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 domicile for herself separate from that of her husband; and that, in fact, she did choose France as her domicile, and there lived and died; that when so domiciled, she made the will of the 23rd June, 1856, valid according to the laws of the place of her domicile, which therefore ought to have been admitted to proof, or, at all events, that, as her domicile 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.

On the part of the respondents, it was argued that, even if there had been a divorce à mensâ et thoro, the wife could not have acquired a domicile of her own; and, in support of that argument, reliance was placed on the clear and undoubted doctrine of our law, that husband and wife *are to be treated as one person, that their union, whatever decree may have been made by the Ecclesiastical Court, is by the common law absolutely indissoluble; that the wife can neither sue nor be sued without her husband; that the husband is bound to maintain her, and to afford her a home; that, with reference to the poor laws, her settlement is her husband's settlement; and, generally, that in the eye of the law they are so completely identified, that the notion of her acquiring a separate home. could not for a moment be admitted.

I desire not to be taken to adopt this argument at once. to the full extent to which it was pushed. If in this case the deceased had obtained, in England, a divorce à mensâ et thoro, and had then gone to France, and there established herself in a permanent home, living there till her death as the

DOLPHIN

v.

ROBINS.

[ *416 ]

DOLPHIN

V.

ROBINS.

[ 417 ]

wife of General Des Pontés, I desire not to be understood as giving any opinion on the point, whether in such a case her domicile would or would not have been French. The question where a person is domiciled is a mere question of fact: where has he established his permanent home? In the case of a wife, the policy of the law interferes, and declares that her home is necessarily the home of her husband; at least it is so primâ facie. But where, by judicial sentence, the husband has lost the right to compel the wife to live with him, and the wife can no longer insist on his receiving her to partake of his bed and board, the argument which goes to assert that she cannot set up a home of her own, and so establish a domicile different from that of her husband, is not to my mind altogether satisfactory. The power to do so interferes with no marital right during the marriage, except that which he has lost by the divorce à mensâ et thoro. She must establish a home for herself, in point of fact; and the only question is, supposing that home to be one where the laws of succession to personal *property are different from those prevailing at the home of her husband, which law, in case of her death, is to prevail? Who, when the marriage is dissolved by death, is to succeed to her personal estate; those entitled by the law of the place where, in fact, she was established, or those where her husband was established? On this question it is unnecessary, and it would be improper, to pronounce an opinion, for here there was no judicial sentence of divorce à mensâ et thoro, no decree enabling the wife to quit her husband's home and live separate from him. I have adverted to the point only for the purpose of pointing out, that the conclusion at which I have arrived in the case now under discussion would afford no precedent in the case of a wife judicially separated from her husband. For, whatever might have been the case if such a decree had been pronounced, I am clearly of opinion, that, without such a decree, it must be considered that the marital rights remain unimpaired.

It was, indeed, argued strongly, that here the facts show, that the husband never could have compelled his wife to return. to him. The allegation of the appellant, it was contended, contains a distinct averment that the husband had committed adultery; and this would have afforded a valid defence to a suit for restitution of conjugal rights, and so would have enabled the wife to live permanently apart from her husband, which, it is alleged, he agreed she should be at liberty to do. But this is not by any means equivalent to a judicial sentence. It may be that where there has been a judicial proceeding,

enabling the wife to live away from her husband, and she has, accordingly, selected a home of her own, that home shall, for purposes of succession, carry with it all the consequences of a home selected by a person not under the disability of coverture. But it does not at all follow that it can be open to any one, after the death of the wife, to say, *not that she had judicially acquired the right to live separate from her husband, but that facts existed which would have enabled her to obtain a decree giving her that right, or preventing the husband from insisting on her return. It would be very dangerous to open the door to any such discussions; and, as was forcibly put in argument at the Bar, if the principle were once admitted it could not stop at cases of adultery. For, if the husband, before the separation, had been guilty of cruelty towards the wife, that, no less than adultery, might have been pleaded in bar to a suit for restitution of conjugal rights. It is obvious, that to admit questions of this sort to remain unlitigated during the life of the wife, and to be brought into legal discussion after her death for the purpose only of regulating the succession to her personal estate, would be to the last degree inconvenient and improper. The observations of Lord ELDON and Lord REDESDALE, in the case of Tovey v. Lindsay (1), evidently had reference only to the facts of the case then before the House, where the question was not as to what would be the wife's domicile as regarded succession to her personal estate, but as to the place where she was to be considered as resident for the purpose of being served with process.

I am clearly of opinion that, without going into questions as to whether the facts are or are not duly pleaded, they afford no ground of defence to the claim of the respondents, and that the respondents are entitled to insist on the will and codicil of April, 1854, as being the last will and codicil of the deceased.

