The Honourable Dame Anne Boscawen or Warrender, - Appellant; The Right Honourable Sir George Warrender, of Lochend, Bart., - Respondent
| Jurisdiction | Scotland |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Court of Session |
English Reports Citation: 5 E.R. 1227
COURT OF SESSION.
Mews' Dig. viii. 226. S.C. 2 Cl. & F. 488. Among the numerous cases in which Warrender v. Warrender is dealt with, it may suffice to refer to Harvey v. Farnie, 1880-82, 8 A. C. 43; and Le Mesurier v. Le Mesurier, [1895] A. C/517, where all the principal authorities are examined. See also Westlake, Priv. Int. Law, 3rd ed. 65, 78; and Dicey, Conft. of Laws, 2nd ed. 630.
[89] SCOTLAND. COURT OF SESSION. The Honourable Dame anne boscawen or warrender,-Appellant; The Eight Honourable Sir george warrender, of Lochend, Bart.,-Respondent [1834]. [Mews' Dig. viii. 22f . S.C. 2 Cl. & F. 488. Among the numerous cases in which War-render v. War-render is dealt with, it may suffice to refer to Harvey v. Farnie, 1880-82, 8 A. C. 43; and Le Mesurier v. Le Mesurier, [1895] A. C/517, where 1227 IX BLIGH N. S. WARRENDER V. WARRENDER [1834] all the principal authorities are examined. See also Westlake, Priv. Int. Law, 3rd ed. 65, 78; and Dicey, Con ft. of Laws, 2nd ed. 630.] In 1810 a marriage was solemnized in England between an English woman and W., a Scotchman by birth, property, and connections, but partly domiciled in England. In 1819 a deed was executed, by which they agreed to live separate-the agreement to be rescinded only by mutual consent, and on specified conditions ; and a provision for the wife was charged upon the estates of the husband in Scotland. From this time they were in a state of separation, the husband living almost wholly in Scotland. The wife resided on the Continent, chiefly in France. Upon action by the husband in the Court of Session in. Scotland, for a divorce on the ground of adultery, Held that the Court had jurisdiction to pronounce a sentence of divorce, a Vinculo Matrimonii. The question in this case arose in an. action of divorce brought in the Court of Session in Scotland at the instance of Sir George Warrender, against Dame Anne Boscawen or Warrender. The case stated in the Court below for the pursuer was as follows :- The pursuer was a native of Scotland. He was born and educated in that country. Descended of Scotch parents, he succeeded to and still possessed [90] the family estates of Loch end, in the county of East Lothian. He had likewise purchased landed property in several counties in Scotland, to the extent of between £40,000 and £50,000. Having succeeded, in the year 1820, on the death of his cousin, to the estate of Brunts-field in the immediate vicinity of Edinburgh, he soon afterwards made considerable additions to the mansion-house on it, and fitted it up as a residence for himself, at an expense of about £7000. After that period, he made it his principal residence, and was residing there at the time of the suit. At an early period in life he obtained a commission in the Berwickshire regiment of militia, with which he did duty both in Scotland and in England, and then held the lieutenant-colonelcy of the regiment. In 1807 the pursuer was returned to parliament for the Haddington district of burghs, and at a subsequent period, represented in parliament the burghs of Truro, Sandwich, Westbury, and Honion. About the end of the year 1812 he was appointed to a seat at the Board of Admiralty, and there being an official residence attached to it, he soon afterwards took possession of it, and continued to occupy it till the month of April 1822. Until his appointment to this office, he had no house in London, or elsewhere in England ; he kept no establishment there, but lived some times in hotels, at other times in furnished lodgings, when his parliamentary duties required his attendance in London. He spent the greater part of his time in Scotland. His residence was there, and he only left it when required by his regimental or parliamentary duties. During the time, indeed, that he held the situation of one [91] of the Lords of the, Admiralty, it became necessary for him to spend a greater part of his time in London ; but even then he was in the practice of returning to Scotland every year when the duties of his office permitted. During one of his visits to England, in the month of October 1810, and while he was residing in temporary lodgings, he was regularly married to the Defender. The marriage ceremony was performed in London, and the Defender was an English lady, both by birth and connections. Marriage articles, after the English form, were entered into, but the provisions settled upon the Defender as his wife were contained in an ante-nuptial contract of marriage, executed in the Scotch form, simul et semel with the English articles, and were securedover his heritable property in Scotland. It was provided by that deed, that the Defender should be secured in a jointure of £1000 a year, partly over the estate of Lochend, and partly over the lands of Good-speed, 'both situate in the county of Haddington. The deed narrates, " that the said " Sir George Warrender and Anne Boscawen having conceived a mutual love and " affection for