188

Review: Hosack's Treatise on the Conflict of the Laws of England and Scotland.

period of its history. That influence is still the ingenious treatise of Lord Kaimesh about recognised by the Ecclesiastical and Admiralty that time, shows indeed that the subject had Courts, and it has also been continuously felt attracted attention; but the principles which in the Courts of Equity from the period of were then allowed to regulate the most importheir first formation down to the present time. tant questions of mixed rights, were then but "The early history of the Roman law in Scot- ill-defined-a circumstance proved by the reland is apparently involved in considerable markable fluctuation which the law of internaobscurity; but it is probable that it did not tional succession underwent after that period, become an object of general study there until and to which it will be necessary to refer in after it had been in a great measure abandoned another part of this Treatise. For practical in England. Its results in Scotland, however, pnrposes, indeed, this branch of law may be were much more important. During the in- said to be of simultaneous growth in the two terval between the first formation of the Court countries-for the jurisprudence of Scotland of Session in 1425, until its final constitution appears to be in many respects indebted to the in its present form, on the model of the Par- same eminent jurists who first established its liament of Paris, in 1532, there is ample evi- principles in the sister kingdom. dence of the authority obtained by the civil law. "But although the labours of the learned, During this period we find that it was recog-powerfully aided as they have been by judicial nised by various Parliaments, as the common skill, have cleared away many difficulties and law of the kingdom, as it had previously been fixed numerous rules for the adjustment of in France and other countries; and to its in- conflicting laws, various questions, involving fluence among other less striking results, may interests of deep importance to society, still be attributed, during the same interval, the discontinuance of inquests or trial by jury in civil causes, which have been only recently and partially restored. f

d

remain in a state of perplexing uncertainty. There is, however, one remarkable feature in the present age, by means of which it is pos sible that these evils may be eventually dimi "The changes necessarily arising during suc- nished, if not altogether removed. The unprecessive ages, under two unconnected jurisdic- cedented facility for intercourse between nations must be added to the causes which have tions will, in all probability, render questions led to various differences between the laws of of foreign and conflicting laws of much more the two kingdoms. Among these the most frequent occurrence. The necessity of deterremarkable perhaps is the origin and growth mining these upon equitable principles must of the Courts of Equity in England, which are lead to a more extensive acquaintance as well in many respects peculiar to the jurisprudence with the writings of the best authorities, as of that country; for while other States seem with the practice of foreign States, and an apgradually to have adapted their judicial system proximation may at length be made to that to the exigencies of society, the strict adherence universal system of international comity, which of the courts of common law to their own it is the ultimate object of this branch of jurismaxims, and that reverence for precedent prudence to establish." which has generally characterized their administration of the law, rendered the establishment of a separate equitable jurisdiction indispensable in England before the termination of the fourteenth century."s

He then adverts to the progress of Jurisprudence on the Continent, and observes that

"From the greater infusion of Roman law into the jurisprudence of Scotland, there is found in the earlier decisions of the Court of Session a much more frequent reference to foreign authorities than at a corresponding period in England. The doctrines of international law, however, do not appear to have made much real progress in the former country before the middle of the last century. The publication of

Spence-Equitable History of the Court of Chancery, Part 2, book 4, chap. 8.

See Sir George Makenzie's Institutes, tit. 1, Observations on Acts of Parliament, cap. 1. e Hallam's Const. Hist., vol. iii. p. 414; Chalmers' Caledonia, book 4, chap. 4.

f 55 Geo. III. cap. 42.

As a topic of some general interest in both countries, and bearing on professional practice, we may extract the section in the chapter on the Law of Marriage, regarding Separation Deeds.

"Although the English law looks with great disfavour on any agreement which has for its object the relief of the parties from the duties incident to the conjugal relationship, yet, when the husband and wife have come to a resolution to live apart, the courts, both of law and equity, have, in many instances, recognised the validity of agreements made for this purpose. This is usually done by the husband covenanting with trustees appointed on behalf of the wife, that he will provide certain funds for separate mainte nance, the trustees covenanting in return to indemnify the husband against the debts of the wife, and that she shall release all claims of jointure and dower. The deed also in general contains a clause in which each party covenants

h Principles of Equity.

i Westmeath v. Westmeath, Jac. Rep. 126, 1 Dow. & Clark, 519; Jee v. Thurlow, 2 Barn.

See Spence-Equitable History of the & Cress. 547; Wilson v. Mushett, 3 Barn. &

Court of Chancery.

Adol. 752; Jones v. Waite, 1 Bing. N. C. 656.

