Scottish Court of Session Decisions

The Conjugal Rights (Scotland) Act 1861 (24 and 25 Vict. cap. 86), sec. 7, enacts—“In every action of divorce for adultery at the instance of the husband it shall be competent to cite, either at the commencement or during the dependence thereof, as a co-defender along with the wife, the person with whom she is alleged to have committed adultery; and it shall be lawful for the Court in such action to decern against the person with whom the wife is proved to have committed adultery for the payment of whole or any part of the expenses of process, provided he has been cited as aforesaid, and the same shall be taxed as between agent and client.…”

In an action of divorce for adultery at the instance of a husband against his wife the Lord Ordinary ( Guthrie) assoilzied both the defender and the co-defender.

The pursuer reclaimed.

In the course of his argument counsel for the co-defender (who alone had lodged defences) submitted that the action, if in England, would have been dismissed on the ground of collusion, in respect of the assistance given by the defender to the pursuer's agent in preparing the case. He cited Dixon on Divorce (4th ed.), 63; Midgley v. Wood, (1860) 30 L. J. (P.) 57, and Lloyd v. Lloyd and Another, (1859) 30 L.J. (P.) 97.

The Court ( the Lord President, Lord Johnston, and Lord Mackenzie) recalled the Lord Ordinary's interlocutor, granted decree of divorce, and found the co-defender liable to the pursuer in £250 damages. In the course of his opinion the Lord President observed—“There was an argument by the counsel for the co-defender in which he confidently asserted that this case in England would have been at once dismissed, because, he said, the English decisions led to this, that if the defender had given any assistance in the getting up of the case the case was one of collusion and would have been dismissed.

“I had already occasion in the case of Walker ( 1911 S.C. 163, 48 S.L.R. 70), to call attention to the differences between the English law and our own in these matters; and I must emphatically again say that I think a reference to English decisions in these matters is very misleading and quite uncalled for. Our divorce law is centuries older, and their law depends entirely upon statute. Our law as to collusion is as I defined it in the case of Walker, and the definition was approved by the rest of your Lordships. To put it in other words, I can only say that there never can be collusion unless you can show facts which, if proved, would show that the oath of calumny had been falsely sworn. The mere fact that a woman, who may have repented of misconduct, gives information to her husband afterwards would never be collusion.”

Counsel for the pursuer moved for expenses against the co-defender as between agent and client, and cited the Conjugal Rights (Scotland) Act 1861 (24 and 25 Victs. cap. 86), sec. 7; Andrews v. Andrews, February 7, 1873, 11 Macph. 401, 10 S.L.R. 251; Munro v. Munro, January 25, 1877, 14 S.L.R. 287; Grant v. Grant and Another, June 8, 1905, 43 S.L.R. 109. He also craved the Court to insert a direction to the Auditor to that effect in the interlocutor.

Counsel for the co-defender submitted that expenses should be taxed in the ordinary way, on the ground that section 7 of the Conjugal Rights Act only applied to cases where there was no conclusion for damages as there was here. In any event it was unnecessary to insert in the interlocutor the direction craved. He cited Hoey v. Hoey, June 6, 1884, 11 R. 905, 21 S.L.R. 620.

Page: 561↓

At advising, the opinion of the Court was delivered by