although at an early stage of the process he made appearance, which he afterwards withdrew. The judgment of the commissaries was, that the circumstances alleged by the pursuer were insufficient, if proved, to entitle the court to hold that the defender had changed his original domicile of Ireland, where he was subject to the English law, so as at the date of this action to have acquired a real and true domicile in Scotland,' his residence in which, for the period alleged, might even have been adopted for the purpose of founding this action: found, that transient or temporary residence of a foreigner, and citation within Scotland, although sufficient to convene him as a defender, and to found jurisdiction, do not, according to the principles of international law, warrant the Scotch court to apply its own law as the rule of decision in a question affecting status, so as to entertain a conclusion for dissolving his marriage by sentence of divorce, in opposition to the law of his proper domicile:-found, that the right of divorce is a matter of municipal regulation, and to be carefully distinguished from those qualities of marriage which are essential to the relation itself, as a contract juris gentium: [ #765 ] -found, that all municipal regulations regarding marriage, while they cannot in any way be controlled by the will of parties, are not in their nature indelible, but may be affected by every change in the real and true domicile:-farther, found, that the alleged commission of adultery within Scotland does not warrant the court to apply its own law, with regard to conclusions of divorce against a foreigner; because, in consistorial cases, acts of adultery are founded upon by the pursuer merely for his private redress ad civilem effectum, and in these cases, the locus delicti is of no importance, although in criminal cases, where the offence is prosecuted ad vindictam publicam, the locus delicti is an essential circumstance; therefore assoilzie the defender from the conclusions of the libel and decern. The Court of Review remitted the case to the commissaries, directing them to alter their former interlocutor, to allow the pursuer to prove that the defender was domiciled and resident in Scotland when the action was raised. A divorce was ultimately decreed.

A husband, who had deserted his wife in England, and without her knowledge went to Scotland, and after being forty days there, raised an action of divorce against her, and gave her no other notice than the usual edictal citation, and both parties were natives of Ireland, and never in Scotland except for a single day, when they were married; it was held that a decree was ineffectual.(d)

The case of English parties going to Scotland for the sole purpose of being married, and immediately thereafter returning to England, has been regarded as really and truly the same with a proper English marriage; the only point of difference, viz. the marriage actually taking place in Scotland, being, indeed, an additional circumstance in favour of the Scotch jurisdiction. The jurisdiction of the commissaries was sustained in a process of divorce for adultery, the summons having been executed against the defender personally when resident with his regiment quartered in Scotland, although the mar(d) Blake v. Blake, 4 Shaw & Dunl. 795.

SEPTEMBER, 18:1.-2 P

riage had been irregurarly celebrated at Gretna Green,

[*766 ] *the parties were English, and had lived together only in

England, and the crime was committed there.(e)

6. With respect to the residence necessary to give the Scotch courts Jurisdiction.]-Even where both the parties to the English marriage are themselves natives of England, and have no view whatever to change either their domicile or the law under which they married, yet still the Scotch courts are competent to dissolve such a marriage, and they will accordingly sustain process of divorce to that effect, provided merely that such a domicile has been acquired in Scotland by the defender as would be sufficient to found ordinary civil jurisdiction, viz. by simple residence for forty days.(ƒ) In Utterton or Tewsh v. Teush(g) the defender was cited in Scotland by a personal service of a summons, in which the pursuer stated that the parties had been married in England in 1790, and had cohabited there till the beginning of 1806, but alleged that he had then deserted her society, and had afterwards lived in adultery with different women both in England and Scotland. The husband submitted the question of jurisdiction to the court, and the pursuer was directed to state the grounds on which the suit could be maintained. In her answer the pursuer stated that the defender was resident in Scotland for more ihan forty days before the action was raised-that several of the acts of adultery charged in the libel were committed in Scotland-and that he was personally cited there-had appeared and put in defence. The judgment of the court was in respect the pursuer and defender are English, and never cohabited as husband and wife in Scotland, and that there are no sufficient circumstances stated to prove or render it presumable that the defender has taken up a fixed and permanent residence in Scotland, found that the court has no jurisdiction, and dismissed the action. This interlocutor having been brought under the review of the superior court was reversed, and the cause remitted to the commissaries with directions to sustain their jurisdiction, and the allegations of the pursuer having been satisfactorily established, decree of divorce a vinculo mat[ *767 ]rimonii was given in the common form.

