John Edward Geils, - Appellant; Frances Geils, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1851 |
| Date | 08 May 1851 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 108
House of Lords
Mews' Dig. i. 328, 354. S.C. 1 Macq. 36, 255 (Mews' Dig. viii. 226). Considered,
as reported in 1 Macq. 255, in Harvey v. Farnie, 1880-82, 5 P.D. 159; 6 P.D. 46; 8 A.C. 43; and Stevens v. Stevens, 1882, 9 Rettie, 730.
Appeal - Competency of - Pleading - Dilatory Defence - Practice - Right to begin - Costs.
[280] JOHN EDWARD GEILS,-Appellant; FRANCES GEILS,-Respondent [May 8, 1851]. [Mews' Dig. i. 328, 354. S.C. 1 Macq. 36, 255 (Mews' Dig. viii. 226). Considered, as reported in 1 Macq. 255, in Harvey v. Farnie, 1880-82, 5 P.O. 159 ; 6 P.D. 46; 8 A.C. 43; and Stevens v. Stevens, 1882, 9 Rettie, 730.] Appeal-Competency of-Pleading-Dilatory Defence-Practice-Bight to begin- Costs. A plea which does not merely raise an objection to a particular form of proceeding, leaving it to the plaintiff to proceed in a different form at another time, but which, if allowed, entirely bars the plaintiff from his remedy, is a peremptory and not a dilatory plea, within the 6 Geo. 4, c. 120, s. 5, and a decree thereon may be subject of appeal to this House. A Scotchman was married in England to an Englishwoman, and then returned to Scotland, where he was domiciled. Some years afterwards, the wife quitted Scotland, and returned to England, where she lived separate from her husband. He came to England, and instituted proceedings in the Arches Court for a restitution of conjugal rights. The wife, in her responsive allegations, charged him with adultery, and on that charge prayed for a divorce a mensa et thoro. Judgment was given in her favour. The husband returned to Scotland, where the wife instituted a suit for divorce a vinculo. The husband pleaded the proceedings in the Arches Court as a bar to further proceedings in Scotland: Held, that this plea raised a peremptory or substantial defence, and that a judgment thereon might be made the subject of appeal to this House. Where a petition to dismiss an appeal for incompetency has been directed by the Appeal Committee to be argued at the bar of the House, the counsel for the petitioner is entitled to begin. The petition was dismissed, but the costs were reserved. The respondent in this case was the wife of the appellant, and on the 17th of 108 GEILS V. GEILS [1851] III H.L.C., 281 May, 1849, instituted an action of divorce against him in the Court of Session, upon the ground of adultery. She was an Englishwoman, the daughter of Charles Dickinson, Esq., of Farley Hill, in Berkshire, and on the 8th of October, 1838, was married by license, at the church of Swallowfield, in that county, [281] to Mr. Geils, a domiciled Scotchman, whose residence was in Dumbartonshire. They went to Scotland directly afterwards, and remained there till 1845, when Mrs. Geils, on account of alleged adultery on the part of her husband, quitted his house, and came to England. The summons alleged acts of adultery with certain women, specially named, and prayed for a divorce a vinculo matrimonii. Mr. Geils put in defences, in which, besides denying the alleged acts of adultery, he stated that, in October, 1845, Mrs. Geils had instituted a suit against him * in the Arches Court of Canterbury, founded upon the same grounds of charge as those now set up in the suit in the Court of Session; and that, in April, 1848, that Court of Arches pronounced a sentence of separation a mensd et tJioro. He then put in six pleas in law; first, denying the jurisdiction of the Court of Session, as the wife was a native of England, and the marriage had been solemnized in England, and according to the forms of the English Church; secondly, that the suit and decree in the Arches Court were a bar to further proceedings in Scotland ; thirdly, that the charges were vague in themselves, and not properly laid; fourthly, that as the alleged acts of adultery took place before August, 1843, with parties some of whom are now dead, the delay was a bar to the suit; fifthly, that there had been condonation, or, as it is called in the Scotch law, remissio injuriarum: and sixthly, that the charges were untrue. On the 16th of November, 1849, Lord Wood, the Lord Ordinary, repelled the first preliminary defence, reserved the second until satisfactory evidence of the nature of the proceedings [282] in the Arches Court should have been adduced, repelled the third in part, but allowed the remainder to become the subject of proof, and repelled the fourth. The Lord Ordinary directed that the opinions of English counsel should be taken on the subject of the second preliminary defence, and considering these opinions, he repelled that defence. This interlocutor was appealed against, but was confirmed by a majority of the judges of the First Division of the Court of Session, Lord Fullerton being the only dissentient. The present appeal was brought against the Lord Ordinary's interlocutor, and the judges of the First Division affirming it, the question intended to be raised by the appeal was, whether the decree obtained by Mrs. Geils, as a defendant in the Arches Court, for a divorce a mensa et thoro, prevented her from, asking as a plaintiff or pursuer in the Scotch Courts for a further and more complete remedy. No leave to...
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