moveable estate of the parents, will be considered under the head of Succession (infra).

2. Divorce.

215. There are two grounds only on which the law of Scotland will sanction the disruption of the matrimonial tie: adultery, and malicious desertion. (As to the history of the law of divorce in Scotland, see Fraser, H. and W. 1129 et seq.; and note to Brodie's Stair, B. i. tit. iv. p. 25 et seq.)

216. In thus limiting its interference to cases of absolute necessity, where it does little more than provide for the consequences of a fact which is already accomplished, our law seems to have struck a happy medium between the laxity which at one time disgraced the Christian world, and the over-stringent provisions of the Canon Law.

217. The Scottish law of divorce is, moreover, in accordance with that which prevails in almost all the Protestant countries of Europe, England being now scarcely excepted. "The conjugal relation," says Lord Fraser, "has stood not less, but infinitely more secure and sacred, since separations a mensa et toro for adultery, which were extremely common under the Popish jurisdiction, fell into total disuse; and the number of actions for divorce a vinculo has, in proportion to that of the population, remained nearly the same at all periods since the commissaries were first appointed in 1563, down to the present time." (H. and W. 1141.)

3. Adultery.

218. Divorce for adultery was not introduced into Scotland by statute; but immediately after the Reformation it was held by the courts, as a consequence of that event, to be the common law. (Stair, i. 4. 7; Ersk. i. 6. 37.)

219. Divorce is equally competent in Scotland, whether the

crime of adultery has been committed by the husband or the wife; while in England a wife cannot obtain divorce on the ground of the husband's adultery alone, but only where the adultery is combined with cruelty.

220. It is not adultery if one spouse (say the wife) has been constrained by force to suffer connection with another than her husband; or if the intercourse has taken place by mistake, she believing the person to be her husband. (Fraser, 1142; Thomson v. Bullock, Dec. 9, 1839, F. C.; and M'Donald, May 5, 1842, Brown's Just. Rep.)

221. Neither is it adultery if, acting on a belief in his death, founded on false intelligence, or other reasonable grounds, she have married another. (Fraser, ut sup.)

222. The action is competent only to the aggrieved spouse. It is not competent to his or her heir or creditor, though they, or any other parties interested in the defender of an action of divorce, may competently state defences. (Fraser, 1145.)

223. The Conjugal Rights Act of 1861 (24 and 25 Vict. c. 86) provides (sec. 7) that in every action of divorce at the instance of the husband it shall be competent to cite, as a codefender along with the wife, the person with whom she is alleged to have committed adultery; and it shall be lawful for the Court to decern against the person with whom the wife is proved to have committed adultery for the payment of the expenses of the process. It is, moreover, provided that it shall be competent to examine the alleged paramour as a witness, notwithstanding his being a co-defender in the cause; and in the power of the Court to dismiss the action against him, if in their opinion such a course is conducive to justice. The subsequent section (8) provides that the Lord Advocate may enter appear ance in all actions of nullity of marriage and divorce, either at his own instance or at the suggestion of the Court. The corespondent cannot plead that he was in ignorance that the defender was a married woman. (Kydd v. Kydd, May 14, 1864,

2 M. 1874.) It is not necessary to prove the identity of the co-respondent. (Bell's Prin. 1530.)

224. If the Scotch courts have jurisdiction over the defender, divorce will be granted, though the adultery was committed abroad, and though he be absent from the country at the time of raising the action. (Fraser, ut sup.) In this case it is required by 24 and 25 Vict. c. 86, sec. 10, that the summons shall be served upon the defender personally, unless it can be shown that he cannot be found; in which case edictal citation shall be sufficient. Where the husband has acquired a foreign domicile, it is incompetent for him to sue for a divorce in Scotland [unless the matrimonial domicile of the parties has remained there. (Jack, 1862, 24 D. 867; Hook, ib. 488.) According to the dicta in a recent case (Stavert, 1882, 9 R. 519), the existence of a "matrimonial domicile" in reference to divorce-i.e. a domicile founding jurisdiction in an action at the instance of the wife which is other than the husband's domicile of succession— would appear, notwithstanding these decisions, to be still an open question, and one on which a considerable difference of opinion might be anticipated on the bench. (See also Pitt, 1862, 1 M. 106, H. L. 4 Macq. 627; Wilson, 1872, 10 M. 573; Fraser, 1276 et seq., who is of opinion that such a domicile does exist.) The point appears to be unsettled also in England. (Briggs v. Briggs, L. R., E. D. 163)].

