Helen Hodgson,-Appellant; Eliza Anne Constance De Beauchesne,-Respondent 1

ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.

Original Eng. Rep. version, PDF

Original Citation: (1858) 12 Moo PC 285

English Reports Citation: 14 E.R. 920

July 7, 10, and 14, 1858.

Mews' Dig. tit. International Law; V. Domicil; b. Of Origin; g. Taking Service under the Crown. S.C. 7 W.R. 397. See Jopp v. Wood, 1865, 4 De G. J. and S. 616; Hamilton v. Dallas, 1875, 1 Ch. D. 268: Doucet v. Geoghegan, 1878, 9 Ch. D. 451; Ex parte Cunningham; In re Mitchell, 1884, 13 Q.B.D. 422; In re Patience, 1885, 29 Ch. D. 983. As to Anglo-Indian domicil, see Dicey, Confl. of Laws, p. 149.

1. Present: The Right Hon. Lord Cranworth, the Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, and the Right Hon. Sir Cresswell Cresswell.

XII MOORE, 286 HODGSON V. DE BEAUCHESNE [1858]

ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.

HELEN HODGSON,-Appellant; ELIZA ANNE CONSTANCE DE BEAUCHESNE - Respondent * [July 7, 10, and 14, 1858].

H., a domiciled Englishman in the military service of the East India Company, came to England from India in the year 1829, upon furlough. By the rules of the service, H. was liable at any time to be recalled to India on active service. In the year 1838, he acquired the brevet rank of Major-General in Her Majesty's army. While on furlough, and in the year 1832, he went to France, where he resided with his wife and daughter, and died there in 1855. He occupied lodgings during that time in Paris. He also purchased a burial-place for his wife, who died and was buried there, and purposed to be buried there himself. His residence in Paris was not continuous, as he frequently came to England and Scotland upon visits, but he had no per¡manent abode in either of those countries, nor did he give up his lodgings in Paris during these visits. All his property, except the furniture of the lodg¡ings in Paris, was in England. Held (reversing the decree of the Prerogative Court),

First. That it was not competent to H. to acquire a domicile in a foreign State, as such domicile was incompatible with the obligations and duty of an Officer in the military service of the Queen and the East India Company [12 Moo. P.C. 319].

Second. That the presumption of law arising from his profession and status was against any intention by H. to abandon his original domicile and acquire a new domicile in a foreign State, as it would be inconsistent to presume an intention contrary to his duty as an Officer in the military service of Her Majesty and the East India Company [12 Moo. P.C. 319].

Third. That England being the domicile of origin of H., the onu-s probandi was upon the party who alleged H. had abandoned it and had acquired another domicile, to establish that proposition [12 Moo. P.C. 323]; but

Fourthly. That the presumption raised by H.'s residence in France, of his inten¡tion to acquire a French domicile, was rebutted by the facts proved in evi¡dence [12 Moo. P.C. 320, et seq.].

The presumption of law is against the intention to abandon the domicile of origin.

Length of residence in a foreign country per se, according to time and circum¡stances, raises a presumption of intention to abandon the domicile of origin, and to acquire a new domicile; but such presumption may be rebutted by facts, showing that there was no such intention.

A change of domicile is not to be inferred from the fact of a lengthened residence in a foreign country. To constitute a change of domicile, it must be animo et facto.

Lieutenant-General Hodgson, in the military service of the East India Company, and having a brevet rank of Major in Her Majesty's army, the [286] deceased, died in Paris in the year 1855, where he had principally resided since the year 1832. While resident in Paris, he executed a Will and two Codicils in the English form. Probate was, in the first instance, taken out in England by the Appellant, his widow, but shortly afterwards the Respondent, the wife of Hyacinth Alcide de Beauchesne, a daughter of the deceased by a former marriage, instituted proceedings in the Prerogative Court to have the probate recalled and the deceased declared to have died intestate, on the ground that at the time of his decease, he was domiciled in France, and that the Will and Codicils were invalid, not being made in conformity with the [287] requisites prescribed by the law of France in respect to testamentary dispositions. The case of the Appellant was, first, that the deceased being in the

* Present: The Right Hon. Lord Cranworth, the Right Hon. Dr. Lushington, the Right Hon. T. Pembertoii Leigh, and the Right Hon. Sir Cresswell Cresswell.

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HO1JGSON V. DE BEAUCHESNE [1858] XII MOORE, 288

military service of the Crown and the East India Company was incapacitated from acquiring a foreign domicile; and, secondly, independent of that objection, that his domicile at the time of his death was England.

The circumstances of the case were these: -

Lieutenant-General Hodgson was born in 1781, at Astbury, near Congleton, in Cheshire, and passed the earlier years of his life in England. In the year 1799, lie went to India as a cadet in the service of the East India Company. In 1811, he married at the Mauritius, where he was serving with his regiment, a daughter of a French gentleman named de Fouchy. In 1816, he came to England on furlough, and in the year 1829, he again returned to England on furlough, having attained the rank of Colonel, and thenceforward continued until the time of his death in the military service of the East India Company, as Colonel of the 12th Regiment of the Bengal Native infantry, on full pay. During the whole of that, period he was considered and recorded as being on furlough. After the de¡ceased returned from India he live'd in England and Scotland until the year 1832, when he went to France with his wife and daughter. Of his movements during the next four years, little was known, except that he spent a portion of each year iu England. In 1836, his daughter, the Respondent, was married in Paris to Monsieur de Beauchesne; and in June of that year the deceased took apartments in the Rue Marsoulier in Paris, which he furnished in a simple manner; the apartments were held at a low rent, and he had the power of giving them up at a short notice. [288] In April, 1838, the deceased quitted Rue Marsoulier, and took apartments in the Rue de Trevise, with the power of giving- them up at three months' notice. He after¡wards lived in other apartments in Paris. Those apartments were never other¡wise than moderately furnished, and held at a precarious tenure, although he had ample means of establishing himself permanently. In the years 1837 and 1838, he spent several months in England; and in the latter year he acquired the brevet rank of Major-General in Her Majesty's army. In 1839, he took a lease for five years of a place in Scotland, with a right of fishing and shooting. He spent several months there in the years 1839 and 1841. In 1843, he returned again to England, stayed there and in Scotland for several months. On none of these occasions was he accompanied by his wife, whose disinclination to England was a source of regret often expressed by him. In the year 1844, his wife died, and was buried in the Northern Cemetery in Paris, and for this purpose General Hodgson purchased in perpetuity a plot of ground in that cemetery, in which he caused a vault to be made, and had a stone inscription placed there, the inscription being " Famille Hodgson," and expressed his purpose to be buried there himself. On the death of his wife, General Hodgson shut up, although he did not surrender, his apartments in Paris, and spent the greater part of the next two years in England and Scotland, his club at Edinburgh being his principal home. In 1846, he returned to France, and took the Respondent, who was then living apart from her husband, to live with him. It appeared that he was dissatisfied with his daughter's conduct, and in the year 1848 he married the Appellant, the daughter of Admiral Honyman. The cere-[289]-mony took place at the British Embassy, and in, the usual affidavit made by the deceased at the English Consulate he described himself as of Astbury, in Cheshire. It appeared that it was the intention of the deceased to take his wife to England shortly after his marriage, for the purpose of introducing her to his English rela¡tions. This intention was delayed by the death of his wife's father, and by a severe attack of illness, which rendered it unadvisable that the deceased should undertake a journey to England, and for many months his health was in a very precarious state. In the autumn of 1849, the Respondent threatened to institute proceedings in the Consistory Court of London to declare her father's marriage a nullity, by reason, as she alleged, of mental weakness, and the deceased instructed a Proctor to defend it; other events caused this suit to be postponed. In March in the follow¡ing year, the Respondent petitioned the Court of Chancery in England for a com¡mission to inquire into the alleged lunacy of her father. The deceased did not dis¡pute the jurisdiction of the English Court, but caused the petition to be opposed 011 its merits, and the petition was ultimately dismissed. During these proceedings he stayed in Paris, and in October, 1850, before the dismissal of the petition, he re¡newed for one year the tenure of his apartments. In the spring of the following year, 1851, he came to England, and took a furnished house for a few months at

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Southsea. His plans for the future did not appear to be then settled, and in Sep¡tember he again returned to Paris. Very shortly after his return to Paris he had a slight apoplectic seizure, and under medical treatment he rallied in the summer of 1852, but at the close of that year a violent attack of illness finally upset his health and [290] faculties, and he never afterwards was capable of exercising his will or judgment. His wife kept him in Paris under the care of his accustomed medical attendant, and he remained there until his death, which took place in March, 1855. At the time of his death the furniture in the apartments constituted the only effects he possessed in Paris. He possessed a considerable sum in the English funds. The deceased left three testamentary papers, consisting of a Will, dated the 21st of August, 1848, and two Codicils dated respectively, the 28th of March, 1850, and the 13th of March, 1851. These documents were executed in Paris in the English form, and in accordance with the requirements of the Statute of Wills, 1 Viet., c. 26.

