Scottish Court of Session Decisions

Subject_1 PART I.

FORUM COMPETENS.

Maria Morcombe,
v.
John Law Maclelland

Date: 27 June 1801
Case No. No. 3.

A process of divorce in Scotland found incompetent against a person who was born and educated in Scotland, but had married an Englishwoman in England, and never afterward returned to Scotland.

Click here to view a pdf copy of this documet : PDF Copy

John Law Maclelland was by birth a Scotsman. He served an apprenticeship to a surgeon in Dumfries; attended the medical classes at the University of Edinburgh; and was afterward appointed a surgeon's mate in the Navy; in which service having become valetudinary, he was appointed surgeon to the Myrmidon receiving ship, stationed at Plymouth.

In 1779, he was married at Plymouth to Maria Morcombe, an English woman.

After living together many years, it was alleged by Maria Morcombe, that her husband had deserted her, and lived in adultery with another woman; on which account, she brought a process of divorce against him before the Commissaries of Edinburgh. To this action he was cited edictally at the pier and shore of Leith, and a certificate by a notary was produced, that a copy of the summons had been delivered to him at Plymouth, where he retained his situation in the Myrmidon, without having ever been in Scotland since his first appointment in the Navy.

The defender declined the jurisdiction of the Commissaries, who pronounced the following judgment:

“ Considering that the courts of one country ought not to be converted into engines for either eluding the laws of another, or determining matters foreign to their territory, and that decreets of divorce pronounced by incompetent courts, cannot effectually and securely either loose the bonds, or dissolve the marriages, or fix the states of the parties thereto, but might become causes or snares to involve other persons, as well as the parties and their children, in deep distress; and observing it to be admitted in the libel, that the marriage of the pursuer and defender was celebrated in England; that they resided constantly in England since their marriage; and even that the crime on which divorce is here demanded to be decreed, was committed in England; therefore find that the action is not competent in Scotland, and ought not to have been brought before this court; and dismiss the process in all its parts, for want of jurisdiction and of power.”

The Lord Ordinary having refused a bill of advocation, the pursuer, in a reclaiming petition,

Pleaded: In a quæstio status, like the present, the defender would be amenable to the courts of Scotland even ratione originis. But in truth, having been constantly in the navy service ever since he left Scotland, he has acquired no other forum, and consequently the country in which he was born and educated is still his proper domicil; 11th June 1745, Dodds, No. 14. p. 4793; 8th March 1796, Pirie, No. 104. p. 4594; 13th June 1800, French, No. 1. supra.

The Lords unanimously refused the petition, without answers.

Lord Ordinary, Armadale. For Petitioner, R. H. Cay. Fac. Coll. No. 242. p. 545.