Scottish Court of Session Decisions

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Cite as: [1837] CS 16_82

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SCOTTISH_Court_of_Session_Shaw

Page: 82↓

016SS0082

Buchanan

v.

Downie
No. 13.

Court of Session

2d Division T.

Nov. 18 1837

Lord Jeffrey, Lord Justice-Clerk, Lord Glenlee, Lord Meadowbank, Lord Medwyn.

Mrs Isabella Buchanan or Downie, Pursuer.— Counsel:
W. Bell. John Downie, Defender.—

Subject_Jurisdiction—Forum Competens—Divorce.— Headnote:

Action of divorce in absence, and proceeding on an edictal citation, sustained at the instance of a 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.

Facts:

The pursuer Mrs Downie, and her husband John Downie, shoemaker in Greenock, and afterwards in Glasgow, were Scotch by birth, had been married in Scotland in 1818, and were domiciled there. In 1824 Downie deserted her, and in 1837 she raised an action of divorce, on the head of adultery, committed in this country prior to his desertion. In her summons she set forth, that in October, 1824, “the defender wilfully deserted the pursuer, and went to England; but where he has since resided, or where he now is, the pursuer has been unable to discover; and he has never, since he deserted her as aforesaid, returned to Scotland, or had any intercourse or correspondence with her,” and he was cited edictally in common form as furth of the kingdom. No personal notice of the action to Downie was of course alleged, and no appearance was made for him. The Lord Ordinary found the libel relevant, received Mrs Downie's oath de calumnia, and allowed a proof, which was taken accordingly.

Having made avizandum with this proof, the Lord Ordinary (11th July, 1837) pronounced the following interlocutor:—“The Lord Ordinary having considered the proof for the pursuer, and whole proceedings in this case; and observing that the defender is described in the summons as then resident in the East Indies, or elsewhere abroad, and that it is stated in the proof, that he has not been in this kingdom for a period of nine or ten years; and also, that there is no appearance of any personal notice having been given to him of the dependence of this process, or of any intention to institute the same, before answer, appoints the pursuer to lodge in process, at the second box-day in the ensuing vacation, a minute, stating upon what grounds she proposes to support the jurisdiction of the Court against a defender in such circumstances.”

Mrs Downie accordingly lodged a minute, in which she pleaded—

1. It is incompetent, after the libel has been found relevant, and a proof taken, to entertain a question as to the competency of the action.

2. On the merits:—The parties here being natives of Scotland, having been domiciled there till the desertion of the pursuer (who has continued to reside there) by the defender, and Scotland also being the locus contractus and the locus delicti, there is no room to doubt the jurisdiction of the Court in an action of divorce, although the defender has withdrawn himself from the country, without, however, leaving any information as to his present residence, or without having acquired, so far as is known to the pursuer, a new domicile elsewhere. In such circumstances, it would be attended with the greatest injustice to allow the party fleeing from the place of his undoubted domicile, where he had contracted his marriage, and committed the acts on which the suit is founded, and concealing his present residence, thus to prevent the injured party from obtaining redress. It would also be totally inconsistent with the course of former decisions. In a variety of cases, much less favourable to the claim, jurisdiction has been sustained in respect of some only of the elements which are found combined in the present case. ¹ Nor are the decisions in these cases at all affected by the judgments in Brunsdone v. Wallace, ² which proceeded on the doctrine then held of the indissolubility of an English marriage; in Morecombe v. M'Lelland, ³ where the wife was a domiciled Englishwoman, the marriage was English, and the husband, though born in Scotland, was domiciled in England, in which country also the adultery was committed; or in the recent case of Wylie v. Laye, ⁴ in which the point decided was, that the locus contractus alone was not a sufficient foundation for jurisdiction against a party not domiciled in Scotland, which, though the place of his birth while his father was on military service in it, could not be held on that account even to be his forum originis. In regard, again, to giving personal notice,—if there was jurisdiction, all that could be required was legal citation according to the forms applicable to persons furth of Scotland; but that, at any rate, the defender had excluded all means of intimation by keeping the pursuer in ignorance of his residence.

_________________ Footnote _________________

¹ Dods v. Westcomb, June 11, 1745 (M. 4793); Pirrie v. Lunan, March 8, 1796 (M. 4594); French v. Pilcher, June 13, 1800 ( M. v. For. Comp. App. No. 1); Wyche v. Blount, June 27, 1801 (ib. No. 2); M'Kenzie, March 8, 1810 (F. C.); Levett and Rowland, Dec. 21, 1816 (F. C.)

² Feb. 9, 1789 (M. 4784).

³ June 27, 1801 ( M. v. For. Comp. App. No. 3.)

⁴ July 11, 1834 (ante, XII. 927).

