Scottish Court of Session Decisions

On 10th December 1806 Mrs Mary Smart or Hood, residing at 182 East High Street, Forfar, wife of Charles Hood, engineer, “presently residing at No. 48 Shere Road, Deptford, London,” raised an action against the said Charles Hood praying the Court to declare that the defender had been guilty of cruelly maltreating the pursuer, to find that the pursuer had full liberty to live separate from the defender, and to ordain the defender to separate himself from the pursuer a mensa et thoro in all time coming; further, to find the pursuer entitled to the custody of John Hood and Isabella Smart Hood, the children of the marriage, and to ordain the defender to make payment to the pursuer of the sum of £40 yearly for aliment to herself during the joint lives of herself and the defender, and of the sum of £12 yearly for aliment to each of her said children so long as they should be unable to earn a livelihood, and should remain in the custody of the pursuer, and to interdict the defender from interfering in any way with his children, or with the pursuer as the custodier of them.

No defences were lodged by the defender, but when proof was led he appeared and defended in person.

The proof showed the following facts:—The defender was born in Inverkeillor, Forfarshire, in 1863. In 1886 he went to England and, worked there as an engineer. On 27th December 1889 he was married at Forfar to the pursuer, who was also a native of Forfarshire. After a few days the defender returned to Newcastle, where he was then employed, the pursuer accompanying him. They resided there about eleven months, and then went to London. They were there about two months, and then removed to Portsmouth, where they lived seven months. In September 1891 they returned to London, where they lived ten months, and then removed to Newcastle. In the summer of 1893 they again went to London, and lived there in lodgings in various districts till April 1896, when the pursuer left the defender and returned to the residence of her parents in Forfar. Two children, John Hood and Isabella Smart Hood, were born of the marriage, on 1st December 1890, and 18th September 1894, both being born at the residence of the pursuer's parents at Forfar.

The pursuer deponed—“I have been eleven years with London firms since I left Scotland, and have only been a fortnight out of work all the time. I have been with Humphrey Tennants, London, about eight years out of the eleven. During the other three years I have been in the employment of other engineering firms.… By the Court—I only lived two or three days in Scotland with my wife after we were married; we went straight to Newcastle, where I was employed. I had been working in England for some years before that. I was born in Forfar thirty-four years ago, and I have been eleven years in England. I was brought up in Forfarshire, and served my apprenticeship in Forfar. After my time was out I worked in Dundee and Arbroath for a few months, and then went to England. With that exception, and the few days after my marriage, I have been in England ever since.… Cross.—I was born in Inverkeillor. My father died some ten years ago in Forfar, and was buried there. My mother is still living in Forfar. I have three sisters living with my mother. I was working in Arbroath for a short time when I was in Scotland looking after the case in the Sheriff Court. If I got as good a wage in Scotland as I have been getting in England, I do not doubt but I would go there to work. I only want a living wage. By the Court—… I would go back to Scotland to work if I got a good job. I would not expect to get the same money as I have, but if I got something steady I would be quite willing to go.”

On 23rd March 1897 the Lord Ordinary (Pearson) pronounced the following interlocutor:—“Finds that the defender is domiciled in England, and in respect of no jurisdiction dismisses the action, and decerns.”

Note.—“A general proof has been led in this case, and if the merits were now to be decided I should have no doubt that the pursuer was entitled to decree. Her

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witnesses seem to me entirely straightforward and reliable, with no tendency to exaggeration, and I cannot regard the defender's evidence as of any weight against them.

But the question of domicile and of jurisdiction is important, and upon the authorities it is narrow enough.

The pursuer contended that upon the proof the defender's domicile of origin subsists, and that, although he has long resided in England, the character of his residence there is such as to preclude the idea that he has acquired an English domicile, the cases referred to being Patience (1885), 29 Chancery Div. 976; Steel (1888), 15 R. 896; Low (1891), 19 R. 115; Dombrowitzki (1895), 22 R. £906. The law is clear enough. Upon the facts the first two cases come nearer to the present than the others. But in the case of Steel the alleged Burmese domicile was repudiated by the Court in language (see page 909—‘Nobody goes to Burmah to remain’) not universally applicable to Scotsmen who go to England; while the alleged English domicile was regarded as incidental to the Burmese business, and as ‘not affecting his position as a domiciled Scotsman anymore than the establishment of a branch in Burmah.’ In the case of Colonel Patience, a domiciled Scotsman, he had served in the army in foreign parts for fifty years, after which he retired, and lived a bachelor life for twenty-two years in England in lodgings, hotels, and boarding-houses. The Judge took into account the nature and character of the residence as ‘showing a fluctuating and unsettled mind,’ and pronounced for the domicile of origin. The present case differs widely from these in its circumstances. But the pursuer maintains that the principle applies; that the defender's going to England and staying there was in connection with the prosecution of his trade, and that while so engaged he moved about from place to place in England, and it is further pointed out that he not only says he would quite willingly return to Scotland if he could get the English rate of wages, but actually wrought at Arbroath for some weeks while he was detained in Scotland in connection with a petition for the custody of his child. After weighing all the circumstances here most carefully, I think it would be going beyond any decided case if I were to hold that the defender had not acquired an English domicile.

It is indeed the law that the remedies of married persons other than divorce a vinculo are not confined to the courts of the country of the domicile properly so called. It has recently been laid down by high authority (in Le Mesurier, 1895, Law Rep. App. Cas. 517) that ‘the Courts of the residence are warranted in giving the remedy of judicial separation without reference to the domicile of the parties’ ( per Lord Watson, pp. 526–7 and p. 531). But that principle has no application in the circumstances of this case, although (assuming a Scottish domicile) it might have supported an application by the wife to an English Court for the remedy of separation and aliment.”

The pursuer reclaimed, and argued—The case involved a question of status as well as a mere money payment. The defender was born in Scotland, and therefore his domicile of origin was there. The onus was on him to show that he had lost this domicile. The defender had failed to discharge that onus. The mere assertion of a defender that he meant to acquire a new domicile was not sufficient proof, and in this case even such an assertion on the part of the defender was absent. He never had any intention of stripping himself of his domicile of origin and acquiring a new domicile—opinion of Lord President Inglis in Steel v. Steel, July 13, 1888, 15 R. 908.

No appearance was made for the defender.