England, according to the law of England, and it decided that according to the law of Scotland those courts have such power. The facts were these:-Sir George Warrender, a Scotch baronet, possessed of large hereditary estates in Scotland, born and educated in that country, and having there his capital mansion, where he resided the greater part of the year, except when he held office or was attending his parlimentary duties in England, intermarried in London, in 1810, with the daughter of the Viscount Falmouth, Anne Boscawen, who was born and educated in England, and never had been in Scotland previous to the marriage. After that event she was twice there with her husband, but subsequently he resided for the most part in London, to discharge the duties of Lord of the Admiralty and Commissioner of East India Affairs, offices which he held from 1812 to 1819 inclusive. In the latter year, at the end of much domestic dissentions, a separation was determined upon, and an agreement executed by the parties; in which, after setting forth, by way of recital only, their having agreed to live separate, Sir George bound himself to allow Dame Anne Warrender a certain annuity; and it was further agreed that the agreement should only be rescinded by common consent, and in a certain specified manner. In 1834, after the parties had lived separate for fifteen years, Sir George's residence being during the latter part of the time almost constantly on his Scotch estates, and Lady Warrender's varying from one country to another, a few months in England, generally in France, and occasionally in Italy, Sir George brought his suit in the Court of Session, (exercising under the stat. 11 Geo. 4 and 1 Will..4, c. 69, s. 33, the consistorial jurisdiction formerly vested in the Commissaries) for divorce by reason of adultery alleged to have been committed by his wife. The basis of the whole case was, that Sir George Warrender nad been a domiciled resident in Scotland during the whole period, from his

[ *758 ] *marriage up to the commencement of the suit, and to the time of the decision. It followed therefore that Lady Warrender became as his wife similarly domiciled in Scotland; for the principle of the law of both countries equally recognizes the domicile of the husband as that of the wife, no point of law being more clearly established. The marriage in this case, contracted in England between a man Scotch by domicile and birth, and a woman about to become Scotch by the execution of the contract, was considered not as an English marriage, and if not wholly a Scotch contract, at the least a contract partaking as much of the Scotch. as the English. Lord Brougham observed, "In personal contracts much depends upon the parties having regard to the country where it is to be acted under, and to receive its execution; upon their making the contract, with a view to its execution in that country. The marriage contract is emphatically one which parties make with an immediate view to the usual place of their residence. An Englishman marrying in Turkey contracts a marriage of an English kind, that is, excluding plurality of wives, because he is an Englishman and only residing in Turkey, and under the Mahometan law accidentally and temporarily, and because he marries with a view of being a married man and having wife in England, and for English purposes; consequently the incifonts and effects, nay, even the very nature and essence (to use the

language of the appellant's argument) must be ascertained by the English and not by the Turkish law. So of an Englishman marrying in Prussia, where incompatible tempers, that is disagreement, may dissolve the contract; as he marries with a view to English domicile, his contract will be judged by English law, and he cannot apply for a divorce here, upon the ground of incompatible tempers. In like manner a domiciled Scotchman may be said to contract not an English but a Scotch marriage, though the consent wherein it consists may be testified by English solemnities. The Scotch parties, looking to the residence and rights in Scotland, may be held to regard the nature and incidents and consequences of the contract, according to the law of that country, their home: a connection formed for cohabitation, for mutual comfort, protection #and endearment, appears to be a contract having a most peculiar [ *759 ] reference to the contemplated residence of the wedded pair; the home where they are to fulfil their mutual promises, and perform those duties which were the objects of the union; in a word, their domicile ; the place so beautifully described by the civilian:- Domicilii quoque intuitu conveniri quisque potest, in eo scilicet loco, in quo larem, rerumque ac fortunarum suarum summam constituit, unde rursus non sit discessurus, si nihil avocet, undeque cum profectus est, peregrinari videtur.'(o) It certainly may be well urged, both with a view to the general question of lex loci and especially in answering the argument of the alleged essential quality of indissolubility, that the parties to a contract like this must be held emphatically to enter into it with a reference to their own domicile and its laws; that the contract assumes, as it were, a local aspect; but that at any rate, if we infer the nature of any mutual obligation from the presumed intentions of the parties, and if we presume those intentions, from supposing that the parties had a particular system of laws in their view (the only foundation of the argument for the appellant), there is fully more reason to suppose they had the law of their own home in their view, where they proposed to live, than the law of the stranger, under which they happened for the moment to be."(p) It was decided therefore in this case that the Scotch courts have jurisdiction to entertain suits for dissolving marriages contracted and solemnized in England according to the law of England, when the husband's domicile is in Scotland.

