"that the deserter, after four years wilful desertion without a reasonable cause, must be first pursued and decerned to adhere, and being thereupon denounced, and also by the church excommunicate, the commissaries are warranted to proceed to divorce." But the man's simple absence will not be accounted a wilful desertion, if he be following any lawful employment abroad, being content to accept and entertain his wife; for she is obliged to follow him wherever he is. The process against the deserter may be commenced one year after the desertion; but the decree of divorce cannot be pronounced till after the expiration of the four years. The court in the first instance will ordain adherence.(i) A wife obtained a decree of adherence, upon which she gave a charge to the defender, her husband, which was disobeyed; he was denounced, and the denunciation was recorded; she then presented a petition to the presbytery to proceed to the admonition and excommunication of her husband; the petition was refused, against which refusal she protested. She afterwards raised an action of divorce, in which the defender stated that he was ready and willing to adhere; it was held that it was incompetent and irrelevant in that action for the defender to offer to adhere to the pursuer.(j), In general the pursuer is entitled to prove his libel in an action of divorce before any proof is had of remissio, but this may be different in special circumstances.(k) The doctrine of recrimination as a bar to divorce in England has been already fully considered,() but in Scotland such a plea is not admitted.(m) Effect of Divorce.]-By divorce upon wilful non-adherence or desertion, the wife of the offending party loses the tocher and all claims for the provisions which are substituted for it; the husband, if guilty, not only forfeits the tocher, but *all the provisions which would have been either legally or conventionally [ *736 ] due to the wife on his death.(n) On a divorce for adultery, the offending husband is allowed to retain the tocher, (o) but the woman, if guilty, forfeits not only the tocher, which is sunk in the communion, but her legal or conventional provision. If the divorce be at her instance, she is merely entitled to her legal or conventional provision as if the marriage had been dissolved by his death. As a conventional provision excludes a legal, so where an entail only allows a certain provision to a widow, she is not, though the divorce be at her instance, entitled, during the other's life, to more than the allowance under the entail.(p) Upon a divorce for impotency all things return (i) 1 Stair's Inst. book 1, tit. 4, pl. 8, and note by Brodie, 29; Erskine's Principles of Law of Scotland, 85, 11th ed. (j) Murray or MLauchlan v. McLauch lan, 1 Dunl. B. & M. 294. (k) Taylor, 22 June, 1832, 10 S. D. B. 680. (1) Ante, p. 439-444. (m) Warrender v. Warrender, 14 Dunl. B. & M. 1099; Bell's Principles of Law of Scotland, 420; ante, p. 440, n. (g) (n) Parl. 1573, c. 55. (0) Erskine's Principles of Law of Scotland, 86, 11th ed. (p) Anderson v. Welsh, 8 Feb. 1734. Mor. 333; Justice v. Murray, 13 Jan. 1761, Mor. 334; Cunningham v. Fairlie, 15 June, 1819, Fac. Coll.; 1 Stair's Inst. by Brodie, 41, n. a. As to the wife's allowance after divorce, see Aitkin v. Greenhill, 4 Shaw & D. 474; Greenhill v. Aitkin, ib. 473; Elgin v. Fergusson, 5 S. & D. 243. to the same condition as before the marriage, because in effect there was no marriage.(q) Cruelty a ground of Separation.]-A husband may, without assigning any reason, remove his wife from his family, though he is still bound to maintain her. But a wife can have no claim against her husband if she voluntarily withdraw from him; and therefore her remedy on maltreatment is a judicial separation.(r) Sævitia or maltreatment, which may be carried to such an excess as to become nearly as immoral and hurtful to society as adultery, is only a ground of divorce a mensa et thoro in Scotland as well as England, even in the most extreme cases.(s) If the wife succeed in obtaining a judicial separation, the court of session will order her aliment suitable to the rank and circumstances of her husband. The difficulty in these cases is to determine what shall amount to ill treatment in the eye of the law, the decisions on this subject are too limited to afford any specific rules. It is against the first principles of marriage to allow [ *737 ] *light matters to constitute the ground for judicial sepa ration. It is only when matters have arrived at some great extremity that a court of justice can interfere. In an early Scotch case(t) the grounds of the decree were, that the husband had shut the lady out all night, had denied her the superintendence of her daughter's education, and had open scandalous conversation with her servant, whom he protected when charged with her crime. When however the parties live unhappily, they may enter into a contract of separation, which courts of law will carry into effect until they are revoked: Where no such contract has been entered into, but the parties have merely chosen to live apart, an action for aliment at the suit of the wife is incompetent.(u) When the husband had granted an annuity to his wife under a voluntary contract of separation, and heritably secured it while solvent, there being no suspicion of fraud, the annuity was found not to be reducible by his creditors while the separation continued.(x) In granting Divorces Collusion guarded against.]—The law dispenses the remedy by divorce with an unwilling hand, as is manifest in the whole proceedings. A jealous anxiety to disregard every admission marks every step. Hence no judgment passes by default without proof; and if the defendant declines to appear, the court are nevertheless bound to proceed with the same formality as if he were present and had maintained the keenest opposition.