An action is competent before the court of session for dissolving a marriage contracted in England by English parties, on the ground of adultery committed in Scotland, where the parties have resided upwards of forty days before the action is instituted, and where the defender was personally cited.(h) The same seems to have been decided where the defender without even acquiring a domicile had merely prorogated the jurisdiction of the commissaries.(i)

Lord Brougham observed, (k) "That Englishmen temporarily residing in Scotland have been in use to sue for divorces from marriages contracted in England ever since the intercourse of the two

(e) Wyche v. Blount, Dict. Forum compe. tens, App. No. 2, p. 2; Ferg. R. 291; Forbes, 1 June, 1816, Fac. Coll.

(f) See Ferg. 469.

Ferg. Rep. 23.

Oldaker or Goldney v. Her Husband,
. Coll. 278; Edmonstone v. Lockhart,

Ferg. Rep. 168; Duntze v. Levett, ib. 68; Butler v. Forbes, ib. 209; Gordon v. Pye, ib. 357; and Sugden v. Lolley, ib. 269.

(i) Murray v. Lindley, Dict. Forum competens, App. No. 5, p. 11.

(k) Warrender v. Warrender, 2, Clark & Finn. 552, 553.

countries became constant by the union, first of the crowns and then of the kingdoms, is a fact of much importance, and it is not disputed. The importance of it is this-that the courts administering the law of divorce have, with a full knowledge that they were dissolving English marriages, never inquired further than was necessary for ascertaining that the pursuers and defenders had acquired a domicile in Scotland, and then exercised the jurisdiction without scruple and without any hesitation.”

It seems to have been the course of decision in Scotland up to the present time to consider that the Scotch courts have a right to entertain jurisdiction with respect to marriages had in England after the parties had been resident for a certain period in Scotland, though that period had been infinitely too short to constitute what can be called a legal domicile, and that these courts have preceded in such cases to divorce a vinculo. At one time the Commissary Court in Scotland was much inclined in such cases to modify that remedy by substituting for the divorce a vinculo separation a mensa et thoro, but the Court of Session, the court of appeal, overruled the decisions of the Commissary Court, refusing the divorce a *vinculo, and [ *768 ] directed that court to proceed in the accustomed and ordinary way. None of these cases however, it is believed, have received the sanction of the house of lords.() The proceeding for a divorce in England is a bar to a similar proceeding at the same time. in the courts of Scotland.

A marriage was contracted in England between parties who were English by birth and domicile, the husband afterwards went to Scotland, and having resided there for upwards of forty days, raised an action of divorce, alleging his wife to have committed acts of adultery in England; the action was executed against the defender both at the pursuer's residence in Scotland and also edictally; no appearance was made for her; during the proceedings, the pursuer obtained a decree in the Consistory Court of England, "divorcing and separating the parties from bed, board, and mutual cohabitation; it was held that it was not competent to the husband to proceed with the action in the Scotch court. The date of the commencement of the proceedings in England was not stated. It was said that if it was prior to the institution of the suit in Scotland, it was lis alibi pendens, and should have prevented the action from being entertained. But however that might be, the judges were of opinion, that the decree obtained in England, before any sentence had been pronounced in the courts of Scotland, excluded the pursuer from all right to insist in those courts; and in fact left him no further ground of action, in respect of the alleged adultery of the defender. For the pursuer having already obtained all the reparation afforded by the law of his own country, could not afterwards insist for any additional, reparation from the law of another country, though he might have qualified himself by forty days' residence to sue in its courts.(p)

In Pierie v. Lunan, (m) at the date of the action, and many years before, the parties had their only domicile in London, where they

(1) Conway v. Beazley, 3 Hagg. Eccl. Rep. 646.

(p) Allison v. Catley or Allison, 1 Dunl.

B. & M. 2d ser. 1025-1030, cited 2 Ib. 312.

(m) 8 Mar. 1796, Ferg. Rep. 260.

permanently resided, but both were natives of Scotland and had married there, and cohabited there for a considerable time previous to their settlement in London, afterwards following the trade of a bookbinder, and cohabiting with his wife for a number of years. Lunan formed a connection with another woman, and pretending that he was a single person, had the ceremony of marriage performed with the woman in the parish of St. Luke, Chelsea, and afterwards cohabited with her. On these grounds the pursuer sued the defender before the commissaries of Edinburgh for a divorce, and her summons being served edictally against him as forth of the kingdom, an application was made by petition for a commission to take the party's oath of calumny in London. The action was dismissed as incompetent, because the domicile of both parties was in London, and the fact founded on the libel, as inferring the defender's guilt of adultery, was stated to have happened there. On appeal, the cause was remitted, with instructions to sustain the action, and proceed in the cause; accordingly the pursuer's oath of calumny and afterwards a proof were taken at London upon two several commissions, and the guilt of the defender being fully established, decree of divorce was pronounced in the common form.

