Davéziés de Pontés, commandant at La Rochelle, in France, his executors, &c., whose wrongs I in this my will declare were not wilfully caused by me, and that both he and myself are the victims of cruel deception and injury." By a codicil executed on the same day she revoked the direction contained in the will as to the £12,000, "and all the trusts declared by the will of the said sum," and all the gifts thereby made in favour of her husband.

These papers were the will and codicil tended for probate by the executors.

The appellant opposed the reception of these papers, and tendered a responsive allegation, which was afterwards amended, and in its amended state set forth, "that in the month of February, 1854, the said Vernon Dolphin, the then husband of the party deceased in this cause, left England, and went to Scotland; that on the 23rd day of February, 1854, he arrived at Edinburgh; and from such time until the 25th of the said month he resided at the Waterloo Hotel in Edinburgh aforesaid, when he left the said hotel, and from such time until the 3rd day of April following he resided at a cottage called South Cottage, which he had hired as a residence, at Wardie, near Edinburgh; and that on the said 3rd day of April he returned to the said Waterloo Hotel, where he resided until the 9th of the said month, when he left the said hotel, and went to England for a few days, and returned to Scotland, and resided again at Edinburgh and Stirling, in Scotland, until the 6th day of June following, when he again returned to and took up his abode at the said hotel, and there remained till the 19th of the said month; that the said Vernon Dolphin had by such [394] residence, and in* intention as well as in fact, become a domiciled Scotchman. That the party deceased in this cause having ascertained that the said Vernon Dolphin was living in adultery during the said time in Scotland, on the 17th of the said month of June a summons was personally served upon the said Vernon Dolphin, at her instance, in an action of divorce before the Lords of the Court of Council and Session in Scotland, against her then husband, the said Vernon Dolphin, on the ground of adultery. That on the 19th day of the said month of June the said Vernon Dolphin again went to England, but returned afterwards to Scotland, and was there resident for some days in the month of July, 1854. That on the 20th day of the said month of July the said

Lords of the Court of Council and Session in Scotland by their decree, dated the 20th day of July, 1854, found the said Vernon Dolphin guilty of adultery, and therefore divorced and separated him from the said Mary Ann Payne or Dolphin, her society, fellowship, and company, in all time to come, and declared that he had forfeited all the rights and privileges of a lawful husband, and that the said Mary Ann Payne or Dolphin was entitled to live single, or marry any free man, as if she had never been married to the said Vernon Dolphin, or as if he were naturally dead. And the party proponent expressly alleges and propounds, that by such decree the said Mary Ann Payne or Dolphin became and was, from and after the said 20th day of July, 1854, absolutely divorced from the bond of matrimony with the said Vernon Dolphin, and free to marry any other man.

On the 8th October, 1854 (all the forms of the Scotch and of the French laws having been complied with) she was married to General de Pontés, a Frenchman, and immediately afterwards went with him to reside in France. In 1855 she became a member of the Roman Catholic Church, and took the names of Marie Eustelle Davéziés de Pontés. On the 3d of April, 1856, [* 395] she made a will, valid according to the French law, by which she oppointed General de Pontés her "universal legatee," and General Korte, sole executor. She was shortly afterwards placed by De Pontés in the convent of Les Dames Augustine. On the 23d June, 1856, she made a holograph will, valid by French law, in these words, "I revoke all previous wills made by me up to this date, 23rd June, 1856," and enclosed this revocation in an envelope, on which was written the following memorandum, "Last will which I have made this day, 23d June, 1856," and signed her recently adopted names in full to each paper. The papers she entrusted to an intimate female friend, and she died in September, 1856. These were the papers which the appellant proposed by his responsive allegation to bring before the Court, as the last will of the deceased, contending that by the Scotch divorce, and the subsequent marriage, and the residence in France, she had acquired a French 'domicil, and was entitled and of capacity to make a French will, and that this last will was valid by the laws of France.

The case was heard before Sir C. CRESSWELL, who, on the 5th March, 1858, made an order rejecting the responsive allegation.

No. 2. Dolphin v. Robins, 7 H. L. Cas. 395-413.

The learned Judge (as the order was interlocutory) granted leave to appeal, and this appeal was then brought,

After hearing arguments from Sir H. Cairns (Solicitor-General) and D. Deane (Dr. Twiss was with them) for the appellant and Mr. R. Palmer and Mr. Bush for the respondents, the Lords took time for consideration.

On a subsequent day,—

Lord CRANWORTH, (after stating the facts set forth in the responsive allegation):

[* 412]

The very learned Judge of the Court of Probate rejected this allegation of the appellant, on the ground that it stated no case impeaching the validity of the will and codicil propounded by the respondents, and the appellant now complains of that rejec tion. The grounds on which the appellant relied were, that by the proceedings in Scotland, the marriage with the appellant was dissolved, so as to enable the deceased to contract a new marriage; that she did in fact contract a new marriage in 1854 with General des Pontés, a domiciled Frenchman, and became herself domiciled in France, and so continued from the time of her marriage till her death; and that while so domiciled, she made the will of 23d June, 1856, in the mode required by the laws of the country of her domicil, which, therefore, was a valid revocation of the will and codicil of April, 1854. The appellant farther contended, that even if the divorce was not valid, so as to enable the deceased to contract a second marriage, still it operated as a divorce à mensâ et thoro, and enabled her to select a domicil of her own, and that in fact she did select France as her domicil, where she lived and died.