On the death of General Hodgson a caveat against probate was entered on behalf of the Respondent, in the Registry of the Prerogative Court, but was afterwards withdrawn, and probate was granted to the Appellant, his widow and executrix. Shortly afterwards, in August, 1855, the Respondent commenced proceedings de novo, by taking out a decree calling upon the Appellant to bring in the probate, and to prove the Will and Codicils in solemn form, or to show cause why the probate should not be revoked, and the deceased declared to have died intestate. The Respondent, being separated from her husband under a decree of the French Court, instituted the suit as a feme sole. An allegation, in the form of a common condidit, was given in on behalf of the Appellant, propounding the Will and Codicils. An allegation was then put in by the Respondent, in which she pleaded that the deceased having permanently resided in France since 1836, died domiciled there, with-[291]-out leaving any Will valid by the law of France. The answer of the Appellant, to this allegation denied that the deceased died domiciled in France. The Appellant after¡wards filed a responsive allegation, which was confined to the question of the domicile of her deceased husband. This allegation, after pleading the before-mentioned facts, alleged that the deceased in renting apartments in Paris, and residing there, from time to time, did not at any time intend to establish himself permanently, and to become domiciled in France. That he uniformly retained and expressed, both in his letters and in conversation, the greatest affection and preference for his native country, and evinced thereby that he considered himself as identified with English interests, and as a visitor and a stranger in France. The twenty-third article pleaded, that the deceased never applied for letters of naturalization in France, or for the authorization of the French Government, to establish his domicile in France ; und that the deceased might at any time have been ordered by the police to quit Paris, or France, without cause shown, and without his having the right to resist such order, as a domiciled Frenchman would have had. The twenty-fourth article pleaded, that the deceased was not, by reason of the premises contained in the pre¡ceding article, ever lawfully domiciled in France, so as to have acquired a domicile of succession, according to the laws of that country; and lastly it was pleaded, that by the laws of France the succession to the personalty of all deceased persons, whether testate or intestate, was dependent upon, and governed and regulated by, the law of the place of domicile of the deceased ; and that in the case of a foreigner, who was neither naturalized nor authorized to establish his domicile in France, the [292] succession, whether testamentary, or ab intestato, was governed by the law of the deceased's own country of origin ; and that the same had been frequently decided to be the law of France by Courts of competent jurisdiction. The answer of the Respondent to this allegation admitted that the deceased never applied for letters of naturalization in France, or for the authorization of the French Government to establish his domicile in France. She denied and traversed the allegation that the deceased, renting and residing at Paris, did not intend to establish himself per¡manently or to become domiciled in France, or that the deceased considered or evinced that he was only a visitor and stranger in France.

A number of witnesses were examined by the Respondent upon this allegation, consisting of Mrs. Perkins, Mrs. Thomas, M. Janaguy, Gunning, and others, who spoke to their belief that the deceased had made Paris his home, and had perma¡nently settled in France. Mrs. Thomas also spoke to a conversation with the de-

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ceased, in which he had expressed his intention to be buried with his wife. Wit¡nesses were examined by the Appellant upon this allegation, and letters of the deceased put in evidence. The testimony of the witnesses and the correspondence went to establish thai the deceased never would consider himself a Frenchman; that he used to say, " Je suis Anglais avant tout," that he was proud of being an English Officer, and never expressed a desire to be domiciled in France. Campbell, one of the Clerks in the Secretary's department at the East India House, was also examined, and deposed that the deceased was at the time of his death a Colonel of the 12th regi¡ment of Bengal Native infantry on full pay, on furlough, and that by the rules of the service liable to be called upon by the [293] Company, at any time, to return to India. Bernard Joseph Leget, an advocate at the Imperial Court of Paris, the author of a book called " Le Code des Strangers," was also examined. He deposed, in his examination in chief, that a foreigner resident in France, no matter for how long time, could not obtain a legal domicile except by letters of naturalization, or ihe authorization of the Government of France to establish his domicile, and conse¡quently that the deceased, not having obtained either, retained his domicile of origin ; that by the French law the Will of a person so circumstanced would be con¡sidered valid, if it were valid by the laws of his own country. In his examination on interrogatories, he deposed, that by the laws of France a foreigner could not obtain a domicile of succession by fixing his abode with the intention of permanently abiding there, and he referred to Pothier for the definition of domicile as " le lieu ou une personne a etcMi le siege principale de sa demeure et de ses affaires" (Pothier, Contume d'Orleans, ch. I. § I. Art. 8), which the witness said only had regard to Frenchmen, and not to foreigners, and that moreover in Pothier's time the French law did not require authorization, that since his time the law had been modified by the Code Napoleon, Art. 13, interpreted by the Avis C. S. of 18 Prairial, year 11, and that in his opinion, the French law did not now acknowledge any other law of succession of a foreigner than authorization, and, therefore, rejects Pothier's definition of domicile with respect to foreigners. In support of this position he referred to the case of the Baron de Mecklenberg, then lately determined by the Court Imperial at Paris. He further deposed that the French Courts in reference (not to foreigners generally, but) to authorized foreigners or Frenchmen only, would (with regard to [294] the circumstances which constitute domicile as defined by Pothier) adopt the general principles of the law of nations on that subject which are adopted in England and other countries. He said, " The ground on which I give it as my opinion that domicile, as defined generally by writers on international law, is not by the law of France a sufficient domicile to render the estate of a foreigner so circumstanced subject to the French law of succession, is, that there can be only one domicile for all purposes; and that is declared by the 13th Art. of the Code Napoleon, requiring authorization by the Government." He said that he knew that cases very frequently came before the Court of Cassation in Paris, in which the question of domicile occurred; that it was a fact that in France, the term " domicile " was divisible into two classes, but he would not accept the distinction suggested, namely, of one domicile (proprio sensu) in a strict sense, or, according to municipal law, and another domicile " lato sensu " in a broad sense, or according to the law of nations; that he must be taken as dissenting from this suggestion of two domiciles with reference only to Frenchmen or naturalized foreigners, and that he never would admit the word " domicile " with reference to an unauthorized foreigner. That the French law did not recognize the principle of a domicile in any sense being acquired by either Frenchmen or foreigners in virtue of the law of nations. All that he admitted (as to the suggested existence of two domiciles) was, that a Frenchman or naturalized foreigner might have two species of domicile ; civil and political; that he might by special declaration elect one place as his domi¡cile for political purposes, whilst for general purposes the Courts might (in the absence of any special declara-[295]-tion as to his domicile for general purposes) determine his domicile to be elsewhere, and in that determination they would have regard to all circumstances which are held by the law of nations to constitute domi¡cile ; regarding, however, such circumstances, not in virtue of the law of nations, but of the Code. That such was the result of the 102 Art. of the Code. That a

