Ex. CH.] ATTORNEY-GENERAL v. DAKIN AND OTHERS. [Ex. CH. Crown. There are several other apartments in the of such apartments. Previously to occupiers taking palace which are in the occupation of private indi- possession of the apartments such repairs as may be viduals, some consist of spacious drawing-rooms, considered by the officers of the Crown as necessary dining-rooms, bedrooms, servants' rooms, kitchen, to be done in such apartments are done at the exand other domestic offices, suitable for the resi- pense of the Crown, but in some instances where dence and accommodation of persons with consider- the repairs desired for the accommodation of such able household establishments, and are now and occupiers have been of such a nature as to require always have been occupied by persons of rank and a considerable outlay, such repairs have been distinction; and others are occupied by persons of effected at the joint expense of the Crown and respectable station. The officers now resident in occupiers; but all alterations or additional works the palace are the Right Hon. William Beresford, required by the occupiers are done at their own the Master of the Tennis Court, who was appointed expense, and in some instances such additional in 1815, in pursuance of a warrant set out in the works and alterations have amounted to 1000 and special case, and a patent issued thereon, and who upwards. Afterwards the occupiers themselves are is paid partly from the second class of the Civil | bound at their own expense to do whatever internal List and partly from the Consolidated Fund; the works, or alterations and repairs may be found Hon. and Rev. Francis Edmund Cecil Bvng, who necessary for keeping up and preserving the apartwas appointed chaplain of the royal chapel in Feb. ments in a proper and tenantable condition, or which 1865, in pursuance of the following warrant: "These they may consider essential to their greater conare to require you to swear and admit the Hon. and venience and enjoyment; but no works, alterations, Rev. Francis Edmund Cecil Byng into the place and repairs are done except under the direction of and quality of Chaplain in Ordinary to Her Majesty the officers of Her Majesty's Office of Works, at Hampton Court Palace, in the room of the Rev. and the Government contracting tradesmen are William Percival Bailey, resigned, to have, hold, employed and paid by the occupiers of the apart exercise, and enjoy the said place, together with all ments. Formerly a periodical survey was made of rights, profits, privileges, and advantages there- the apartments every second year by the officers of unto belonging during Her Majesty's pleasure, the Crown, and a report made of the repairs necesand subject to such arrangements as may here- sary for placing them respectively in tenantable after be made. And for so doing this shall repair, and notices were given by the Crown to the be your warrant. (Signed) Sydney, Lord Cham- occupiers to have such repairs done which were berlain. To Her Majesty's Gentleman Usher in done by them accordingly. The practice of making daily waiting;' and who receives a salary from these periodical surveys and giving these notices, the privy purse, besides contributions from the has been for some years discontinued, and surveys occupants of the palace; Mrs. Heaton, the are now made, and notice given in each instance as housekeeper of the palace, and Mr. John Knight, circumstances may appear to require. The number who holds the place of head gardener, and was of families now occupying such suites of apartappointed thereto by the Lord Steward in obedience ments in the palace may be taken to amount to to Her Majesty's commands, notified by the Master from sixty to seventy. Many apartments occupied of the Household, but without any formal warrant, by private individuals communicate with the State -both of whom are paid from the second class of the Apartments, and the doors of communication are Civil List, and his (Mr. Knight's) three assistants, kept locked during such occupation; but, if in the who are paid from the third class of the Civil List, general care of the palace, the housekeeper finds it as settled by statute (1 Vict. c. 2), on Her Majesty's necessary to open these doors, she exercises the accession. With these exceptions, and that of power of doing so, and of passing through the some other persons similarly situated, the several apartments which are so occupied. Some of the suites of apartments occupied by private individuals apartments have exclusive outward entrances openare not enjoyed by them as appurtenant to or ing upon the public high road and large walk. The annexed to any office under the Crown, but are several apartments are occupied by the grace and occupied by virtue of a written grant or warrant favour, and during the pleasure, of Her Majesty, made by the Lord Chamberlain of Her Majesty's who can at will remove the occupants. The present household in the following form: "These are to is the first instance in which a writ of fieri facias require you to deliver