The Lord Ordinary, on advising this minute, reported the cause to the Court, issuing at the same time the subjoined note. ^*

Lord Justice-Clerk.—It was no doubt pars judicis to notice the plea here discussed, and it has been noticed in sufficient time. It is a very important point, but the cases of Blake and of Laye, referred to by the Lord Ordinary, are not at all applicable. The first of these cases was one of fraud, and in circumstances totally distinct from the present. In Laye's, again, the Court held that the defender was not a Scotchman, but an Englishman. Here it is totally different. Both spouses are natives of Scotland; they were married in Scotland, and lived together there. Then the husband deserts, and it is discovered afterwards that before his desertion he had committed adultery, and the wife now brings an action of divorce, to which he is called by edictal citation as the only way in which she can call him.

_________________ Footnote _________________

^* “The Lord Ordinary is sorry to put the expense of printing on a party in the circumstances of the pursuer. But the point is of too great importance to be decided, especially on an ex parte argument, by a single Judge.

“The Lord Ordinary's impression is against the competency of the proceedings, though the weight of authority, but for the recent and very important case of Laye, may seem to be the other way.

“He is not at all moved by the specialty of the libel having been found relevant generally. Relevancy is a different thing from competency, jurisdiction, or sufficiency of citation; and it is thought clear, that it is pars judicis to give effect to any nullity arising from these grounds, at whatever stage of the proceedings they may be observed, and though they might have previously escaped observation per incuriam merely. But the objection here did not truly arise till the proof was taken, for though the defender was described in the libel as forth of the kingdom, there was nothing to show that he had not gone forth quite recently, and with a purpose of immediate return, or on such compulsion as would not effect a change of domicile. But it was not till the proof came to be considered, that it was discovered that he had finally left the country no less than nine or ten years before, of his own free will.

“Upon the merits and the previous authorities, two things are thought to be clear enough,—1st, That the forum originis is no longer to be considered as a ground of jurisdiction; and, 2d, That the cases where the suits have been at the instance of domiciled husbands against absent wives have really no application. As to the locus contractus, the Lord Ordinary is inclined to think that it can be of no avail in a case like the present, unless the defender had been personally cited within the jurisdiction; in which case also, although upon a different ground, the forum originis might have been a material element to sustain the jurisdiction. He cannot persuade himself that the reasons alleged in the case from Kilkerran would now be held satisfactory. If it be material to give relief to an injured wife, it is no less material to protect an accused husband, for whose innocence the law must always presume against the hazards of an unjust accusation. That it is a question of status seems only an additional reason for not narrowing this protection, the law always inclining rather to the maintenance than the destruction of that most important status. When it is considered, too, that decrees of divorce become unchallengeable at a much earlier period than most other decrees, it seems especially necessary that they should not be rashly pronounced.

“It is needless to say any thing as to the obvious propriety, if not the legal necessity, of giving personal notice of such suits against absent parties; and my clear opinion is expressed upon this point in the case of Blake, 26th July, 1826, 4, Shaw, 795.”

Lord Glenlee.—The case of Pedie, quoted against the pursuer, is in her favour. For the party there had, in knowledge of the pursuer, obtained a permanent domicile elsewhere, and nothing of the kind appears here. Perhaps the pursuer might beforehand have applied for authority to raise a summons in this way, but still that must have been under reservation of the question of jurisdiction. The question here, however, is not of jurisdiction, as there is no ground to believe that there is another country where the husband is liable to answer, but it only is if he has been duly cited. It may be said that, if she really knew where he was she should have given him intimation; but how could she do that when she knows nothing about him?

Lord Meadowbank.—I felt great difficulty. The summons is brought by the party seeking the remedy, who cannot be expected to state any thing to prevent her getting it; and so she would not probably state that she knew where he was, or that he had obtained a domicile elsewhere, even if she knew that to be the case. Now, suppose her husband returns. If she within six weeks has married, she is guilty of bigamy, and I would be very adverse to admit an action which would give such consequences, and I hesitate to allow these proceedings behind his back. I see great force in the view of Lord Glenlee, with reference to a party not known to have acquired a domicile elsewhere, but having here nothing but the party's own allegations, that she does not know where the defender resides, or that he had not acquired a domicile elsewhere, I hesitate exceedingly.

Lord Medwyn.—I have not the slightest difficulty, and I am not the least moved by what has just been stated. If this had been a process of adherence, there would have been great difficulty without personal intimation. But this is very different—a process of divorce for adultery. Both parties are natives of Scotland, were married in Scotland, and lived here as man and wife till the husband deserted. Then if he deserts without giving information where he has gone, is the divorce to be prevented by this conduct on his part? I can't suppose this to be in a different situation from other processes. No doubt it is important to the husband; but it is still more important to the wife, who has been abandoned, and just because it is a question of status, I think it competent. Even if his domicile were in England, and known, I would think our jurisdiction competent. I have, however, no doubt here. What could the woman have done else?—And the cause is not to be decided without proof. Therefore, though the objection is competent to be taken now, I think the citation is valid.

Lord Justice-Clerk.—I also think we are bound to let the action go on. It will only be a decree in absence, but still it is competent.

The Court accordingly remitted to the Lord Ordinary to allow the action to proceed.

Solicitors: Campbell and M'Dowall, S. S. C.—Agents.

SS 16 SS 82 1837