3. Scotch Courts have Jurisdiction without Reference to the Parties' native Country, their Place of Residence, or of Marriage.]—The Courts in Scotland have been used from a remote period to pronounce sentences of divorce for adultery, without reference to the country where the marriage was contracted. Lord Brougham was of opinion that the current of judicial authority, and still more the uniform practice of the Scotch Courts, unquestioned ever since the Reformation, established clearly the proposition in its largest sense, that the *Scotch Courts have jurisdiction to divorce where a formal domicile has been acquired by a temporary resi[ *760 ]. dence, without regard to the native country of the parties, the place of their ordinary residence, or the country where the marriage may (0) Voct. ad Pand. lib. 5, tit. 1, s. 93.

(p) 2 Clark & Finn. 535-537.

have been had. (7) In Gordon v. Englegraaf,r) in 1699, the marriage was contracted in Holland, between a Scotchman and a native of Amsterdam. All that was in proof was the fact of adultery committed by her in Holland, and the Scotch Court pronounced a decree of divorce at the suit of the husband. In Graham v. Wilkinson,(s) in 1726, the parties were married in Ireland; the husband a Scotchman; and the wife an Irishwoman. A suit for divorce, on the head of adultery, was instituted by the husband in Scotland, and a decree was pronounced. In 1731 happened the case of Scott v. Boutcher :(1) the marriage was had in England with an Englishwoman, and the adultery was alleged to have been committed in England. The husband, a Scotchman, instituted a suit in the Consistorial Court of Edinburgh, and, on proof of her guilt, obtained in her absence a decree of divorce a vinculo matrimonii. In Urquhart v. Flucher,(u) a Scotchman in the army married at Boston, in New England, a native of that place; they cohabited there and afterwards at Halifax, and lastly in London. The husband finding proofs of adultery committed by the wife in all those places, brought his action for divorce in Scotland, and obtained a decree accordingly. In none of these cases was the objection made that the court in Scotland had not jurisdiction, because the marriage was solemnized or the adultery committed abroad. No doubt was entertained of the jurisdiction upon proof of the adultery until the year 1789, in a case(x) in which the parties were married in England, and in which the question of domicile was the only point contested. The Consistorial Court proceeded to entertain the action, brought by the wife in the absence of the husband, who was cited edictally, but on his *appear[ *761 ] ance, and appeal to the Court of Sessions, the action was ordered to be dismissed, on the ground that the parties were not domiciled in Scotland. In another case in 1794 there was an English marriage according to the English law and ritual; sentence of divorce a vinculo was nevertheless pronounced by the Scotch Courts on proof of adultery.(y)

4. When England is both the Place of the Contract and the Permanent Domicile of the Parties at the date of the Action.]-We now proceed to the question whether a divorce a vinculo should be granted, in conformity to the law of the Scottish jurisdiction, although the parties are English and have been married in England, and retain their real domicile in that country at the date of the action, upon the ground that the defender has been cited and convened in Scotland for adultery committed there; or, in other words, ought the rule of the law of England or that of the municipal law of Scotland to be adopted in such circumstances as the ground of determination? In Duntze or Levett v. Levett (2) the parties were English. The defender did not

(9) Warrender v. Warrender, 2 Cl. & Finn. 556.

(r) Fac. Coll. 9 June, 1699; Ferg. Rep. 251.

(s) Fac. Coll. 16 Dec. 1726; Ferg. Rep. 252.

252.

Fac. Coll. 6 Mar. 1731; Ferg. Rep.

(u) Fac. Coll. 25 Jan. 1787; Ferg. Rep. 259.

(r) Bransdon v. Dunlop, Fac. Coll. 9 Feb, 1789; Ferg. Rep. 259.

(y) The Duchess of Hamilton v. The Duke of Hamilton, Fac. Coll. 7 Feb. 1794; Ferg. Rep. 260. See 2 Clark & Finn. 564–566. (z) Ferg. Rep. 68.

