Scottish Court of Session Decisions

Lord President—The facts out of which this reclaiming note arises are these: Mr and Mrs Bridges raised what are sometimes called, though it is not a very accurate expression, mutual actions of divorce. These actions came to depend before the same Lord Ordinary; the proofs in the two actions were led on the same day, and the Lord Ordinary pronounced judgment on the same day in both actions. In the action by the husband against the wife he found the wife guilty of adultery and pronounced decree of divorce, whereas in the action at the wife's instance he found her averments not proved, and assoilzied the husband from the conclusions of the action. The present reclaiming note is taken by the wife against the decree which assoilzied her husband, but she has not presented a reclaiming note against the decree which divorced her, and accordingly that decree is now final.

The question raised by the respondent was argued to us as one of competency. I do not think it is a question of competency, and so far as competency is concerned there is no reason why the case should not go to the roll. But as the whole question was argued before us, I see no reason for sending it to the roll, because nothing more can be said, and accordingly I think we can give judgment at once.

The point argued was that it was impossible for us now to deal with the Lord Ordinary's judgment in this case, in respect that it will be impossible for us to reach an opposite conclusion from his Lordship, because there is now no marriage to dissolve. The marriage has already been dissolved by a final decree in the husband's action, and it was argued that, that being so, it is impossible for us in this action to recal the decree of absolvitor of the husband and to pronounce decree against him. I think that that argument must prevail, and this really follows from what was said by the Lord President in the case of Walker v. Walker, 9 Macph. 460, where one action was allowed to catch up the other just in order to avoid the situation which we have here. I think the present case is in exactly the same position as if one of the parties had died. If a spouse raises an action of divorce, and during the pendency of that action the other spouse dies, the proceedings fall, because decree of divorce can no longer be pronounced. Accordingly I am of opinion here that although the question is not strictly one of competency we should refuse the reclaiming note, because really it is impossible for the case to go on.

I wish to add that as we thought the question one of general interest and of difficulty, we consulted the Second Division on the matter, and the Second Division are unanimously of the opinion I have just expressed.

Lord Kinnear — I concur. I think it clear that we cannot entertain as an open question, a question that has already been decided by a final judgment which we have no power to review. If the summons had contained any separate or separable conclusion rested upon some other basis than the marriage which the pursuer seeks to dissolve, I think it might have been right and proper that we should have allowed that separate conclusion to remain and consider it on its own merits. But there is no such conclusion in this action, because all the conclusions are in reality consequences of the main decree in which the pursuer asks divorce. I therefore agree that the present reclaiming note cannot be entertained.

Lord Johnston—In this case the Lord Ordinary pronounced decree of divorce for adultery at the instance of Mr Bridges against his wife, and, by her failure to reclaim, that decree has become final and cannot now be reviewed. As it stands it forms res judicata against Mrs Bridges.

But Mrs Bridges had also raised a counter action of divorce against her husband, and in this also the parties had not merely joined issue before decree in the action at Mr Bridges' instance, but the actions which could not be conjoined were running pari passu.

It is maintained that the moment the decree in the husband's action had become final, the marriage being then dissolved, the wife's action ipso facto fell and could not be proceeded with.

When the case was discussed in the Single Bills I was disposed to think, notwithstanding what was said in the case of Brodie, 8 Macph. 854, that this was not a necessary result of what has happened here.

The parties had, as I have said, joined issue on the counter action on the question whether facts and circumstances exist which require the Court to divorce and separate the husband from the wife and her society, to find and declare that he has forfeited all the rights and privileges of a lawful husband. As certain of these rights and privileges are or may be patrimonial,

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