such decree pronounced, bona fide domiciled in the country where that tribunal has jurisdiction. From the petitioner's own evidence, it clearly appears, that his Victorian domicile was abandoned. His domicile of origin, which was in abeyance so long as his domicile of choice lasted, was thereby revived, and unless he has subsequently acquired some other domicile, still continues-Udney v. Udney, L.R., I Pro. & Div., 441. The evidence shows that a new domicile has not been acquired. The petitioner's presence in this colony is to be attributed solely to his desire to obtain a divorce. Such a presence, even if it amounts to "residence "-which, in our opinion is, to say the least, very doubtful-falls far short of that which is necessary to constitute a domicile, viz., residence with an intention to continue to reside for an unlimited time. The course pursued by the English court in Bond v. Bond, 2 Sw. and Tr. 93, affords no precedent for granting the prayer of this petition. In that case the marriage was English, and the parties had resided in England, and it did not appear that the husband's domicile of origin was Irish. It was not there decided that domicile was immaterial to the question of jurisdiction. On the contrary, it was stated by the Judge Ordinary that the case was "the same in substance as Derk v. Derk 2 Swa. & Trist. 9o. There a marriage in England between English subjects was dissolved on the petition of the wife, although the husband, who did not appear, was domiciled in America. It was the case of an English wife suing an English husband who still owed allegiance to the Crown and obedience to the laws of England, and that allegiance could not be shaken off by change of domicile. Were it not so, a husband could always prevent his wife suing by making the change. In Caldwell v. Caldwell, 3 Sw. & Trist 259, a decree for the dissolution of a marriage celebrated in Ireland was granted on the petition of the husband, domiciled in Ireland, and who had only a temporary residence in England; but there the respondent appeared and submitted to the jurisdiction, and it was expressly on that ground that the judges, after "discussion" among themselves, pronounced the decree. Whether that case can be upheld consistently with the later decisions may well be doubted. In Foster v. Foster, 3 Sw. & Trist. 144, where the petitioner came from India for the purpose of instituting the suit, the only matter decided was the point of practice, that a plea was not the proper mode of objecting to the jurisdiction where the appearance had been absolute and not under protest. In Wilson

v. Wilson, L.R., 2 P. and D. 435, where the objection to the jurisdiction was taken in the answer, the Court decided on the evidence that the domicile was English, thus inferentially holding that domicile was essential to jurisdiction. In Brodie v. Brodie, 2 Sw. and Tr. 259, language is no doubt used, which, taken by itself, might lead to the conclusion that residence alone was sufficient to give jurisdiction. There was, however, evidence of domicile in that case; and at the conclusion of it the Court observed "the question is whether the petitioner has acquired an English domicile," and his counsel replied "that domicile had been proved, for that there was a bona fide residence with the intention of its being permanent." The Court must have thought that domicile was proved, for they carefully left open the question whether it would have been sufficient domicile in a testamentary suit. Moreover, if the question of domicile was not decided, it is difficult to see how there could have been any jurisdiction over the wife, who was resident in Australia, where the adultery was committed-Harris v. Hamburg, 2 C.P.D. 173. If the husband's domicile was considered to be English that obstacle would not exist, as the domicile of the husband becomes the domicile of the wife-Dalhousie v. M'Donald, 7 Cl. and Fin. 817-and she cannot, save possibly under special and exceptional circumstances not existing in that case, acquire a separate domicile for herself-in re Daly, 27 L.J. Ch. (N.S.) 751, and Yelverton v. Yelverton, 1 Sw. and Trist 574. The husband, as put by Lord Chelmsford in Gould v. Shaw, L.R. 3, E. and I. App. 76, must have had a domicile which attracted his wife's domicile, and brought her constructively within the jurisdiction of the court in which he sued. If this were not so, the Court would not, so far as we can discover, have had jurisdiction; for although the respondent was served with a citation, she did not appear or submit herself to the jurisdiction, and the service of a citation does not create or confer jurisdiction; it is merely the mode by which which the Court, already possessing jurisdiction, summons the party to appear. The result of these decisions appears to us to be, that domicile is necessary to give jurisdiction in cases like the present. Those decisions do not limit the general words of the statute, but they show that the powers conferred by it are to be exercised in accordance with known principles of international public law. In Manning v. Manning, L.R. 2, P. & D., 223, the Judge Ordinary, alluding to the case of Brodie v. Brodie, says that he forbears to discuss the questions whether

