Green. Afterwards, they had cohabited together as husband and wife, in Scotland and at the stations of his regiment in England and in India. But the defender having fallen into bad health when abroad, left her husband upon duty in India, and returned to Britain, where she was guilty of adultery, while in Scotland on a visit to his relations, and afterwards at her residence in London.

She was personally served with a copy of the summons at her house in London. But she got no regular citation, and made no appearance. The Commissaries "dismissed the action, in respect the defender was not cited within Scotland, nor in any shape amenable to the Courts of this country."

In a bill of advocation, the pursuer pleaded, that Scotland was the place of the contract, and also of his domicil, and, consequently, by construction of law, was his wife's domicil.

"The Lord Ordinary, having advised with the Lords, remitted to the Commissaries, with instructions to sustain their jurisdiction."

In the report for the Faculty of Advocates, it is mentioned, in explanation of this judgment, that it was "observed on the bench-The case of Lunan is decisive of the present, which is even more favourable for the pursuer from his domicil being in Scotland, from which that of his wife cannot be separated. But the defender should have been cited both at market cross, and pier and shore, and at the house of her husband.” 27th June 1801. ELIZABETH ANN WYCHE and Attorney against CHARLES Burrel BLOUNT.

THE parties in this case were both English, and married at Gretna Green. Afterwards, they cohabited as husband and wife in England, till the defender deserted the society of the pursuer, and having been guilty of adultery in Scotland, was cited personally in the action, at the quarters of a regiment in which he held a commission at Musselburgh.

The defender made no appearance, and the Commissaries having allowed a proof before answer, which was taken by commission in England, and afterwards (20th February 1801), "Having considered and compared the libel with the proof, found it not proved, either that the marriage of the pursuer or the defender, who are not Scotch but English by birth, was celebrated in Scotland, or that they cohabited in Scotland as husband and wife any time after their marriage, or that the defender has had any sufficient or settled residence in Scotland, or even that the crime on which the divorce is founded was committed in Scotland; therefore found, that the action is not competent in Scotland, and ought not to have been brought before this Court; and dismissed the process for want of jurisdiction."

But this judgment being submitted to review of the Superior Court, the Lord Ordinary (Meadowbank), after reporting a bill of advocation, "remitted to the Commissaries, with instructions to sustain their jurisdiction in this case, in respect the summons was executed against the defender when resident in Scotland, and possessing a domicil there: Find it competent to refer to the oath of the defender, the authenticity of his subscription at the certificate of marriage produced, and that said certificate is genuine; admit the said reference, and grant commission accordingly."

A reference was accordingly made to the defender's oath; and, in

obedience to the direction of the Superior Court, the Commissaries having ordained him to depone, he disobeyed, and was held as confessed, and decree was pronounced against him, in terms of the libel. (a)

27th June 1801.

MARIA MORCOMв against JOHN LAW MACCLELLAND. THE defender, in this case, was a Scotch surgeon, who had entered into the service of the navy, and while stationed in a receiving ship at Plymouth, had there married the pursuer, who was an Englishwoman. She alleged, that after many years cohabitation there, he had deserted her society, and been guilty of adultery. The citation was edictal; but a certificate by a notary was produced, that a copy of the summons had been delivered to the defender personally at Plymouth. He appeared, and declined the jurisdiction of the Commissaries, and their judgment was in these terms: "Considering that the courts of one country ought not to be converted into engines, for either eluding the laws of another, or determining matters foreign to that territory, and that decrees of divorce, pronounced by incompetent courts, cannot effectually and securely either loose the bonds, or dissolve the marriages, or fix the status of the parties thereto, but might become causes or snares to involve other persons, as well as the parties and their children, in deep distress; and observing it to be admitted in the libel, that the marriage of the pursuer and defender was celebrated in England; that they resided constantly in England since their marriage, and even that the crime on which divorce is here demanded to be decreed was committed in England; therefore find, that the action is not competent in Scotland, and ought not to have been brought before this Court; and dismiss the process in all its parts, for want of jurisdiction and of power."

pre

Lord Armadale, the ordinary, refused a bill of advocation, and the pursuer, in reclaiming petition, pleaded, that in a question like the sent, the defender would be amenable to the Courts of Scotland, even ratione originis; but in truth, having been constantly in the navy service ever since he left Scotland, he has acquired no other forum, and, consequently, the country in which he was born and educated is still his proper domicil; according to the decisions in the cases of (11th June 1745) Dodds against Westcomb; 8th March 1796, Pirie against Lunan; 13th June 1800, French against Pilcher.

