Scottish Court of Session Decisions

This was an action of divorce on the ground of adultery at the instance of Mrs Emma Ward or Stavert, “presently residing at 53 Castle Street, Edinburgh,” against her husband Thomas Stavert, “residing at Castlehill House, Blairgowrie, Perthshire.”

The defender pleaded—“(1) No jurisdiction. The defender not being a domiciled Scotchman, the Court of Session has no jurisdiction to entertain the present action.”

The Lord Ordinary (Lee) allowed the parties a proof of their averments quoad the defender's domicile.

The result of the proof was to show that the defender was born in Manchester in 1836, and had lived in and about that city till 1880, being connected with the mercantile house of Stavert, Zigomala, & Co. there. His father was a domiciled Englishman. In 1870 he married the pursuer, an Englishwoman, at Manchester, and they lived together there and in the neighbourhood until July 1880, when the defender eloped with Miss Amy Fisher, with whom he resided on the Continent until the spring of 1881, and thereafter at a furnished cottage, Castlehill, Blairgowrie, in Perthshire, which he took for six months from the 12th of May. With regard to his object in coming to Scotland, the defender's evidence was as follows:—“I came to Scotland, and finally took Castlehill, Blairgowrie, from Mr Anderson. I took it for six months, and entered into possession on 12th May. (Q) Had you ever any intention of remaining in Scotland beyond six months ?—(A) Certainly not. Towards the end of July 1881 I saw an article in the Standard newspaper which showed me that I was committing a fraud on the Scotch law. (Q) Did that lead you to reconsider your intention of remaining even six months in Scotland ?—(A) Yes. I went to Edinburgh to consult Mr Haddon (his law-agent) on the subject. I said he knew the purpose that I had come for; that acording to the article in the Standard I saw that I was committing a fraud on the Scotch Courts, and that I wished to right myself on that matter; that there was no chance of marrying Miss Fisher with a Scotch divorce, and consequently I wanted to leave at once. I also told him that I was very sorry to have done anything of the kind as to come here and take advantage of the Scotch law. Mr Haddon advised taking the opinion of Scotch counsel. That opinion was communicated to me about 8th September; it confirmed my view, and I wanted to leave Blairgowrie at once. Mr Haddon wrote that there was no necessity for leaving at once, and I stayed at Blairgowrie till November. I was served with the summons in the present action on 27th or 28th September. (Q) Did it take you by surprise ?—(A) Of course it did; after learning from Mr Haddon that the action could not go on, and Mr Haddon advising Mr Purves (the pursuer's law-agent) that I was only here temporarily, according to my instructions. (Q) Is it the fact that you were here only temporarily?—(A) Yes. (Q) And that you never had any intention of staying ?—(A) I never had any intention at all of staying.”

The article in the Standard referred to was dated 30th July 1881. The passages in it most appropriate to Mr Stavert's position were as follows:—“There is, however, one broad rule of private international law which hitherto all States alike have agreed to recognise. By acquiring

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a domicile a man thereby acquires the right of regulating his affairs by the laws of the country to which he has so attached himself. But if he has left his own country and acquired a domicile elsewhere, with the view of defeating the laws of his own country and evading their operation, he thereby puts himself out of Court. … The matter may be summed up thus: A man's rights and relations are regulated by the law of the country in which he has his domicile. Should he, however, shift his domicile with the view of availing himself of a different law, and one more suited to his private purposes, the fraud that is thus contemplated vitiates the whole proceeding. In such a case no properly constituted tribunal would give him the benefit of the lex domicilii if it were in conflict with the laws of his own country.” This article contained references to Lolley's case, and the case of Brook v. Brook, quoted infra.

