle the action on the following terms:—( First) That the defender pay to the pursuers aliment at the rate of £1 per week from and after 10th December 1917; ( second) that the female pursuer should have the custody of the child John Christie; and ( third) that the defender pay to the pursuers' agent Andrew Hunter, solicitor, Falkirk, the sum of £10, 10s. in name of expenses. The parties therefore crave the Court to grant decree in terms of this minute. (Signed) Andrew Hunter, pror. for pursuers. (Signed) Will. Stevenson, agent for defender.’ Thereafter the said law agents on 11th January 1918 moved the Court to interpone authority to said joint minute, and on the same day the Sheriff-Substitute pronounced an interlocutor in the following terms, viz.—‘Falkirk, 11th January 1918.— Act. Hunter— Alt. Stevenson.—The Sheriff-Substitute, on parties' motion, allows joint minute of this date to be received and form No. 12 of process; interpones the authority of the Court thereto, and in terms thereof—( First) Grants decree against defender for payment to pursuers of aliment at the rate of £1 weekly during the joint lives of the female pursuer Marion M'Millan or Christie and defender, payable said aliment every week as and from the 10th December 1917 in advance, with interest at the rate of five per centum per annum on each payment from its due date if in arrear, and until the further orders of Court, reserving to either party at any time to apply to the Court for any further order or orders which may be necessary: ( Second) Finds the female pursuer entitled to the custody of the said John Christie, the male pursuer: And ( third) Grants decree against the defender for payment to the pursuers' agent AndrewHunter, solicitor, Falkirk, of the sum of of £10, 10s. in name of expenses. (Signed) Alex. Moffatt.’ The action of the said Mr William Stevenson in signing and moving said joint minute was unknown to the present pursuer at the time that it was signed and moved, and was unauthorised by the present pursuer, and contrary to the latter's
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wishes and instructions. The present pursuer accordingly desires that the interlocutor following upon said joint minute should be reduced in respect that his said law agent had no mandate from the present pursuer to sign and move said joint minute. With reference to the explanations in answer, the several awards by the Sheriff are admitted. Further, admitted that on the date mentioned a meeting took place at which the several parties mentioned were present. Further, admitted that the pursuer's wages have been arrested on several occasions at the instance of the female defender. Quoad ultra denied. ( Ans. 4) Admitted that Mr William Stevenson acted on behalf of the pursuer. Admitted that the Sheriff was moved to interpone authority to the joint minute. The joint minute and interlocutor are referred to. Quoad ultra denied. Explained that on 7th November 1917 the Sheriff granted an award of interim aliment to Mrs Christie at the rate of £1 per week and to John Christie at the rate of 7s. 6d. per week, and on 21st December, on the motion of Mrs Christie's agent, granted an interim award of £5, 5s. of expenses. Following thereon, on 26th December 1917, a meeting was held in the office of the said Andrew Hunter, at which there were present the pursuer, the defender Mrs Christie, the said Andrew Hunter, and the said William Stevenson. Terms of settlement were discussed, and it was agreed that the action should be settled on the terms embodied in the joint minute. The pursuer fully understood and instructed his said agent to settle on said terms. Further, he paid his said agent's account by instalments, and up till July 1918 he implemented the decree following on the joint minute by paying the defender Mrs Christie £1 per week. Since that date she has only recovered two small sums by arresting the pursuer's wages. (Cond. 5) Separatim, the present pursuer desires said interlocutor to be reduced on the ground of incompetency. In the first place, an award of aliment in an action of adherence and aliment can only be made after proof that the defender in said action is in desertion. In the action in question the Sheriff-Substitute made an award of aliment without proof having been led. In the second place, an award of aliment in an action of adherence and aliment can only be made for the period during which the defender fails to adhere to the pursuer in said action. In the action in question, however, the Sheriff-Substitute has granted an award of aliment to the pursuers in said action during the joint lives of the female pursuer and the defender in said action. In the third place, there was no crave in said initial writ for the custody of the said John Christie. Such a crave was and is incompetent in a process of adherence and aliment. In the action in question, however, the Sheriff-Substitute has in said interlocutor given the custody of the said John Christie to the female pursuer in said action. ( Ans. 5) Denied. The interlocutor, which is referred to for its terms, awards aliment until the further order of the Court. Said interlocutor interpones authority to the terms of the agreement made by the pursuer as embodied in the joint minute, and is a competent interlocutor.” The pursuer pleaded—“2. Separatim, the said interlocutor falls to be reduced on the ground of incompetency in respect—( a) That the award of aliment made in said interlocutor was pronounced without proof of desertion having been led; ( b) That said award of aliment was made during the joint lives of the female pursuer and the defender in said action; and ( c) That the custody of the said John Christie was awarded in said interlocutor to the female pursuer in said action.”