The Lords unanimously refused the petition without answers.

MURRAY against LINDLEY.

8th March 1805.

THE parties in this case were English, and were married in Ireland. The defender came to Scotland as an officer of an English regiment of militia, and was personally cited there in an action of divorce for adultery. He entered appearance, and denied the relevancy of the libel. After his defences had been repelled, he objected to the jurisdiction, by the form of petition, against the interlocutor. The Commissaries found, that the jurisdiction had been prorogated. A bill of advocation was. refused by the Lord Ordinary, (Cullen) and his Lordship's interlocutor was adhered to by the whole Court of Session, upon considering a petition with answers.

(a) The defender in this case had no other domicil in Scotland but the station at which he resided while on military duty.

THE pursuer, in this case, was a Scotchman by birth, and heir of entail of an estate in Scotland. He entered into the army, He entered into the army, and married, when with his regiment at Gibraltar in 1781, Miss Tovey, the daughter of an English officer, with whom he afterwards cohabited there as his wife, till some time in the year 1784. From that period till the end of the year 1792, their permanent residence was in Scotland. They then removed to Durham, where his family remained, and where he lived with them, when not employed on military duty, till December 1802, when the parties entered into a voluntary contract of separation. Afterwards the pursuer resided in Scotland, when not from home on duty.

In December 1804, the pursuer commenced an action in the Consistorial Court of Scotland, the summons of which concluded, in the usual style, for divorce a vinculo matrimonii, upon allegations of criminality, both before and after the separation, the date of which was specified.

A preliminary defence was stated, declining the jurisdiction, on which an interlocutor was pronounced (5th April 1805), finding, "that the Commissaries of Edinburgh have a proper jurisdiction in the pre

sent instance."

The defender presented a bill of advocation, complaining of this interlocutor, which was refused by Lord Bannatyne, Ordinary (22d May 1806), and, upon a petition to the whole Court of Review (27th January 1807), his Lordship's interlocutor was adhered to.

An appeal was taken against these interlocutors to the House of Lords, and the judgment pronounced was in these terms: "Ordered and adjudged, that the cause be remitted back to the Court of Session, to review their interlocutors complained of, and to do therein what to the Court shall seem just; and it is further ordered, that the Court do give all necessary directions, as well in the said Court as to the Commissaries of Edinburgh, for enabling the said Court effectually to carry into execution the judgment of the said Court, which shall be pronounced after such review."(a)

12th October 1810.

Lady PAGET and her Attorney against Lord PAGET. THE action in this case concluded, in the usual form, for dissolution of a marriage celebrated in England, on the ground of adultery committed both in that country and in Scotland. It was served personally upon the defender, at the House of Lude, in the county of Perth, where the defender had been previously living as tenant of the proprietor for several months. No appearance was made for the defender, when the cause came to be moved in Court, and upon a regular application by petition, showing reason, a commission was granted by the.

(a) The above abstract of this case is intended merely as a reference to the report of the decision of the Court of Session, published by the Collectors for the Faculty of Advocates, and to that of the judgment of remit in the House of Lords by Mr. Dow. It is, however, sufficient to show, that the preliminary point of jurisdiction only was submitted to the consideration of the Radical Court in Scotland, and by a very imperfect statement of the circumstances from which the question arose.

Judge officiating in ordinary, according to previous practice, for taking the defendant's oath of calumny in England. Afterwards defences were lodged, which contained a mere denial of the libel. The pursuer was then ordained "to give in a special condescendence of the facts she averred, and would undertake to prove, in support of the conclusions of her libel, and therein to state the persons with whom, the places where, and the dates on which the alleged acts of adultery had been committed."

In compliance with this order, she entered into a minute detail of the defender's desertion and guilt. He lodged answers, in which he said, that he "rested his defence on the pursuer's inability to prove her averments." But in which he also pleaded, that no proof should be allowed of the facts alleged, which were previous in date to a reconciliation which had taken place between the parties in the year 1809, and after his original desertion of the pursuer.