there can or ought to be two sorts of domicile; whether a bond fide residence alone can in any sense be called a domicile; and whether the mere fact of residence ought or ought not to be sufficient to entitle a party to sue in the Divorce Court, because he considered that the proposition of the full Court that bonâ fide residence was enough would dispose of the case before him, as there had been no such residence. The subsequent case of Burton v. Burton, 21 W. Rep. Prob., 648, which appears at first sight to be an authority that domicile is not essential to jurisdiction, does not really establish anything of the kind. It is quite consistent with either view of the law, inasmuch as the Court merely decided that the husband, who was respondent in the suit, had no residence in England. It was, therefore, unnecessary to consider whether he had the other ingredients of a domicile, as residence, which is one, was wanting; and under those circumstances, with a long series of authorities the other way, we cannot regard it as laying down that mere residence confers jurisdiction to dissolve. It must never be lost sight of that the dissolution of a marriage affects the status of the parties, and the judgment by which it is obtained ought to be pronounced under such circumstances, and under such circumstances only, as will entitle it to extra-territorial authority. Unless, therefore, we are compelled by some plain and explicit enactment, we ought not to pronounce a judgment which would have the effect of annulling the marriage contract so far as this colony is concerned, while it would leave the petitioner and respondent in the characters of husband and wife in all other parts of the world. Such a state of things would, from a social point of view, be most deplorable, and from a legal point of view would be highly discreditable to the Legislature which should permit it to exist. We cannot arrive at the conclusion that such a state of things exists here, and we must therefore hold that this Court has no jurisdiction. It was suggested on behalf of the petitioner that the Court ought not to take cognisance mero motu, and without having been moved, of this supposed want of jurisdiction. We cannot adopt that suggestion. It is manifestly the duty of every Court to abstain from exercising a jurisdiction which it does not possess, and it is our duty, especially in cases of this kind, to see that no invalid decision is pronounced by us which might produce serious injury, not only to those whom it was intended to benefit, but to others who may give credit to its validity. In Wilson v. Wilson, the judge in disposing of the motion to take an

answer off the file, observed that "It is more convenient if a party wishes to raise the question of jurisdiction so that he shall not be bound to answer that he should do so at the beginning of the proceedings. Yet if he answers, or the merits and the circumstances of the case show that the Court has no jurisdiction, it will hold its hands." The case of Burton v. Burton, already referred to, is a tacit authority to the same effect, and in Le Sueur v. Le Sueur, 1 P.D., 169, where the respondent did not appear, and the cause was consequently undefended, the Court considered the question of jurisdiction of so much importance that the assistance of the Queen's Proctor was invoked, and the petition ultimately dismissed for want of jurisdiction. Those precedents we follow, and dismiss this petition for want of jurisdiction.

Mr. Justice Molesworth gave the following judgment:-As far as I can discover the original practice of the Ecclesiastical Courts in England, anybody might sue any other found in England. There was a restriction by 23 Henry VIII., forbidding service of citation on a person not resident within Peculiar jurisdiction, but not referring to domicile. The Scotch Courts granted divorces for adultery between English subjects resident for a short time in Scotland, which the English Courts did not recognise as affecting the relation of the parties in England, but it was otherwise if they became domiciled there, Lolley's case, Russ. and R., 237. This anomaly of the relations of parties being different in the two countries has been left untouched. The English Act authorising dissolution of marriage for adultery created a new tribunal for matrimonial causes in lieu of the Ecclesiastical Courts, and directed as to the subjects of former jurisdiction, the former practice should be followed, but as to dissolution for adultery used distinct words authorising every person to sue his or her spouse, and the Courts so direct the manner of service of process either in or out of England, saying nothing about the domicile or even the residence of parties, and in no way prescribing the effect which a decree should have upon the relations of the parties in other parts of Her Majesty's dominions, and I find scarcely any reference to that question in the various judgments of the English Courts since. There was necessarily some restriction or liability, and the Courts were left to make law by practice based upon either the law of nations or convenience, and the decisions appear to me to have proceeded upon the latter rather than the former, and to be to a considerable extent

incongruous, and avoiding the laying down of general rules. The influential materials as to exercising jurisdiction have been the place of the marriage, of the cohabitation, of the alleged offence, especially the domicile of the parties, and adopting to a great extent the principle that the domicile of the wife depends on that of the husband. And as to the matter of domicile, for no reason that I can suppose except convenience, it was held in one case (Brodie v. Brodie, 30 L.J., P.M. and A., 185) that long residence had the effect of change of domicile, and a similar opinion was intimated in Burton v. Burton, 21 W.R., 648. Our Act 268 is, I may say, a copy of the English. In such cases I am always disposed to pay great deference to the decisions of English judges, construing their Acts, and would pay it especially on points involving the matrimonial relations of persons passing between England and Victoria. In this case the place of marriage and domicile of the petitioner is England, the long residence of the respondent and co-respondent, but the place of the adultery, and the temporary residence of the petitioner, here. There are many arguments of convenience to make this the most fitting place of trial, and there is no direct English decision against it. As to the husband's domicile, it has not in England been regarded as the exclusive test of the jurisdiction-Simonin v. Malve, 29 L.J., P.M. and A., 97. The domicile was French. The petitioner's wife had obtained in France a decree that a marriage celebrated in England was void, as an evasion of French law, and being in England she sought a similar decree against the husband in Italy. The Court entertained the question because the marriage was English. They afterwards decided that the marriage was valid in England, leaving the parties husband and wife in England, unconnected in France. In Derk v. Derk (29 L.J., P.M. and A., 129), where the marriage, original domicile, cohabitation, and adultery were in England, the wife obtained a decree for dissolution against her husband, who had adopted American domicile. The English authorities are strong as to the domicile of husband-petitioners giving jurisdiction over wives who were never domiciled except through their husbands, but I cannot with confidence infer the converse of husbands not domiciled being excluded from relief. The decision in Brodie v. Brodie, is that a husband's residence, without change of domicile, gives jurisdiction for him; and the learned judge, in Burton v. Burton, intimated that a permanent residence in England of a husband respondent might give jurisdiction against him, though the domicile, cohabitation, marriage,