Scottish Court of Session Decisions

On 12th October 1896 Lady Ross, wife of Sir Charles Ross of Balnagown, Ross-shire, raised an action of divorce against her husband on the ground of adultery.

No defences were lodged, and upon 31st October the Lord Ordinary ( Kyllachy) found the libel relevant and appointed the proof to be taken on 11th December.

On 8th December Sir Charles Ross raised an action of divorce against his wife on the ground of adultery, and on 9th December the following interlocutor was pronounced—“The Lord Ordinary, in respect it is stated that a counter action has been served, discharges the diet of proof for the 11th inst.”

The following interlocutors were further pronounced, in the cause:—“17 th February 1897.—The Lord Ordinary appoints the proof allowed by the preceding interlocutor of 31st October last to take place on Wednesday, the 17th day of March next, at ten o'clock forenoon, and of new grants diligence for citing witnesses and havers.” “17 th March 1897.—Finds facts, circumstances, and qualifications proved relevant to infer that the defender Sir Charles Henry Augustus Frederick Lockhart Ross, baron et, has committed adultery: Finds him guilty of adultery accordingly; but quoad ultra, in respect of the dependence of a counter action at the instance of the defender against the pursuer, supersedes further consideration of this cause until the said counter action is ripe for judgment.” “20 th March 1897.—… The Lord Ordinary, on the motion of the pursuer, and in respect the proof in the counter action does not take place until the 19th May next, decerns ad Interim against the defender for payment to the pursuer of the additional sum of £100 in name of aliment.” “12 th June 1897.—The Lord Ordinary, in respect of the finding contained in the preceding interlocutor of 20th March last, divorces and separates the defender Sir Charles Henry Augustus Frederick Lockhart Ross from the pursuer Dame Florence Winifred Berens or Ross, her society, fellowship, and company, in all time coming, and finds, declares, and decerns in terms of the conclusions of the libel: Finds the pursuer entitled to expenses,” &c.

Proof in the counter-action had been led before the interlocutor last quoted was pronounced.

From the statements of counsel at the bar it appeared that the defender's counsel did not cross-examine any of the witnesses at the proof, but when the proof was closed asked the Lord Ordinary not to pronounce decree until the counter-action should be determined. The defender, however, did not resist the granting of decree of divorce on 12th June, or in any way contest the case on the merits.

The defender reclaimed against the interlocutor of 12th June 1897.

On the reclaiming-note appearing in the Single Bills, the pursuer argued that it was incompetent, on the ground that the decree appealed against was a decree in absence, the defender not having been present at the proof, and that his remedy would have been to apply to be reponed within ten days of judgment being pronounced in terms of section 23 of the Court of Session Act 1868. The period of ten days having expired, the decree of divorce had become final.

Argued for the defender—The reclaiming-note was competent. Every consistorial action was in foro, and section 23 of the Act of 1868 applied only to cases appearing in the undefended roll, where no consistorial action ever did appear. Even if this rule were held not established, the defender had appeared at critical stages of the case. The defender referred to 11 Geo. IV. and 1 Will. IV. cap. 69, sec. 11.