Longworth v Yelverton. [Court of Session—1st Division.]
| Jurisdiction | Scotland |
| Judgment Date | 05 November 1868 |
| Date | 05 November 1868 |
| Docket Number | No. 25 |
| Court | Court of Session (Inner House - First Division) |
Lord Jerviswoode. B.
Jurisdiction—Foreign—Reconvention.—
THIS action was brought by Maria Theresa Longworth against William Charles Yelverton, and concluded for reduction of the following judgments in favour of the defender, pronounced in the conjoined counter actions of declarator of freedom, &c., and of marriage, at the instance of the defender and pursuer respectively, formerly in dependence in this Court and in the House of Lords—(See ante, vol. i. p. 161; vol. ii. p. 49, H. L.; and vol. iii. p. 645)—viz. (1) interlocutor of Lord Ardmillan, Ordinary, dated 3d July 1862; (2) judgment of the House of Lords, dated 28th July 1864, reversing that of the First Division recalling the Lord Ordinary's interlocutor; and (3) the interlocutor of the Court of Session applying the judgment of the House of Lords, and refusing a reference to the defender's oath.
The present action was directed against the defender as ‘being in any event subject and liable to the jurisdiction of the Lords of Council and Session by reason of reconvention in consequence of the proceedings narrated in the condescendence,’ which, after setting forth the proceedings in the case formerly reported, contained the following averment:—(Cond. 7) ‘The present defender is a son of Viscount Avonmore, who is an Irish Peer, and is domiciled in Ireland. The present defender was born in Ireland, and is by birth a domiciled Irishman. He was a major in Her Majesty's Royal Artillery. He has not lost his Irish domicile. At all events, he has never had or acquired a domicile in Scotland. He lived only a few months in that country, and he did not select it as a home, but resided in it only in the discharge of his duty as an officer in Her Majesty's army. At the time when the summons in said action of declarator of marriage was served on the present defender he was not in Scotland, and he had, at the date of service of that summons, been continuously absent from Scotland for more than forty days.’ (Cond. 8) ‘The present pursuer was born in England, and is by birth a domiciled Englishwoman. Although she occasionally resided in Scotland she never had or acquired a Scotch domicile. At the time when the summons in said action of declarator of freedom and putting to silence was served on her, the present pursuer was not in Scotland, and she had, at the date of service of that summons, been continuously absent from Scotland for more than forty days.’
The pursuer pleaded;—The interlocutors and judgments sought to be reduced having been pronounced by Courts having no jurisdiction to pronounce them, they are null and void, and the present pursuer is entitled to decree, in terms of the conclusions of the summons.
The defender pleaded;—(1) The present action ought to be dismissed, in respect that the defender is not, and was not at the date of raising the same, subject to the jurisdiction of the Courts of Scotland. (2) The defender...
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