In the defender's correspondence with his law-agent, Mr Haddon, whom he had consulted as to his position, and the course which he should adopt in order to facilitate proceedings for a divorce from his wife, the following passages occurred. On 4th August 1880 he wrote from Paris—“If it is necessary for me to live in Scotland for some time, Amy, accompanied by her mama, are to reside in the same place—we of course having perfect liberty of seeing and being with each other as often and as long as we may desire. Now, this arrangement is perfectly satisfactory until such time as a divorce can be obtained; and I trust you have succeeded in inducing that woman to accede to your demands. It will be better for her. Now, of course, by your meeting us in London all together, you can listen to and hear all the arrangements that have been made, and of course must be strictly adhered to; and in this case of having to live in Scotland, in England it will be as well for the present not to give the address to other parties, who may ask the why and wherefore. On 9th August Mr Haddon wrote—“If you come to Scotland and acquire a domicile, so as to make yourself subject to the Scotch Courts, I have no doubt Mrs S. will, after a little quiet consideration, sue for a divorce with success; but probably, after all that has happened, your best course would be to go abroad, where you are not known, and where you are not likely to be troubled by anyone; but, of course, you and Miss F. will be guided by your own feelings and inclination in the matter.” On 16th August Mr Haddon wrote—“I am this morning favoured with yours of 14th inst., in which you state you have been consulting a Paris lawyer, and from what you say I gather that in material points his opinion has been very much the same as the one I gave you. Were you to come to Scotland and take up your abode here, with the intention of making this country your home, you would, after the expiry of 40 days, become subject to the jurisdiction of the Scotch Courts, and as it would be very much to the interest and advantage of Mrs S. to obtain a divorce in those Courts, I have no doubt she would not lose such a very favourable opportunity of getting quit of an unfaithful husband, and at the same time securing to herself a nice little fortune. But after what has taken place, and seeing that a Scotch divorce would cause you to sacrifice the half of your means, I should think you would be of opinion that it was not worth the money, and that you had better stay abroad for two years and see what then turns up. Of course, as to which of these courses you are to follow you must be the judge. If you wish an early divorce, and are prepared to sacrifice half your means, come to Scotland and make it your home. If you do not care about making such a sacrifice, and can wait for two years, keep away from Scotland. If you resolve to remain abroad I will advise Mrs S. to consult an English lawyer as to what course she ought to follow, and I would suppose she will be advised to raise an action against you in the English Courts for judicial separation and alimony or aliment, in which action it will be settled what allowance she is to receive from you while your desertion continues. If your desertion continue for upwards of two years, she will then have a good ground for applying to the English Courts for a divorce. Of course collusion between the parties would destroy the effect of any of these proceedings.” On 18th August the defender replied from Paris—“I am in receipt of your two favours of 13th and 16th inst., and you appear to contradict in the latter the statement made in previous one—‘I think you must give up all idea of a Scotch divorce.’ Now, I want the following information so far as you are able to give it—(lstly), Is there any doubt as to the obtaining a Scotch divorce? (2ndly), Should such divorce not be granted in the Scotch Courts, what allowance would be made to Mrs S., if for life, or could she again apply for divorce? (3rdly), Should such divorce not be granted, would she, at lapse say of two years, be entitled to sue for a divorce in the English Courts? Now, as regards collusion, it would appear, should I return at once to reside in Scotland, that my intentions would be to get married, and certainly such would be the case, and I do not know who might give information to such effect, and such would have to be kept as quiet as ever possible. There is also another point—The lawyer I saw here said he did not think that a divorce in the Scotch Courts would be legal in England, so that one could re-marry in that country and hold legal rights there. Can I legally at the present time make a gift of shares or stocks ?” Mr Haddon replied on 28th August—“In answer to your first question, as to whether there would be any doubt of Mrs S. obtaining a divorce in Scotland, I beg to state, as I have done in previous letters, that if you come to Scotland with the intention of making it your home, you will after a residence of 40 days become subject to the jurisdiction of the Scotch Courts, and were Mrs S. to raise an action of divorce she would in my opinion succeed, unless old Fisher, or some one on his behalf, were to appear and prove that you had come from Scotland not to make it your home, but merely to enable Mrs S. to obtain a Scotch divorce. Second, The English Courts will allow Mrs S. an alimony of about one-third of your income for two years or so, and if you do not then return to her, but continue your desertion, she would be entitled to an English divorce, with a permanent allowance for life, which would be fixed by the Court, and in fixing that allowance the Court would take into consideration the position of the wife previous to marriage. Third, As before stated, she would, after adultery, with over two years' desertion, be entitled to a divorce in England. Fourth, A divorce in Scotland is good everywhere, and if you were divorced in the