Review: Hosack's Treatise on the Conflict of the Laws of England and Scotland. 189

coverture.

m

event of the dissolution of the marriage, though these were more valuable than the provisions of the contract."p

The volume concludes with some general remarks on the state of the Law with regard to Divorce, which we think are

deserv

at home or abroad, were sufficient for this purpose; but whatever opinion may have been entertained upon this point formerly, it is clear, from the decision in Ringer v. Churchill, that this definition will not hold good in all cases. Where the complaining party is a native of Scotland, the circumstances alluded to may, in certain cases, be held sufficient; for it may be inferred from several of the preceding decisions, that fewer circumstances will be requisite to give the courts jurisdiction when the parties are natives of Scotland, than when they belong to another country.

not to molest or interfere with the other, and not to sue for restitution of conjugal rights. Under such an agreement the wife is entitled to receive her separate allowance so long as the separation continues, and while she observes the covenant agreed upon; nor will she forfeit that claim by the commission of adultery. "Although, however, the law allows pro-ing of attention. vision to be made for a separation already de- "From a review of the foregoing cases it will cided upon, and which is immediately to take be seen, that provided the parties are within place, it will not recognise any agreement, the the jurisdiction, the courts in Scotland will eneffect of which is to provide for the contingency tertain actions of divorce, and pronounce deof a future separation; because such an agree- crees à vinculo matrimonii, without reference to ment would have a manifest tendency to bring the permanent domicile of the parties, or to the about that event contrary to the policy of the law of the country where the marriage may law. It is also to be observed that a married have been contracted. It would seem, howwoman, though thus separated from her hus-ever, to be difficult to define the precise circumband, is not thereby divested in other respects stances which are held to be sufficient to give of the disabilities incident to the status of the courts jurisdiction. Dr. Story considered that the presence of one of the parties within "The policy of the law of Scotland is equally the kingdom, and proof of the fact of adultery adverse to the voluntary separation of husband and wife; and contracts entered into for this purpose were formerly deemed void ab initio, as tending entirely to defeat the objects of marriage. But by later decisions they have been held effectual, as being granted by the husband in consequence of his natural obligation to maintain the wife. But they are revocable, and accounted actually revoked, as soon as he shall offer to receive her again into his family." And if no separate allowance has been agreed upon to be paid to the wife, the court will not supply the deficiency, It has been held, accordingly, that a wife cannot maintain an action for aliment against her husband during their voluntary separation, because the husband might put an end to it immediately by obliging his wife to live with him. In another case, it was laid down that the legal rule as to the power of revocation, in either party, rested on the ground that separation was contrary to the duties of the married state, the object of which was the adherence of the parties to each other; that, for the attainment of this object, the law allowed either party to revoke expressly, and even held the contract of separation voided, ipso facto, if they actually came together again. But it was observed by the court, in deciding that case, that the rule would not apply where the parties would not, or could not, live together; that supposing, for example, one party revoked, but yet refused adherence, such a revocation seemed to receive no support from the law. Upon these principles, it was held that a voluntary contract of separation was not revocable by the wife after the death of her husband; and that as little so was an exclusion there in contained of the wife's legal provisions in the

"When the parties are inhabitants of a foreign country, the locus delicti would seem to be a matter of material importance. The line of reasoning adopted by Lord Meadowbank, when the question of jurisdiction first became the subject of prominent discussion, proceeded entirely on the ground that parties temporarily resident in Scotland were amenable to the law of that country, and that the violation of the marriage vow there must be attended with the same consequences whether the parties were foreigners or natives, as both were equally subject to the law. This opinion, as we have seen, was confirmed by a large majority of the Court of Session in 1816, and it has been since recognised in the more recent cases of Oldaker v. Goldney and Jenner v. Crofts. It will be found, indeed, that in all the cases cited in the preceding pages where the parties were English and where a divorce was obtained, Scotland was alleged to have been the locus delicti.

"The main objection to the jurisdiction of the Scottish Courts founded on a temporary domicile, is that it may enable the inhabitants of other countries to evade the laws of their real domicile, thereby occasioning a perplexing affecting the interests of third parties; and this confusion of rights and duties, and seriously objection is not removed by the circumstance

P Palmer, 25th Jan. 1810, Fac. Coll.; Ersk.
Inst. B. 1, tit. 6, n. 30, 31, note; Stair, B. 1,
tit. 4, n. 22. note.
Conflict of Laws, p. 171.
Ser. 307.

2 D. B. & M. 2nd
12 S. & D. 468.

* 2 D. B. & M. 342.

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Review.-First Report on Private Bills.-Barristers Called.

of Scotland happening to be the locus delicti, for that may be brought about by a species of tacit collusion between the parties, either of whom might be induced to commit a breach of the marriage vow there for the sole purpose of obtaining a divorce.

"The decisions in England, so far as they have hitherto gone, may be held to adopt the lex loci contractus as the rule to be followed in questions relating to the dissolubility of marriage; the opinion of the judges in Lolley's case, the remarks of Lord Redesdale, already referred to in Tovey v. Lindsay, and the more recent decision of M'Carthy v. De Caix," all seem to warrant this conclusion.

