WIFE AS PURSUER. not be allowed an opportunity of doing so. such is recorded in the books. 1 119 Apparently none When Wife is Pursuer.-The rule of present practice is stated more accurately by Mr. Mackay than by Lord Fraser. In the Commissary Court the wife was bound to make out a semiplena probatio before she was awarded interim expenses or aliment. But as pointed out by Lord Corehouse, the Commissary Court sat de die in diem. It would be a great bardship if a wife who had left her husband's house and raised an action against him on the ground of his adultery or cruelty were to be presented with the alternative of returning to her husband or being exposed to starvation before she had made out a semiplena probatio.2 Should her ground of action chance to arise just before the commencement of the long vacation she might have to wait four months before obtaining a grant of aliment. In present practice, accordingly, the onus is on the defender of showing that the action is vexatious or raised to extort money. Otherwise the Lord Ordinary will in the general case order a sum to be paid for interim aliment and expenses, unless the pursuer's averments seem to him to suggest a trumped-up case. It may be said of this, as of most rules with regard to expenses, that although it may guide it cannot control the absolute discretion of the Court. Where the Action is dismissed on the ground of want of Jurisdiction. In an action by the wife the husband pleaded no jurisdiction, in respect he was not domiciled in Scotland. The plea was sustained, but the wife was allowed her expenses.3 May the Wife reclaim at her Husband's Expense ?-It is entirely in the discretion of the Inner House whether they will allow expenses to a wife who has reclaimed against a decree divorcing her from her husband. They will generally do so if she has a fairly arguable case on the evidence, or has anything really material to urge by way of special defence.1 1 Mackay's Practice, ii. 559; Fr. ii. 1233. 2 Currie v. C., 1833, 12 S. 171. 3 Stavert v. S., 1882, 9 R. 519. 4 Kirk v. K., 1875, 3 R. 128; see also Montgomery v. M., 1880, 8 R. 26. It will be an element of consideration that the Court heard a full argument and took the case to avizandum.1 But a wife who-e.g., does not argue in the Inner House the question of adultery, but reclaims on a special defence, such as condonation, in support of which she has a very slender argument, must not expect to get her expenses. As a rule a wife who appeals unsuccessfully to the House of Lords will not get her expenses.3 Woman's Expenses in actions of declarator of marriage. -A woman raising an action of this nature may, if she has no funds, be awarded a sum for interim expenses if she holds prima facie the status of wife. This is entirely a question for the Court on the averments in the particular case. It is inexpedient to facilitate the raising of actions of declarator on shadowy grounds. The threat of such proceedings may easily be made an engine of blackmail by an unscrupulous woman. On the other hand, if the man by his own conduct has placed the woman in the position of his wife, there is no hardship in giving her the advantages incident to that position until she is dislodged from it. Ill.-Sir James Campbell, unable to return to Scotland on account of the war, gives a lady a power of attorney in which he styles her "my beloved wife." He also writes letters introducing her as his wife to his relations. The Court of Session held she was entitled to interim aliment in an action of declarator. But on appeal this was reversed.5 Where the woman has openly cohabited with the man in the ostensible character of wife, she will generally get an award. And this will also be the rule where, in a writing admittedly under his hand, he acknowledges the marriage, unless her own conduct has been inconsistent with the status she claims. Ill.-Woman produces written acknowledgment of marriage to her. The writing is admitted. But she avers that the day after the writing she and the defender parted, and she has never seen or heard from him since. During the subsequent four years 1 Hoey v. H., 1884, 11 R. 905. 2 Dalgleish v. D., 1878, 5 R. 679. 3 Begg v. B., 1890, 15 Ap. Ca. 170. 4 Sassen v. Campbell, Jan. 20, 1819, F.C. 51826, 2 W. and S. 309. DECLARATORS OF NULLITY. she has never made any claim to position of wife. aliment and expenses refused.1 121 Interim Ill.-Man gives woman an acknowledgment of marriage. For seven years she makes no claim to rank of wife, and her two children are registered as illegitimate. Interim expenses refused.2 Expenses in Inner House.-Where the Lord Ordinary has granted the declarator of marriage, the woman has the status of wife, and will be awarded a sum for interim expenses to defend the judgment in the Inner House.3 In Actions of Declarator of Nullity.-In such an action, at the instance of the woman, she will be entitled to interim expenses, if a ceremony is proved or admitted, or she had other grounds for supposing the marriage valid. When Woman is Defender. She will generally be entitled to interim expenses as long as she has the prima facie status of wife. There may be cases in which the Court will refuse them. But, even when the man discovers that the woman has a previous husband living, she will, as a rule, be awarded a sum to defend an action of nullity. When the Lord Ordinary has found against her, she will not, in general, be awarded a sum to enable her to reclaim.5 After final decree of nullity, the woman, who has unsuccessfully defended, will not be allowed expenses. A wife who unsuccessfully brings an action of nullity may, if she has separate estate, be found liable in expenses. 