1885 STEVENS v. FISK. Gwynne J. GWYNNE J.-The plaintiff and defendant being natural born citizens of the United States of America, the plaintiff being a native of the State of New York and the defendant a native of the State of Vermont, and both being in the month of May, 1871, resident inhabitants of and domiciled in the city of New York, in the State of New York, were in that month married to each other at the city of New York, according to the law of the State of New York. At the time of the solemnization of the said marriage the plaintiff was possessed of a large separate estate, consisting of personalty amounting to over $220,000, which property by the law of the State of New York continued, after the marriage, to be her separate property absolutely free from the control of her husband as if she were still sole and unmarried. Shortly after the marriage the whole of the securities in which the above sum was invested were placed by the plaintiff's authority in the possession of the defendant, who thereby became the agent of the plaintiff in respect thereof and accountable to her for his administration thereof. In the month of October, 1872, the defendant moved with his wife from the State of New York into the Province of Quebec, and he has since resided and still resides at the city of Montreal in that province. His wife lived with him at Montreal until some time about the month of October, 1876, when she returned to her mother in the city of New York, the plaintiff's original domicile. Whether or not the defendant took her back to her mother upon this occasion does not clearly appear, for being asked in his examination in this cause Whether he did not a short time previous to October, 1876, accompany the plaintiff to New York City and part with her there for the last time? the only answer which the defendant gives to this inquiry is that he does not remember. But whether he accompanied her or not upon that occasion does not appear to be important. In the month of February, 1880, the plaintiff, being then a resident and inhabitant of the State of New York, residing with her mother in the city of New York, instituted proceedings in the Supreme Court of the State of New York against her husband for the purpose of obtaining a divorce a vinculo matrimonii and dissolution of her said marriage in consequence of adultery alleged by her to have been committed by him. At the time of the institution of this suit there was no court in the Province of Quebec, where the defendant was resident, competent to entertain such a suit. The subject of divorce and dissolution of marriage is a subject over which the Province of Quebec has no jurisdiction, that subject being, by the constitution of the Dominion, placed exclusively under the control of the Dominion Parliament. The only court existing in the Dominion competent to entertain a suit for divorce and to dissolve the marriage of persons residing in the Province of Quebec is the court of the Parliament of the Dominion of Canada, having its seat at Ottawa, in the Province of Ontario. By the law of the State of New York, it was competent for the plaintiff to institute the said suit, instituted by her in the said Supreme Court of the State of New York, although the defendant was then domiciled in the Province of Quebec. No question arises here as to the fact of, or as to the time and place of, the committal by the defendant of the adultery charged to have been committed by him. That was a subject which was inquirable, and was inquired into, in the above suit. The summons and complaint of the plaintiff therein was served personally upon the defendant In the city of Montreal, and he appeared to the suit in the said Supreme Court by an attorney of that court duly appointed by the defendant to appear thereto for him, and such proceedings were thereupon had in the said suit in accordance with the law of the State of New York, that in the month of December, 1880, a decree was made therein whereby the defendant was convicted of having committed the acts of adultery charged against him in the complaint 1885 STEVENS v. FISK. Gwynne J. 1885 บ. FISK. of the plaintiff, and for cause of such adultery it was adSTEVENS judged by a decree made in the said suit in accordance with the law of the State of New York, that the said marriage between the plaintiff and the said defendant should be and the same was thereby absolutely dissolved, and by force of that decree the plaintiff is entitled to sue in the courts of the State of New York as if she were sole and unmarried. Gwynne J. Now, although the ordinary rule is that the domicile of the wife is the place where her husband has his domicile, yet it is an established exception to this rule, in American authority, that for the purpose of instituting a suit for divorce the wife may have a domicile separate from that of her husband. In the case of Cheever v. Wilson (m), it was decided by the unanimous judgment of the Supreme Court of the United States that the rule is that the wife may acquire a separate domicile whenever it is necessary or proper that she