A process of divorce for adultery found competent before the Commissaries of Edinburgh, although the crime was alleged to have been committed by the defender most frequently out of Scotland, and she was an Englishwoman, and resident in England at the date of the summons, which, however, was served on her personally, the marriage' having been contracted in Scotland, where the pursuer was born and had his domicil.
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Lieutenant-Colonel French, a native of Scotland, where his regiment, which had lately returned from India, was quartered, raised a process of divorce before the Commissaries of Edinburgh, against his wife Henrietta Pilcher, founded on the following statement: The pursuer was privately married to the defender, a native of England, at Gretna Green, whence they immediately proceeded on a visit to his father in Scotland, where they soon after declared themselves married, before two Justices of the Peace, and were fined for having contracted an irregular marriage. After living for some time in Scotland, publicly, as man and wife, they joined his regiment in England, and went with it to India. The defender having there fallen into bad health, returned to Britain without the pursuer, and was guilty of adultery, first in Scotland, (where she resided a few weeks with his relations,) and afterward, for years, in England and abroad.
At the date of the summons, the defender resided in London, where the summons was served on her personally; but no appearance was made for her.
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, which the Lord Ordinary ordered to be printed and reported to the Court, the pursuer maintained, that the action was competent, because the marriage was contracted in Scotland, on the laws of which parties must have relied for the regulation of all the rights consequent on it; because the pursuer was born, and though much abroad with his regiment, has been uniformly domiciled in Scotland, which must likewise be the legal domicil of his wife the defender; and because the crime was in part committed there; 11th June 1745, Dodds against Westcomb, No. 14. p. 4793; 8th March 1796, Pirie against Lunan, No. 104. p. 4594.
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.
The Lord Ordinary having “advised with the Lords, remitted to the Commissaries, with instructions to sustain their jurisdiction.”
Lord Reporter, Stonefield.
Fac. Coll. No. 183. p. 420.