The interlocutor upon these pleadings (21st September 1810) allowed a proof of the marriage between the parties, and of the alleged adultery of the defender in Scotland to the pursuer, and a conjunct probation to the defender. In this proof he joined issue, as seriously maintaining his defence. But his guilt being clearly established, decree was pronounced in common form.

10th January 1811.

MARGARET WILCOX against RICHARD PARRY, Esq. By the proof in this case it was established that the parties were English, and having eloped from their families, were married irregularly at Annan, in the county of Dumfries, and that, after they had cohabited sometime as husband and wife in the neighbourhood of London, the defender had deserted her society, and been guilty of adultery in Scotland. He made no appearance, and decree of divorce was pronounced in absence.

7th June 1811.

ELIZABETH ALDOWS against HENRY ALDEN. DECREE of divorce a vinculo was given against the defender in absence, upon proof that he was living in Scotland at the date of citation, and had, for some time before, resided here, and had committed adultery in this kingdom, although the parties had been married, and had cohabited in England, and had their real domicil in England, of which country both were natives and subjects.

28th June 1811.

Mrs. MARY RODGERS against C. B. WYATT, Esq. THE parties were married in England, and had cohabited together only in that country, of which they were natives. But the pursuer alleged, that he had deserted her society, and been guilty of adultery, both in England and Scotland. He was personally cited, and having made appearance, stated in defence, that the allegations set forth by the pursuer must be proved. He has no objection to such proof being allowed, at the same time he reserves to himself the privilege of vindication, upon the proof being reported, if so advised; and further craves to be allowed a conjunct probation."

Two successive petitions, for a commission to take the pursuer's oath of calumny in London, were refused, and she appeared in Court, and deponed that there was no collusion. Afterwards a proof was taken, VOL. III.

54

which fully established the defender's guilt, and decree was pronounced in terms of the libel.

25th October 1811.

UTTERTON against ТEWSH.(a)

10th January 1812.

Lady HILLARY against Sir WILLIAM HILLARY.

THIS case was similar to that of Tewsh, and, after going through the same course of procedure, was decided according to the instructions of Lord Meadowbank, Ordinary, by interlocutor of remit from the Superior Court, upon a bill of advocation, accompanied by a note of his Lordship, in the same terms as in the case of Tewsh.

10th January 1812. Mrs. FRANCIS HEWET and Attorney against JAMES WEBBER, Esq. THE circumstances of this case also were similar to those of the two preceding cases of Tewsh and Hillary, except that the defender made no appearance. The procedure in it was, however, sisted by the Commissaries, when the bills of advocation in these were presented, till the judgment of the Superior Court upon the general question should be obtained. Afterwards, in conformity to that decision, the proof of the defender's guilt being complete, decree was pronounced in terms of the libel.

6th March 1812.

JOHN WHITE, Esq. against ESTHER HESTER. DECREE of divorce a vinculo of an English marriage between these parties was pronounced, upon proof that the defender was living as a common prostitute at Edinburgh, in conformity to the decisions of the Superior Court, in the preceding cases of Tewsh and Hillary, although she had appeared, and pleaded, that the lex loci contractus ought to govern, and that her husband was an English gentleman, who had no domicil in Scotland.

20th March 1812.

ANN SUGDEN against WILLIAM MARTIN LOLLY. THE summons in this case alleged, "that, in the year 1800, or thereby, the pursuer was married at Liverpool to the said William Martin Lolly, and, in consequence of their marriage, they afterwards cohabited together as husband and wife," &c. but alleged, "that the said William Martin Lolly, defender, having some time ago had occasion to come to Edinburgh, the pursuer accompanied him thither, and since their arrival they have lodged in Mackay's inn, Grassmarket, Edinburgh: That since the said William Lolly, defender, came to Edinburgh, he has also at different times and places given himself up to adulterous practices," of which a detail followed. She also accused him of previous adulteries in England; and, upon these charges of adultery, she concluded for divorce in the usual form.

Defences were lodged, which bore, that, referring to the libel as laid, the defender denies the same, except in so far as it states that the pursuer and defender were married together at Liverpool, and cohabited

(a) See the first Report of this volume. To give a connected view of the whole course of decisions, an abstract of those which followed is likewise added here.