or cause to be delivered unto has been executed or attempted to be executed the Lady Henry Gordon, the keys and possession of within the palace. The question for the opinion of the following lodgings in Her Majesty's palace of the court will be, whether the defendants were Hampton Court, late in the occupation of Lady justified in executing the writ within the Albinia Cumberland, deceased, viz." (here follows a precincts of the palace of Hampton Court. list of the apartments together with a des- From these statements it appears, first, that cription of their situation in the palace) "which Hampton-court Palace is not, and has not been lodgings are to be inhabited by the Lady during any part of Her Majesty's reign kept in a Henry Gordon, or some part of her ladyship's condition fit for the reception of Her Majesty as an family, a part of every year, or they will be occupant; secondly, that it is, and has for all this considered vacant, and disposed of accordingly, and period, been appropriated and used in a way incomwhen the family are absent it is expected that one patible with a present intention on the part of Her of their servants shall be left in the lodgings, or Majesty to make any personal use of it either as a that they will leave the keys thereof with you place of residence or for purposes of state. If, or the housekeeper for the time being, and for so therefore, the immunity claimed by the Attorneydoing this shall be your warant. Given under my General exists, it must be due to the fact of the hand and seal the 8th Oct. 1850, in the fourteenth palace having once been a dwelling place of the year of Her Majesty's reign. (Signed) Breadalbane kings of England, and of its still being maintained (L.S.) Lord Chamberlain. To Mrs. Sarah Grundy, by Her Majesty with the emblems and ensigns of Houskeeper of Her Majesty's Palace of Hampton royal dignity as part of the domains of the Crown, Court." Formerly, in some cases, the names of two and capable of being again used as a royal residence or more individuals (members of the same family) if it should be Her Majesty's pleasure so to use it. were included in one warrant; but for some years The argument is in effect this: that the sacred chapast only one name has been inserted. The occu- racter which the law attributes to an edifice while piers of these suites of apartments provide at their it is a royal residence remains perfectly impressed own expense every kind of household furniture and upon it so long as it continues to be a royal palace, fixtures requisite for the furnishing and fitting up no matter what may be the purpose to which it is Ex. CH.] ATTORNEY-GENERAL v. DAKIN AND OTHERS. appropriated, or the use that is actually made of it. Such a proposition appears to me, not only not to be supported by, but to be at variance with, the authorities which are to be found on the subject. The privilege which it is agreed originates in respect for the personal comfort and dignity of the sovereign, is, as regards her, a right to be free from the molestation and indignity which would be caused by the intrusion of the officers of justice into a place dedicated to her personal use. The privilege rests on no other ground. It has regard to the sovereign only, not to any subject. It is personal in its nature, not belonging to the palace for its own sake, but is attached to the palace for the sake of the sovereign who occupies it. It accompanies the sovereign wherever the sovereign goes, but cannot consistently be held to remain where the sovereign has both actually and in intention ceased to be. The passage cited from the 3rd Institute, page 140, which is the earliest and, indeed, the only direct authority on the point, expresses both the limitation and extent of the privilege. "Here," says Coke, C. J., speaking of the judgment in the Earl of Warren's case, "two 1 things are principally to be observed; first, that this royal privilege, namely, exemption from process, is not only appropriated to the Palace of Westminster, but to all the king's palaces where his royal person resides." He does not say, "to all the king's palaces" simply, which might include some where the king did not reside, nor does he limit the privilege to those in which the sovereign actually dwelt at the time of the intrusion. The qualifying words, taken in the proper and legal sense, apply to every place which the sovereign keeps for his personal use, whether for special purposes only, as holding courts, &c., or for residence either permanent, occasional, or temporary. But they clearly exclude places where, though they may be royal palaces, the sovereign cannot be said in any sense to reside." And when we look at the reason and ground of the privilege, these words of qualification appear to me to have a design, force, and significance, and to be intended to confine the privilege to palaces which are places of residence. The cases cited in the argument are so many illustrations of the rule in its application to the facts of each case. None of them profess to lay down any new