I have already observed, that the decision in this case will be no precedent where there has been a decree for judicial separation; and, before quitting the subject, I should add, that there may be exceptional cases to *which, even without judicial separation, the general rule would not apply, as, for instance, where the husband has abjured the realm, has deserted his wife, and established himself permanently in a foreign country, or has committed felony and been transported. may be, that in these and similar instances the nature of the case may be considered to give rise to necessary exceptions. I advert to them only to show, that the able argument of Sir Hugh Cairns has not been lost sight of. It is sufficient to (1) 14 R. R. 19 (1 Dow, 117).

R.R.-VOL. CXV.

15

It

DOLPHIN

".

ROBINS.

[ *418 ]

[ *419 ]

say, that in the appeal now before the House no such case of exception is to be found.

Mr. Palmer, at the close of his argument, observed that, whatever might become of the will and codicil of April, 1854, the French will of the 23rd June, 1856, could not be admitted to probate for want of due attestation, not having been executed in the manner and with the formalities required by the power. I incline to think he is right in this suggestion. But whether that would be decisive as to the validity of the prior will and codicil, supposing the domicile of the deceased to have been French, might turn on nice questions which have not been argued in this case, as to how far the doctrine, that a will of personalty to be valid must be a will valid according to the law of the domicile of the deceased at his death, would apply to the case of a will of a married woman made under a power. Into this question it is unnecessary for us to travel.

I cannot conclude without saying that, although I am sorry for the delay which the second argument has occasioned to the parties, I cannot regret the course your Lordships took in requiring it. The question was one of great importance; and, not having been raised in the Court below, it required a special consideration when brought for the first time under the notice. of this House. I must add, that my noble and learned friends, Lord BROUGHAM, Lord WENSLEYDALE, and Lord CHELMSFORD, before leaving town, *told me that they entirely concurred in the view of the subject which I have stated. Lord BROUGHAM had expressed some little doubt upon the matter; but he stated, that he did not think it necessary to remain in order to express that doubt, as his single opinion could not affect the decision.

I shall conclude by moving your Lordships to affirm the decree below, and to dismiss the appeal. But as the questions discussed have arisen from the conduct of the wife, no less than of her husband, and as the case was one of some nicety, and the appeal was presented under the express sanction of the learned Judge of the Court below, I think it should be dismissed without costs.

LORD KINGSDOWN:

My Lords, my noble and learned friend has done me the favour to communicate to me the opinion which he proposed to express to the House, and I have had an opportunity of communicating with him my views upon it. And as I concur generally in the conclusion at which he has arrived, and for the reasons upon which that conclusion is founded, I think

it will be most conducive to the administration of justice in your Lordships' House in a satisfactory manner, to content myself with expressing that assent, instead of repeating the arguments, or going in detail into the facts to which he has already alluded.

One thing only I am anxious to guard against. If any expressions of my noble and learned friend have been supposed to lead to the conclusion that his impression was in favour of the power of the wife to acquire a foreign domicile after a judicial separation, it is an intimation of opinion in which at present I do not concur. I consider it to be a matter, whenever it shall arise, entirely open for the future determination. of the House.

There is only one other matter which I will take the *liberty of pointing out to your Lordships, which is this. It was not mentioned, I think, in the course of the argument, but it appears to show most distinctly that no question of law really can arise with respect to this divorce, that it was a mere collusion from the beginning to the end between the husband and the wife. My Lords, the will and codicils which are now propounded are of the most remarkable character. The will gives a legacy of 12,000l. to the husband. The codicil, executed on the same. day and attested by the same witnesses, one, I think, being the solicitor or law agent of the parties, revokes that legacy. Now at first sight one is very much perplexed to imagine what could be the purpose of that contrivance, a gift by will of 12,000l., and a revocation of that gift on the very same day on which it is given. But, my Lords, on referring to the instructions for this will, and to the dates as they appear in these proceedings, the whole matter becomes perfectly clear. Mr. Dolphin went into Scotland in the month of February, 1854. He returned, as it appears, on the 9th of April, 1854, and at that time it is manifest there was a negotiation between the husband and wife for the purpose of procuring the Scotch divorce. The will is dated two days after this gentleman comes to England, and in the memorandum of instructions for that, though it is not very legibly or very intelligibly expressed, we find these words: "The sum of 12,000l. to Vernon Dolphin, Esq., left as Mr. Robins thinks best (I believe Mr. Robins was the solicitor), "to be forfeited, if by false or insufficient evidence to procure the present divorce in Scotland is established." The language is not very clear, but it is quite obvious what was intended. He was to have 12,000l. provided he would establish in Scotland such a case as would enable her to obtain a divorce in that country. My Lords, on the 11th of April accordingly this