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Scotch Courts you could re-marry in Scotland, and that marriage would be good over the whole world.” Mr Haddon on 8th September again wrote:—“So far as I can see, there are just two courses open to you—(1) You must stay abroad for two years or more, on the chance of her, at the expiry of that time, obtaining a divorce against you in the English Courts; or (2) You must come to Scotland with the intention of making it your home, and settle down there, so as to acquire a Scotch domicile and make yourself subject to the Scotch Courts, in the hope that she will raise and succeed in obtaining a Scotch divorce, which will entirely free you from the marriage.” On August 6th 1881, the defender, writing from Castlehill, said—“As it is a matter of the utmost importance to me to know exactly how the matter would stand legally in England, and at once. I certainly came here under the impression, both from yourself and Mr Henderson's advice, that it would hold good everywhere, and you can well imagine how harassing it is to me that this question should crop up at the eleventh hour.”

Mr Haddon had during the same period been in communication with Mrs Stavert, and of this Mr Stavert was aware. On June 8th 1881 he wrote—“Your husband is now settled in Perthshire, where he has taken a house and grouse-shooting. I fear his means will soon be exhausted.” And on June 27th 1881 he again wrote—“I have yours of 24th inst., and, in reply, beg to state that as your husband is now settled in Scotland, I think your best course would be to go to Edinburgh and consult a Scotch lawyer as to the course you ought to follow.” He subsequently introduced her to Mr Purves, W.S., who acted as her agent in the action.

The summons in the present action was signeted on 28th September 1881.

There was some evidence in the proof to show that the defender had occasionally visited an uncle who owned a farm in Roxburghshire, and that he had some expectation of possibly succeeding to the lease at a future period.

The Lord Ordinary (Lee) found “that at the date of the execution of the summons the defender had abandoned his domicile in England, and had acquired a domicile in Scotland: Therefore repels the plea of no jurisdiction, sustains the relevancy of the action,” &c.

His Lordship's opinion was as follows:—“Being of opinion that the question of jurisdiction depended in this case on the domicile of the defender at the date when the action was raised, I allowed parties, by the interlocutor of 16th November, a proof upon that point. The facts bearing upon it are within a narrower compass than is usual in questions of domicile; but they raised the question of domicile under circumstances of considerable difficulty.

“The parents of the defender appear to have belonged originally to Roxburghshire, but they had settled in Manchester before the date of the defender's birth in 1836, and his father continued to reside and carry on business in Manchester until his death in 1856. He was predeceased by his first wife, the defender's mother, and had married again. His death took place at Scarborough, through an accident, and although it is possible that he may have had some remote prospect of returning to Scotland, it was not disputed, and does not appear to have admitted of dispute, that at the time of his death the defendant's father was a domiciled Englishman.

“The defender himself, with the exception of three years spent in a school in Germany, and a short time spent in America in connection with the business of his father's house, resided generally in Manchester. His marriage with the pursuer took place in Manchester in the year 1870, and subsequently to his marriage he and his wife continued to reside there. He himself was employed in the business of his father's firm of Stavert, Zigomala, & Company, without being a partner, until he ceased his connection with that firm in the spring of 1880. His income latterly appears to have amounted to £1500 per annum, and to have consisted partly of a salary of £1000 per annum, and partly of a percentage of profits. There is evidence that he had been in the habit of coming down every year with his wife to visit an uncle and aunt in Roxburghshire, who occupied the farm of Saughtree, by virtue of a lease from the Duke of Buccleuch expiring in 1883, but which is said to have been repeatedly renewed. There is also evidence that the defender had some expectations of possibly succeeding to this lease at a future period. But there is nothing to suggest that during his residence in Manchester the defender's domicile was other than English.