(y) In actions of divorce, whether between natives or foreigners, there must be no collusion between the pursuer and the defender, either established by direct evidence, or necessarily arising out of the circumstances of the case; that there must not appear the slightest indication of an improper understanding between them, or any want of complete bona fides when founding on the wrongs committed within Scotland as a ground for divorce.(2) (q) Earl of Eglinton v. Lady Eglinton, 14 July, 1610, Mor. 6185; Stair's Inst. book 1, tit. 4, pl, 20. (r) Stair's Inst. by Brodie, p. 42, note. (8) Rep. of Gordon v. Pye, p. 23; Ferg. R. 300. (t) Duchess of Gordon v. Duke of Gordon, 8 June, 1697, Mor. 5902. (u) Bell v. Bell, 22 Feb. 1812, Fac. Coll. (x) M'Gregor's Trustees v. M'Gregor, 22 Jan. 1820, Fac. Coll. (y) Gordon v. Pye, 4to. Fer. R. 317. The plain principles on which what is called collusion vitiates a title to sue is, that the pursuer has been participant of *the [ *738 ] wrongs complained of, by instigating it, or connivance with the perpetration of it, for the sake of the remedy sought after, or some bye purpose. In this view it is obvious, that, though a married person should commit adultery in Scotland, in a way and manner calculated for detection by the innocent party, from the private expectation that such party would thereby be induced to seek the legal remedy of divorce, this could form no sort of objection to the title and interest of the innocent party to demand that remedy. This being the case with natives, foreigners cannot be in a less favourable situation. The purpose of the foreigner in choosing Scotland as the scene for the violation of his marriage vows, cannot disable the innocent party from claiming that redress which the law of Scotland affords for such a wrong. Such party having neither suggested the manner nor furnished the means of perpetration, nor refrained from using means to prevent it, may surely, with a pure and good conscience, claim the redress afforded by law, though more ample than that afforded by the law of his own country, and of course more desired. (a) In all actions of divorce, whether on adultery or wilful desertion, the pursuer must swear that the action is not carried on by collusion ;(b) otherwise parties, contrary to the first law of marriage, might at pleasure disengage themselves from that sacred tie by their own consent. Upon this ground voluntary cohabitation by the injured party, with knowledge of the acts of adultery committed by the other party, imports forgiveness, and will be a bar to an action of divorce for such acts.(c) Proof of collusion, not adduced till after the decree of divorce, will not have the effect of setting aside the prior decree of divorce, but it ought to save the interest [ *739 ] of creditors from being affected by such collusive decrees, so as not to put the wife in immediate possession of her terce or jointure.(o) A wife brought an action of divorce on the ground of adultery against her husband, which was opposed by the trustee for his creditors, so far as related to the pecuniary consequences; the wife emitted an oath de calumnia, and denied collusion; whereupon the trustee offered a proof of collusion; and the guilt of the husband was established; it was held that the proof offered by the trustee after the oath of calumny was incompetent; and that the wife was entitled to a decree of divorce in the usual terms, without any qualification as to the right of the creditors of the husband.(d) Jurisdiction as to Divorce.]-We have already seen that all actions as to marriage, legitimacy, and divorce, formerly vested in the (a) Lord Meadowbank's note in Utterton v. Tewsh, and in Hillary v. Hillary, pp. 94, 95, 4to. Ferg. Rep. 61-63. (b) The formula of the oath of calumny which is administered embraces the following points:-"Compeared A. B. pursuer, who, &c. deposes that there has been no concert or collusion between him and the said defender, in raising this action, in order to obtain a divorce against her, nor docs he know, believe, or suspect that there has been any concert or agreement between any other person on his behalf and the said defender, or any other person on her behalf, with a view or for the purpose of obtaining such divorce, all which is truth, as the deponent shall answer to God."-Ferg. Rep. 363. See idem, 364. 376. 51.233. (c) Watson Mor. Dict. 330; Ersk. Inst. b. i. tit. 6, pl. 43. (0) Erskine's Inst. book 1, tit. 6, pl. 45. (d) Greenhill, 7 Feb. 1822; 1 S. & D. 296; 2 Shaw's Appeal Cases, 435. Commissary Court of Scotland, have been transferred from that court to the Court of Session, subject to ultimate revision by the house of lords. (e) The house of lords in such cases sits as a Scottish Court of appeal, and as such they must be guided by a reference to the principles of the law of that country, and not by the application of the principles of English law, where it cannot be applied consistently with the principles of the law of Scotland.(f) A question was raised whether, in an action of divorce, at a husband's instance, the account incurred by the wife to her law agent, should be taxed against the husband, as between agent and client.(g) Action of Divorce a personal Cause of Complaint.]-The action of divorce is of the nature of a pure personal cause of complaint, which neither the public nor any third party, upon even the strongest ground of patrimonial interest, will be allowed to plead. Divorce is no public vindication of the law but a private remedy merely, and for private purposes. It is a remedy which the injured party only can seek; and if *that party is willing to abstain from demand[ *740 ling it, the marriage will still subsist, and the rights and privileges of the parties will remain the same, just as if the adultery had never been committed.