Scottish Court of Session Decisions

Lord President—If Colonel Hibbert be allowed to appeal this judgment to the House of Lords, the pursuer will either proceed with the action of divorce here or he will not. If he be prevented from proceeding with the cause, not by legal impediment, but by a consideration of the inexpediency of proceeding pending this appeal, the result will be an indefinite delay. If he does proceed, it will be in the absence of Colonel Hibbert, the co-defender. Now, supposing the pursuer successful in proving the acts of adultery alleged against this co-defender, would he be entitled to decree for expenses against him in his absence? I very much doubt whether he would be entitled to such a decree, and consequently, if we allow this appeal we may deprive the pursuer of his right to recover the expenses of process from the co-defender, which is in truth one of the main objects of making him a party to the action.

The counter action by Mrs Fraser complicates the difficulty which I have stated.

On the other hand, it does not appear that our refusal to allow this appeal will entail any material hardship upon Colonel Hibbert. The cause will proceed to its conclusion according to present practice within a very few months. Thereafter, Colonel Hibbert may appeal our former judgment on the question of jurisdiction, and the judgment on the merits at the same time. So far as the co-defender is concerned, therefore, this course will cause him very slight delay, while the other course would occasion indefinite delay and great inconvenience to the pursuer. I am therefore for refusing this petition.

Lord Deas—I think we ought to do nothing which may stop the progress of this action of divorce. If I thought granting leave to appeal would do so, that would be conclusive to my mind; but I confess that I am not satisfied that it would have that effect. Suppose, for instance, that instead of a unanimous judgment there had been a difference of opinion on the bench, then Colonel Hibbert might have appealed without leave asked. Then the question would have arisen, whether an appeal by him upon the question of jurisdiction would have the effect of preventing the pursuer here going on with his suit as against him? As at present advised, I cannot come to that conclusion.

Suppose, again, that the pursuer was successful in his action against the co-defender, and on appeal to the House of Lords it was afterwards held that the co-defender had never been subject to the jurisdiction of this Court, I confess that, to my mind, he would have suffered material hardship from the course which your Lordships are now going to adopt.

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