“After the termination of his connection with the firm of Stavert, Zigomala, & Company, on 31st March 1880, the defender remained but a short time in Manchester. His establishment at Little Lodge appears to have been broken up in the month of June or early in July 1880. His whole furniture and effects, with the exception of clothing and a teapot which had belonged to his mother, and one or two silver cups which he had won as prizes, were sold by auction on 7th and 8th July 1880, the catalogue bearing that the sale took place ‘by order of Thomas Stavert, Esq., who is leaving Manchester.’ Down to this time he appears to have lived with his wife on terms of affection. At all events, his letters show that he professed to be living on such terms; and it had been arranged, as she understood from him, that she was to go to London for ten days or a fortnight, until the sale should be over and the lease of the house got quit of, when he was to rejoin her, and they were then to travel on the Continent and afterwards to go to Scotland. The evidence of the pursuer upon this point seems to be corroborated by the evidence of the table-maid Alice Robinson, who states that when the defender was informed by his wife that she had not room to pack the silver cups among her things he replied—‘Very well, let them go with the things that are going to Saughtree'—whereupon they were put into a portmanteau containing superfluous clothing belonging to him, and which his wife thought was going there. It appears from the table-maid's evidence that both she and the cook had been spoken to as to their willingness to go into the service of the defender and his wife in Scotland after their return from foreign travel.

“Up to this time, however, I see no room to doubt that the defender was a domiciled Englishman; and I think that, according to a principle well established and often applied, that domicile must be held to have continued until another domicile had been acquired by actual residence, combined with the intention of acquiring a new domicile.

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“It was at this time that the events occurred which are said to have given ground for the present action. The defender never rejoined his wife. On or about 17th July he went to Paris with Miss Amy Fisher, a young woman who had been on terms of intimacy with the pursuer, and was the daughter of a friend of the defender, and it appears to be undisputed that he has lived with her as his wife ever since. From July 1880 to April 1881 they appear to have resided at various places in France and Spain, chiefly in hotels. The father and brother of Miss Amy Fisher appear to have made an attempt to get her to leave the defender, and to return to her home, but without success; and the defender's letters to his agent in Scotland shew that as early as 29th July 1880 he resolved to do all in his power to compel his wife to sue for a divorce. He was advised that a divorce could not be got in England until the elapse of two years, but that if he came to Scotland and acquired a domicile so as to make himself subject to the Scotch Courts, his wife, ‘after a little quiet consideration,’ would probably sue for divorce with success. His correspondence with Mr Haddon shews that he was fully advised as to the necessity of avoiding any collusive arrangement for a divorce, and also as to the necessity of establishing a real domicile in Scotland in order to give his wife an opportunity to sue him in the Courts of that country. The letter which Mr Haddon wrote to him on 8th September 1880 puts in a very distinct form the advice which he received—' So far as I can see, there are just two courses open to you—(1) You must stay abroad for two years or more, on the chance of her, at the expiry of that time, obtaining a divorce against you in the English Courts; or (2) You must come to Scotland with the intention of making it your home, and settle down there, so as to acquire a Scotch domicile and make yourself subject to the Scotch Courts, in the hope that she will raise and succeed in obtaining a Scotch divorce, which will entirely free you from the marriage.'

“His answer at that time was—‘As I certainly do wish the earliest release from Mrs S., we shall go to Scotland as soon as you let me know what part of Scotland or place you would advise me to go to, so that I could conveniently see you at times, and some place quiet and private.’

