GEORGE RINGER v ELIZA HIGGS CHURCHILL or RINGER (Court of Session)

The mere fact of the parties being foreigners does not prevent the Scotch remedy of divorce, provided there be jurisdiction; vide cases of French, Wyche, Utterton, Gordon, Levett and Forbes, ut supra. A foreigner committing a breach of the contract in Scotland is clearly amenable to the civil suit of divorce; and therefore his foreign origin or foreign domicil, if these be a sufficient protection in themselves, should not cease to be so in respect of the locus delicti being Scotch, as this is not a criminal proceeding.

There is no proof of collusion, but a contrary presumption, arising from the sanction of the oath of calumny,— from the appearance of the defender by counsel and agent, the guilt being established by the proof, and no remedy having been sought in England by act of Parliament or otherwise.

A declarator of marriage is competent at the instance of a Scotchwoman against a Scotchman, although he had gone to reside in England; Mackenzie v. Mackenzie, 8th March 1810, F. C. Scotch parties married in Scotland, where the defender had an estate, may be sued for aliment though domiciled in England; Bell v. Bell, 22d Feb. 1812, F. C. ; vide Ersk. i. 2. 16; Rolland, Dec. 1816, F. C. As to the necessity of personal notice, see Blake v. Blake, 6th July 1826, S. and D. iv. 795; Oldaker v. her Husband, Feb. 20. 1834, S. and D. xii. 468; Storie's Conflict of Laws , p. 171, § 205.

None of the cases quoted by the pursuer are in point. In those of Warrender, Edmonstone and French, the husband was a proper domiciled Scotchman, and consequently the wife was held, fictione juris, to be in Scotland. It would be very inexpedient and against all principle to allow the husband to elect his forum, and bring his action in a country where the parties never resided, and of which no law was violated.

The case of Lindsay v. Murray, as to the prorogation of the jurisdiction, is a single case, and is ill founded on principle. It is pars judicis to see that judgment may not be ultra vires, and the Court is bound to take up questions of competency and jurisdiction ex proprio motu; Buchanan v. Downie, Nov. 18. 1837, S. and D. xvi. 84.