rule, or to enlarge or qualify the proposition of Coke; but in each of them the question was treated as one of fact, namely, whether the particular palace was or was not at the time of the intrusion a royal residence. The conclusion come to in those cases affords, therefore, no guidance to us in the determination of this. It was asked by the AttorneyGeneral in the course of the argument " If Hampton Court Palace is not privileged, it being certain that it once was so, when did it cease to be so?" The answer is obvious and certain enough for all practical purposes. It ceased to be privileged when it ceased to be kept up for the personal use of the sovereign, and was appropriated to other and inconsistent uses. I agree that it retained the privileges so long as it appeared doubtful whether the sovereign had or had not abandoned it as a place of residence. I adopt fully and entirely the language of Lord Ellenborough, in the case of Winter v. Miles, 10 East. 578, that "the question of the discontinuance of any palace as a place of residence which had at any time been so used by the sovereign on the throne, might involve in its discussion many delicate circumstances, and that it would not be a very seemly matter of inquiry whether Her Majesty had, by any, and what, manifestations of Her Royal will, indicated a purpose of not returning to any particular palace." And if the facts of this case were such as to admit of the observations further used by that learned judge, and it could be said of [Ex. CH. Hampton Court, as was there said of Kensington Palace, that "not only are emblems and ensigns of Royal dignity preserved, but the apartments exclusively appropriated to Her Majesty's use are by her immediate servants kept ready, and in a fit condition to receive her at any time, whilst others are kept in like manner for the use of her officers, and some are immediately occupied by Her Majesty's sons, and such use is made of the rest of the palace as not to preclude or materially interrupt Her Majesty's return to it whenever she might choose to do so," I agree that in such a state of things, there being no other manifestation of the Royal purpose than the not having for a considerable time inhabited the palace, any inquiry into Her Majesty's intention would be unseemly and improper, and I should have held the palace still privileged as a royal residence; but seeing that no part of Hampton Court Palace has ever been appropriated to Her Majesty's use, or kept ready to receive her, and that those parts of the building adapted for habitation have been for a period commencing long anterior to and continuing through the whole of Her Majesty's reign appropriated in such a way as to preclude or materially interrupt. Her Majesty's resort to it as a place of abode, I am not driven to any such inquiry, but am constrained to regard such a change from the use formerly made of Hampton Court, as a notification that the palace has been abandoned as a royal residence. I am, therefore, of opinion that the judgment of the court below ought to be affirmed. BLACKBURN, J. then read the judgments of Mellor, J. and of himself. MELLOR, J.-I am of opinion that the judgment of the court below should be affirmed. The circumstances stated in this case induce me to answer in the negative the question which was put to the jury by Lord Ellenborough, in the case of Winter v. Miles, 10 East, 578, which I may thus state: Is Hampton Court Palace bonâ fide a royal palace? Of course I do not mean, nor did Lord Ellenborough mean, a palace belonging to the sovereign, and in that sense a royal palace, but I assume that Lord Ellenborough meant by the words "boná fide a royal palace," a palace actually devoted to the use and enjoyment of the sovereign, which, although she does not actually reside in it, is kept in such state and condition that there would be no obstacle to Her Majesty's immediate use of it, if it should be Her Majesty's pleasure to do so. The decision of the present case turns upon a question of fact. Does the use to which Hampton Court Palace is now, and has for so long a time been put, indicate the pleasure of the Sovereign to abandon it as a place of residence? I think that the facts do clearly show, in the language of Lord Ellenborough, "That the immediate personal residence of Her Majesty is by means of an occupation of the palace incompatible therewith rendered impracticable. The palace is, in fact, so occupied by others that Her Majesty could not immediately return and reside there in her own person, if she were pleased to do so. When I say that the facts show that Her Majesty could not immediately return and reside there, I mean that the circumstances attending the present actual occupation of the palace by others are such as practically to preclude the possibility of Her Majesty returning to it as a bona fide royal residence. The reason upon which the immunity from the execution of legal process within a Royal palace proceeds, is personal to the sovereign, and it is not an incident of the place. It is the actual or potential