“Subsequently, however, he seems to have hesitated, and to have spent the winter months in France and Spain. In March 1881 he appears to have made up his mind to come to Scotland. He writes to Mr Haddon on 17th March—‘As you will see from the address, I have arrived as far as Boulogne, so after hearing from you I could immediately start for Scotland. In the meantime you will please advise Mrs S. that you are not authorised to pay her any more money (as you have none on my account now), and that you cannot hold any further communication with her on my account;’ and on 24th March he writes expressing a hope that he should receive early advice that a loan of £2000 which he wished to raise on his interest in the farm stock on Saughtree had been obtained, and adds—‘I want this affair settled as soon as ever possible, so then I can at once come to Scotland, and then let the affair take its course. I am sorry the cottage in the West Highlands is let. What I should like you to advertise for would be a furnished cottage, say for six months, where I could employ my time in fishing. Neither Portobello nor Trinity would at all suit me, being too near Edinburgh. Any place, say not nearer than 20 miles from there, would do, but not particular as to locality for the time if the place is suitable.’

“It appears that in April his agent did accordingly advertise in a Scotch newspaper for a furnished house in Scotland for six months, and that in the end of April 1881 he personally visited and took for the season, at a rent of £50, a house called Castlehill, near Blairgowrie. He went there in May along with Miss Amy Fisher, whom he passed off as his wife, and established himself with servants and carriages and horses of a kind suitable to the place. He continued to reside there until November 1. I see that on 10th May he wrote to Mr Haddon to get his ‘wading stockings and boots, rods, &c.’ sent to him ‘from Saughtree;’ and it is proved that in the beginning of September he acquired for the season 1881–82 a right to some low-ground shootings in the neighbourhood of Blairgowrie.

“The defender's wife in the meantime had continued to reside at the boarding-house in London to which she had gone on leaving Manchester in July 1880. She seems to have been informed of her husband's having come to Scotland by Mr Haddon's letter of 6th May, written in answer to hers of May 3rd applying for money to pay her monthly board. Although it is not proved that Mr Haddon had authority from the defender to make to the pursuer the communication contained in that letter, I think that it, and the letters which followed it, are important, as showing Mr Haddon's understanding at the time of the position and intentions of his client. His statements may not be binding on the defender, but if it appears from the evidence (as I think it does appear) that they were made upon reasonable and sufficient grounds, they would afford not merely competent but weighty evidence on the question quo animo did the defender come to reside in Scotland…. There had undoubtedly been hesitation on the part of the defender between an English and a Scotch divorce. Mr Haddon says that this hesitation continued even after the defender's arrival at Castlehill. But I am of opinion that the evidence on the whole supports the view that on 27th June the defender had made up his mind, and had given Mr Haddon to understand, that he was settled in Scotland, in the hope that the pursuer might sue him there for a divorce.

“The consequence was that in the beginning of August the pursuer came to Scotland and put her case into the hands of a man of business, and that on 27th September the summons in the present action was served

“It is said that even if the defender had established a domicile in Scotland, in the month of July he had changed his mind, and ceased to retain it before the execution of the summons, in consequence of advice which he took in the month of August. That is a separate question. The first point to be ascertained is whether he did or did not abandon his English domicile and acquire a domicile in Scotland.

“The defender now alleges that he always had a mental reservation to the effect that he was not really and truly to be domiciled in Scotland. I think that his statements on this subject are not consistent with the evidence, and they did not

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appear to me to be credibly or even intelligibly reconciled by him with his conduct. No doubt his connection with Scotland was a feeble one; his residence there was secured only for a short period. It was not the kind of residence that is usually regarded as a home. He does not appear to have been much known and visited there, or to have had business in Scotland beyond his interest in the residue of the Saughtree trust, and his desire to give his wife an opportunity of divorcing him. But it was all the home he had. He had effectually separated himself from his old home in Manchester, and if he had not a home at Castlehill he had no home at all of the kind from which he could transact any business or set out as on a journey. If sufficient in kind and in duration to enable a man to constitute for himself a domicile, I am of opinion that his residence at Castlehill must be held to have been with the animus necessary for that purpose. I think that the result of the decisions on this point is that it is not necessary to prove that residence was with an intention of always staying there; and that it is sufficient that such residence has been fixed ‘without any present intention of removing therefrom.’ This is the doctrine of Storey, who says (‘Conflict of Laws,’ sec. 43)—‘Vattel has defined domicile to be a fixed residence in any place with an intention of always staying there. But this is not an accurate statement. It would be more correct to say that that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom.’ And the doctrine is supported by the recent decisions, to which reference was made during the debate. I do not go over these, because I think that a sufficient illustration of the doctrine is to be found in the recent case of Carswell v. Carswell (18 Scottish Law Reporter, 643, 8 R. 901). I am not of opinion that the decision in that case sanctions the view that a domicile may be acquired in Scotland merely for the purpose of divorce. I think that the judgment is rested on the view that Mr Carswell had acquired a real domicile in Scotland to all effects and purposes. But it is important to notice—and it is for this that I refer to it—that there was no allegation in that case of any intention to remain permanently in Scotland. [His Lordship referred to the evidence of the pursuer and the opinion of the Lord Justice Clerk in that case]. The other Judges concurred in arriving at the same decision upon the same facts; and I cannot avoid the conclusion that it was held sufficient to prove (irrespective of motive) the intention to acquire a domicile in Scotland, and unnecessary to prove an intention to make that a permanent domicile.

