Scottish Court of Session Decisions

Reference is made to the preceding report, ante ut supra.

In this action James Herriot, solicitor, Duns, sued Miss Isabella Annie Brown (afterwards Jacobsen), 173 Colinton Road, Edinburgh, for repayment of (1) £245, 15s. alleged to have been advanced to her prior to her majority, and (2) £204, 4s. 7d. alleged to have been advanced to her subsequent to her majority. During the dependence of the action the defender married Richard Francis Jacobsen. On 6th May 1908 intimation of the action to Mr Jacobsen was appointed to be made, and on 2nd June the Lord Ordinary, in respect of a minute of sist for him, sisted him “as administrator-in-law for the defender, his wife, for any interest he might have.”

On 28th October 1908 the Lord Ordinary decerned against the defenders Mrs Isabella Annie Brown or Jacobsen and her husband Richard Francis Jacobsen, “as administrator-in-law for his wife and for any interest he might have,” for payment to the pursuer of the sum of £326, 0s. 11d. with interest thereon, and found “the defenders as aforesaid liable in expenses” to the pursuer. The question as to the husband's liability for pursuer's expenses was not raised.

The defenders reclaimed, and on 27th May 1909 the First Division adhered to the Lord Ordinary's interlocutor, refused the reclaiming note, and found the pursuer “entitled to additional expenses since the date of said interlocutor.”

At the motion in Single Bills for approval of the Auditor's report the pursuer moved the Court to grant decree for expenses against the defenders jointly and severally, not only in respect of the Inner House expenses but also in respect of the expenses in the Outer House.

The pursuer argued—The husband had rendered himself personally liable by voluntarily sisting himself as a party to the action when there was no obligation on him to do so. He had taken an active interest in the action, and the Lord Ordinary in his note expressly ascribed to him responsibility for the litigation having continued. In addition he had been present at a commission for the recovery of documents and had personally intervened. These circumstances took the case out of the category of formal concurrence and made the husband liable— Lindsay v. Kerr, January 15, 1891, 28 S.L.R. 267; Fraser v. Cameron, March 8, 1892, 19 R. 564, 29 S.L.R. 446; Macgown v. Cramb, February 19, 1898, 25 R. 634, 35 S.L.R. 494; Maxwell v. Young, March 7, 1901, 3 F. 638, 38 S.L.R. 443; Picken v. Caledonian Railway Company, March 10, 1903, 5 F. 648, 40 S.L.R. 460; Kerr v. Malcolm, 1906, 14 S.L.T. 358.

Argued for the defenders—(1) In all the cases where the husband was found liable he did something active in the conduct of the case. His mere concurrence was not enough— Whitehead v. Blaik, July 20, 1893, 20 R. 1045, 30 S.L.R. 916. Here the action was raised while Mrs Jacobsen was unmarried in respect of her own estate and the husband really came in quite passively. If pursuer had wished he might have sisted him by minute. (2) In any event it was too late to ask for joint and several decree on approval of the Auditor's report— Warrand v. Watson, 1907 S.C. 432, 44 S.L.R. 311.