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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchanan v Downie [1837] CS 16_82 (18 November 1837) URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0082.html Cite as: [1837] CS 16_82 |
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Page: 82↓
Subject_Jurisdiction—Forum Competens—Divorce.—
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.
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. *
_________________ 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.”
The Court accordingly remitted to the Lord Ordinary to allow the action to proceed.
Solicitors: Campbell and M'Dowall, S. S. C.—Agents.