“But a question is raised also in regard to the sufficiency of the residence,—the factum, without which the animus is of no avail. On this point it appears to me to be settled that the possession of a permanent residence is not essential. There are classes of society, no doubt, in which the idea of domicile is usually incomplete without some residence of a permanent kind. But there are other classes in the social scale in which, though every individual has a domicile, the idea of a permanent place of residence is almost an impossibility. And there are classes intermediate. My opinion is that everything depends on the position of the individual whose domicile is in question. And I think there is authority for the proposition that even lodgings or a hotel may be sufficient in point of fact, if the animus of making a domicile is proved. The theory is, I think, distinctly expressed by Lord Cranworth in the case of Bell v. Kennedy, 6 Macph. (H. of L.) 76. He says—‘I think the theory goes to this, that if you establish that there was a determination to live in Scotland, and if the party goes and lives at an hotel, that is enough. He is there—that is the factum; and there is also the animus; and these two unitedly constitute the domicile.’

“My view of the present case is, that in July 1881 the defender had adopted and acted on the advice of Mr Haddon, that if he wanted a Scotch divorce to be possible he must come to Scotland with the intention of making it his home, and settle down there, so as to acquire a Scotch domicile.

“It was, however, contended that whatever the position of the defender in July 1881, something happened which changed that position before the summons was executed on 27th September. It appears that the defender read an article in the Standard newspaper of 30th July 1881, which gave rise to a doubt in his mind as to the prudence of the course which he had adopted. It suggested difficulties of a legal kind in regard to the validity of a subsequent marriage which he might make. He took legal advice on the subject, and it was apparently received about 6th or 7th September. The consequence was that he changed his mind, and told his agent that he had done so; and his agent then wrote to the agent of the pursuer this letter:—'14th September 1881. Dear Sir,—Have you done anything regarding a divorce in Mr Stavert's case? Since I last saw you I have been considering the matter, and am now inclined to think that Mr Stavert's residence in this country, which appears to be of a temporary character, would not give the Court of Session jurisdiction in such a case. What think you?’ It appears to me that this was a mere expression of a doubt in the mind of Mr Haddon. It was no intimation of a change of mind or residence on the part of the defender. And at all events I am of opinion that a change of mind on the part of the defender was not sufficient (assuming he had acquired a domicile) to restore the original domicile which he had abandoned. A very slight degree of acting upon that change of purpose might have been sufficient to cause loss of the new domicile and a revival of the original domicile. But mere change of mind was, I think, insufficient.

“On the whole, I am of opinion that on 27th September the defender had done nothing to cast off the domicile which I think he had taken some pains to acquire in Scotland.

“I need not say that in arriving at this conclusion I reject altogether the notion of its being possible to make a domicile in Scotland by agreement for purposes of divorce; and equally the idea of deciding such a question upon the ground of personal exception.”