225. Divorce can be granted only by the Court of Session; and residence for forty days in Scotland [was formerly held sufficient to] render the defender amenable to the jurisdiction of that Court; [and it was] decided that such a domicile of jurisdiction, as it is called, acquired by the husband, [did] not change that of a wife to Scotland; and, consequently, that she [could] not be sued in an action of divorce, unless she herself [had] been personally resident in Scotland for forty days. (Ringer v. Churchill, Jan. 15, 1840.)

226. The pursuer must also have resided forty days, in all

cases in which he had no other connection with Scotland. (Shields. Shields, Dec. 1, 1852.) It may be remarked that actions of divorce which are brought into the Scotch courts by foreigners, and apparently for no other reason than to avoid the jurisdiction of the courts of a country in which this remedy is less easily obtained, are regarded by the judges with great suspicion. No case has occurred in which there has not been a longer residence than forty days on the part either of the pursuer or the defender; and should such a case be presented to them, though it is difficult to see on what principle they could dismiss it, there is no doubt that the courts would deal with it very reluctantly. [The old jurisdiction of forty days' residence has now been abandoned, and the Court will refuse to entertain an action of divorce where the parties are not domiciled in Scotland, or where the "matrimonial" domicile above referred to exists there. (Fraser, 1275.)

227. [Such is also the case with another former ground of jurisdiction, said to be founded ratione delicti commissi,

that is to say, where the adultery was committed in Scotland, and the defender, having neither domicile nor residence, was personally served with a summons there. (Stavert, supra.)

228. [The subject of domicile belongs rather to Private International Law than to a work of the present scope. Domicile has been defined as "the place where a person has established the principal seat of his dwelling and his affairs." It is of three kinds, namely, domicile of origin, which is acquired at birth; of choice; or fixed by operation of law, as that of a minor or wife. It is, perhaps, best expressed simply as a person's "home." (Fraser, 1251 et seq.; Dicey on Domicil.)]

229. In order to prevent spouses who have become tired of each other's society from entering into a private compact to obtain a decree of divorce, the pursuer is called upon to swear that the action is not collusively raised; and the Lord Advocate

may now appear for the public interest. (24 and 25 Vict. c. 86, sec. 8.)

230. The oath of calumny is to the effect that the pursuer has just cause to insist in the present action; that he believes the defender to have been guilty of adultery; and that the facts stated in the condescendence (which is read to him at the time) are true; that there has been no concert or collusion between him and the defender in raising the action; nor does he know, believe, or suspect that there has been any concert or agreement between any other person and the defender on his behalf. (Fraser, 1145, 1195, and 1249.)

231. It has not been found practicable to lay down any rule as to what shall amount to collusion; and it is therefore to be feared, notwithstanding the stringency of the oath, that a secret understanding between the parties is not uncommon. It may be stated, on the one hand, that simple knowledge, on the part of the pursuer, that the defender wished him to succeed in his action, would not be collusion; whilst, on the other, an agreement that the husband, say, should commit adultery, in order that the divorce might be obtained, certainly would. (Paul v. Laings, March 7, 1855; Dickson on Evidence, p. 779; [Graham, 1881, 9 R. 327].)

232. In proof of adultery, the first act to be established is marriage; for where there was no marriage there can be no adultery.

233. Presumptive evidence of adultery is admitted as sufficient, because that fact is one which, less than almost any other, admits of being established directly; and unless it were competent to arrive at it by a train of circumstances, no protection whatever could be given to marital rights. (Fraser, 1151.) The rule, however, is one which will be applied with great caution.

234. The parties to an action in consequence of adultery, and their husbands or wives, may be witnesses in such action, provided no such person be "liable to be asked or bound to answer any