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foreigner could not exercise municipal rights, i.e., enjoy his droits civiles, until he had obtained the authorization of the Government to establish his domicile in France, and then the enjoyment of such rights was the consequence of such authorization, and he referred to the 13th Art. of the Code in support of this position. He apprehended the meaning of that Article to be, that foreigners were thereby excluded from acquiring a legal domicile; and, in support of his opinion, he quoted the opinion of M. Gary, a member of the Corps Legislatif, who says on this Article:-" Qu'il n'y a eu aucune objection contra l1/2 disposition qui veut que Vetranger ne puisse etablir son domicil en France s'll n'y est admis par la Gouvernement. G'est une mesure de police et de surete autant qu'une disposition Legislative. Le Gouvernement s'en servira pour repousser le vice, et pour accueillir exclusivement les homines vertueux et utiles, ceux qui offre-ront des garanties a leur famille adoptive," and he also referred to " Eecueil des Viscours prononces au Corps Legislatif sur le Code Napoleon," par Ferret, Tome I., and in order to show that M. Gary applied the word " domicile " in all senses, and not only in the sense of the acquisition of civil rights, he again referred to the Avis of the 18th Prairial, year 11, to the effect that the Council of State had decreed " Que. dans tons les cas ou un etranger veut s'etablir en France il est tenu d'obtenir la permission du Gouvernement." He said that he could not refer to any passage in the [296] Code by which a foreigner is freed from the obligations of the French law, because the Code was made for Frenchmen, not for foreigners. He considered the right to make a Will a part of the " abstract " right recognized in all civilized countries (setting aside the question as to the mode or form). He admitted that a foreigner in France, whether domiciled by authorization or not, had a right to make a Will; the law of 1819, abolishing the droit d'Auliaine, expressly according that power. That there was not any passage in the Code by which the mode in which that right should be exercised by foreigners is strictly denned. That the Code, when speaking of Wills, and the requisites of their validity, was perfectly silent as to any distinction between the Will of a Frenchman and the Will of a foreigner, that it spoke only of the former, for whom alone it was intended. That in making a Will, an obligation was imposed upon every Frenchman to comply with certain conditions and formalities: but such conditions and formalities were not essential to the validity of all Wills made in France, because they are not essential to the Wills of unauthorized foreigners made there. That there was not any passage contained in the Code in which foreigners resident in France were expressly freed from the obligation of complying with such conditions arid formalities, inas¡much as the Code applied not to them. That foreigners were not subjected to its limitations, but are left to the law of their own country as to their Wills. He re¡ferred to Thornton's, Onslow's, Breul's and Olivarez's cases, and to Routledge v. De Veine, and Lloyd v. Lloyd (see these cases referred to in Bremer v. Freeman, 10 Moore's P.C. Cases, 306), but adhered to the opinion he had given. Bertrand Francois Julien de [297] la Chere, an Advocate to the Council of State and of the Court of Cassation, who had been in practice for twenty-three years, was also examined on this allegation. In his examination in chief he deposed that as General Hodgson had not obtained letters of naturalization in France, nor authoriza¡tion by the French Government to establish his domicile there, he would not have acquired a lawful domicile of succession according to the French law, unless it should result from certain circumstances; that he had renounced his domicile of origin, that he had not acquired in any other country a new domicile, and that his intention was to establish himself exclusively in France; and he stated that many Courts in France had decided that a foreigner thus residing in France acquired there a domicile of fact, equivalent to a legal domicile, and such a domicile as would regulate the succession to his personal property, whether he died testate or intestate. He then referred to the case of the Baron de Mecklenberg, where the Imperial Court of Paris held that the Baron not having the authorization of the Government was not domiciled there, although he died in Paris after a residence of twenty-six years in France, having a large establishment and his whole fortune there. He also referred to the 7th and 13th Articles of the Code Napoleon, whereby it is directed that foreigners who have received authorization shall enjoy all civil

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HODGSON V. DE BEAUCHESNE [1858] XII MOORE, 298

rights, and said that there was not any written law whereby domicile of succession without authorization was provided for. That such law was the result of general principles of law, independently of the Code. He referred to Lloyd v. Lloyd in the Imperial Court of Paris, in 1849, as a ruling authority. That if an Englishman died domiciled in France, whether he had obtained a general domicile, [298] or even by his having obtained letters of authorization, the Courts in France would hold that his Will was valid, if it were valid by the law of his country of origin, and that if an Englishman died intestate, his personal estate would be distributed with the law of England. That the rule applied to all foreigners domiciled in France, the rule being, that the law of the deceased's nationality, arid not the law of his domicile, should prevail in those matters. That the French Courts in regulating the affairs of the deceased would adopt the law of the country of origin for their guidance, as being the " statut personal," following the person notwithstanding his domicile. In his examination on interrogatories he said, that he had already stated that under circumstances a foreigner might obtain a lawful domicile in France, without the express authorization of the French Government, but that such domicile would not, in his opinion, regulate his succession, in the sense of causing his per¡sonal property to be distributed by the law of France, and he referred to the 102nd Art. of the Code, as the definition of domicile " tu lieu, on il a son principal etablis-ie-ment," and said that in ascertaining the domicile of a foreigner (not having authorization), the French Courts would decide what was his domicile " ou le siet/e de la demeure et de ses affaires," by a consideration of all the circumstances, which generally by the law of nations are considered to constitute a domicile, unless, in the country of origin of the foreigner in question, any particular law of domicile prevailed, in which case the French Court would be guided by such particular law : and that it would be a special question in each case depending upon evidence. He further deposed that a foreigner was entitled to exercise municipal rights, i.e to enjoy his " droits [299] civiles," when he had obtained the authorization of the Government to establish his domicile in France, and he had then a domicile (proprio xensu) in the same manner as a Frenchman. That that was the meaning of the 13th Art. of the Code, and a foreigner could not obtain such domicile or exercise such rights without such authorization, that it would be logically correct to infer from the 13th Art. that no foreigner who had not been authorized by the Govern¡ment should enjoy any civil rights. He further deposed that the right to make a Will was part of jus universum, recognized in all civilized countries, and that a foreigner in France, whether authorized or not, had a right to make a Will, and that there was no passage in the Code by which the mode of exercising such right by foreigners is defined, as the Code was made only with reference to Frenchmen in that respect, and therefore, that there was no necessity expressly to exempt foreigners. This witness also referred to the cases of Thornton (Devilleneuve and Carette's Reps. 1st series, Tome 8, pt. 1, p. 442), Ondow v. Onslow (ib. 2nd series, 1835, pt. 2, p. 374), Breul's Case (ib. 185-4, 1st part, p. 105), Routledge v. De Veine (Tome 1852, part 2, p. 289), Lloyd v. Lloyd (ib. 1849, part 2, p. 420), Olivarez's and the case of the Baron de Mecklenberg. And, with reference to the opinion he had given in his examination in chief, that the personal property of foreigners domiciled in France by authorization of Government ought to be divided according to the law of their own country, he referred to Thornton's case, in which the Imperial Court of Paris determined that notwithstanding the authorization of the deceased, his moveables were subject to the legislation of his own country; and that the Court of Cassation upheld that decision, and upon this point he also [300] referred to the case of Stewart, reported in the Journal du Palais, 1838, 1st part, p. 249, and in support of his opinion that a foreigner domiciled in France might make a Will of personalty, according to the laws of his own country, he referred to the following authorities, " Droit Commercial," No. 1486, by Par-dessus, Councillor of the Court of Cassation. " Droit Commercial dans ses rapports avec le Droit des Gens," by Masse, No. 87; and Marcade's "Explication de Code Napoleon," Art. 999, Tome IV. § II. p. 58. He stated that he was aware that Conolly's case was opposed to his opinion, and he explained that in that case there was a French interest involved, and that all parties had sought the French jurisdic¡tion ; and he further added in explanation of his rerying on an earlier case in the Imperial Court, that in France the Courts were not legally bound by precedents,

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and that the Imperial Courts were frequently influenced by considerations of fact peculiar to each case. And, in conclusion, he added, in explanation of his opinion given in chief, that a domicile of succession of a foreigner would not be inferred (without authorization), unless he died under such circumstances as positively to exclude the possibility of a domicile of his country of origin. That the party must have absolutely renounced his nationality. That it was only by force of the con¡sideration that no other domicile was possible, that he admitted that the French law would allow a domicile of succession without authorization.

Judgment was delivered by the Judge of the Prerogative Court (the Right Hon. Sir John Dodson), on the 18th of May, 1857. After commenting upon the evidence, the learned Judge proceeded in these terms:-" Considering that the deceased was resident in Paris, from the year 1832, till 1855; that he was liv-[301]-ing in apart¡ments furnished by himself, paying the taxes for that house, that he considered it as his home, and he had bought a burial-place for himself; this domicile which he so acquired he never departed from, and did not afterwards acquire a domicile in England or Scotland. Under all these circumstances, the conclusion the Court must arrive at, is, that he was domiciled in France. The remaining question is, whether the Will and Codicils made in the English form are valid, being made by a person domiciled, as I hold him to have been, in France, according to the jus gentium, though not by any act of naturalization, or authorization on the part of Govern¡ment. Whatever may have been my own opinion on this point, whatever I may have considered the true law, I am bound to give up that opinion, because the decision of the superior Tribunal, the Judicial Committee of the Privy Council, in the case of Bremer v. Freeman (10 Moore's P.C. Cases, 306), which appears to be on all fours, with this case, was this, that the deceased was domiciled in France, and it was held that the Will being made in the English form was invalid because she was domiciled in France. I am, therefore, bound to depart from any opinion I may hold upon a question of this sort, and to bow with all deference to the decision of the superior Court. I must, therefore, make a similar decree as that made by the Judicial Com¡mittee in the case of Bremer v. Freeman. Costs to be paid out of the estate."