In French v. Pilcher(n) the pursuer was a native of Scotland, and resident there at the date of the action. The defender was an Engglishwoman, who had eloped with him, and whom he had married at Gretna 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

*769 ] 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 action was dismissed, because the defender was not cited within Scotland, nor in any shape amenable to the courts of that country. In a bill of advocation the pursuer pleaded, that Scotland was the place of the contract and also of his domicile, and consequently by construction of law was his wife's domicile. The cause was remitted to the commissaries with instructions to sustain their jurisdiction. It was observed that Lunan's case was decisive of this, which is even more favourable for the pursuer from his domicile being in Scotland, from which that of his wife cannot be separated.

An action of divorce in absence and proceeding on an edictal citatation was sustained at the instance of the wife against her husband, who, as alleged by her, had deserted her several years before, and gone abroad without informing her of his place of residence, both parties being natives of, and having been domiciled in, Scotland, where the marriage had been contracted, and the acts of adultery committed, on which the action was founded.(o)

(n) 13 June, 1800, Ferg. R. 262.

(0) Buchanan or Downie v. Downie, 16 anl. B. & M. 82; see Wylie v. Laye, 12

Dunl. B. & M. 927, in which it was held that the defender was not a Scotchman but an Englishman.

A Scotchman domiciled in Scotland was married in England to an Englishwoman, and by marriage contract secured to her a jointure on his Scotch estates; they went to Scotland after their marriage, and resided there a short time, when they returned to England. They afterwards agreed to a separation, and articles of agreement were executed, by which the husband secured a separate maintenance to the wife during the separation. From the time of the separation the wife resided abroad, and the husband continued to be domiciled in Scotland, where he raised an action of divorce against her, on the head of adultery alleged to have been committed abroad after the separation. It was held by the house of lords, affirming the interlocutor of the Court of Session,(p) that the wife's legal [ *770 ] domicile was in Scotland, where the husband was, and that she was amenable to the jurisdiction of the Scotch court; that an edictal citation, with actual intimation by serving a copy of the summons personally, was a good citation.(q) Two parties, English by birth and domicile, contracted marriage in England; the husband, some years afterwards, went alone to Scotland, and after a residence of forty days, raised an action of divorce against his wife for adultery, alleged to have been committed in France and Belgium; the action was duly intimated to the wife, who lodged defences on the merits, without objecting to the jurisdiction, and closed a record, and had appearance made for her, and attended on all the diets of proof: it was held that the defender was not amenable to the jurisdiction of the courts of Scotland, and that the plea of prorogation of the jurisdiction could not, in such an action, be sustained.

In this case the husband went to Scotland on a visit for forty days, for the purpose of establishing that occasional and temporary domicile which results from a residence of forty days. Having created that species of domicile as to himself, he maintained that it must thereby equally be created as to his wife, and that she must be as amenable to an action of divorce in the Scotch courts, at his instance, as he would have been to an action at her instance.

Although such residence rendered the husband amenable as a defender to any action against him in the Scotch courts, it conferred on him no right to resort to those courts as pursuer. It was only to constitute a domicile against his wife, that he betook himself to that temporary domicile, to get the benefit of the legal maxim, that the domicile of the husband is the domicile of the wife. (r) It was held to be a sufficient defence by the wife, that as she had all along been answerable in the English courts, in respect that the pursuer's true domicile had all along been in England, she was not at the same time liable to answer in the courts of Scotland merely because the pursuer acquired a temporary and fictitious domicile there, the fiction of law, that the domicile of the husband is also the domicile of the wife, holding good in reference to the proper domicile of the husband, but not to his fictitious domicile.

Lord Justice Clerk and Lord Meadowbank differed from the majo

(p) See 12 Shaw & D. 847.

(q) Warrender v. Warrender, 2 Clark & Finn. 488; 2 Shaw & Macl. 154; 3 Id.

154.

(r) See Ante, pp. 758. 771.