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No appearance was made for the defender, and (on 11th July) the Lord Ordinary appointed the pursuer to give in a minute ‘as to the effect which his having, since this action came into Court, obtained this separation, would have upon his right to insist in the present action, and generally upon the question as to the jurisdiction of this Court to give decree.’
The Lord Ordinary having reported the case to the Court, their Lordships of the First Division remitted to take the opinion of the whole Judges, who returned the following opinion:
Lords Glenlee, Meadowbank, Fullerton, Jeffrey, Cockburn and Cuninghame .—We are of opinion, that the proceedings had, and the judgment obtained by the pursuer in the Consistory Court of England, render it incompetent for him now to insist in the present action; and that it must therefore be dismissed.
The date of commencing these proceedings in England has not been stated. If it was prior to the institution of the action here, it was lis alibi pendens, and should have prevented this action from being entertained.
But however that may be, we are of opinion that the decree obtained in England, before any sentence has been pronounced in the courts of Scotland, excludes the pursuer from all right to insist in those courts; and, in fact, leaves him no farther ground of action in respect of the alleged adultery of the defender.
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