(h) The right of divorce is of a civil nature and a personal privilege, and is competent only to the married parties; it can neither be transferred by them to another, or interfered with by any third parties, whether private individuals, or such as are effectually vested with the right of prosecution in matters connected with the criminal department.(i) General Observations on the Jurisdiction exercised by the Scotch Courts in Dissolving Foreign Marriages.]—We now proceed to the most important class of cases, involving an issue of the highest possible interest to all the subjects of the British empire: The points at issue have received much solemn and deliberate discussion, on the numerous questions which have arisen as to the jurisdiction of the courts of Scotland to dissolve marriages, either actually contracted in England, or at least between parties who, though married in Scotland during a transient visit made for that single purpose, were at the time truly and substantially domiciled in England. According to the decisions of the Scotch courts, the muncipal law of Scotland is applied in dissolving marriages à vinculo in all cases without distinction, whether the parties are foreigners or domiciled subjects and citizens of Scotland; whether, when foreign, the law of their own country affords the same remedy or not, and whether they have contracted their marriage within that realm or in any other; provided only that they have become properly amenable to the jurisdiction of the Scotch forum. None of these last mentioned cases, nor (e) Ante, p. 117. (f) Warrender v. Warrender, 2 Clark & Finn. 560, 561; Macneil v. Macgregor, 2 Bligh, N. S. 490. 18. (g) Taylor v. Taylor, 10 Shaw D. & B. (h) Gordon v. Pye, p. 38, Ferg. Rep. 351. (i)" Personalia autem sunt non ea tuntum, quæ uni certa persona data sed et quæ toti certarum personarum generi, generali lege concessa. Quæcunque autem privilegia sunt personalia, illa nec cessione juris aut actionis in alium possunt personam transferri; cum eâ ratione personam egrederentur, contra concedentis intentionem."-Voet. lib. 24, tit. 2, ss. 6, 8; lib. 48, tit. 5, s. 21; lib. 1, tit. 4, ss. 12, 13. indeed any other from Scotland, in which a question of international law could be raised for trial and *judgment, having hith[ *741 ] erto been appealed, (with the exception of Warrender's case,(j) the rule has for a period of more than twenty years stood as fixed by them, and the subsequent practice has furnished additional instances of its application.(k) Fergusson observes:-The decisions of the Scotch courts, that the mere presence of the defender within Scotland, and the fact of conjugal infidelity, are sufficient both to found jurisdiction over a foreigner by affording opportunity for personal citation, and to authorize the dissolution of a foreign marriage by decree of divorce, evidently demonstrate that unless the remedy in the judicature of Scotland shall be limited either to that which the lex loci contractus affords, or to that which the lex domicilii, taken in the same fair sense as in questions of succession might give, the public decrees of the only court of Scotland, which is competent to pronounce one in such consistorial causes, become proclamations to invite all the married who incline to be free, not in the rest of the British empire alone, but in all countries where marriage is indissoluble by judicial sentence, to seek that object in this tribunal. Adultery and presence within the Scotch territory are the only requisites to found the jurisdiction by citation. What number of foreign parties may accept such an offer, and may even commit the crime there for the very purpose of affording ground for the action, it is impossible to conjecture. But it is manifest that, in exact proportion to their number, injury to the morals of that country must follow; and, by setting at nought the laws of other nations, reproach must be brought upon their own. For all foreign parties, while matters stand upon this footing, have it in their power, with the help of evidence, as casily provided as it may be disgusting and impure, to oblige the Scotch Consistorial Court (now Court of Session) to entertain the whole mass of their foreign causes, although there is no fair interest to insist that the municipal law of Scotland shall decide these by its own peculiar rules. To what extent, therefore, the good order of society may eventually be disturbed by this compulsory abuse and pollution of its jurisdiction, in consequence of the doubts and contests that must *ensue as to rights of legitimacy and succession, no calculation can be made."(7) [ *742 ] The evils here enumerated will for the most part be confined to Scotland, unless foreign countries shall hold the Scotch decree of divorce binding upon the parties when they return to their native country. To what extent Lex Loci Contractus prevails.]-The main ground taken by the English courts is, that an English marriage is by its nature indissoluble, and that as the lex loci contractus regulates other contracts it ought this. The question therefore is, whether or not in a question of status, or that particular relation in domestic life which arises from the matrimonial union, the law of the domicile shall prevail or the law of the contract? We have already observed that the (j) Clark & Finn. 448. (k) Fergusson, cited 2 Clark & Finn. 556. (1) Fergusson's Rep. Intro. 18, 19. |