6 Where the ground of nullity is the woman's previous marriage, it is suggested by Mr. Mackay that the man might raise an action of repetition for the interim expenses paid by him. There appears to be no authority for this statement. He even thinks that caution to repeat might, perhaps, be required before the award. But in many cases the wife would be as little able to find caution as to pay interim expenses. In an English case, where the wife, who petitioned 1 Browne v. Burns, 1843, 5 D. 1288. 2 Fleming v. Corbet, 1858, 21 D. 179. 3 Forster v. F., 1869, 7 M. 546. Langworthy v. L., 1886, 11 P.D., at p. 86; Bishop, Ed. 1891, § 922 seq. Mr. Mackay doubts this, ii. 561. 5 Ballantyne v. B., 1866, 4 M. 494. 6 M. v. C., 1872, L.R., 2 P. and D. 414. for decree of nullity, was out of the jurisdiction, a motion was made that she should give security for costs. The motion was refused, but it appears that if she had been proved to possess separate estate, it would have been granted.1 Reduction of Divorce.-A woman against whom decree of divorce has been given is no longer a wife. If she raises a reduction, she must do so as an ordinary litigant, at her own charges. There may be exceptional cases in which the Court, after examining her allegations, may think they are such as she ought to have the opportunity of stating. In one case, a husband who had divorced his wife was ordered to make an interim award, subject to a claim for repetition. In the result she was found liable in expenses, and ordered to repeat the sums so advanced.2 Actions for Aliment, Custody, &c.-There is no general rule. Every case is in the discretion of the Court. Where the wife's case appears to have been reasonably raised or defended by her, the husband may be ordered to make interim payments, or found liable in expenses. In a case where the husband petitioned for custody of a child, the wife lodged answers, and moved that the petition should be sisted, to await the issue of an action of separation at her instance. The petition was granted, but no expenses given.* And where a wife had forcibly abducted a child, she was ordered to deliver it back to the husband, and pay expenses. 5 Reponing. In the general case a party who asks to be reponed must, if his crave be granted, pay the expenses up to date. But this rule is not applicable to cases between spouses, for, if the wife were reponed on condition of paying expenses, she might apply to the Court to order her husband to put her in funds. The result is, therefore, the same if she be reponed simpliciter. 1 M. v. De B., 1875, 44 L.J., P. and M. 41. 2 Graham v. G., 1881, R., 327; and Bowman v. Graham, 1884, 11 R. 474. 3 Tibbett v. T., 1862, 24 D. 599; Lang v. L., 1869, 7 M., at p. 446; Lilley v. L., 1877, 4 R. 397; Bloe v. 4 Beattie v. B., 1883, 11 R. 85. 6 Steedman v. S., 1887, 14 R. 682. COUNTER-ACTIONS -CO-DEFENDER. 123 Counter-Actions of Divorce.-A counter-action is in no different position from any other action of divorce. Even where decree of divorce has been pronounced by a Lord Ordinary, a wife who has lodged a Reclaiming Note may raise a counteraction of divorce at the husband's expense. For, pending the appeal, she is still wife.1 In one case where she was found liable in the expenses of her counter-action, the husband was allowed to set off, pro tanto, the expenses due to him against those which he owed to her in the other action. Here she had allowed her counteraction to be dismissed, and the agent by whose advice it was brought acted for her also in the action in which she was defender.2 Where Wife has separate Estate.-Expenses either interim or after decree are only awarded to a wife from her husband's funds, ex necessitate. If she has separate estate she must take the fortune of war like another litigant. If successful she will get her expenses, if unsuccessful she may have to pay her husband's as well as her own.3 Co-defender's liability for Expenses. The Conjugal Rights Act, 1861 (24 & 25 Vict. c. 86, § 7), provides that the Court may decern against a man with whom a wife is proved to have committed adultery for the whole or any part of the expenses. He must have been cited to defend. The expenses are taxed as between agent and client, and the co-defender may have to pay the wife's expenses as well as his own.* 5 6 When he will not be liable. If the co-defender did not know the defender was a married woman at the time of the intercourse, he will not be liable in expenses. It is for the husband to prove the co-defender's knowledge, but if there were circumstances which ought to have put him on his inquiry as to whether she was a married woman, he will not escape liability on this head. But in the case where the woman is a 1 Walker v. W., 1871, 9 M. 460. 2 Craig v. C., 1852, 14 D. 829. 3 Fræbel v. F. and Liddell, 1884, 22 S.L.R. 22, where Lord M'Laren followed Milne v. M., 1871, L.R., 2 P. and D. 202; and Miller v. M., 1869, ibid., p. 13. 5 4 Munro v. M., 1877, 4 R. 332. Teagle v. T., 1858, 1 S. and T. 188; Priske v. P., 1860, 4 S. and T. 238. See Kydd v. K., 1864, 2 M. 1074. 6 Howe v. H., 1867, 15 W.R. 498. |