present residence of the sovereign which draws to the place the immunity in question, as it would be inconsistent with the Ex. CH.] ATTORNEY-General v. DAKIN AND OTHERS. [Ex. CH. reverence and respect due to the dignity and com- | I think, would doubt that Winchester Bridewell, fort of the sovereign to permit the intrusion of the officers of the sheriff for the purpose of executing process within a palace in which Her Majesty does actually reside, or which she retains as a place of residence. When it ceases to be a palace of residence then the immunity ceases." If I am asked when the immunity ceased in the present case, I can only answer that it ceased as soon as the palace was, by the consent of the Crown, put to uses practically inconsistent with the personal residence of the soveregn. I forbear to refer to the other cases which were cited in the argument before us, because they were all discussed in the case of Winter v. Miles, and the difference of opinion amongst the judges in the court below, as well as upon the present occasion, does not turn upon any rule of law so much as upon the various conclusions which they have arrived at upon the facts stated in the case. BLACKBURN, J.-In this case I believe the law is agreed by all to be that civil process cannot be executed within the precincts of a royal palace or residence without leave obtained from the sovereign. The difference of opinion is as to whether in point of fact on the evidence stated in the case Hampton Court is such a palace or royal residence as to come within the acknowledged rule of law; and I think we must, in deciding this question of fact, bear in mind the reason of the privilege thus conferred by the law on royal palaces. It is stated by Lord Gifford, in the Earl of Strathmore v. Laing, 2 Wils. & Shaw, 1, that "the privilege is given not merely because otherwise the king might be deprived of the services of his domestics, but that it is not seemly that the royal palace or the royal presence should be exposed to be made a scene of disturbance and confusion." That is, I think, correct, and it shows that the foundation of the whole depends on the reverence due to the person of the sovereign; and, consequently, I think, that in deciding the question of fact whether any particular place is part of the royal palace, so as to be privileged from the execution of process, the test must be whether the occupation is so ancillary to the residence of the sovereign that the execution of process there would expose the sovereign to risk of disturbance inconsistent with the respect due to the dignity of the royal person. It is clear, both on authority and the reason of the thing, that actual personal presence by the sovereign is not necessary. The sovereign may have, and in point of fact has, several residences at the same time, and it would obviously be inconsistent with the respect due to the sovereign to execute process in Windsor when Her Majesty was in fact at Buckingham Palace, or vice versa, both being undoubtedly royal residences. And the authorities are conclusive that a palace may be kept up as a royal residence, although no sovereign has actually in person visited it for a great many years. In the case of Holyrood Palace, in Scotland, more than a century and a half had elapsed during which no sovereign had so much as entered the kingdom of Scotland, yet the House of Lords decided that, in fact, Holyrood had always been kept up as a royal residence, and Lord Gifford, in giving the judgment of the House of Lords, gave great weight to the fact that Holyrood had unquestionably been at one time occupied as a royal residence, and therefore would continue so until some change took place in the occupation, and that it rested on those who alleged that such a change had taken place to show it. I take it, however, to be clear that such a change may take place, and that it is a question of fact in such cases whether it has taken place. Few, Eltham, and other ancient palaces in England, and Stirling and Linlithgow in Scotland, have long ceased to be royal residences. In the 2nd of Anne, in the year 1704, within six years after the fire which in 1698 dismantled Whitehall, the question arose in Elderton's case, 2 Ld. Raym. 978, whether Whitehall was still a royal residence. There could not have been the least doubt that up to the time of that fire it was one. Lord Holt seems to have thought that it had ceased to be so; Powell, J. that it ceased to be one. No decision was come to, the prisoners being discharged, probably because the advisers of the Queen thought it injadicious to insist on the prerogative in a case where the claim was invidious, even if well founded in law. Now in the year 1868 I do not suppose there can be much doubt that, in fact, Whitehall is no longer a royal residence. In Winter v. Miles, in 1809, the question was raised whether Kensington was a royal residence. That was treated as a question of fact, and left to a jury, who found that it still was a royal residence. In the judgment of the Court of King's Bench