Ellison v. Ellison [1901] ScotLR 39_168 (04 December 1901)

Ellison v. Ellison [1901] ScotLR 39_168 (04 December 1901)

Arrestments on the dependence are incompetent in an action combining divorce and pecuniary claims where the pursuer has no present title to sue for the pecuniary claims, and no proper averments of the defender being vergens ad inopiam or in meditatione fugœ are made. The action must be treated as if two separate actions had been raised, and arrestment would not have been competent in either at this stage.

Citation
[1901] ScotLR 39_168
Parties
Pursuer: Mrs Jenny Galbraith Hamilton or Ellison; Defender: Robert Arthur Ellison
Jurisdiction
Scotland
Judgment Date
04 December 1901
Procedural Posture
Civil / Petition for Recall of Arrestments in Action for Divorce and Pecuniary Claims
Outcome
Arrestments recalled as incompetent; pursuer found liable in expenses from date of interlocutor reclaimed against.
Legal Topics
Divorce, Arrestment on the Dependence, Recovery of Terce, Jus Relictæ, Conventional Provisions, Expenses, Debtors (scotland) Act 1838
Family Law Civil Procedure Debtor Creditor Law Divorce Arrestment on the Dependence Recovery of Terce Jus Relictæ Conventional Provisions +2 more

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Parties

Mrs Jenny Galbraith Hamilton or Ellison

Pursuer

Robert Arthur Ellison

Defender

Procedural Posture

Civil / Petition for Recall of Arrestments in Action for Divorce and Pecuniary Claims

Legal Issues

  1. 1 Whether arrestments on the dependence are competent in an action combining divorce and pecuniary claims for terce, jus relictæ, and conventional provisions
  2. 2 Whether such arrestments are competent absent averments that the defender is vergens ad inopiam or in meditatione fugœ
  3. 3 Whether combining divorce and pecuniary claims in one action is competent

Ratio Decidendi

Arrestments on the dependence are incompetent in an action combining divorce and pecuniary claims where the pursuer has no present title to sue for the pecuniary claims, and no proper averments of the defender being vergens ad inopiam or in meditatione fugœ are made. The action must be treated as if two separate actions had been raised, and arrestment would not have been competent in either at this stage.

Court Disposition

Arrestments recalled as incompetent; pursuer found liable in expenses from date of interlocutor reclaimed against.

Orders

  • Arrestments recalled
  • Pursuer found liable in expenses from date of interlocutor reclaimed against