« ÖncekiDevam »
rity of the judges, and were of opinion that the Scotch court had jurisdiction against the wise.(9)
7. Cases where the Forum originis was held insufficient to found Jurisdiction.]—It has been decided that where the marriage has been contracted in England between parties who, though natives of Scotland, were at the time substantially settled and domiciled in England, and had since uniformly resided abroad without returning to Scotland, the courts of Scotland will not entertain the action of divorce. Thus where the husband, a native of Scotland, left that country when thirty years old, without any intention of returning. Having gone to England he paid his addresses to Mrs. B., who was also a native of Scotland, but had for many years resided in England. They were married in London according to the rites of ihe English church. Soon after, they went to France, from whence the lady returned to England, and then commenced, in the Commissary Court of Edinburg, a process of divorce on the head of adultery. The criminal acts were said to have been committed in France. The husband, as being out of Scotland, had been cited edictally, that is, by proclamation at the market cross of Edinburgh, and at the pier and shore of Leith,(r) the commissaries proceeded in the usual way to allow a proof. But a bill of advocation to the Court of Session was preferred in which it was pleaded that jurisdiction and the power of putting the sentence of the judge in execution, are counterparts of each other ; without the laiter, the former would be nugatory and absurd. [ *771 ]
In *order to constitute a forum, therefore, either the de
fendant, or where the question is purely of a pecuniary nature, some part of his effects must be subject 10 the orders of the court. The case was decided on general principles, the majority of the court being of opinion that there was a forum ratione originis, so as to found a jurisdiction in the commissaries, but that it was not competent to them, in the circumstances of the case, to pronounce a judgment of divorce between the parties, and ultimately the action was dismissed.(s)
A process of divorce in Scotland was found incompetent against a person who was born and educated in Scotland, but had married an English woman in England, but had never been in Scotland since his first appointment in the navy(t) The jurisdiction was not sustained in these cases, because the defenders had no domicile whatever in Scotland at the dates of the actions, and had been cited edictally upon no other ground except that they were alleged to be amenable ratione originis, which was found insufficient.(u) It was held that a
(9) Ringer v. Churchill or Ringer, 2 Dunl. absence from his usual place of residence B. & M. 2d ser. 307-328.
is forth of the kingdom of Scotland; and the (r) By the Scotch Judicature Act, 6 Gco. citation, after that period, must be at the 4, c. 120, it is declared that where a per- market cross of Edinburgh and pier and son, not having a dwelling house in Scotland shore of Leith, &c." occupied by his family or servants, shall (8) Brunsdone v. Dunlop, Mor. Dic. have left his usual place of residence, and 4784; 9 Feb. 1789, Fac. Coll.; Ferg. Rep. have been absent forly days without having 259. See Lord Brougham's Observalions, 2 left notice where he is to be found within Clark & Finn. 553. Scotland, he shall be held to be absent from (1) Morcumbe v. Maclelland, Mor. Dic. Scotland, and be cited according to the forins Forum Compctens, App. No. 3; Ferg. Rep. prescribed.” And by the act of Sederunt 41. 291. (14th Dec. 1805, s. 1), “ It shall in time com. (u) See Ferg. Rep. 149. Ang be held, that a person afier forty days
decree of divorce was ineffectual, which had been obtained by a hus. band who had deserted his wife, who, without her knowledge, had gone to Scotland, and after being forty days there had raised an action of divorce against her, without giving her any other notice than the usual edictal citation, and both parties being natives of ireland, never having been in Scotland, except for a single day, when they were married, and she being resident in England. (v) The court did not think it necessary to decide the general question as to jurisdiction. It is no doubt true, that the husband's domicile is that of the wife; but in a proceeding of this nature, and where both parties have formerly been domiciled abroad, if he come to Scoiland, he is bound to let his wife know that he has done so, in order that she may be aware of his change of residence. In this case, however, no such notice was given, although the parties had been living in a state of separation *for nearly three years,
[ *772 ] and the pursuer could not be aware of all the defender's movements. In a matter of this description an edictal citation is not sufficient. It was further requisite to give her notice personally of the process, by intimation of it to her, either by a notary public, or in such a way that she could not have pleaded ignorance. This case is altogether different from that where a party by his own acts constitutes a domicile in Scotland. If he be within the territory, he must be cited according to the form prescribed by law; and if he has gone out of it, he ought to instruct some person to attend to his interest, in case of being cited in his absence. But this lady did not constitute Scotland her dornicile by her own act. This was done by her husband; and, perhaps, if he had made her aware that he was going to Scotland to raise the process of divorce, an edictal citation might have been sufficient; but it is absolutely necessary that she should have been put upon her guard that such a process was in contemplation.(x)
The Court of Session having sustained their jurisdiction against a Scotchman domiciled in England ratione originis, the house of lords reversed the judgment, and remitted to inquire on what other grounds, appearing on the pleadings, jurisdiction could be sustained, and having regard to a suit depending in chancery, where the summons in Scotland was raised. The question in this case was, whether a man born in Scotland, having no property there, but having left his domicile there, still continued, for the purposes of the suit, a Scotchman and an object of the jurisdiction of ihe courts of Scotland, merely because he was born in Scotland ?(y)
8. Decisions of English Courts opposed to those in Scotland.}The legal principles and decisions of England and Scotland stand in strange and anomalous conflict on this important subject; for whilst on the one hand it has been repeatedly adjudged by the Court of Session in Scotland that an action of divorce for adultery to the effect of dissolving the conjugal relation, may be maintained in Scotland at the suit of English parties, whose marriage was contracted in Eng.