strong evidence is stated tending to show that the palace was kept up fit for His Majesty's reception if he should choose to visit it." I do not know whether now, after the lapse of fifty-nine years, the facts remain the same, but I think no one could complain of a verdict in favour of a privilege on evidence, such as is stated by Lord Ellenborough in giving judgment in the King's Bench. Those three are the only cases in which any point similar to the present has been discussed. In each case the question is treated as one of fact, whether the palace was still kept up as a royal residence. Now, in the present case, I find it stated as a fact that Hampton Court was personally occupied by King George II. as a royal residence. From the statements in paragraphs 7 and 8 of the case, it appears that the grounds and gardens are still kept up as royal grounds and gardens, with much of the state originally attendant on the royal presence. But I find from paragraphs 6, 10, 13, and 14, that the whole of the palace (with the exception of what are called the State Apartments, mentioned in paragraph 10) is occupied by families between sixty and seventy in number, who have their own furniture and their own establishments there. It is on the extent of this occupation that I rely. I think it is obviously impracticable for the sovereign to resume her residence at Hampton Court without ejecting at least a large part of those families, so as to make room for her suite and attendants necessarily attendant on the royal person; for the State Apartments described in paragraph 10 are not such as to be capable of ever containing the sovereign alone, far less her suite. It is quite true that these families have no legal right to notice to quit. The sovereign might eject all or any of them, allowing them no further time to go out than would be necessary to remove their goods and furniture. But I think in drawing inferences from the facts we are not to impute to Her Majesty and her three immediate predecessors any intention to act in a manner which would be ungracious though legal; and, consequently, when I find that permissive occupation has for a long series of years been granted to such an extent as to be inconsistent with the immediate personal residence of the sovereign unless that permissive occupation was terminated, in manner legal, no doubt, but very ungracious, I draw the inference of fact that the intention to preserve the power of immediately resuming personal residence of pleasure has been abandoned, and consequently that Hampton Court has ceased to be kept up as a royal palace in such a sense as to privilege its inmates from the execution of process there. I think, WILLES, J. now read the judgment of himself, Keating, and M. Smith, JJ.-That Hampton Court Palace was a royal residence, and, as such, privileged from the execution of legal process within its precincts, seems clear from the cases. But it is said that the sovereign having ceased for a century or more to reside there personally, and the arrangement of the place being such as to make it unsuitable | for the immediate personal residence of the sovereign, the privilege of exemption now claimed has ceased to exist. The privilge, no doubt, was originally established by law in order not merely to avoid personal annoyance to the sovereign from the execution of process where he himself was personally, but also the scandal consequent upon such execution within the precincts of a royal palace. Therefore the authorities have not confined this privilege to places where the sovereigns have been in actual residence, but have extended it to such royal palaces still retained under the care and control of the sovereign where the occupation is such that personal residence could at any time be resumed. The cases of Kensington Palace and Holyrood Palace, Winter v. Miles and Strathmore v. Laing, fully sustain this view, and, we think, govern the present case. Whatever the decision might have been, had the matter been res integra, we are of opinion that it cannot be substantially distinguished from those cases. Minute differences may, no doubt, exist, but, as pointed out in the judgment of the Lord Chief Baron in the Court of Exchequer, with which we agree, all the important circumstances in the authorities referred to concur in the present case. We see no reason, therefore, for placing Hampton Court Palace on a different footing from Kensington Palace and Holyrood Palace, and we are of opinion that the privilege claimed attaches in the present case. Nor is it likely that the existence of this privilege could ever lead to injustice or inconvenience, as an application to the Lord Steward, or other proper officer of Her Majesty's household, would always obtain a remedy for a creditor, either by a permission to execute process within the palace, or by insisting on the prompt discharge of the debt as a condition of the enjoyment of the Sovereign's bounty. It is proper to add that the occupants of the palace, although not mere intruders, and having, therefore, a valid