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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Strain v. Strain [1890] ScotLR 27_586 (4 March 1890) URL: http://www.bailii.org/scot/cases/ScotCS/1890/27SLR0586.html Cite as: [1890] SLR 27_586, [1890] ScotLR 27_586 |
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Page: 586↓
[
( Ante, p. 239, and vol. xxiii. pp. 90, 739.)
In an action by a wife who had obtained decree of separation and aliment against her husband to enforce the decree for aliment by means of imprisonment, the Sheriff dismissed the action on the ground that the failure to pay was not wilful, and on appeal the Court held that the appeal was incompetent, and dismissed it with expenses. These expenses were not paid. Subsequently the husband brought an action of declarator against his wife for the purpose of having it found that the decree of separation should be recalled. This action was dismissed, and the wife found entitled to expenses. A motion was made for decree for these expenses in name of the agent-disburser, which was resisted by the husband, on the ground that he was entitled to set the expenses in the appeal pro tanto against the expenses in which he had now been found liable. Held that the two actions were not so closely connected as to entitle him to do this, and motion granted.
On 2nd December 1885 the Court pronounced a decree of separation against Hugh Strain junior, coalmaster, Airdrie, in an action at the instance of his wife, awarding her £52 per annum of aliment.
Subsequently, proceeding under the Act 45 and 46 Vict. cap. 42, sec. 4, Mrs Strain raised an action in the Sheriff Court at Airdrie to enforce her decree by the apprehension and imprisonment of her husband. He had in the meantime been sequestrated, and on 18th June 1886 the Sheriff-Substitute found that he had not wilfully failed to pay the aliment, and accordingly dismissed the petition. Mrs Strain appealed, but the
Page: 587↓
Court dismissed the appeal as incompetent, and found the husband entitled to expenses. The husband on 19th February 1889 raised an action against his wife concluding for declarator that there no longer existed any ground for the defender living apart from him, and that the decree of separation should be recalled. The Lord Ordinary dismissed this action, and the Court on January 10th adhered, and found the wife entitled to expenses.
The wife now moved for approval of the Auditor's report on the account of expenses and for decree in the name of the agent-disburser. He cited Stuart v. Moss, February 6, 1886, 13 R. 572, and Peterson v. Wilson, December 20, 1883, 11 R. 358, as authorities which established the general rule in his favour, and distinguished Clift's case ( Portobello Pier Company v. Clift, March 16, 1877, 4 R. 685) by the circumstance that there the two actions, as the Lord President said, might have been conjoined.
Counsel for the husband relied on the case of Clift. There the parties were the same, and the subject-matter of the two actions was the same; so here; whereas in Peterson's case the parties were not the same, and in Stuart's case the subject-matter was not the same.
At advising—
I think therefore we should grant decree in name of the agent disburser.
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.
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.
The Court approved of the Auditor's report on the defender's account of expenses, and decerned for the sum brought out therein in name of the agent disburser.
Counsel for the Pursuer— W. Campbell. Agents— Gill & Pringle, W.S.
Counsel for the Defender— A.S.D. Thomson. Agent— William Officer, S.S.C.
