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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A v. B [1873] ScotLR 10_290 (27 February 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0290.html Cite as: [1873] SLR 10_290, [1873] ScotLR 10_290 |
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Page: 290↓
Where a defender in an action for divorce admitted having been born in Scotland in 1836, having resided there until 1860, having then gone to London, married, and resided there until 1870, when he went to India, from which he returned in 1871, since which time he resided in Scotland until the date of the action, and where the adultery was committed in Scotland— held that a plea of no jurisdiction, in respect defender was a domiciled Englishman, advanced for the first time on a reclaiming note, was inadmissible.
The summons in this suit, at the instance of A against her husband, concluded for divorce on the ground of adultery. The pursuer stated that she and the defender were married in England on 7th September 1865; that the defender was born in Edinburgh, and was about thirty-six years of age at the time of the action; that up to the year 1860 he had lived entirely in Scotland; that in 1860 he went to London, and remained there until 1870, when he went to India, from which he returned in 1871; and that, since that time, he had resided in Edinburgh. She also stated that on March 1872 the defender was convicted in the Sheriff Court of Edinburgh, and was sentenced to sixty days' imprisonment in the Calton Jail there, and he was undergoing sentence at the time the action was raised. The defender denied that he had resided in Edinburgh since July 1871. Quoad ultra he admitted the pursuer's statements as above-mentioned, with the explanation that the defender returned from India shortly after going there, and that he sometime afterwards visited Scotland, which he did for the purpose of starting a company to run the Kirkcaldy and London Steamboats, and that he afterwards returned to London to attend business in connection with the said company, but subsequently returned to Scotland.
The adultery was alleged to have been committed in Edinburgh during 1872. The defender denied the alleged adultery, but took no other plea on record. On 17th July 1872 the Lord Ordinary found the adultery proved, and granted decree of divorce. The defender reclaimed, and abandoned the case on its merits, and for the first time advanced the plea that he was a domiciled Englishman, and the marriage having been entered into in England, the Courts of Scotland had no jurisdiction, it resting with the pursuer to prove the Scottish domicile. Authorities cited, Ranger v. Churchill, 15th Jan. 1860, 2 D. 307; Jack v. Jack, 24 D. 467; Oldaker, 12, S. 468; Pitt, 4 Macq. 627; Warrender, 2 S. & M. 192; Fraser's Per. and Dom. Relations, 746; Erskine, 1, p. 42 (Nicolson's edition).
At advising—
The Court adhered.
Counsel for Pursuer— Mackintosh. Agents— M'Kenzie & Black, W.S.
Counsel for Defender— Mair. Agent— Wm. Officer, S.S.C.