possession as against a wrongdoer, have no tenure, even at will, as against the Crown, and are bound to quit at a moment's notice, as appears, if authority be necessary, from the case of Harper v. Charlesworth, 4 B. & Cr. 574. We think, therefore, that the judgment of the Court of Exchequer ought to be reversed. The court being equally divided, and it being a court of error, the judgment of the court below is affirmed. Judgment affirmed. Attorneys: Solicitors to the Board of Works; Burchell and Hall. House of Lords. [H. OF L. Reported by HENRY F. PURCELL, Esq., Barrister-at-Law. SHAW ET AL v. GOULD ET AL. Will-Marriage in England-Divorce in ScotlandLegitimacy-Dissolubility of English marriage-Lex loci-Lex fori. Personal and real estate in England were devised by a testator to his great niece for life, with remainder as to the personalty to her children, and as to the realty to her first and other sons lawfully begotten, with remainders over. The great niece was entrapped into a marriage in England, in 1830, which was never consummated; the husband, who had been living in adultery, subsequently was prevailed upon by pecuniary inducements to reside in Scotland for forty days with his paramour and thus obtain there a forensic domicile. A suit for divorce was then brought in the Court of Session on the part of the wife on the ground of the husband's adultery, and a divorce a vinculo pronounced. The great niece then married, in Scotland, an Englishman domiciled there, and had by him two daughters and a son, all born in Scotland during the first husband's lifetime. Upon petition by these three children claiming as "children," the son also claiming as "eldest son lawfully begotten," two funds representing portions of the testator's real and personal estate which had been paid into court, it was Held (affirming the decree of the court below) that the second marriage was invalid, and therefore that the children, whatever might be their status in Scotland, must be considered, upon the construction of an English will in an English court, as not coming within the term "children" or "eldest son lawfully begotten' us used in such will, and not entitled to the fund. That a divorce, a vinculo, obtained from a foreign court, cannot be recognised as to any consequences in England, in the case of an English marriage between English persons, unless such persons are at the time that such divorce is decreed bona fide domiciled in the country where such court has jurisdiction, and the suit be prosecuted without collision. Per Lord Westbury (overruling the opinion of the ViceChancellor).-The principle, that when by the lex loci contractus the marriage is indissoluble it cannot be dissolved by the sentence of any tribunal, is at variance with the best established rules of universal jurisprudence; that is to say with those rules, which, for the sake of general convenience, and by tacit consent, are received by Christian nations and observed in their tribunals: : one of these rules certainly is, that questions of personal status depend on the law of the actual domicile. The element of dissolubility has been since the Reformation an inherent quality of the institution of marriage in England. Per Lord Colonsay.-Inasmuch as there was a valid divorce and a capacity to marry in the country where such divorce was obtained, and a marriage did take place, the children of which have, according to the law of their own country, the status of legitimate children, to revert to an inquiry in reference to their rights after this lapse of time into the circumstances under which the divorce was obtained, though in accordance with the law of England, is not in accordance with the general principles of international law. Quare, per Lord Chelmsford, whether a Scotch divorce would not be valid in the case of an English marriage, where the parties do not afterwards become domiciled in Scotland, nor have resorted thither with the design of invoking the jurisdiction of the court; but where, happening to be in the country, one of them applies for and obtains a divorce. Quære, per Lord Westbury, whether a decree of divorce There was no dispute as to the facts material for the decision of this case. On the 18th June 1828, a marriage was solemnised at Manchester, between Elizabeth Hickson, a girl under seventeen years of age, and a man named Buxton. The marriage had been brought about by Buxton by means of a fraudulent conspiracy, for which he was afterwards prosecuted and convicted, and sentenced to three years' imprisonment. The parents or friends of the girl succeeded in getting possession of her person before the marriage had been consummated, and she and her husband never lived together even for a day. Attempts were made to get rid of the marriage by Act of Parliament, but without success, and in the month of Dec. 1838, Buxton and his wife joined in a deed of separation under which certain pecuniary benefits were secured to Buxton in consideration of which he covenanted that his wife, described by her maiden name of Elizabeth Hickson, should