66

66

"such a separate domicil. The evidence in the cause is nothing to this purpose. It is, indeed, rather against "than for the Appellant's argument; it rather shows that "she had done nothing like gaining a new domicil; for "she was living chiefly abroad, and in different places: "but there is, at any rate, no evidence in the cause of her acquiring a separate domicil; and, the proof lying upon "her, it follows that, for all the purposes of the present "question, her husband's Scotch domicil is her own: but suppose we pass over this fundamental difficulty in her "case, and which appears to me decisive of the exception "with which I am now dealing, I am of opinion there is "nothing in the separation, supposing it had been ever so "formal and ever so full in its provisions, which can by "law displace the presumption of domicil raised by the marriage, and subsisting in full force as long as the "marriage endures" (o).

66

66

LXXXVII. And in accordance with the rule laid down in this decision, in the case of Whitcombe v. Whitcombe, the Judge of the Consistory of London pronounced the wife in contempt, for the purpose of carrying on the proceedings of the suit, in which the husband, living in the Diocese of London, had served a citation upon the wife, who was resident in the Diocese of Hereford (p).

(0) 2 Clark & Finnelly's Rep. p. 520. See Dolphin v. Robins, 7 H. L. C. p. 390; s.c. 3 Macq. H. L. C. p. 563.

(p) 2 Curteis' Eccl. Rep. p. 351. The citation was by Letters of Request to the Consistory of Hereford; but the principle is the same. The effect of the Matrimonial Domicil (not the place of the marriage) upon instruments of dower, rights of wife and children, is among the gravest and the most difficult questions belonging to the Conflict of Laws. According to the Roman Law-"Exigere dotem mulier debet illic, ubi maritus domicilium habuit, non ubi instrumentum dotale conscriptum est; nec enim id genus contractûs est, ut et eum locum spectari oporteat, in quo instrumentum dotis factum est, quam eum, in cujus domicilium et ipsa mulier per conditionem matrimonii erat reditura."-Dig. lib. v. t. i. 65. See this doctrine upholden in the case mentioned by Pufendorf, Universi Juris Observationes, cxxi.

See also the case of Gambier v. Gambier, 7 Simons' Chancery

LXXXVIII. But this rule, that the domicil of the husband is the domicil of the wife, is not to be pressed so as to make a fiction of law work a practical injustice.

In a case where an Englishman, being in embarrassed circumstances, for the purpose of avoiding his creditors, left England and went to Scotland in 1854, leaving his wife behind him, and in 1858 became the lessee of a shooting lodge for the term of six years, and had from time to time corresponded with his solicitors in London, with the view of making arrangements with his creditors, and in 1860 commenced a suit for a divorce against his wife on the ground of adultery, it was holden that the domicil of origin was not changed, and that therefore the Scotch Courts had no jurisdiction to entertain the suit (q). This rule does not apply to a suit brought by the wife against the husband who has illegally separated himself from her.

The language of the Court of Massachusetts, in Harteau v. Harteau, is as follows (r) :—

"This suggests another source of inquiry, that is, how "far the maxim is applicable to this case, that the "domicil of the wife follows that of the husband.' Can "this maxim be true in its application to this subject,

Reports, 263, and the two most important cases of Hogg v. Lashley, in the House of Lords, 6 Brown's Parliamentary Cases, 550, and Saul v. His Creditors, in the American Courts, antè, § viii. n. (f). The former established, that parties married in England, where they had their domicil, by removing to Scotland, and fixing their domicil in that country, changed their own rights and the rights of their children, and subjected these to the rules of succession of the law of Scotland. The latter decided, that where married persons had removed from Virginia, their matrimonial domicil, where no community exists, into Louisiana, where a community does exist, the acquests and gains, acquired after their removal, were to be governed by the laws of community in Louisiana.-Story's Commentaries, p. 153; Robertson on Personal Succession, pp. 142, 147, and note.