The defender pleaded—“3. Separatim, the defender should be assoilzied in respect—( a) The said interlocutor is competent; ( b) The said interlocutor having interponed authority to a joint minute embodying the terms of settlement agreed to by the pursuer, the pursuer is not entitled to challenge same.”
On 5th June 1919 the Lord Ordinary (
Hunter ) allowed the parties a proof of their averments and to the pursuer a conjunct probation.The pursuer reclaimed, and argued—The interlocutor was incompetent and should be reduced. (1) An action of adherence was consistorial—Court of Session (Scotland) Act 1850 (13 and 14 Vict. cap. 36), section 16; Conjugal Rights (Scotland) Act 1861 (24 and 25 Vict. cap. 86), section 19. The Sheriff-Substitute had pronounced decree without proof, which was incompetent—Court of Session Act 1830 (11 Geo. IV, and 1 Will. IV, cap. 69), section 36— Sleigh v. Sleigh, 1893, 1 S.L.T. 30. The same rule applied to the Sheriff Court, where it was now competent to try consistorial causes—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 5 (2), and First Schedule, Rule 23, as amended by the Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V, cap. 28), section 3, First Schedule. (2) The decree for aliment was during the joint lives of the parties, whereas it was only competent to award aliment so long as the husband refused to adhere. (3) The interlocutor incompetently dealt with the custody of the child, for no decree for custody had been craved, and further in such an action as the present it was incompetent to ask decree for custody— Heriot-Hill v. Heriot-Hill, 1906, 14 S.L.T. 182. In any event the Sheriff could only deal with custody in an action of a consistorial nature, and in so far as it was consistorial the action had been departed from.
Argued for the defenders—The interlocutor in question was competent. The action was for adherence, or failing that, aliment. So far as directed to adherence the action was consistorial, but the parties had departed from that part of the conclusions and had agreed upon aliment, for which alone decree had been given. That was quite competent upon a joint minute and without proof— Wright v. Wright, 1894, 2 S.L.T. 29. The fact that the decree was for aliment during the joint lives of the parties was immaterial, for the decree was clearly only in hoc statu and not permanent. [Lord Mackenzie suggested that the words
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“during the joint lives” did not refer to the term of the payment but to the conditions of the payment.] The form of decree would be found in A. S. 20th December 1823. It was competent to pronounce a decree for custody of children without any conclusion therefor — Symington v. Symington, 1874, 1 R. 871, 11 S.L.R. 369; Conjugal Rights (Scotland) Act 1861, ( eit. sup), section 9.
The case arises out of an action which was brought by the wife and the son of the present pursuer in the Sheriff Court, and the first conclusion of that action was that the defender—the present pursuer—was bound to adhere and that he should be ordained to adhere. Then there was a conclusion for aliment at the rate of £1 a week “during the joint lives of the said Mary M'Millan or Christie and the defender, or until they adhere to each other.” The second conclusion of the action was for aliment payable to the son, in the usual terms, and limited until he was in a position to support himself.
Now, on the assumption that the present pursuer's agent in the Sheriff Court had authority to settle the action—a matter which is in dispute and will require to be determined by a proof—the statement is “that the parties had agreed to settle the action on the following terms:—( First) that the defender pay to the pursuers aliment at the rate of £1 per week from and after 10th December 1917; ( Second) that the female pursuer should have the custody of the child John Christie; and ( Third)” that there should be a payment of expenses; and the interlocutor which was pronounced by the Sheriff-Substitute sets out—“On parties' motion, allows joint minute of this date to be received …; interpones the authority of the Court thereto, and in terms thereof—( First) Grants decree against defender for payment to pursuers of aliment at the rate of £1 weekly during the joint lives of the female pursuer Marion M'Millan or Christie and the defender, payable, said aliment, every week,” and so on, “until the further orders of the Court, reserving to either party at any time to apply to the Court for any further order or orders which may be necessary; ( Second) Finds the female pursuer entitled to the custody of the said John Christie, the male pursuer.”
Now, branch ( a) of the second plea is to the effect that the award of aliment was incompetent, because it was pronounced without proof of desertion, and certain statutory provisions were referred to (Court of Session Act 1830, 11 Geo. IV. and 1 Will. IV. cap. 69, section 36; also section 16 of the Court of Session Act 1851, 13 and 14 Vict. cap. 36) as showing that in certain actions a judge cannot proceed except causa cognita; he cannot pronounce a decree of consent.
The decree which was here pronounced falls under none of these categories; it was merely a decree for aliment. Nor does the finding that the female pursuer is entitled to custody fall under any of the categories. The Sheriff-Substitute in the present case did not pronounce a decree that the husband was bound to adhere. Had he done so without hearing evidence the decree would of course have been bad. But the parties passed from that part of the conclusions of the action, and the case was settled on the footing that aliment was to be paid. I can find no statutory prohibition which makes it incompetent for the judge having jurisdiction—as the Sheriff now has—to give effect to an agreement of parties regulating the payment of aliment and the custody, without any evidence having been led.