The learned Judge of the Court below was of opinion that the English marriage was not dissolved by the Scotch divorce, and that so the deceased remained up to the time of her death the wife of the appellant, whose domicil was and had always been in England; that this domicil was her domicil, and that the will, or alleged will, of June, 1856, not having been executed in the mode required by our laws, had no effect on the will and codicil of 1854. He farther held, that the Scotch decree did not operate as divorce à mensâ et thoro, and so made a decree rejecting the allegation.

The same points which had been pressed in the Court below was repeated here, and arguments were urged with [*413] great ability at your Lordships' bar in their support.

No. 2.- Dolphin v. Robins, 7 H. L. Cas. 413, 414.

But they have failed to convince me, or, as I believe, any of your Lordships who heard the case. On the first question, that of the validity of the Scotch decree of divorce to dissolve the English marriage, the decision in Lolley's Case, Russ. & Ry. 237, is conclusive. It was indeed contended in the argument here, that Lolley's Case did not necessarily govern that now under consideration, for since that decision the principles applicable to this question have been materially changed by the statute 9 Geo. IV. c. 31. But this seems to me altogether a mistake. In Lolley's Case it appears that he, having been married in England, afterwards went to Scotland, and while he was there, not having become a domiciled Scotchman (for that must be assumed to have been the state of the facts), his wife obtained a Scotch decree for a divorce, on the ground of adultery committed by him in Scotland. After the decree was pronounced, he returned to England, and married a second wife at Liverpool. This was held by the unanimous opinion of the Judges to be bigamy, on the ground" that no sentence or act of any foreign country or state could dissolve an English marriage a vinculo matrimonii; that no divorce of an Ecclesiastical Court was within the exception in 1 James I. c. 11, s. 3, unless it was the divorce of a Court within the limits to which the 1st James I. extends." The exception in the statute 1 James I. was of "any person divorced by sentence in the Ecclesiastical Court.” It was contended at the bar that the decision might have been different if the case had arisen since the 9th Geo. IV. c. 31, which repeals the statute 1 James I. c. 11, and by s. 22 again makes bigamy a felony, but with a proviso that the enactment shall

not extend to any person who at the time of the second [* 414] marriage shall have been divorced from the bond of the first marriage. It was said that though the Scotch Court was not the Ecclesiastical Court contemplated by the statute 1 James I., and that so Lolley was not within the exception contained in that statute, yet that as he had been in fact divorced, he would not have been within the proviso of the statute 9 Geo. IV. c. 31. This, however, is evidently a mistake. He was not, and could not be divorced; for, according to the express opinion of the Judges, no foreign court can dissolve the bonds of an English marriage.

Lolley's Case has been frequently acted on. In the case of Conway v. Beazley, 3 Hagg. Ecc. Rep. 636, Dr. LUSHINGTON, after much consideration, acted on it, treating it as settled law where there is

no "bona fide domicil," a real domicil, and not a domicil assumed merely for the purpose of giving jurisdiction. And I believe your Lordships are all of opinion that it must be taken now as clearly established, that the Scotch Court has no power to dissolve an English marriage, where, as in this case, the parties are not really domiciled in Scotland, but have only gone there for such a time as, according to the doctrine of the Scotch Courts, gives them jurisdiction in the matter. Whether they can dissolve the marriage, if there be a bona fide domicil, is a matter upon which I think your Lordships will not be inclined now to pronounce a decided opinion.

On the other point, decided in the Court below, I think there can be no doubt. If the Scotch divorce did not operate as a dissolution of the marriage, it clearly did not operate as a divorce à mensâ et thoro. It was not intended so to operate, and it is by no means certain that the deceased would have desired to [*415] obtain such a decree. It appears, therefore, to me, that on both the points raised in argument before him, the

*

learned Judge below was clearly right.

But on the argument here a new point was started. It was contended that, without any dissolution of the marriage, or any divorce à mensâ et thoro, the deceased was, by the acts of the husband appearing on the allegation, placed in a situation enabling her to choose a domicil for herself separate from that of her husband; and that, in fact, she did choose France as her domicil, and there lived and died; that when so domiciled, she made the will of the 23d June, 1856, valid according to the laws of the place of her domicil, which therefore ought to have been admitted to proof, or, at all events, that, as her domicil was at her death French, the English will and codicil ceased to be operative.

This point was urged with considerable ability and force; and as it was one which had not been put forward below, and therefore had not been considered by Sir CRESSWELL CRESSWELL, your Lordships desired to have a second argument at the bar confined to this single point. Accordingly your Lordships, a few days since, heard Sir Hugh Cairns for the appellant, and Mr. Roundell Palmer for the respondents, both of whom did full justice to the question argued. I have given my best consideration to the able arguments then addressed to us, and have come to the conclusion that there is nothing in this new view of the case which ought to induce your Lordships to disturb the decision of the Court below.