The present appeal was brought from this decree.

Dr. Phillimore, and Mr. Dickinson, for the Appellant.-There are three questions to be considered in this case : First, whether the deceased being au officer in [302] Her Majesty's and the East India Company's military service, could acquire a foreign domicile while in such service; secondly, supposing him capable, whether he did acquire a French domicile; and, thirdly, if he had acquired a dt facto domicile by the jus gentium, whether his Will and Codicils made in the English form, and executed according to the requirements of the English Statute of Wills, 1 Viet., c. 26, are valid instruments. This last question, if it arises, is concluded by the case of Bremer v. Freeman (10 Moore's P.C. Cases, 306). In that case it was held by this Court that by the jus i/entium, a British subject might be de facto domiciled in France, and that a Will made there by a person so domiciled, must be according to the requirements of the French law. Here, however, there is no foreign domicile, either cle facto or de jure. The deceased was an officer in the service of the East India Company; absent from India on furlough, but liable at any time to be called to active service. He was also a brevet Major-General in Her Majesty's service, and was liable in that character also to be called upon service. Now, what is the rule as to a soldier's domicile 1 By the law of England a British-born subject on service in Her Majesty's army, cannot while on active duty acquire a foreign domicile. The Att.-Gen. v. Napier (6 Exch. Rep. 217). In tiiat case, Napier, a British-born subject, on service in India, died there, and Baron Parke laid it down that an officer going to the East Indies in Her Majesty's service, did not acquire a domicile there so as to exempt his personality from legacy duty in this country (Ib. 221). That case also decided that had Napier not been on duty in Her Majesty's army, he might have acquired an Anglo-Indian domi-[303]-cile. Forbes v. Forbes (1 Kay, 341) is to the same effect. The Vice-Chancellor Wood there says (Ib. p. 356), " When an officer accepts a commission or employment, the duties of which necessarily require residence in India, and there is no stipulated period of service, and he proceeds to India accordingly, the law, from, such circumstances, presumes an intention consistent with his duty, and holds his residence to be animo et facto in

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HODGSON V. DE BEAUCHESNE [1858] XII MOOEE, 304

India." So in Craigie v. Lewin (3 Curteis, Ecc. Rep. 435), Sir Herbert Jenner Fust held in the case of a Scotchman by birth, having by employment in the military service of the East India Company acquired a domicile in India, that on his return to Scotland, though animo manendi, his original domicile did not revive, he still holding his commission, and being liable to be called upon to' return to India. So by the civil law. Donellus. Com. de Jure Civili Opera, Tome IV., Lib. xvii., de Domicilio (Edit, Romae. 1828). It is true that in Cockerel! v. Coclei'dl (25 Law Journ. Ch. 730) an English-born subject, an officer in the Royal Navy, on half-pay, was held to have acquired an Indian domicile, but he had established himself as a merchant in India, and though still drawing his half-pay, he applied for and obtained continued leave of absence, and died resident in India, circumstances which seem to have taken the case out of the rule.

The regulations of the East India Company's service with respect to the limit of the furlough are against the presumption that a military officer can acquire a new domicile. These regulations are founded upon the provision of the Statute, 33rd Geo. III., c. 52, sec. 70, which limits the furlough to five years, except in cases of sickness or infirmity, and Statute, 53rd Geo. [304] III., c. 155, sec. 84, which further authorizes the Court of Directors to permit military officers of a certain rank who have left India on leave, and have not returned within the five years, to have rank and be again capable of serving in India, although such absence was not occasioned by sickness or infirmity. The presumption, therefore, is, that General Hodgson's domicile was still Anglo-Indian. This affords an indicia of domicile superior to any other, as by the rules of the service he was incapable of acquiring a foreign domicile. The evidence of Campbell, one of the Clerks in the Secretary's department of the India House, is conclusive on this point. He says, that though General Hodgson was not likely to be called, yet he was liable to be called, to active service. It is not suggested that he would not have returned to his duty if required. Now, the law of the domicile of a Testator decides whether his personal property is liable to legacy duty. Thomson v. The Lord Advocate (12 Clk. and Fin. 1), and The Att.-Gen. v. Napier (6 Exch. Rep. 217). Yet such duty is not claimed by the revenue authorities when an officer having an Anglo-Indian domicile dies while on furlough. The circumstances necessary to constitute a change of domicile are very fully con¡sidered in Hod-ins v. Matthews (2 Jur. N.S. 196 ; S.C. 25 Law Journ. Ch. 689). With regard to General Hodgson's domicile, our contention is, that his character of a military officer on furlough, created a disability to acquire a French domicile. The principles which govern the law of domicile are very accurately defined by Lord Cottenharn in Muni-o v. Munro (7 Clk. and Fin. 876). He says:-"It is, I conceive, one of those [305] principles that the domicile of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile arid acquiring another as his sole domicile. Such, after the fullest consideration of the authorities, was the principle laid down by Lord Alvanley, in SomerviHe v. Somerville (5 Ves. 787), and from which I see no reason for dissenting. So firmly indeed did the civil law consider the domicile of origin to adhere, that it holds that if it be actually aban¡doned, and no new one acquired in its place, the domicile of origin revives. To effect this abandonment of the domicile of origin, and substitute another in its place, it required le concours de la volonte; animo et facto; that is, the choice of a place ; actual residence in the place then chosen ; and that it should be the principal and permanent residence; the spot where he had placed larem rerumque ac for-funarum snarum summam; in fact, there must be both residence and intention. Residence alone has no effect per se, though it may be most important ground from which to infer intention." The Harmony (2 Rob. Adm. Rep. 324). Lord Stowell there explains the effect of length of time constituting an ingredient in a disputed question of domicile.

But, irrespective of this legal disability, all the acts of the deceased show that he did not and never intended to acquire a domicile in France. The origin of his going abroad seems to have been chiefly to please the French taste of his wife, and to educate his daughter; the fact that during the life of his wife he continued to rent apartments in Paris for her use while he was absent in England and Scotland, is referable to the same cause. The circumstances of the purchase [306] of a family

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XII MOORE, 307 HODGSON V. DE BEAUCHESNE [1858]

grave is easily explained; for unless he had purchased the ground in perpetuity the remains of his wife might have been disturbed within a few years. But how does he describe himself 1 On his second marriage, though it was celebrated in Paris, he describes himself as of Cheshire in England, not of Paris, where he was then living. That is an important fact as showing that he himself considered England to be his domicile. It is in evidence that in 1848, he would have returned to England if his health had permitted him. Again, when, the Respondent peti¡tioned the Court of Chancery for a commission de lunatico inqmrendo against him, the deceased did not dispute the jurisdiction of the High Court of Chancery in England, but conformed and submitted to that forum as a British subject. Had he any notion that he had acquired a French domicile he would have disputed the jurisdiction of an English Court.

