M'Douall v Dalhousie

Ld. Fullerton. , Lords Justice-Clerk , Glenlee , Meadowbank , Fullerton , Moncreiff , Jeffrey , Cockburn , Cuninghame .

A good deal of evidence had been adduced, hinc inde, on the question whether the original connexion of Colonel M'Douall and Mary Russell in 1795 had been matrimonial or not. That question was altogether of a special nature; and the Court held, that the connexion had been illicit, until 1808, and that the pursuer and all the other children were born illegitimate. But the pursuer contended, on the following grounds, that he had been legitimated by the subsequent marriage of his parents.

The domicile of his father was always Scottish. The temporary absence in England did not affect his domicile, as that absence was occasioned by his military duties, and he kept, during the whole time, an establishment of servants at his own house in Scotland. He had merely a succession of temporary lodgings without any establishment suited to his condition in society whilst in England. And he returned to reside at Logan, so soon as his military duties came to an end by the disembodying of the regiment under his command.

It was the succession to Scottish heritage which was immediately in question; a subject which lay unalterably within the dominion of the laws of Scotland. And it was in a Scottish Court that the right of the pursuer under the Scottish marriage was to be decided. It was, therefore, by the law of Scotland alone that the pursuer's legitimacy should be tried.

Warrender, June 28, 1834 (ante. XII. 468), and II. S. and M'L.’s Appeals, 154; Story (Conflict of Laws), p. 162, §. 191.