Paterson v. Paterson. for us to do but to reverse it, and to take care that, in the reversal, we do not set up the first interlocutor of the Lord Ordinary, which appears, erroneously, to lay down that nothing but actual personal violence will suffice as a ground of divorce. I should be sorry that such a view of the law of Scotland should go forth, as implied the propriety of dismissing the action, "in respect the libel is laid upon a series of insults and indignities said to have been offered by the defender to the pursuer, unaccompanied with personal violence, or any menace thereof; and that, without an allegation to that effect, it appears to be settled on authorities, which the Lord Ordinary is not entitled to question, that a libel at the instance of a wife against a husband, founded on such averments as those now urged, is not relevant." That, my lords, is not the law of Scotland; it is not the law of England; it is an inaccurate statement of the law in both countries; though I will not say that the law of Scotland, as far as decided cases go, may not extend somewhat further than our laws in favor of the remedy. I shall propose to your lordships this course; to reverse the interlocutor appealed against of the 13th of January, 1846, in so far as it remits the case to the Lord Ordinary, with instructions to open the record, and proceed in the cause; but to affirm the interlocutor in so far as it alters the interlocutor of the Lord Ordinary, with respect to the grounds of his dismissing the action. It will, therefore, stand thus: that you, giving the same judgment as the court below ought to have given, alter the interlocutor of the Lord Ordinary in respect of the restricted view which he takes of the grounds of a sentence of divorce; but affirm the interlocutor of the Lord Ordinary in so far as, independently of those reasons, it dismisses the suit. Then, in respect of the ultimate decision of the court below, the second interlocutor appealed from, of the 24th January, 1849, which grants a "remit to the auditor to tax the account of expenses and to report, and before answer as to the question of aliment, ordains the defender within fourteen days to give in a special condescendence of the amount of his means and estate," that must be reversed altogether. In thus moving your lordships, I must add, that I sincerely lament the unfortunate fate of this lady to be wedded to such a life. Iview, with a disposition charitably to extenuate, if I could justly, the conduct of Mr. Paterson. He appears to have been led on, from one thing to another, without due reflection upon the necessary conse quences of what he was doing. From his pecuniary circumstances, coupled with the attachment which he seems for a moment to have formed for Miss Russell, he appears to have been drawn into a course of proceeding which is wholly indefensible, of which he must in part pay the penalty, but from which the wife, the more innocent party, must be still made a sufferer. With these observations, I move your lordships to reverse the one interlocutor altogether, and to alter the other interlocutor in the way I have stated. Paterson v. Paterson. Turner. Before your lordship proceeds to put the judgment of the house, you will be aware that the case is a peculiar one with reference to costs. Your lordship observes the nature of the suit. LORD BROUGHAM. We cannot give her the costs when she sues her husband and fails. Turner. Ordinarily speaking, the husband pays all the costs in suits of this description. LORD BROUGHAM. In Doctors' Commons, when the husband sues he pays all the costs, even of an appeal to the Arches. Turner. So it is in Scotland. LORD BROUGHAM. Dr. Harding, when the wife fails in an attempt to obtain a separation a mensâ et thoro, do you ever allow her costs from the husband who succeeds? Harding. I do not remember a case of any application for costs in such a case being made to the court, and for this reason: in Doctors' Commons, the wife takes care to get her costs out of the husband de die in diem. LORD BROUGHAM. Do you mean when she sues him? Harding. When she sues him for a divorce, she may do so. LORD BROUGHAM. When she sues him for a divorce, does she not get her costs, supposing she fails? Harding. She does not make an application, after having failed. LORD BROUGHAM. But she does before failing. If she succeeds, of course she will get costs; but suppose it remains in dubio whether she may succeed or not, does she then get her costs de die in diem? Harding. Yes, my lord, I believe she ground that she has nothing of her own, to sue. does, if she chooses, on the that she has not wherewith Turner. That is more strongly the rule in Scotland. In this case, they gave the costs of the court below; but if your lordship reverses the interlocutor, we shall not recover those costs. LORD BROUGHAM. It must be reversed, with the exception of the part of it which awards her her costs; she will, of course, get no costs here. Turner. Probably your lordship will reserve the costs of the ap Paterson r. Paterson. peal. We have come here supporting the judgment of the court below. LORD BROUGHAM. Yes, but here the respondent never gets costs at all when he fails. All we have now to do is, to reverse the interlocu tor complained of, with the exception of the portion of it which allows costs to the wife in the court below. Turner. I should apprehend that your lordship would look at this question of costs with reference to what the case would be in the privy council. Supposing the wife had succeeded in the court below, and there had been an appeal to the privy