(0) Blake v. Bloke, 4 Shaw & Dunl. 795. This case is said to be one of fraud, 16 Dunl. B. & M. 84.
(2) 4 Shaw & D. 797, 798.
[ *773 ]
land and solemnized according to the rules of the Eng
lish law; on the other hand, it has been decided in England, on a prosecution for bigamy, and agreeably to the unanimous opinion of all the English judges, that an Englishman, whose prior marriage had been contracted and solemnized in England, but who had afterwards been divorced by a judgment of the Scottish Consistorial Court, was nevertheless, in consequence of a subsequent marriage in England, during the life of the person from whom he had been so divorced, liable to the pains of bigamy under the stat. 1 Jac. 1, c. 11.
As the laws of England and Scotland now stand, a man who has been divorced in Scotland from his first wife and then married again, may have two wives; for having been divorced in Scotland he may again marry in that country; he may live with one wife in Scotland most lawfully, and with the other equally lawfully in England; but if he only cross the border his English wife may proceed against him in the English Courts, either for restitution of conjugal rights, or for adultery committed against the duties and obligations of the marriage solemnized in England; again, let him go to Scotland, and his Scottish wife may proceed in the Courts of Scotland for breach of the marriage contract entered into with her in that country (3) The greatest embarrassment to the rights of parties must arise from this conflict, for what can be more embarrassing than that a person's status should be involved in uncertainty, and should be subject to change its nature as he goes from place to place; that he should be married in one country, and single (if not a felon) in another; bastard here and legitimate there? The utmost inconvenience must arise to the courts; for what inconvenience can be greater than that they should have to regard a person as married for one purpose, and not for another ; single and a felon if he marries a few yards to the southward ; lawfully married, if the ceremony be performed a few yard to the north; a bastard when he claims land ; legitimate when he sues for personal succession; widow when she demands the chattels of her husband; his concubine when she counts as dowable of
his land ?(a) It is obvious that many most *important [ *774 ]
differences may arise in cases of this description. Two Scotch persons married in England may afterwards go to reside in Scotland ; again, one of the contracting parties may be English, the other Scotch; if the law of Scotland continue such as these courts have hitherto held it to be, and if the decision in Lolley's case be of universal application, the issue of the second marriage may be legitimate in Scotland and illegitimate in England. The son may take the real estate in Scotland and not the real estate in England; he might possibly even be a Scotch peer, and lose his English title, and with it the English estates, the only support of his Scotch peerage. It is impossible, therefore, to exaggerate the importance of these questions ; and accordingly the court has been guarded against laying down any principle which might affect any other case than that before it.(6)
Lolley's Case, with subsequent Observations of Judges thereon.](z) See 2 Clark & Finn. 560.
(6) Conway v. Beazley, 3 Hagg. Eccl. (a) Ibid. 549.
Rep. 646, 641.