Then with respect to the French law regarding the testamentary instruments made by the deceased. Foreign law is a question of fact, to be proved by evidence of experts. It was held in M'Cornick v. Garnett (5 De G. Mac. and Gor. 278), that it was not enough to show that a case has been decided upon a question of Foreign law, or upon evidence adduced in another case, although similarly circumstanced. Suppose, therefore, that the recent case of Bremer v. Freeman [10 Moo. P.C. 306] applied to the present, we insist, that we have a right to use the evidence of experts taken in this cause to contradict it.-[Mr. Pemberton Leigh: Suppose a case brought here by appeal from the Mauritius: this Tribunal would be then pro tanto sitting as a French Court and the decision be founded upon French law. If [307] another appeal came before us upon the same question of French law, should we not be bound by our previous decision ?]-In Wilson v. Wilson (5 H.L. Cases, 40) the House of Lords held, that when a decision of that House was once pronounced in a particular case it was conclusive in that case, and could not be reversed, except by Act of Parliament; but, if the House should afterwards be of opinion that an erroneous principle had been adopted, in such case the House would not be bound in any other case that might be brought before them to adhere to such principle. Here it is shown that the deceased was not domiciled in France; as the 13th Art. of the Code Napoleon requires the authorization of the French Government, which it is not pretended he ever had. The allegation respecting the law of France upon this point is not counter-pleaded, nor were any witnesses examined on the other side to impeach the evidence of the French Advocates examined by us upon the French law. Therefore, the evidence of the experts as to the law of France must, as regards this case, be taken as proving what that law is. These witnesses are Advocates of considerable practice and experience, who have had their attention especially drawn to the cases respecting the domicile of foreigners. They refer to the authorities so copiously cited in Bremer v. Freeman [10 Moo. P.C. 306], and in addition, Bertrand Francois Julieu de la Chere refers, in support of his opinion, that a foreigner domiciled in France might make a Will, disposing of personalty, to " The Cours de Droit Commercial" by Pardessus, Councillor of the Court of Cassation, No. 1486 ; and to " The Droit Commercial dans sen rapports avec le Droit des Gens," No. 87, by Masse ; and to Marcade's [308] " Explication de Code Napoleon," Art. 999, Tome IV. § II. p. 58. Another argument may be drawn from the law of France previous to the Code Napoleon, as to the effect of a Will made by an Englishman in France. The Droit d'Aubaine formerly prevailed in France, but both the treaty of Utrecht in 1713, and the treaty of Paris, of the 30th May, 1814, provide for the exception of the property of British subjects dying in France from the operation of the Droit d'Aubaine. In like manner foreigners were, according to the evidence of the French experts in. this case, as well as in Bremer v. Freeman, not- contemplated in, the provisions of the Code Napoleon, and that Code, therefore, cannot be held to apply to a Will made in the English form by an Englishman, even if de facto domiciled in France.-[Mr. Pemberton Leigh: Are we not concluded by Bremer v. Freeman [10 Moo. P.C. 306] from entertaining this argument?]-The rule "Locus regit iictum" is the true principle to proceed upon. The maxim " Mobilia sequuniur persona-m" upon which Lord Wensleydale proceeded in Bremer v. Freeman, is not followed by Foreign Jurists. Masse, " Le Droit Commercials," Tome II. par. 87. Faelix, " Traite du Droit International," Tome I. p. 152, 3. In this country, Stanley v. Bernes (3 Hagg. Ecc. Rep. 373) was the first case which decided that a

928

HODGSON V. DE BEAUCHESNE [1858J XII MOORE, 309

natural-born British subject might acquire a foreign domicile, and, if he was domiciled abroad, that lie must conform in his testamentary acts to the formalities required by the lex doinicilii. Groker v. The Marquis of Hertford (4 Moore's P.O. Cases, 339) followed that case.

Dr. Addams, and Mr. W. E. Murray, for the Respondent,-[309] This case was rightly decided by the Court below, as being governed by the authority of Bremer v. Freeman (10 Moore's P.O. Cases, 306). In that case, no letters of naturalization, or authorization of the French Government, as required in the case of a foreigner by the Code Napoleon, Art. 13, had been obtained; yet this Tribunal held that by the jus gentium, an Englishwoman, whose doiniciliuiu orit/inis was English, had obtained a de facto domicile in France, and that a Will made by her in the English form, and not in accordance with the requirements of the law of France, her acquired domicile, was invalid. That case is on all fours with the present case. Nothing more can be done by the Court in this appeal than to determine the question of domicile. The other point, the capacity of the deceased, is not ripe for decision.

The first point is, whether it was competent to General Hodgson, a military

officer in the East India Company's service on furlough, to acquire a foreign

domicile 1 Now, we submit, that there is no Act of Parliament, or authority except

the cases of Cockerell v. Cocke.rell (25 Law Journ. N.S. Ch. 730) and Tlie Att.-Gen. v.

Napier (6 Exch. Rep. 217), relied on by the Appellant's Counsel, to support their

propositio'ii that General Hodgson from his status was incapable of becoming

domiciled in France; but this contention, founded upon the Statutes, 33rd Geo. III.,

c. 52, sec. 70, and 53rd Geo. III., c. 155, sec. 84, is really of no force, and immaterial.

A full Colonel loses nothing by not joining his regiment, and whatever may be the

regulations of the service, General Hodgson, both from length of residence in France,

a period of upwards of twenty years, as well as other acts, acquired a domicile there.

His first wife lived, died, [310] and was buried there, in a vault purchased by him

for his family. The Respondent, his daughter, was settled there: she married a

Frenchman, acquired a French domicile, and lived in France. A new domicile

cannot be established, according to Pothier, " Coutume d'Orleans," ch. I. § I. art. 9 ;

Story, " Conf. of Laws," ch. III. § 44 (Edit. 1835), except it be anww et facto. Now,

there can be no question that the intention of the General was to reside permanently

in France, to live there animo manendi. As in Cockerel!, v. Cockerell, notwithstand¡

ing that the deceased, in that case, was an officer in the British Navy, lengthened

residence was held to indicate an intention, to remain in the acquired domicile.

The Commissioners of Inland Revenue v. Gordon's Executors (12 Bell. Mur. and

Young, Court of Sess. Cases, 657) is, if possible, a stronger authority in our favour.

There a lieutenant in the Navy upon half-pay, and liable to be called upon active

service at any time, died in Torlota, one of the Virgin Islands, having resided and

held offices there, and the Court of Session in Scotland held that he had acquired a

foreign domicile in Torlota, and that his estate was not liable to legacy duty. These

cases are of equal authority, as we submit, to the decisions in Craigie, v. Lewin (3

Curteis, Ecc. Rep. 435) and Forbes v. Forbes (1 Kay, 341), and are founded upon a

stronger principle, namely, the animus of the party resident in a foreign country,

Bruce v. Bruce (2 Bos. and Pul. 229, note). Having once acquired a foreign

domicile, he could not lose it without indicating an intention to abandon it. The

Att.-Gen. v. Fitzgerald (3 Drewry, 610), Munroe v. Douglas (5 Madd. 379).

Although the deceased had not become a French citizen, by na-[311]-turalization or

letters of authorization of the French Government, yet he had de, facto acquired a

domicile in France according to the jus gentium. He took up his residence in that

country animo manendi. His Anglo-Indian domicile was abandoned. The

acquired domicile being French, as a necessary consequence, therefore, any

testamentary disposition he might make, must, to- be valid, be executed according

to the requirements of the law of his domicile at his death. Whicker v. Hume (7

H.L. Cases, 124), Anderson- v. Laneuvitte (9 Moore's P.C. Cases, 325), Bremer v.

Freeman (10 Moore's P.C. Cases, 306).-[Mr. Pemberton Leigh: Would it fall, ex

necessitate, that because an Englishman was domiciled in France, his Will would be

bad unless made according to the requirements of the law of France? Bremer v.

Freeman only decided that the Will before the Court was not good by the law of

France. It may be that that case, though right on the facts proved, may not be so

P.C. in. 929 30

XII MOORE, 312 HODGSON V. DE BEAUCHESNE [1858]

according to the law of France, and if not, then is it not competent to parties to come here and raise the same point ?]--Brevier v. Freeman, was fully argued and carefully considered. It is the last authority, and has been approved of by the House of Lords in Whicker v. Hume (7 H.L. Cases, 132). The fact so strongly relied upon by the Appellant, that General Hodgson submitted to the Court of Chancery in England, is immaterial, as the domicile of the party against whom a Commission of lunacy is applied for, is not material to1 the question of jurisdiction. /'// re Prince** Ba r iatmsky (1 Phillips, 375). There is no doubt that the Court of Chancery has jurisdiction to appoint guardians to an infant, although her domicile and all her property was situate in Scotland. Johnstone v. Beattie (10 Clk. and Fin. 42).

[312] Dr. Phillimore, in reply.

No authority has been referred to, which contains the elements of the present case. The deceased had military rank in the Queen's and the East India Company's service, and all the time he was resident in Paris, his name was on the East India Registry Book as an officer on furlough. The fact of his being on furlough is im¡portant, as it is distinguishable from retirement. Thus legacy duty is not claimed by the Inland Revenue authorities from officers on furlough, but it is demanded on retirement from the service.-[Lord Cranworth: If the deceased had gone to Scot¡land on furlough and resided there as long as he did in France, it would be difficult to say that he had not acquired a Scotch domicile.]-He was, from the nature of his dulies, incapable of becoming a French citizen, even if he had been inclined. He evinced, however, no intention to change his domicile of origin. He had no property in France except the furniture of the apartments he rented.