should do so, that the right springs from the necessity of its exercise, and endures as long as the necessity continues, and that the proceedings for a divorce may be instituted where the wife has her domicile. In Harteau v. Harteau, it was said by the Supreme Court of the State of Massachusetts (n), that the law will will recognize a wife as having a separate existence and separate interests and separate rights in those cases where the express object of the proceeding is to shew that the relation itself ought to be dissolved or so modified as to establish a separate interest and especially a separate domicile and home, otherwise the parties would stand upon very unequal grounds, it being in the power of the husband to change his domicile at will, but not in that of the wife. In Colvin v. Reed (o), it is said: The unity of the person created by the marriage is a legal fiction to be followed for all useful and just purposes, and not to be used to destroy the rights of either, contrary to the principles of natural (m) 9 Wall. 108. (n) 14 Pick. 181-185. (0) 5 Smith Pa. Rep. 375. justice, in proceedings which from their nature make them opposite parties. Mr. Wharton, in his work on private international law (sec. 46) says that the rule that the wife's domicile is that of the husband is now conceded on all sides, does not extend to cases in which the wife claims to act, and, by law to a certain extent and in certain cases is allowed to act adversely to her husband. And Mr. Bishop, in his invaluable work upon Marriage and Divorce (Vol. II., sec. 125), states the rule as collected from the decided cases thus: When the law authorizes a suit between a husband and his wife for divorce and makes the jurisdiction over it depend among other things on domicile there is an irresistible implication that if she needs a separate domicile to give effect to her rights or if his case requires her to have one to make his effectual the law has conferred it on her. In Deck v. Deck (p), it has been decided in England that under the provisions of the English Statute, 20 and 21 Vict. ch. 85, it was competent for the divorce court there to entertain a petition for divorce at the suit of an Englishwoman married in England to an Englishman who had left her and gone to the State of New York, where he acquired a domicile and had married again there, and upon service of process in the suit upon the husband in the United States to make a decree for the dissolution of the marriage. A similar point was decided in Bond v. Bond (q), and in Niboyet v. Niboyet (r), in the case of an Englishwoman who had married a Frenchman at Gibraltar, it was decided upon the same statute that the court had jurisdiction to entertain a petition for divorce presented by the wife, although the husband appeared under protest and contested the jurisdiction of the court upon the grounds that he had never acquired an English domicile or lost his domicile of origin and, among the exceptions to the general rule that the domi(q) 2 Sw. & Tr. 93. (p) 2 Sw. & Tr. 90. (r) 4 P. & D. 1. 1885 STEVENS บ. FISK. Gwynne J. 1885 STEVENS v. FISK. Gwynne J. cile of the husband is the domicile of the wife, which the above statute creates, Mr. Dicey, in his work on Domicil, states the following: 1st. The Divorce Court has under exceptional circumstances jurisdiction to dissolve a marriage where the parties are or possibly where one of them is, at the commencement of the proceedings for the divorce resident though not domiciled in England. 2nd. The Divorce Court has jurisdiction to dissolve a marriage between parties not domiciled in England at the time of the proceedings for divorce where the defendant has appeared absolutely and not under protest. 3rd. The Divorce Court has jurisdiction to dissolve an English marriage between English subjects on the petition of a wife who is resident though not domiciled in England. Mr Justice Story, in his Conflict of Laws (section 36) says: Of the nature, extent and utility of the recognition of foreign laws respecting the state and condition of persons every nation must judge for itself. Now, admitting this to be so, I must say it appears to me very clear that if the husband in Deck v. Deck (rr), instead of going to the State of New York, had gone to the Province of Quebec and had married there, the courts of the provinces of this Dominion should not hesitate to recognize the validity of the decree made in that case, so as to entitle the wife to maintain a suit like the present in her own name as a feme sole; and if we should recognize such a decree made by the divorce court in England, I can see no principle upon which we should decline to recognize a decree of the Supreme Court of the State of New York made under similar circumstances, for a cause which, by the law of the State of New York, is sufficient to justify a decree of dissolution of marriage. In Maghee v. McAlister(s), Lord Chancellor Blackburn, in the Irish Court of Chancery, recognized the validity of a decree of dissolution of marriage made by a Scotch court at (s) 3 Ir. Ch. Rep. 604. (rr) Sw. & Tr. 90. |