1. That the chairman of the committee of Ways and Means do examine all private bills, whether opposed or unopposed, and do call the attention of the house to all points relating thereto which may appear to him to require it. 2. That there be furnished to the chairman of Ways and Means, by the agents, copies of all private bills, copies of all amendments intended to be introduced in committee;-and likewise copies of all bills as amended in committee;-and likewise copies of all amendments made in the House of Lords, and all amendments to the Lords' amendments intended to be proposed in the House of Commons.

3. That the "Examiner of Recognizances," "But it is only the lex loci contractus of Eng- with such assistance as may be found requisite, land, not that of other countries, which these do aid the chairman of Ways and Means in the authorities may be said to have hitherto recog-discharge of the above-mentioned duties. nised; and this circumstance may lead us to 14th December, 1847. inquire how far the rule is capable of more ex- [The House adopted this Report, except that tensive application. It could not be just,' in lieu of the Examiner of Recognizances," observed Lord Redesdale in the case already the "Counsel to Mr. Speaker" was substireferred to, that one party should be able at his option to dissolve a contract by a law different from that under which it was formed, and by which the other party understood it to be governed.'

66

Assuming, for the present, that this principle should be generally observed, it follows that the courts in England, while adhering to their own lex loci contractus, ought equally to recognise that of other countries. But such a doctrine would, it is feared, be found to be altogether incapable of practical application. An Englishman, for example, who had been married in Scotland, might, in accordance with this rule, apply to an English court for a divorce à vinculo, on the ground either of adultery or of wilful desertion, secundum legem loci contractus; or, if he had been married in Prussia, he might claim to be released from the conjugal obligation on account of any of the numerous causes for which the Prussian code admits of divorce. Again, if he had married in Turkey, such marriage would be no bar to his taking a second wife in England, because the lex contractus of the first marriage admits of polygamy; while, on the other hand, if he married in a Roman Catholic state, not even an Act of the British Legislature could dissolve a union which was, by the law of the place, in its nature absolutely indissoluble."

The next volume, or second part of the Treatise, will comprise the Law of Real and personal Succession, Contracts, and Bankruptcy.

FIRST REPORT ON PRIVATE BILLS.

THE Select Committee appointed to consider whether any and what Improvement can be adopted in the Mode of conducting Private Business, and who were empowered to Report their Opinion from time to time to the House; have considered the Matter to them referred, and have agreed to Report the following Resolutions:

2 Russ. & M. 614.

tuted.]

66

20th Dec. 1847.

BARRISTERS CALLED.
Michaelmas Term, 1847.

LINCOLN'S INN.

19th November.

Henry Hill Strettell, Esq., M. A.
John Stuart, jun., Esq.
Richard Garth, jun., Esq., M.A.
Horace Mann, Esq.
James Bowyer, Esq.
John Fearenside, jun., Esq.
Charles Frederick Walker, Esq., M. A.
23rd November.

Andrew Alexander Knox, Esq., M.A.
William Henry Townsend, Esq, M. A.
William Henry Fitz Hugh, Esq., M. A.
George Augustus Alston, Esq., M. A.
William Wynne Ffoulkes, Esq., M. A.
Nassau John, sen., Esq. M. A.

INNER TEMPLE.

John Alldin Moore, Esq., M. A.
Stafford Henry Northcote, Esq.. M. A.
Isaac John Innes Pocock, Esq., B. A.
Thomas Greenwell, Esq., B. A.
William Tidd Pratt, Esq.
Joshua Bird Allen, Esq., B. A.
Augustus Colin Mackenzie, Esq., M. A.,
William George Coventry, Esq.
Charles Joseph Wade, Esq.
Henry Thomas Coles, Esq.
Henry Thomas Riley, Esq.
Edward Francis Percival, Esq.

MIDDLE TEMPLE.
5th November.
Charles Edward Gee Barnard, Esq.
Henry Membury Wakley, Esq.
John Alcock, Esq.
James Campbell, Esq.
John Bell, Esq.

Barristers Called.-Legal Obituary.-Professional Lists.

William Thomas Bridges, Esq., B.A., Corpus mitted on the Roll, Easter Term, 1795. Christi Coll., Oxford.

Philip Kingsford, Esq., B. A., St. John Coll., and Ellis Clowes, 10, King's Bench Walk,

Superior Courts: Rolls.-Vice-Chancellor.-V. C. Knight Bruce.

Jones, Morris Charles, of Liverpool, for Charles Buller, Esq., to be a Poor Law ComCounty of Chester. Nov. 23. missioner in England. Dec. 17.

The Queen has been pleased, by letters paWilliam G. Hayter, Esq., Q. C. and M. P., tent under the Great Seal of the United King- is, we understand, to succeed Mr. Buller as dom, to nominate, constitute, and appoint Judge Advocate.

RECENT DECISIONS IN THE SUPERIOR COURTS,

REPORTED BY BARRISTERS OF THE SEVERAL COURTS.