The case stood over for consideration. Judgment was now delivered by

The Right Hon. Dr. Lushington (8th Dec. 1858).-Henry Hodgson is the party deceased; he died in 1855, leaving behind him a widow and an only daughter by a former wife; they are the parties in this cause, Mrs. Hodgson alleging that the deceased died domiciled in England, Madame de Beauchesne, the daughter, that his domicile was French.

The only question we have to determine is, whether the deceased was, at the time of his death, domiciled in England or France. The proceedings have, in [313] effect, though not in form, been narrowed to this sole issue, and so far as we can collect, by the consent of both parties.

The question of domicile has now, for nearly a hundred years been much dis¡cussed in our Courts, and there are numerous authorities upon the subject. Various attempts, too, and from an earlier period, have been made by Institutional writers to arrive at a definition of domicile. The attention of foreign Jurists was directed to similar inquiries long before the question arose in England, and the reason appears to have been, that as change of residence on the continent, the removal from one State to another, and from one Province to another within the same State, where the laws were different, especially the law of succession, was more frequent. Such was the case with regard to the Dutch Provinces, and, more or less, as to France and the other continental States.

Various meanings have been affixed to the word " domicile ": domicile, jure ijentiuin, domicile by the Municipal law of any country, and, we may add, domicile during war, as it may govern the rights of belligerent States. This species of domicile is, it is true, in one sense a domicile, jure gentium, but in many particulars it is governed by very different considerations, and decisions belonging to it must be applied with great caution to questions of domicile independent of war.

Our present concern is with domicile, jure gentium, apart from belligerent considerations.

Instead of attempting to define beforehand what in law constitutes such a domicile, it seems more expedient in the first place to consider the facts proved in this cause, and, as we proceed, to consider what weight the authorities and prin¡ciples founded on them would [314] ascribe to each leading fact, and, finally, ascer¡tain the balance. We say the balance, for in this as in all other cases of conflictin * domicile, there must be circumstances leading to different conclusions.

All the writers on this subject, and very many Judges, have declared that the

930

HODGSON V. DE BEAUCHESNE [1858] XII MOORE, 315

intention of the person whose domicile is in question, is a matter of the greatest importance in order to arrive at a just conclusion. Intention must, in a considerable degree, be inferred from circumstances; therefore, we shall, as briefly as we can, state the history of General Hodgson.

General Hodgson was born in the year 1781, at Astbury, in Cheshire. He was, therefore, an Englishman by birth. All his family were English; one brother was the Dean of Carlisle, another an Admiral. He remained in England till the year 1799, when he proceeded to India in the military service of the East India Company. hp came to England on furlough twice before the year 1829, and in the year 1829 he came again, on furlough also.

An Anglo-Indian domicile being, in this case, in its legal effects, the same as an English domicile, we need not stop to examine whether his Anglo-Indian domicile was lost; and on his return the English domicile revived. Up to the year 1832, when he first went to France, it is admitted that his domicile was English. Such was his domicile by birth and residence. The existence of ordinary family ties, such as are presumed under all similar circumstances to be of force, independent of evidence, render an attachment to such domicile probable.

In all such cases, therefore, the presumption of law is against an intentional change of domicile, and, ordinarily so, for a change of domicile supposes a [315] severenee, to a great degree at least, of all those mutual ties which bind mankind together, and which we all desire to retain, the dissolution of which is repugnant to all our feelings.

The next fact we proceed to notice, and in this case of great importance, is the profession to which General Hodgson belonged, and the rank he held in it; the status thereby conferred upon him, and the obligations, if any, he incurred.

General Hodgson entered the service of the East India Company in the year 1799, and in the year 1829 he became Colonel of the 12th Regiment of the Bengal Native infantry. We learn from the witness, Campbell, that from that time General Hodgson was in the receipt of the full pay and off-reckonings of a full Colonel, as if he had remained in India, and that those emoluments amounted to about 1200 per annum; that he was on furlough, liable at any time to be called upon to return to India.

In June, 1838, Colonel Hodgson, by the Queen's authority, was made Major-Gtneral, limited to India; and in 1851, Lieutenant-Geiieral, with a similar limita¡tion.

We apprehend that the necessary consequence of such promotion was, that General Hodgson was liable at any time to obey the Queen's commands and serve in India.

This state of facts is in no degree altered by the evidence Campbell has given on cross-examination, who illustrates the practice. It appears that there is a dis¡tinction between retirement from the service and leaving India on furlough. Any officer, after twenty years' service in India, may retire on. the full pay of his rank.

But, Colonel Hodgson did not retire; he came home [316] on furlough, on leave of absence. Every person so circumstanced is liable to be called on to return, but it is not usual, when, as in the case now under consideration, he would return as a General. Such promotions are few and much sought after, so that the liability of a full Colonel to return to India against his inclination is, as the witness, Campbell, says, merely nominal.

No doubt this is so, but the obligation to return, if ordered, is not the less binding in law, because it is only carried into effect under circumstances generally acceptable to the officer. The power to enforce it under all circumstances remains, and the obligation to obey continues in full stringency. Indeed, we can well conceive that from an unexpected and altered position of affairs in India, it might become the duty of the Government to call into active service, officers so absent under furlough ; 1 hough in the ordinary state of things there would be no occasion so to do.

With respect to the rank which General Hodgson held from Her Majesty, we apprehend that similar obligations were imposed; indeed, the terms of the com¡mission show it.

Bearing in mind all that we have thus mentioned, it appears to us that some very grave considerations arise.

First. Whether it is competent to a person in General Hodgson's position, to acquire a domicile in a foreign country? Secondly. Whether a foreign domicile is

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XII MOORE, 317 HODGSON V. DK BEAUCHESNE [1858]

not incompatible with the obligations already incurred? And, this is not an unim¡portant consideration; for the authorities show that an intention contrary to duty cannot be presumed.

We are aware that in the case of Forbes v. Forbes (1 Kay, 341), the Vice-Chancellor Wood deemed the [317] fact of the Testator being a Colonel in the East India Com¡pany's service, and a Major-General, of little importance: but that case is most materially distinguished from the present; the question in Forbes v. Forbes being, whether the Testator was domiciled in England or in Scotland, not whether a person so circumstanced was domiciled in a foreign State. In Forbes v. Forbes, a Scotch domicile was, of course, as compatible with the duty of an officer as an English one. We think that in all these questions there is a most essential difference between the acquisition of a Scoteh or English domicile, and the acquisition of a foreign domicile, the presumption against the latter being infinitely stronger.

There is some other authority on this question that deserves consideration. In the case of Ommaney v. Bvngham, before the House of Lords, on the 18th of March, 1796, referred to in Somerville v. Somervtile (5 Ves. 757). It appears that Sir Charles Douglas, being by origin Scotch, had subsequently been both in the Russian and Dutch service. After quitting those services he took up his residence at Gosport. The circumstances of the case are, of course, in very many respects, wholly different from the present; but, the Lord Chancellor made use of an expression which, to some extent, is applicable to this case. He said, " His original domicile having been abandoned (that is, his Scotch domicile of origin), when he afterwards entered into the service of this country he became domiciled here; as a Russian or a Dutchman would on entering into our service." (5 Ves. 759.)

From this expression it is clear that the Lord Chancellor considered, that the fact of belonging to the army or navy of a country had the effect of consti-[318]-tuting domicile in the country in whose service the person might be; and, in this opinion, to a certain degree at least, Sir Herbert Jenner Fust concurred in the case of Craigie v. Leiriii (3 Curt. Ecc. Rep. 435). There was, however, this distinction; if indeed it he a distinction, between that case and the present: Colonel Craigie was not a full Colonel; General Hodgson was a full Colonel at the period he left India. If, says Sir Herbert Jenner Fust, page 443, Colonel Craigie " did not return to India on the expiration of his leave of absence, or previously attain his full rank, he must have quitted the service of the East India Company." That is, in fact, true by force of the Statute, 33rd Geo. III., c. 52, s. 70. The East India Company could not grant him K-ave beyond five years, except under certain circumstances and limitations. How in the case of a full Colonel the East India Company had the power to grant such leave, for it is not given by the Statute quoted, we are unable to say; but, there being no ciLspute on the point, we may assume such power was lawfully granted, though not liv the Statute referred to.

