dom of Ireland, and he has never abandoned such domicil or acquired any domicil elsewhere. The petitioner replied, first, that before and at the commencement of the suit, both petitioner and respondent were subjects of the Queen; that in 1840 respondent, being fourteen years of age, left his father's house in Ireland and entered the Royal Academy at Woolwich as a cadet, and continued there till 1843, when he obtained a commission; that he has thenceforth continued on full pay, and that the headquarters of the regiment were and are at Woolwich, within the jurisdiction of this Court; that when respondent so left Ireland, he did so with the intention of not returning thither, and that he has not since resided in Ireland except for the purpose of visiting his father at his residence, and except when he went there for the sole purpose of being married to petitioner; that he had no land in Ireland; that on the 8th of June, 1859, he instituted a suit in the Court of Session against petitioner, and therein alleged that he was domiciled in Scotland. Petitioner replied, secondly, that after her marriage to respondent they lived and cohabited together in Ireland, Edinburgh, Hull, and Bordeaux in the empire of France; that in April, 1858, respondent deserted her at Bordeaux and went to Edinburgh, and has ever since refused to live and cohabit with her as his wife; that at the time of the commencement of this suit she was and still is domiciled within the jurisdiction of this Court, to wit, at Maida Hill, in Middlesex. The respondent rejoined, alleging that he did not leave Ireland in 1840 without any intention to return, but returned frequently and spent his vacations at his father's house there, and after he obtained his commission on several occasions had leave of absence from his company, and spent the time allowed him at his father's; that for two years before the commencement of this suit he was stationed at Leith, near Edinburgh, with his company, which is now the 7th battery of the 9th brigade; that the head-quarters of the brigade are at Dublin. No answer to this rejoinder was brought in. Upon these pleadings it appears that the fact of the respondent leaving Ireland without the intention to return is asserted on the one side and denied on the other, but no affidavit has 1859. December 7. YELVERTON v. YELVERTON. 1859. YELVERTON been brought in by either party as to that fact; and if it were December 7. material to the determination of the real question raised, it would be necessary that the truth or falsehood of that allegation should be ascertained. But it seems to me quite immaterial to consider whether a boy of the age of fourteen, coming over to this country for the purpose of receiving a military education, did or did not intend to return to Ireland. v. YELVERTON. The material facts established, then, appear to be these:The respondent was born in Ireland of Irish parents, and when a minor received a military education in England, obtained a commission in the Royal Artillery, and was afterwards stationed at or near Edinburgh. When there he married in Scotland the petitioner, Maria Theresa, who is said to have been born at Chetwode, in Lancashire. The parties then went to Ireland, were remarried there according to the rites of the Roman Catholic Church, returned to Scotland, cohabited as man and wife there, at Hull, and afterwards at Bordeaux in France. That in April, 1858, respondent quitted petitioner at Bordeaux and returned to Edinburgh, where he has remained with his company ever since, and has constantly refused again to live or cohabit with petitioner. The headquarters of the regiment of Artillery have always been at Woolwich; the head-quarters of the different battalions—or, as they are now called, brigades-of the regiment were by general order of the 1st of April, 1859, removed from Woolwich and established at various places. The head-quarters of the brigade to which respondent has been attached have not since that time been in England. The petitioner has asserted in her replication, that at the time of the commencement of the suit she was and still is domiciled in England, viz. in Middlesex. No affidavit has been brought in to support the allegation, but it has not been denied; if therefore she could by law be domiciled there, it may for the purpose of this question be taken as true. With regard to this last point of domicil, it seems to me that the petitioner, who claims to be the wife of Major Yelverton, and who does not pretend that his domicil is in England on any other ground than that the head-quarters of the Regiment of Artillery are at Woolwich, cannot have acquired a domicil for herself different from his. The domicil of the husband is the domicil of the wife; and even supposing him to have been guilty of such misconduct as would furnish her with a defence to a suit by him for restitution of conjugal rights, she could not on that ground acquire another domicil for herself, as was recently held by the House of Lords in Dolphin v. Robins.' I must therefore treat the case as if that assertion had not been made, or rather I must ascribe to it the only meaning which is consistent with the law, viz. that she was resident at Maida Hill. On the argument before me a great deal of learning on the doctrine of domicil was displayed, and many cases were cited involving the consideration of it, and it was truly stated that the word domicil has many meanings, according as it is used with reference to succession or for determining rights of belligerents, or ascertaining trading privileges. The case now to be decided is certainly of much importance, and from the scope of the argument appeared to be involved in considerable difficulty. But upon reflection the point to be determined appears simple and easy of solution. It is unnecessary to consider the question of domicil for any of the purposes above mentioned, for Major Yelverton may have retained his domicil of origin for many purposes, and yet may