The defender reclaimed, and argued—Stavert's intention was to remain until he had got a divorce, and no longer. The facts were in strong contrast to those which existed in Carswell's case, 6th July 1881, 8 R. 901. There was most clearly the acquisition of a permanent home within the jurisdiction of the Court. The nature of the residence

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here was quite insufficient to satisfy the definition of domicile required by the authorities—Storey, secs. 41–44; Farnie v. Harvey, 22d April 1880, L.R. 5 Prob. Div. 153; Wilson v. Wilson, 10 Macph. 573, and L.R. 2 Prob. Div. 435. The last case is of importance as showing the weight to be attached to the evidence of the party whose domicile is in question. Shaw v. Gould and Moore, 3 H.L. E. and I. App. 55. As to the permanency of intention, see also Guthrie's Savigny, sec. 353, p. 99. In Mr Haddon's correspondence with the defender there were expressions used as to a residence of forty days, which Mr Haddon no doubt represented as the period which must elapse before proceedings could be instituted, but which the defender evidently had taken to be the period of residence necessary to acquire a domicile and so found jurisdiction. Then, even if he had had any intention of remaining here, that intention was changed before he was cited, viz., at the time of reading the article in the Standard. Morcombe v. M'Lellan, June 27, 1801, M. v. “Forum Competens,” No. 3, showed how unwilling this Court was to exercise jurisdiction unless their right to do so is clear. The question of a matrimonial domicile did not arise here, but after Lord Westbury's dicta in Pitt v. Pitt, 4 Macq. 627, that doctrine could hardly now be maintained. Nor was the doctrine of jurisdiction ratione delicti commissi any longer tenable—That was ignored in Jacky v. Jack, Feb. 7, 1862, 24 D. 467; Fraser, 1289. It was also argued that as the English Courts will not recognise a marriage, although it may be valid according to foreign law, when parties have resorted to that foreign country to evade their own law ( Burk v. Burk, 9 H. of L. Cases, 193, and Dolphin v. Robins, 3 Macq. 563), neither could a divorce be recognised when obtained by a person coming to a foreign country merely in order to obtain it, and so should not be given.

Argued for the pursuer and respondent—The evidence showed that the fact of residence was here sufficiently established. Lords Westbury and Cranworth in Bell v. Kennedy, 6 Macph. (H. L.) 76–78. The only question was as to the animus. Haddon's instructions were clear, and the defender certainly intended to comply with them, for he desired a divorce. Now that intention was quite legitimate (Lord Young in Carswell; Sanchez. Disput. iii. 18–29; Storey, sec. 123 a). His own evidence now was not sufficient to contradict the intention manifested in his correspondence at the time. Granting a change of intention after reading the article in the Standard, that was not coupled with any factum, and was therefore ineffectual to change the Scotch domicile then acquired— Bell v. Kennedy, Lord Chelmsford, 76; Donaldson v. M'Clure, March 1, 1870, 22 D. 7. Besides, the defender had invited his wife to believe in his bona fide change of domicile, and even in a consistorial action he could not plead his own fraud— Graham v. Graham, Dec. 15, 1881, supra, 210, opinion of Lord Young. Even if there was not an absolute domicile in Scotland to all effects, there was a matrimonial domicile, to which the wife must look for the vindication of her rights. The law of Scotland recognised such a domicile— Warrender v. Warrender, 2 Shaw & Maclean, 226; Pitt v. Pitt, Dec. 5, 1862, 1 Macph. 115; Jack v. Jack, ut supra; Wilson v. Wilson, Mar. 8, 1872, 10 Macph. 573. Jurisdiction ratione delicti commissi had never been abandoned in Scotch law as a ground for deciding such actions as the present.—See cases cited by Lord Brougham at p. 224 of his opinion in Warrender v. Warrender; also Oldaker, Feb. 20, 1834, 12 S. 468; Forrester v. Watson, July 18, 1844, 6 D. 1358; Christian v. Christian, June 14, 1851, 13 D. 1149. In Jack v. Jack, which Lord Fraser quotes as an authority for saying this ground of jurisdiction has been abandoned, jurisdiction was sustained on other grounds.

At advising—