enter appearance, and the commissaries appointed the pursuer (2nd Dec. 1814) to give in an articulate condescendence of the facts she averred relative to the contract of marriage betwixt the parties and the defender's domicile in Scotland. As to the first of these points of fact, she stated in her condescendence, "That the parties were regularly married on the 28th July, 1802, in the parish of St. Marylebone, in the county of Middlesex, according to the forms adopted in the church of England, &c. 2ndly, That the parties continued to cohabit together till the month of October, 1810. At that time the pursuer's husband, Mr. Levett, deserted his house at Greenwich, where he had been residing with the pursuer, and went to London, &c.; and he took up his residence in the Temple Coffee-house, and continued to live there for about fourteen months." As to the second, she alleged, that the defender, in February, 1813, came to Scotland and had con. tinued in that country ever since. *He resided in the town of Dunse, in Berwickshire, from the beginning of [ *762 ] March till August, 1813. He then removed to Coldstream in the same county, where he continued till July 1814. He then removed to the city of Edinburgh, where he has since resided. From the time defender came to Scotland, he cohabited with a woman named Elizabeth Osborn, whom he described to the public as his wife, and he still continued to cohabit with her and to give her that untrue designation. Since the month of February, 1813, the defender has had no lodging or dwelling-house of any kind or description whatever, or place of business, in England, and no one circumstance indicates an intention on his part to return thither, &c. Upon consideration of this pleading ex parte, two of the four judges were of opinion that the action ought to be dismissed, not only because the marriage had been celebrated in England, but because the parties had their real domicile in that country, and, therefore, in every view, the law of England should be adopted as the rule of decision. The primary court afterwards, by the direction of the superior court, proceeded in the action of divorce, in the same manner as if it had been maintained between parties who were citizens of Scotland.

In Kibblewhite or Rowland v. Rowland,(a) which was an action of divorce, the defender made no appearance. The pursuer, in obedience to an order upon her to condescend, explicitly stated, that both of them were citizens of London, where they had been married in the year 1807, and where they had cohabited, her husband following the profession of an attorney in that city. But in the month of August, 1814, he had, according to her allegation, departed upon a jaunt to the English lakes. Afterwards he had proceeded to Edinburgh, whence he wrote to a female in London, whom the pursuer named, with directions to come to him; and this person having complied with his request, it was further asserted, that they had lived together in adultery in Scotland, till the summons was served upon him personally at the hotel in which he lodged, on the 5th October, 1814. It was only added, that the defender, so soon as he received this cita

tion, returned to England. Thus there was no reason [ *763 ]

to presume that either of the parties had any connection

(a) Ferg. Rep. 226–248.

with Scotland, except the defender's visit for a period not exceeding six or seven weeks, during an autumn vacation, in the course of which time the ground for the action of divorce had been laid and communicated to his wife, so that she was enabled to convene him in the Consistorial Court of Scotland, before the approach of the term required his presence again in London. The judges of the primary court were unanimously of opinion in respect that the marriage of the parties was indissoluble by judicial sentence according to the law of England, which was both the locus contractus and the country in which the parties had always, their real domicile; refused to sustain the conclusion of the action as laid for divorce a vinculo matrimonii, but in respect there is no rule of the law of Scotland which prohibits the commissaries from granting divorce a mensa et thoro and for separate aliment for the pursuer, on the grounds alleged in her libel, while a decree as qualified would correspond with the principles of international law, appointed the pursuer to state whether she would restrict the conclusions of her libel. to that inferior remedy. The superior court remitted the case to the commissaries, with instructions to alter their interlocutor and to proceed in the divorce according to the rules of law. Proof of the husband's adultery was allowed, and the action afterwards proceeded in the common form.

In a more recent suit by the wife for a divorce, both the parties were English and had married in England, where they resided till March, 1831. The husband returned to England at the end of July, after a residence in Edinburgh of five months. In June, 1831, the wife brought her action of divorce, founded on acts of adultery committed in Scotland. The Court of the Second Division declared their unanimous opinion that the divorce was grantable, and that proof of the defendant's intention permanently to reside in Scotland was not necessary.(b)

5. Marriage in Scotland between Irish Parties always having their real Domicile in Ireland.]-The next question is, whether [ *764 ] the circumstance that Scotland has been the place of celebration will authorise the dissolution, by judicial sentence, of a marriage between Irish parties, who have always had their real domicile in Ireland.

In Butler or Forbes v. Forbes (c) both parties were confessedly Irish; but the marriage had been celebrated at Port Patrick in Scotland, and was of the same description in all respects with the marriage of English parties at Gretna Green, excepting that it was solemnised regularly by the clergyman of the parish. They had immediately afterwards returned to their native country, and had lived there during the whole period of their cohabitation. According to the allegations of the pursuer, the defender had afterwards come to Scotland, and had resided there without any establishment or fixed abode, from December, 1813, to the 14th March, 1814, when he was personally cited at Edinburgh, and, during this residence, had committed adultery in Scotland. On these grounds she insisted for a divorce a vinculo matrimonii. The defender gave no opposition to the action,

(b) Oldaker v. ——, Fac. Coll. 20 Feb. (c) 7 March, 1817, Ferg. R. 209. 225,

18:4; 10 Shaw, D. & B. 468.