have been domiciled in England, so as to give jurisdiction to this Court. Was he domiciled in England for the purpose of founding jurisdiction? He was not born in England-he was here for some time as a student when a minor; he afterwards passed some time (probably a very short time, for its duration is not mentioned) at Hull, removed thence to Bordeaux, and thence to Edinburgh, where he has remained ever since; he therefore cannot be said to have ever dwelt or had a residence in England since he obtained his commission, and the case as to domicil must rest upon the alleged legal fiction that he is supposed to be present at the head-quarters of the regiment of Artillery in which he has a company. No decision or dictum was cited to support that position, nor can I find any authority for it. If that ground fails, upon what other grounds can the petitioner's right to sue in this Court be sustained? It was established by an Act entitled "An Act to amend the law relating to Di"vorce and Matrimonial Causes in England;" it combines in VOL. I. 16 H. of L. Cas. p. 390. 2 R 1859. December 7. YELVERTON v. YELVERTON. 1859. YELVERTON v. YELVERTON. itself "all jurisdiction previously vested in, or exercisable by, December 7. "any Ecclesiastical Court or person in England in respect of "divorces à mensa et thoro, suits of nullity of marriage, suits "for restitution of conjugal rights," etc. It is a Court for England, not for the United Kingdom, or for Great Britain; and for the purposes of this question of jurisdiction Ireland and Scotland are to be deemed foreign countries equally with France or Spain. If this be so, this is a suit against a foreigner, who is not, and was not, at the commencement of the suit, within the kingdom of England, who never had any residence in England, who never owed obedience to the laws of England, except during the period of his temporary sojourn here, and who is not said to have done anything in England contrary to those laws. Story, in his Conflict of Laws, chapter on jurisdiction and remedies, sect. 539, says: "Considered in " an international point of view" (and so I think I must consider this case), "jurisdiction to be rightly exercised must be "founded either upon the person being within the territory, or upon the thing being within the territory, for otherwise "there can be no sovereignty exerted upon the known maxim, "extra territorium jus dicenti impune non paretur." Boullenois puts this rule among his general principles: "The laws "of a sovereign rightfully extend over persons who are domi"ciled within his territory and over property which is there "situate." Again in Warrender v. Warrender, 9 Bligh, 144, Lord Lyndhurst says: "The first point is the question of do"micil; unless these parties were domiciled in Scotland, the "Court had no jurisdiction." Unless some ground can be discovered for saying that Major Yelverton was domiciled in England, according to the law as laid down by Lord Lyndhurst, by Boullenois, and by Story, he was not subject to the jurisdiction of this Court. It was said, indeed, that jurisdiction was given by the 47th section of the Act, by the authority of which the Court exists, viz.: "Every such petition shall "be served on the party affected thereby, either within or "without her Majesty's dominions, in such manner as the "Court shall direct." That section certainly relieves the Court from all difficulty as to serving process on the party accused; but assumes, as I apprehend, that the party to be served is subject to the jurisdiction of the Court. Of all the 1859. cases cited at the bar, three only bear any such resemblance to the present as make it necessary to notice them: Tenducci's December 7. case, in 1775; Collett v. Collett, 3 Curt.; and Dasent v. Dasent, 1 Robert. Tenducci's case is in many respects very remarkable. Dr. Lushington has on two occasions mentioned it as having been decided in the Arches, and therefore of great authority. (See Collett v. Collett, 3 Curt. 731; and Dasent v. Dasent, 1 Robert. 802.) Dr. Twiss has kindly had the original papers looked up, and from them I find that the cause was in the Consistory Court; no trace of any appeal or other proceeding in the Arches can be found. The first citation issued on the 15th of January, 1774, to cite Fernando Tenducci, of the parish of St. Martin's-in-the-Fields, in the county of Middlesex, and our diocese of London, etc. etc., to answer to Dorothea Kingsman,wife of W. L. Kingsman, Esq., in the parish of St. James's, Westminster, in the county of Middlesex, in a certain cause of nullity of marriage by reason of impotency, etc. This citation was returned into Court on the 20th of January, with the certificate of the officer, "that on the 18th and 20th of January he went "to the dwelling-house of Nicoll and Miller, No. 7, corner of "Suffolk-street, in the parish of St. Martin's-in-the-Fields, in "the county of Middlesex, where the within-named F. Tenducci "usually lodged when in England, and which was his last known "place of abode, and was there informed that the said F. Tenducci had left his said lodging about eighteen months ago, and was gone out of the kingdom, and was supposed to be residing "at that time in some part of Italy." Nothing further was done upon that citation, but on the 18th of June another citation issued against Tenducci (described as before) to answer Dorothea Kingsman, the wife of W. L. Kingsman, formerly Maunsell, falsely called Tenducci, in a certain cause of nullity of marriage by reason of impotency; the only difference being in the descriptions of the party complaining. The return of the officer was as follows:-"I went three times to the Theatre "Coffee-house, situate in the Haymarket, in the parish of St. "Martin-in-the-Fields, county of Middlesex, and also to the "dwelling-house of Messrs. Nicoll and Miller, No. 7, same "street, parish, and county, which was the last known usual "place of abode of F. Tenducci, as I was informed; and that YELVERTON v. YELVERTON, |