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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Graham v. Graham [1884] ScotLR 21_325 (30 January 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0325.html Cite as: [1884] ScotLR 21_325, [1884] SLR 21_325 |
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Page: 325↓
In an action by a wife for reduction of a decree of divorce obtained against her by her husband, the Lord Ordinary in the Outer House, on a prima facie view of her case, ordered her husband to pay her two sums to account of her expenses, “reserving, however, any claim the defender may hereafter be able to instruct for repetition of said sums.” Subsequently a further sum was paid to her, on the same understanding, as a fee for sending a commissioner to take evidence for her abroad. Her action having failed, and her husband having been found entitled to expenses therein— held, on a consideration of the Auditor's report, that the husband was entitled to demand repetition of the above sums, and have them included in the account of expenses.
In this case, reported supra 15th December 1881, vol. xix. p. 207, and 9 R. 327, which was an action for reduction of a decree of divorce obtained against Mrs Graham by her husband, the defender was, on 15th December 1881, by the Second Division adhering to the judgment of the Lord Ordinary ( Adam), assoilzied from the conclusions of the action, and found entitled to additional expenses, and a remit was made to the Auditor to tax the same and to report. On the 25th January 1884 the Auditor, in obedience to the remit, “taxed the account of expenses at the sum of £868, 0s. 7d., reserving for the determination of the Court the question of the defender's right to include in his account — the sums of £20, £80, and £40 paid by him to account of the pursuer's expenses in the cause,
Page: 326↓
and to recover the same in this process under the finding for expenses in his favour.” Counsel for the defender moved the approval of the account, which included the above three sums embraced in the reservation. He stated that the first of them (£20) was paid on 1st December 1880 in virtue of an interlocutor pronounced by Lord Craighill (before whom the case then depended in the Outer House) on 26th November 1880, in which he ordained “the defender to make payment to the pursuer of the sum of £20 to account of her expenses in the cause, reserving, however, any claim the defender may hereafter be able to instruct for repetition of said sum.” The second sum (£80) was paid on 4th January 1881, under an interlocutor by Lord Craighill ordering payment under a reservation in the same terms. The third sum (£40) was voluntarily paid by the defender to the commissioner appointed by the Lord Ordinary to take evidence for the pursuer in Canada, on an agreement with the wife's agents that there should be the same right of repetition regarding it as regarded the other two sums. Counsel for the pursuer opposed the motion for repetition of the three sums as being unprecedented.
At advising—
The
The Court pronounced this interlocutor—
“The Lords having heard counsel for the parties on the Auditor's report on the defender's account of expenses, Approve of the report; ordain the pursuer to make payment to the defender of the sum of Eight hundred and sixty-eight pounds sterling, being the taxed amount of the said expenses; and decern.”
Counsel for Pursuer— J. C. Smith— M'Kechnie. Agents— T. & W. A. M'Laren, W.S.
Counsel for Defender— A. J. Young. Agents Duncan & Black, W.S.