be at liberty to live separate and apart from him as if she were sole and unmarried. The parties continued to live separate from each other, and Buxton from the time of the separation, if not before, lived in adultery with another woman named Sarah Lant. In or about the year 1845, a gentleman living at Derby named John Shaw, then studying for the English bar, became attached to Mrs. Buxton, who was always designated by her maiden name of Elizabeth Hickson, and he proposed to marry her. To this she agreed, if she could get rid of her marriage with Buxton. In order to accomplish this object, Shaw seems to have altered his intention as to the English Bar, and to have resolved to take the necessary steps for being called to the Scotch Bar. In point of fact, in March 1845 he and Elizabeth Hickson both went to Edinburgh, and presumably both of them were ever afterwards [H. OF L. of the testator's great niece, or whether they were to be treated as illegitimate children, so that the fund should go over to the persons entitled to it in the event of there being no child of the great niece. Kindersley, V. C. decided that they were not so entitled. From that decision the present appeal was brought. The case is reported in the court below, sub. nom. Wilson's Trusts, 13 L. T. Rep. N. S. 576. Sir R. Palmer, Q. C., Anderson, Q. C. (Archibald Smith with them), for appellants.-Was the Scotch divorce, if in other respects sufficient to put an end to the marriage, objectionable on the ground of collusion? There was no arrangement or connivance with a view to doing a wrong on which the divorce might be obtained. There is a distinct difference between concert and collusion recognised in Donegal v. Donegal, 3 Phill. 601. Collusion is an agreement to commit adultery, and conniving, as used in the Divorce Act, means taking money for adultery, and leaving a wife to an adulterer. The concert in this case was a lawful concert: Crewe v. Crewe, 3 Hagg. Ecc. Ca. 130; Dolphin v. Robins, 3 Macq. H. L. Rep. 563; The English marriage, it is said, is indissoluble; Gipps v. Gipps, 11 H. of L. Cas. 1. that is to say, that there are grounds for saying that, because a marriage cannot be dissolved in England, it cannot be dissolved anywhere. It has been contended that indissolubility was pars contractus of an English marriage, and that it was a breach of the contract to dissolve such marriage by divorce. But the indissolubility of marriage by courts of law in England arises not from any actual or presumed consent or contract of the parties at the time and as part of the marriage, but from the constitution of the courts-their inadequacy to give this redress. Between the Reformation and Foljambe's case (3 Salk. 138), divorce a vinculo for adultery was permitted by the Ecclesiastical courts. The Scotch courts had the power to dissolve an resident in Scotland. In the month of Sep-innumerable in Scotland, and if there be a conflict English marriage, as has been decided by authorities tember following Thomas Buxton also went to Scotland and after he had been there above forty days, an action of divorce was raised against him by his wife before the Court of Session by a summons dated the 15th Nov. 1845, and then duly served on him founded on the undisputed fact that he was living in adultery with the said Sarah Lant. The action was duly prosecuted and a decree of divorce therein was pronounced by the Court of Session on the 20th March 1846. In the following month of June a marriage, valid by the law of Scotland, was duly celebrated between the said John Shaw, and Elizabeth Hickson, and there was issue of that marriage three children and no more. Buxton died in Jan. 1852; Shaw in the September following, and Elizabeth Shaw, or Hickson, in 1863. The question to be decided was whether these three children were entitled to certain money bequeathed by John Wilson, the great uncle of Elizabeth Hickson, whose will was dated in 1832, and who died in 1835. By that will he gave, inter alia, a sum of 2000l. to trustees upon certain trusts for the benefit of his great niece, Elizabeth Hickson, for her life, and after her death, subject to a power of appointment, which was never exercised, in trust for all and every the children of his said great niece, who being a son or sons, should attain the age of twenty-one, or being a daughter or daughters, should attain that age or marry, to be equally divided among them as tenants in common. trustees, after the death of Elizabeth Hickson, paid the money into the Court of Chancery, under the Trustee Relief Act; and the question to be decided was, whether these children of Elizabeth Hickson by John Shaw were entitled to the fund as children The between Scotch and English authorities, the Scotch fact, and the Vice-Chancellor was bound to give effect to it. Story's Conflict, s. 105, 2nd edit., and s. 205n.; Munro v. Munro, 1 Rob. 492; 7 Cl. & F. 842; Utterton v. Tewsh, Fergusson's Div. Rep. 23; Pitt v. Pitt, 4 Macq. 627; Morse v. Morse, 2 Hagg. Eccl. 610; Harford v. Morris, 2 Cox, 425; 2 Hagg. Cons. Rep. 423; |