each other, do hereby, with consent foresaid, accept of each other for " lawful spoxises, and promise to accomplish and solemnise their marriage without " delay ; " and that the pursuer had covenanted and agreed to " settle £1000 sterling " a-year upon her as her jointure, to be secured on his real estates in Scotland ; and, "in regard that, by the settlements of the estate of Lochend, the heirs of entail and 1228 WARRENDER V. WARRENDER [1834] IX BLIGH N. S. " provision succeeding thereto are empowered to provide their ladies in a competent " liferent provision, by [92] way of locality, out of the said estate, not exceeding the '' third part of the real rent thereof for the time ; therefore, the said Sir George War-" render, as a security to the said Anne Boscawen, his future spouse, of an annuity " of £580 sterling, part of the said jointure or annuity of £1000 covenanted to be paid " to her as aforesaid, hereby binds arid obliges himself, and his heirs of entail and " provision, and his successors and representatives whatever, legally and sufficiently " to irifeft and seise the said Anne Boscawen, his future spouse, in liferent during all " the days of her life, after his decease, in case she shall happen to survive him : But " always with and under the reservation, conditions, and provisions after written, " in all and sundry the lands and others specified (the rent whereof is within a third " part of the rent of the said lands and estate of Lochend), viz.', the lands and grounds " of Lochend." It farther provides, that besides the foresaid provision, " by way of locality to the " said Anne Boscawen, for securing to her the foresaid annuity of £580 sterling, part " of the said jointure or annuity of £1000 agreed to be secured to her upon the said '" Sir George Warrender's real estates in Scotland, he hereby, in complete fulfilment " of his engagement to settle and secure to her the said jointure of £1000, binds and " obliges himself, and his heirs, executors, successors, and representatives whatsoever, " to pay to the said Anne Boscawen, during all the days of her lifetime after his decease, '' in case she shall survive him only, an annuity of £420 sterling, free of all burdens " and deductions whatever, at two terms [93] in the year, Whitsunday and Martin-" mas, by equal portions, with £42 sterling of penalty for each term's failure in payment " of the said annuity, and the legal interest of the said annuity from the respective " terms of payment thereof during the non-payment of the same ; and beginning the " first term's payment of the said annuity at the first term of Whitsunday or Mar-" tinmas next after the death of the said Sir George Warrender, for the half year " preceding, and so forth half yearly and termly thereafter during her life. And for " further security and more sure payment to the said Anne Boscawen of the said " annuity, the said Sir George Warrender binds and obliges himself and his foresaids, "- upon his own charges, legally and sufficiently to infeft and seise the said Anne " Boscawen in the said annuity of £420 sterling, free of all burdens and deductions '' whatever, to be uplifted at the said two terms in the year, Whitsunday and Martinmas, by equal portions, and beginning the first term's payment thereof at the first '' of these terms next after the decease of the said Sir George Warrender, with £42 " sterling of penalty for each term's failure, and the legal interest of the said annuity '' from the respective terms of payment thereof, during the not payment of the same, '' turth of all and whole, the lands and farm of Goodspeed, presently occupied by John " Tait, as tenant thereof, and the lands and farm of Myreside, presently occupied by " Alexander Sawers, as tenant thereof, with the teinds of the said lands, and whole '' parts, pendicles, privileges, and pertinents of the same, lying within the parish of " Dunbar, and constabulary of Haddington, within the sheriffdom of Edinburgh, " [94] as more particularly described in the rights and investitures thereof." This deed was executed according to the forms of the law of Scotland. It contained all the clauses customary in such instruments. There was a clause empowering the defender to enter into possession of the lands in the event of the jointure not being regularly paid; an assignation to the maills and duties, precept of sasine, etc. In virtue of the precept of sasine contained in this antenuptial contract, the defender was infeft in the lands of Lochend, and in the lands of Goodspeed and others, conform to instrument of sasine in her favour', dated the 17th, and registered in the particular of sasines for the shire of Edinburgh, the 18th day of December, 1810; and at the date of the suit she stood infeft in those lands. The other provisions contained in the marriage...
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The case of R v Chadwick was as follows
...of Lords, only a few days before the statute received the Royal assent, He says, in Warrender v. Warrender (2 Cl. & Fin. 488, 531; 9 Bligh, N. S. 89): "We should expect that the Spanish and Portuguese Courts would hold an English marriage avoidable between uncle and niece, or brother and si......