Mrs. Lolley, whose maiden name was Sugden, raised an action of divorce against her husband in the Consistorial Court of Scotland. She stated in her summons that in the year 1800 she was married to the defender at Liverpool, where they afterwards cohabited for some time as man and wife. She afterwards accompanied him to Carlisle, and thence to Edinburgh, where he alleged that he had business. They lived together there in lodgings for some short time. She then charged the defender with having been guilty of adultery both in England and Scotland, and concluded for a divorce in the usual form. The defender appeared and admitted the marriage and cohabitation at Liverpool, &c., but denied the adultery. The Commissaries, in respect that the parties appeared to be English, and the marriage an English contract, appointed the pursuer to state in a condescendence the grounds in law and fact on which the court was competent to entertain the action. A condescendence and answers were accordingly given in, and various acts of adultery by the defender were proved. The Commissaries suspecting collusion, examined both parties judicially, but finding no proof thereof, decreed for a divorce.(c) Lolley was afterwards tried *at the Lancashire summer assizes 1812, for having married Ann Hunter at Liver. [ *775 ] pool, his former wife Ann Sugden being then living. The marriages, and the fact that Ann Sugden was alive a week before the assizes were proved. The prisoner's defence was, that he had been divorced from Ann Sugden in Scotland, and that his present wife knew the faci. The decree of divorce was produced.(d) The prisoner was found guilty, but sentence was respired to their next assizes. The case was afterwards argued before all the judges at Serjeant's Inn Hall, and the conviction was affirmed.(e) This decision was much canvassed in the house of lords in Wurrender v. Warrender ;(f) there are, however, some strong features of distinction between the two cases. In Lolley's case the parties were not only married, but really domiciled in England, and had resorted to Scotland for the manifest purpose of obtaining a temporary and fictitious domicile there, in order to give the Scotch Courts jurisdiction over them, and enable them to dissolve their marriage; whereas in Warrender v. Warrender the domicile of the parties was Scotch, and the proceeding was bona fide taken by the husband in the courts of his own country, 10 which he was amenable and onght 10 have free access; and no fraud upon the law of any other country was practised by the suit. It must be added that, in Lolley's case, the English marriage had been contracted by English parties, without any view to the execution of ihe contract at any time in Scotland, whereas the marriage in Warrender v. Warrender was had by a Scotchman and a woman whom the contract made Scotch, and therefore might be held to have conteinplated an execution and effects in Scotland.(8) Lord
(c) Sugden v. Lolley, 20 March, 1812, Fac. ute (9 Geo. 4, c. 31, s. 22,) now in force Coll.
against bigamy are different. See ante, pp. (d) The stat. 1 Jac. 1, c. 11, s. 3, exempts 224, 225. from the punishment of bigamy any person (e) Sce Russ. & Ryan's C. C. 237; 2 who at the time of the subsequent marriage Clark & Finn. 567; Ferg. R. 269. should be divorced by any sentence in the (f) Ante, p. 757. Ecclesiastical Court. The words of the stat (8) 2 Clark & Finn. 541.
Brougham said, that although the support of his opinion did not require that he should dispute the law in Lolley's cuse, he should not be dealing fairly with the important question, if he were to avoid [ *776 ]
touching upon that *subject; and as no decision of the
house of lords had ever adopted that rule, or assumed its principle for sound, or acted upon it, he was entitled to express the difficully which he felt in acceding to that doctrine,-a difficulty which much deliberation and frequent discussion with the greatest lawyers, both of this and the last age, had not been able to remove from his mind. His lordship then stated his reasons at lengih.(h) His lordship afterwards added, that the judgment in the case of Warrender v. Warrender did not break in on Lolley's case, such decision being made with reference to the law of Scotland, whereas Lolley's case referred to the law of England, and that whatever opinion he might have entertained of Lolley's case in the Court of Chan. cery, or privately, could not affect his judicial opinion in the house of lords, sitting as a member of a Court of Appeal on a case from Scotland.(i) Lord Lyndhurst said, " that if he conceived that the judgment about to be adopted in that case could be understood as allecting that delivered by the twelve judges in Lolley's case, he should have felt it his duty to object to so dangerous and precipitate a course—a course so likely to create inconvenience and embarrassment in its results and should have recommended the house of lords, before they pronounced final judgment, to request the assistance and opinions of the learned judges of the courts of law on the whole case, or so far at least as their lordships' judgment might be in conflict with their unanimous decision in the case of Lolley. The proceding in Lolley's case was not carried through lightly and unadvisedly; for it came before the assembled judges of England, in the course of objections raised in reference to Lolley's plea of impunity, founded on the fact of the Scottish divorce, and supported by advocates of the first ability; yet the sentence, overthrowing the force of the Scottish ceremonial of divorce, was confirmed by the unanimous approbation of the twelve eminent individuals in England best fired by talent, legal knowledge and great experience, to pronounce with the voice of undoubted authority on the wisdom of that decision. If, therefore, [ *777 ]
your #lordships contemplate any interference with that
sentence, so supported, it would only be just and wise to take care that such interference is warranted, and as a consistent preliminary to consult those twelve individuals, and to obtain their assistance on this important point.”(k) Dr. Lushington said," he must consider whether in Lolley's case it was the intention of the twelve judges to decide a principle of universal operation absolutely and without reference to circumstances, or whether they must not almost of necessity be presumed 10 have confined themselves to the particular circumstances that were then under their consideration. Lolley's case is very briefly reported ; none of the authorities cited on the one or on the other are referred to, nor are the opinions of the learned judges given at any length; all that we have is the decision.
(h) Clark & Finn.
541-551. (i) Ib. 567. Sce antc, p. 739.
(k) Warrender v. Warrender, 2 Clark & Finn. 558, 559.