But is there any essential distinction between the two cases? In both cases, the East India Company had the power of recalling the officer to service in India. In the case of a full Colonel it was not usual so to do. Similar opinions were expressed in the well-known case of Bruce v. Bruce (2 Bos. and Pul. 229, note).

These considerations might be carried much further. It might be asked, whether the acquisition of a foreign domicile did not entail on the person acquiring it a liability, jure gentium, to serve in a military capacity in such foreign country; a liability clearly incom-[319]-pa+ible with the obligations of an officer in the service of the Queen and East India Company.

Indeed, this view of the case involves other consequences, for it is not merely a question of domicile in France, but domicile in any other country, however distant. A settled domicile in a country, imports an allegiance to the country, very different from a mere obedience to its laws during a temporary residence.

In solving these difficulties we must always look to the jus gentium; this pro¡position, however true, requires explanation. The Tribunal which tries a question of this description is necessarily bound by the law of the country in which it is situate, and by which it is constituted. That law, whatever it may be, it must necessarily obey; but it is not bound to respect the laws of any foreign country, save so far as they are in accordance with the jus gentium.

We do not think it necessary for the decision of this case that we should lay down,

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HODGSON V. DE BEAUCHESNE [1858] XII MOORE, 320

as an absolute rule, that no person, being Colonel of a regiment in the service of the East India Company, and a General in the service of Her Majesty, can legally acquire a domicile in a foreign country. It is not necessary, for the decision of this case, to go so far; but we do say, that there is a strong presumption of law against a ; erson so circumstanced, abandoning an English domicile, and becoming the domi-t,;ied subject of a foreign Power.

Then this case stands in this position, that the domicile of origin, the domicile ;f family and connection, the presumption arising from the status of General Hodg¡son, are all opposed to an intentional abandonment of his domicile, and the acquisi¡tion of a domicile in France.

[320] This being so, the question arises whether the other circumstances proved in this case refute the presumption we have stated, and prove that the deceased had acquired a French domicile.

Of course, the most material circumstance to be noticed, and which has been most strongly urged as proving the case of Madame de Beauchesne, is that for a long period of years, General Hodgson had a residence in Paris.

We must take into consideration the description of residence and the circum¡stances attendant thereon. General Hodgson was married in the year 1811, to a F're_nch lady at the Mauritius: they had an only daughter, Madame de Beauchesne, born in 1818 ; his wife and daughter accompanied him to England, in 1829. From that period, until they went, to France, they resided chiefly in Scotland ; for there also was resident, at that time, Admiral Hodgson, the brother of the General, to whom he was most particularly attached. In 1832, they went to France. It is ex¡ceedingly difficult to ascertain in this case, as in most others of a similar description, òtthat was the leading motive for the deceased so taking up his residence in Paris. Several motives have been assigned, and partially supported by the evidence in this case :-First, that Mrs. Hodgson was a French woman by birth, and would naturally, by habits and feeling, be desirous of residing in that society which was most con¡sonant to those habits. Second, that her health was likely to be promoted by the climate of France. Third, that the education of Madame de Beauchesne might best b -: conducted in Paris. Fourth, that the living abroad was more economical.

Now, it may be that all these reasons combined, [321] more or less, to induce the deceased to resort to Paris ; but they, neither singly nor combined, necessarily import that the deceased had abandoned his English domicile.

We must first inquire what was the nature of the residence of the deceased, and what were his habits and customs during the period from 1832 until his death. It may be fit, also, to observe any remarkable occurrences which may have taken place during that time.

General Hodgson, on going to Paris in 1832, took ready-furnished lodgings ; from time to time, he took other lodgings for various periods of time. Latterly, some time after the death of his first wife in 1844, and when he took his daughter to live with him, he had a superior residence; and then, as well as before, the furniture belonged to him. On this latter occasion he went to greater expense. The result is, that, from 1832 till his death, in 1855, the deceased had lodgings in Paris, either ready-furnished, or with furniture purchased by himself; it matters very little which was the case.

In these lodgings the General appears to have resided, with the exception of certain intervals, till his death; at first, and, indeed, for many years, in a very economical manner, keeping only one servant, till Madame de Beauchesne came to live with him.

It is impossible, as we have said, for us to entertain with any precision, the reasons which induced the General so to take up or continue his residence in Paris. There are, however, fair reasons for forming a belief that the leading reason was a desire to consult the wishes of his first wife : she was a Frenchwoman, not well versed in the English language, and not accustomed to English servants and their ways. The [322] fact, however, that Mrs. Hodgson never accompanied the deceased in his many visits to Scotland, England, and elsewhere, strongly supports the supposition that the visit to Paris was chiefly on her account, though there may have been auxiliary motives, as, for instance, the education of his daughter. Perhaps the facts would not warrant us in declaring positively that the first Mrs. Hodgson was the special cause

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XII MOORE, 323 HODGSON V. DE BEAUCHESNE [1858]

of the residence of the deceased in France, but we may fairly conclude that such was

the chief motive.

The residence in France, however, was by no means continuous. There were

very many occasions when the deceased resided for many months both in England

and Scotland. On one occasion especially the deceased took a house in Scotland

for sporting ; on another, at a very late period of his life, after his second marriage,

he took a house at Southsea, with the option of remaining after the three months for

which the house was hired.

We are of opinion, that the residence in both these houses must be considered as

temporary only, and that they cannot be deemed an abandonment of the Paris

residence.

During all these years, up to a short period before his death, General Hodgson

was accustomed to visit Scotland and England always without his wife, and generally

alone, and to remain for many months at a time; on such occasions he resided with

his relations and friends, or at hotels or temporary lodgings.

We think it is impossible to say that there is adequate proof that the deceased

at any particular time or period intended to abandon his residence in France.

We now come to another head of inquiry, namely, [323] how far the facts of this

case, independent of mere evidence, afford proof of intention to abandon the English

and to acquire a French domicile. We must, however, premise, that as the English

domicile of the deceased, as his domicile of origin, is an admitted fact in the case,

the onus probandi is on those who allege that it was abandoned, and that another was

acquired; they must prove both the propositions stated.

Evidence of either of these two propositions is to be derived from facts and

intentions expressed by General Hodgson, either in writing or verbally. We will

first look at the affirmative, and then to the negative, evidence.

There is one fact which has been much relied upon by the Respondent in this

cause; the fact that the deceased purchased a burial-place in Paris, and purposed

to be himself interred there.

It is expedient to examine the circumstances attendant on the purchase of this

burial-ground with some particularity.

First, as to the time of the purchase. This is not immaterial. General Hodgson did not, as many persons do, prepare a burial-place for himself in anticipation of his own decease, and of his death in the vicinity of that spot; he bought the burial-ground in consequence of the exigency of the moment, upon the death of his first wife, and not before, and when it became imperatively necessary that he should provide a proper place for her interment. In order to attain that end, and to prevent the operation of the French law, that fresh interments might take place after the lapse of five years in ground not purchased, he was compelled to make a purchase of a [324] certain extent of burial-ground. This he did, but he limited his purchase to two metres, the smallest extent allowed by law to be bought for the purpose sought to be attained. Looking at the circumstances under which this ground was pur¡chased, and to the necessity of the purchase for the decent interment of his wife, we cannot consider this fact, standing alone, as any cogent evidence of an intention to acquire French domicile by showing a determination to remain and die in France. Indeed, the extent of the ground bought, and that it would be capacious enough to hold other bodies, is no proof of an intention to be buried there himself. It was a necessary effect of any purchase at all; a consequence necessarily flowing from the attainment of the object, the acquisition of a fit place of interment for his wife, and the obtaining this extra room was compulsory, not voluntary, on the part of the deceased.

It is true that the General caused, or permitted, an inscription to be placed on the ground. That inscription was, " Famille Hodgson." This, it appears from the evidence, was a mere matter of form usually incidental to all such purchases.

There are, however, certain declarations of intention with regard to this pur¡chase, which remains to be noticed. The witness, Mrs. Perkins, deposes, that in 1844, the deceased said, speaking of the vault he had bought for his wife, that it would contain her, himself, daughter, and grandchildren ; and added, " I have made up my mind to be buried here." A declaration spoken to by the witness twelve years after it was made. Mrs. Thomas deposes somewhat to the same effect: so does M.