council, or to the delegates, the course of the case there would have been LORD BROUGHAM. There is a peculiarity in that jurisdiction. We there give costs to the party who succeeds in reversing; that we never do in this house; our rule is a perfectly peremptory one. Turner. I am quite aware of that, my lord, as a general rule in ordinary appeals; but the present is almost the first case of this description that has ever come up to this house. LORD BROUGHAM. We will look into it. In Doctors' Commons and at the delegates, and that which is substituted for the delegates — the judicial committee, we constantly, both in Indian cases and in consistorial cases, direct the costs of the appellant to be paid by the respondent, when the appellant succeeds; but here no such thing is ever done. Turner. Your lordship observes, that this is the first case of the kind brought to this house. LORD BROUGHAM. Nor is it done in the Court of Chancery. Turner. No, my lord, I quite agree; but the principle which governs the case is this: that the wife has nothing to sue with, and therefore the court awards her the costs. LORD BROUGHAM. Yes; but you may just as well say that if the wife indulges in any other luxury than law, -if she goes into a shop and buys that which is beyond her degree, — the husband has a duty imposed upon him to pay. Turner. Your lordship observes, that the luxury of your lordship's judgment against her is not her seeking. Harding. Your lordships have decided that she had no grounds at all for originally suing. We ought not to be made to pay the costs of that. Paterson v. Paterson. LORD BROUGHAM. We decide that she had no grounds. One thing I ought to have taken notice of, that her conduct, or that of those who have advised her, is highly reprehensible. I never saw a more scandalous matter introduced upon a record than those charges, those foul charges, wholly unsupported, wholly unproved, nay, I may say negatived, the suggestion of incest between this gentleman and his own sister. That is a feature in the case which it is exceedingly painful to contemplate, and a consideration of it will govern my discretion, if any we have, as to giving costs. Turner. On the other side, your lordships must take into your consideration the conduct of the husband, and the general rule which gives the wife the costs. The first interlocutor appealed from, my Lord, gives the same direction upon costs. LORD BROUGHAM. Are there costs upon the first interlocutor? Turner. Yes, my lord. But LORD BROUGHAM. Then we must make the same exception. we allow the first interlocutor appealed from to stand, except so far as I have stated. Harding. That interlocutor protects itself. First interlocutor reversed, with certain exceptions. Second interlocutor reversed, with an exception as to costs in the court below. The question of the costs of the appeal reserved. August 9, 1850. LORD BROUGHAM. After hearing and considering this case, there was a reversal of the interlocutor of the court below. But as there is no instance of the costs of the appeal being given in this house in a case of this kind, I do not see how it is possible to do so here. We do it in the judicial committee of the privy council; but we do it because it used to be done in the court of delegates, and the judicial committee has come in the place of the court of delegates;1 and we also do it in Indian cases, which fall within the scope of a like rule; but we never give the costs in an appeal from any colonial court. It is no doubt a very hard case.2 1 The Court of Session, in a divorce case, sits as an ecclesiastical Court. 2 This decision proceeded upon the law of Scotland, which may not be in entire harmony with the law of England or America upon this point. The whole subject is very thoroughly and very ably examined in the recent work of Bishop on Marriage and Divorce, ch. 23, to which the learned reader is referred. See also 45 Law Mag. p. 61, where this case is reviewed and disapproved. CASES ARGUED AND DETERMINED IN THE COURTS OF CHANCERY; DURING THE YEAR 1852. MENZIES V. Connor.1 January 29, 30; November 13, 15, 1851. Costs-Creditor's Bill. A creditor's bill was filed after notice of a decree in a simple administration suit by one of the next of kin of the intestate, but the decree was at that time imperfect in not containing the usual preliminary inquiries: the frame of the creditor's suit was also different in making the heir-at-law a party, and in containing charges as to real estate, and as to the destruction of documents. The creditor's suit having been brought to a hearing, the Vice Chancellor made an order, directing the plaintiff to pay a stated sum to the heir-atlaw in lieu of costs, and ordered the administratrix to pay the plaintiff's costs of suit:Held, that inasmuch as the creditor might have obtained all the relief to which she was entitled in the former suit, the bill ought to have been dismissed with costs; and that, under the circumstances, the appeal to the Lord Chancellor did not fall within the rule precluding an appeal for costs. In this case there were two appeals, one by the defendant Ann Connor, and the other by the defendants Edward Turner and Olivia his wife, from an order of the Vice-Chancellor Knight Bruce, under the following circumstances. Olivia Turner was the heiress-at-law, and, with her mother Ann Connor, the next of kin of Edward Connor the intestate in the cause; Ann Connor was also his administratrix. The plaintiff, Margaret Menzies, was the obligee of a bond given to her by the intestate. Before the institution of the present 13 Macnaghten and Gordon, 648. |