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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell v. Campbell [1870] ScotLR 7_407 (15 March 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0407.html Cite as: [1870] SLR 7_407, [1870] ScotLR 7_407 |
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Page: 407↓
Held that an action of aliment at the instance of a wife, on the ground of cruelty and desertion, was not incompetent in respect there was no conclusion in the summons for judicial separation.
A husband having offered, in answer to an action of aliment on the ground of cruelty and desertion, to receive his wife back to his house, action superseded till his offer should be tested. The wife having returned, and the husband having in consequence thereof moved for absolvitor, motion refused, and the action still further superseded, on the allegation by the wife that the cruelty complained of was still continued.
This is an action at the instance of a wife, concluding for aliment against her husband, on the ground that he had deserted her for upwards of twelve months, and had also treated her with cruelty, although the cruelty was not of a nature per se to warrant judicial separation. In his defences the husband, while he denied the desertion and cruelty, judicially offered to receive the pursuer into his house, and to maintain her as his wife. He pleaded that, in respect of this offer, the action should be dismissed, and also that the action was incompetent in respect there was no conclusion for judicial separation.
The pursuer maintained that the action was competent, on the ground of desertion, and that the offer to receive her to his house, which was made for the first time in the defences, was not a genuine bona fide offer, but a device resorted to by the defender to throw out the action, and to get quit of an inhibition raised on the dependence. The Lord Ordinary ( Jerviswoode), after hearing parties on the relevancy, allowed a proof before answer, and decerned against the defender for payment to the pursuer of a sum towards the expenses of process.
Page: 408↓
M'kie for pursuer.
Fraser and Muir in answer.
The defender reclaimed against the interlocutor.
The cause was heard in December last, when the Court refused to hold the action incompetent, but, in respect of the offer made by the defender, superseded farther consideration of the cause to allow the pursuer to test the sincerity of the defender's offer by returning to his house. To-day the defender again moved for absolvitor, on the ground that the parties were now living together as husband and wife; but this motion being opposed by the pursuer, and it being stated to the Court that though the pursuer had returned to the defender's house he still continued his cruel treatment, they refused to grant absolvitor, and superseded further consideration of the cause.
Agents for Pursuer— Wormald & Anderson, W.S.
Agent for Defender— William Officer, S.S.C.