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HODGSON V. DE BEAUCHESNE [1858] XII MOORE, 325

Deperraud: and there aie some other declarations of an intention to remain in France, [325] but these declarations are, for the greater part, rather the impression of witnesses, than any specific declaration coming from, the deceased.

With respect to verbal declarations made to witnesses who depose thereto, no doubt such declarations are admissible evidence in these questions of domicile; but the weight to be attributed to them entirely depends on circumstances, especially the time which has elapsed since they were made ; and the circumstances under which they were made. To entitle such declarations to any weight, the Court must be satisfied not only of the veracity of the witnesses who depose to such declarations, but of the accuracy of their memory, and that the declarations contain a real ex¡pression of the intention of the deceased. Such evidence, though admissible, has been considered by many authorities as the lowest species of evidence, especially when, as in this case, encountered by conflicting declarations.

It now remains to consider what evidence there is tending to show that the deceased adhered to his English domicile. This evidence must consist of facts, written documents, and declarations.

We think that the profession and rank, the status of the deceased, furnish pre¡sumptions against any intention to abandon an English domicile, and to lose the national character of an Englishman. Amongst other proofs are; First, the very strong attachment of the deceased to all his family and friends in England, evidenced by his frequent visits to them. This is proved by all the evidence in the cause, and especially by the letters of the deceased. Second, there are many acts of the deceased which he did, and [326] some things which he did not, all leading to the same con¡clusion.

He kept an account with an English house of business in London. All his Wills are in the English form, executed according to the English Statute, save one, and the adoption of the French form in that instance is accounted for, namely, to dispose of property in France. All his property was in England, his savings being vested from time to time in the English funds.

His marriage with Miss Honeyrnan took place in the chapel of the British Ambassador, when he declared his domicile to be English. He expressed great indignation at the notion of being called upon to serve in the French National Guard. He never sought for or obtained the authorization of the French Govern¡ment to his residence in France : he did not obtain, therefore, any of the advantages of a French domicile; but, on the contrary, was exposed to all the inconveniences of a mere stranger residing in the French territories. He must have been cognizant of this state of things, and the omitting to avail himself of an advantage so easily obtained, is the strongest proof that there was no intention to acquire a French domicile. Beyond the mere fact of residence in Paris, it would be difficult, if not impossible, to find any act of the deceased inconsistent with the retention of his original domicile.

We shall also add, that the impression on the part of Madame de Beauchesne, that the domicile of her father was in England, is shown by the proceedings in Chancery, and by the measures for the purpose of anulling the second marriage. It can hardly be [327] necessary to add to this, declarations of the deceased, such as to the witness, Andriveau, and others.

It appears to us that the result of the examination into all the facts and evidence in this case, is as follows:--that in favour of a French domicile, there is a residence in France, in lodgings, for above twenty years, interrupted only by frequent visits to Scotland and England, with no permanent residence in England, and the purchase, on the death of his first wife, of a burial place under the circumstances to which we have adverted.

On the other hand, there are a multitude of facts and circumstances, already enumerated, which prove, to our entire conviction, that General Hodgson never entertained an intention of abandoning his English domicile.

Then the question for consideration is this : What is the law applicable to such a state of facts 1 On the one hand, residence such as has been described; on the other, the absence of all intention to abandon an English, and acquire a French, domicile.

Dr. Phillirnore, in his Treatise on domicile, has collected together the authorities

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XII MOORE, 328 HODGSON V. DE BEAUCHESNE [1858]

bearing upon the question of the effect of the length of time the residence has con¡tinued, in ascertaining the legal domicile. All the authorities concur in holding that the presumption is against the intention to abandon the domicile of origin, and in considering length of time an important ingredient; but in other respects, and with regard to the qualifications of such proposition, it is not easy to reconcile them.

We shall hope to frame our judgment in accordance, for the most part at least, with foreign authori-[328]-ties of the greatest weight, and also with the cases decided by our own Tribunals.

We concur in opinion that great weight is to be attributed to length of residence, but we think that other matters must necessarily be taken into considera¡tion. Independent of special circumstances peculiar to the individual, as, for instance, being a Peer of Parliament, we apprehend that all the authorities show that the intention to abandon the domicile of origin and acquire another is a most important and indispensable ingredient in forming a judgment upon these questions. In Munro v. Munro (7 Clk. and Fin. 877), Lord Cottenham said: " To effect this abandonment of the domicile of origin, and substitute another in its place, it re¡quired le concours de la volonte et du fait; animo et facto: that is, the choice of a place ; actual residence in the place then chosen, and that it should be the principal and permanent residence; the spot where he had placed larum rerumque ac fortun-anim suarum summam; in fact, there must be both residence and intention. Resi¡dence alone has no effect per se, though it may be most important as a ground from which to infer intention. Mr. Burge (1 Comm. on Col. and For. Laws, 54), in his excellent work, cites many authorities from the civilians to establish this proposition." In Collier v. Rivaz (2 Curt. Ecc. Rep. 857), Sir Herbert Jenner Fust said : " Length of time will not alone do it; intention alone will not do : but the two taken together, do constitute a change of domicile." In Munro v. Douglas (5 Madd. 405), Sir John Leach observed : " A domicile cannot be lost by mere [329] abandonment. It is not to be defeated animo merely, but animo et facto." It was clearly the opinion of that learned Judge that, to constitute domicile, intention and residence must concur. Denisart, Tome I. Tit. " Domicil," quotes authority to the same effect, that neither the intention without the fact, nor the fact without the intention, can create a domicile.

We think that length of residence, according to its time and circumstances, raises the presumption of intention to acquire domicile. The residence may be such, so long and so continuous, as to raise a presumption nearly, if not quite, amounting to a praesumptio juris et de jure; a presumption, not to be rebutted by declarations of intention, or otherwise than by actual removal. Such, was the case of Stanley v. Bernes. The foundation of that decision, in this respect, was, that a Portuguese domicile had been acquired by previous residence and acts, and that mere declarations of intention to return could not be sufficient to prove an intention not to acquire a Portuguese domicile.

In short, length of residence per se, raises a presumption of intention to abandon a former domicile, but a presumption which may, according to circumstances, be rebutted.

It would be a dangerous doctrine to hold, that mere residence, apart from the consideration of circumstances, constitutes a change of domicile. A question which no one could settle would immediately arise, namely, what length of residence should produce such consequence. It is evident that time alone cannot be the only criterion. There are many cases in [330] which a very short residence would constitute domicile, as in the case of an emigrant, who having wound up all his affairs in the country of his origin, departs with his wife and family to a foreign land and settles there. In a case like that, a residence for a very brief period would work a change of domicile.

Take a contrary case, where a man, for business or pleasure, or mere love of

change, is long resident abroad, occasionally returning to the country of his origin,

and maintaining all his natural connections with that country: the time of residence

would not to the same extent, or in the same degree, be proofs of a change of domicile.

We concur, therefore, in the doctrine held in many previous cases, that to con-

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ZUGASTI V. LAMER NORTH AMERICAN (THE) [1858] XII MOORE, 331

stitute a change of domicile, there must be residence, and also an intention to change.

With respect to the evidence necessary to establish the intention, it is impossible to lay down any positive rule. Courts of justice must necessarily draw their con¡clusions from all the circumstances of each case ; and each case must vary in its circumstances; and, moreover, in one, a fact may be of the greatest importance, but in another, the same fact may be so qualified as to be of little weight.

In the present case, we are of opinion, that all presumptions of intention to acquire a French domicile, arising from the residence in France, are rebutted by clear and satisfactory evidence that General Hodgson never intended to abandon his English character, and, therefore, that the decision appealed from must be re¡versed, and that the costs throughout must be paid out of the estate.

[Mews' Dig. tit. INTERNATIONAL LAW; V. domicil ; b. Of Origin; g. Takinrj Service under the Crown. S.C. 7 W.R. 397. See Jopp v. Wood, 1865, 4 De G. J. and S. 616; Hamilton v. Dallas, 1875, 1 Ch. D. 268: Do-ucet v. Geoghegan, 1878, 9 Ch. D. 451; Ex parte Cunningham ; In re Miff-hell, 1884, 1:? Q.B.D. 422 ; In re Patience, 1885, 29 Ch. D. 983. As to Anglo-Indian domicil, see Dicey, Confl. of Laws, p. 149.]