Branch ( b) of the second plea is to the effect that the award of aliment was incompetent as having been made during the joint lives of the female pursuer and the defender. As I understood the argument it was intended to make this point—that the Sheriff-Substitute had determined what was truly a consistorial question and determined it during the joint lives of the husband and wife. I am far from saying that the terms of the interlocutor of 11th January are not open to criticism, but I think that in construing such an order it is fair to look, first of all, at what it was that the pursuer asked. The pursuer asked that the aliment should be paid during the joint lives or until they adhered, and that was a perfectly correct crave, because that is the nature of any award of aliment which is made. It is an award which continues only until the parties adhere or until the award is recalled. Accordingly, when one reads further in the interlocutor one finds that not only is there a decree against the defender for payment of aliment during the joint lives but that it is expressly declared to be until the further orders of the Court, reserving right to either party to apply. That means that if and when the circumstances change, and the husband desires to adhere, then he could, by lodging a minute in the process, ask the judge who made the original order to take the matter up and to dispose of it by a further order. But I desire to safeguard myself from suggesting that that would be his only remedy, because I take it that if he had fairly indicated his intention to adhere, and was nevertheless charged to make payment upon the original order for aliment, he would have his remedy in the Bill Chamber by way of a suspension. Accordingly I think, on a fair construction of the interlocutor, that branch ( b) of the second plea should also be repelled.
Branch ( c) raises this question, that there being in the original summons no crave for the custody of John Christie, a decree to that effect could not competently be introduced
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Accordingly, for the reasons that I have stated, I think we are now in a position to grant the motion which was made by counsel for the respondents, and repel the second plea-in-law for the pursuer in all its three branches and affirm the judgment of the Lord Ordinary, and the case will go back for proof.
The first ground of challenge was that the Sheriff-Substitute had contravened an Act of Parliament by pronouncing a consistorial decree without evidence. The minute shows that the parties departed from the consistorial conclusion for adherence and aliment, and asked the Sheriff-Substitute to confine his attention to the matter of aliment. It is news to me that that is not a perfectly competent procedure. It happens daily in consistorial actions that the parties prefer not to have a public proof in regard to their unhappy life, but as they both intend to live apart from each other that a sum of alimony is fixed by agreement, and that the Court pronounces decree for payment of that sum, to continue until one of the parties demands adherence or until the Court is asked to fix a larger or a smaller sum owing to some change of circumstances. The first ground of challenge therefore fails.
The second ground of challenge proceeds in my view, upon a misinterpretation of the decree following upon the joint minute. That decree was unfortunately expressed, and I hope that in dealing with so delicate a matter as the relations of husband and wife and the custody of the children those whose duty it is to prepare interlocutors in the Sheriff Court, where, of course, there was no jurisdiction until 1907, will take care to avoid forms which are slovenly and objectionable. Reading the decree, however, in the light of the conclusions of the action and the joint minute, I do not think that it bears the meaning attributed to it by the pursuer in branch ( b) of the second plea-in-law. It is not the case that the Sheriff-Substitute professed to alter the law of Scotland as to the duties of husband and wife by awarding this lady a separate aliment for the remainder of her life. The decree undoubtedly uses the words “during the joint lives” of the parties, but it goes on to reserve to either party the liberty of applying to the Court; and no better reason could be imagined for applying to the Court than that either party had chosen to depart from the voluntary contract of separation contained in the minute, and insisted upon his or her legal right to demand adherence. Further, I do not think that the decree means that the only remedy in such a case must be an application to the judge who pronounced the decree. Seeing that it was based upon a joint minute which was in substance a voluntary contract of separation, the husband, if charged to make payment, could suspend upon the ground that he had recalled that agreement and demanded that henceforth his wife should adhere to him.
The third objection is purely a process objection. It was irregular for the Sheriff-Substitute to pronounce a finding as to custody in an action which on the face of it did not raise any such question. But the irregularity could have been cured by adding the necessary conclusion to the initial writ, and if that had been done there could have been no question as to the propriety of finding that the wife was entitled to the custody of the child. The parties took a shorthand method and agreed in their joint minute that a finding in these terms should be pronounced. The objection has no substance and ought to be repelled.
Accordingly I agree with your Lordship that the whole of the second plea-in-law may be repelled, and that the interlocutor of the Lord Ordinary allowing a proof ought to be affirmed.
As regards head ( a) of plea 2, it appears to be clear enough that the statutory requirement of proof does not apply to the case. As regards head ( b) of the pursuer's second plea I think the terms of the decree do not exceed what ex hypothesi he, under the joint minute, agreed with the pursuer in
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The Court adhered.
Counsel for the Pursuer— Sandeman, K.C.— Maclaren. Agent— Lindsay C. Steele, Solicitor.
Counsel for the Defenders— D. Jamieson. Agents— Dove, Lockhart & Smart, S.S. C.