Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ALIMENT - HUSBAND AND WIFE.
Subject_3 A Wife divorced brought a reduction of the decree. She was found entitled to the expense of carrying on the reduction, and to aliment during the dependence of it; and this decreed after the reasons of reduction had been repelled.

Madelaine de la Motte
v.
William Jardine

Date: 16 December 1788

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[Faculty Collection, X. 109; Dictionary, 447.]

Justice-Clerk. After a decreet of the consistorial court the woman is no longer a wife. She may re-establish her status by a reduction or declarator of marriage. Suppose the pursuer M. de la Motte were not to enter her appeal to the House of Lords till the fourth year after sentence, that appeal would place her just as if she were in a reduction. By her argument she might claim aliment retro, and then, having obtained it, she might drop her appeal.

Henderland. I never heard of any demand for aliment or expenses in a case like this. Final sentence in the Act of Parliament means the final sentence of the consistorial court.

Gardenston. Nothing is so apt to puzzle as the putting of cases. As long as the lady acquiesces she has no claim. When she brings an appeal it will be considered how far she has been in mora: should the cause be appealed after four years, that mora may perhaps exclude aliment.

Dreghorn. If a wife be entitled to money here, after she ceases to be a wife, she may have the like demand in the House of Lords. This is very inexpedient few men could afford, on those terms, to sue for a divorce. The expense would be dreadful: even at present, from judicial proceedings much money is bestowed in the Commissary Court. [He expressed himself too strongly; I set down his corrected opinion.] A woman has, at the worst, a relief here and elsewhere in forma pauperis. I do not mean to bind myself down never to allow any thing to a divorced woman. But I think that here there was no bona fides in attempting to set aside the judgment of the consistorial court. During a practice of thirty years I have never seen an unjust prosecution against a woman in the Commissary Court.

Eskgrove. The maxim, res judicata pro veritate habetur, does not apply to a reduction of the decreet of an inferior court. That decreet is no more than a summons. Till the decreet of this court is pronounced there is a lis pendens.

On the 16th December 1788, “The Lords found the petitioner entitled to aliment and expenses;” altering their interlocutor of 8th August 1788.

Act. W. Stewart. Alt. R. Blair.

Diss. Justice-Clerk, Swinton, Henderland, Stonefield, Hailes, Dreghorn.

Alt. Alva, Gardenston, Rockville, Monboddo, Ankerville, Eskgrove, President [carried by his casting vote.]

Non liquet, Dunsinnan.