Scottish Court of Session Decisions

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Cite as: [1868] ScotLR 5_688_1, [1868] SLR 5_688_1

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SCOTTISH_SLR_Court_of_Session

Page: 688↓

Court of Session Inner House First Division.

Saturday, July 18. 1868.

5 SLR 688_1

A.

v.

B.

Subject_1Husband and Wife
Subject_2Divorce
Subject_3Contingency
Subject_448 Geo. III., c. 151, sec. 9.
Facts:

A husband brought an action of divorce against his wife before one of the Lords Ordinary, and the wife subsequently raised an action of divorce against her hushand before a different Lord Ordinary. Held that there was between these two actions a contingency in the sense of Stat. 48 Geo. III. c. 151, sec. 9, and an interlocutor remitting the second action ob contingentiam of the first affirmed.

Headnote:

This was an action of divorce at the instance of A against her husband B. The Lord Ordinary ( Ormidale), on the motion of the defender, remitted this case to Lord Barcaple, in terms of Statute 48 Geo. III., c. 151, sec. 9, ob contingentiam of an action of divorce at the defender's instance against his wife presently depending and previously brought before his Lordship.

The pursuer reclaimed.

Judgment:

Young and Trayner, for her, maintained that there was no contingency here in the sense of the Statute. The acts of adultery on the part of the defender set forth in arts. 4, 5, 6, and 7 of the pursuer's condescendence, were met by a simple denial on the part of the defender, and could not be shown to have any relation to the same subject as, or any connection or contingency with, the subject matter of the defender's action against the pursuer. Besides

Page: 689↓

the witnesses in the present action would be difficult to find unless it was proceeded with at once, and if there were delay until both proofs could be led simultaneously, they might be no longer in a position to adduce sufficient evidence.

Fraser, for defender, was not called on.

At advising—

Lord President—This is purely a question under the Statute 48 Geo. III., c. 151, sec. 9. No doubt the language of that section is such as occasionally to cause a good deal of difficulty as to the meaning of the words “relating to the same subject, matter, or thing, or having a connection or contingency therewith.” In regard to this the Second Division had a good deal of difficulty in some recent cases, and especially in The Western Bank of Scotland and Others v. Douglas and Others, 21st January 1860, 22 D., 447, where the Second Division consulted this Division. These were difficult questions—this is not. I don't know what meaning we can put on the words “connection or contingency,” unless they apply to actions of divorce by a wife against her husband, and by the husband against his wife for the purpose of dissolving the same marriage. The two processes will not necessarily be conjoined, though the Statute requires they shall be in one and the same Court, or before one and the same Lord Ordinary. I can imagine one of the parties saying, “I am ready now to prove my case, and should not have to wait till the other party seeks perhaps the whole world over for his witnesses.” Therefore, though I am for adhering to the Lord Ordinary's interlocutor, I don't think the processes should be conjoined.

Lord Deas—I can't conceive a more clear instance of contingency than such a case as the present. As your Lordship says, conjunction does not necessarily follow. It is entirely in the power of the Lord Ordinary to conjoin or not, and I think that very likely in this case he will not. But that does not in the least touch the question of contingency.

Lord Ardmillan concurred.

Solicitors: Agents for Pursuer— Duncan, Dewar, & Black, W.S.

Agent for Defender— J. S. Darling, W.S.

1868

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