(a) Pitt v. Pitt, 4 Macq. H. L. Cases, p. 627; 10 Jur. N. S. p. 735. Lord Kingsdown diss.

(r) 14 Pickering's (Amer.) Rep. p. 181 (A.D. 1833).

"where the wife claims to act, and by law, to a certain "extent, and in certain cases, is allowed to act, adversely "to her husband? It would oust the Court of its juris"diction in all cases where the husband should change "his domicil to another State before the suit is instituted. "It is in the power of the husband to change and fix "his domicil at his will. If the maxim could apply, a man "might go from this country to Providence, take a house, "live in open adultery, abandoning his wife altogether, "and yet she could not libel for a divorce in this State, where, till such change of domicil, they had always "lived. He clearly lives in Rhode Island: her domicil, "according to the maxim, follows his; she therefore, in

contemplation of law, is domiciled there too; so that "neither of the parties can be said to live in this Common"wealth.

"It is probably a juster view to consider that the "maxim is founded upon the theoretic identity of person "and of interest between husband and wife, as established "by law, and the presumption that, from the nature of "that relation, the home of the one is that of the other, "and intended to promote, strengthen, and secure their "interests in this relation, as it ordinarily exists where "union and harmony prevail. But the law will recognize "a wife as having a separate existence, and separate "interests, and separate rights, in those cases where the "express object of all proceedings is to show that the "relation itself ought to be dissolved, or so modified as "to establish separate interests, and especially a separate "domicil and home, bed and board being put, a part for "the whole, as expressive of the idea of home. Otherwise, "the parties in this respect would stand upon very unequal grounds, it being in the power of the husband to change "his domicil at will, but not in that of the wife.

"The husband might deprive the wife of the means of "enforcing her rights, and, in effect, of the rights them"selves, and of the protection of the Commonwealth at

"the same time that his own misconduct gives her a right "to be rescued from his power on account of his own "misconduct towards her" (8).

(s) See Dean v. Richmond, 5 Pickering's (Amer.) Rep. p. 461; Barber v. Root, 10 Mass. Rep. p. 260.

See, too, in Supreme Court of U. S., Cheever v. Wilson, 9 Wallace, 107; principle carried further, Wharton, s. 225; Yelverton v. Yelverton, 1 Swabey & Tr. p. 585.

As to the national status of English married women (33 Vic. c. 14; and 35 & 36 Vic. c. 39), vide post, ch. xvii. and vol. i. App. p. 653.

CHAPTER IX.

II. NECESSARY DOMICIL-MINOR.

LXXXIX. THE Minor may be either-1. Legitimate, or 2. Illegitimate. The Legitimate may be either, 1, emancipated, or 2, unemancipated (a).

XC. The Domicil of the legitimate unemancipated minor, who is not sui juris, and whose will, therefore, cannot concur with the fact of his residence, is the domicil of the father (b), or of the mother during widowhood, or though it will be seen this is a disputed point -of the legally appointed guardian.

XCI. It is an undisputed position of all jurists, that of his own accord, proprio marte (to borrow the expression of Bynkershoek), the minor cannot change his domicil. In our own country, this maxim was enunciated by Lord Alvanley, Master of the Rolls, in the case of Somerville v. Lord Somerville (c), and in America, in the case of Guier v. O'Daniel (d). It should seem, from all analogy, to follow that such change may be effected by the parents or guardians of the minor.

XCII. But the general question has undergone very full and elaborate discussion by the most distinguished jurists; and, though agreeing upon the general principle, they differ as to the exception from and limitations of it.

(a) As to the national status of English infant children (33 Vic. c. 14, and 35 & 36 Vic. c. 39), vide post, ch. xvii. and vol. i. App. p. 653.

(b) Guier v. O'Daniel, 1 Binney's (Pennsylvanian) Reports, p. 352,

note.

(c) 5 Vesey's Rep. p. 787.

(d) Ubi supra, p. 349, note.