GEORGE UDNY, APPELLANT
[L. R.] 1 Sc.&Div. 441
SOLICITORS: For the Appellant: Coverdale, Lee, Bristow, & Withers. For the Respondent: White, Broughton, & White.
JUDGES: The Lord Chancellor, Lord Chelmsford, Lord Westbury and Lord Colonsay.
DATE: 1869 June 3.
HEADNOTE: Political and Civil Status – Allegiance distinguished from Domicil.
Every individual at his birth becomes the subject of some particular country by the tie of natural allegiance, which fixes his political status; and becomes subject to the law of the domicil, which determines his civil status.
Per LORD WESTBURY:– To suppose that for a change of domicil there must be a change of natural allegiance is to confound the political and the civil status, and to destroy the distinction between patria and domicilium.
Per THE LORD CHANCELLOR(1):– A man may change his domicil as often as he pleases, but not his allegiance. Exuere patriam is beyond his power. Dictum of Lord Kingsdown in Moorhouse v. Lord (2) qualified.
Domicil of Origin.
Per LORD WESTBURY:– It is a settled principle that no man shall be without a domicil; and to secure this end the law attributes to every individual as soon as he is born the domicil of his father if the child be legitimate, and the domicil of his mother if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law – not of the party. It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal; but it cannot be destroyed by the will and act of the party.
Domicils of Origin and of Choice distinguished.
Domicil of choice is the creation of the party. When a domicil of choice is acquired the domicil of origin is in abeyance; but is not absolutely extinguished or obliterated.
When a domicil of choice is abandoned, the domicil of origin revives, – a special intention to revert to it being unnecessary.
Per LORD CHELMSFORD:– Story says that the moment a foreign domicil is abandoned, the native domicil is re-acquired. The word re-acquired is an inaccurate expression. The meaning is, that the abandonment of an acquired domicil ipso facto restores the domicil of origin.
If after having acquired a domicil of choice a man abandons it and travels in search of another domicil of choice, the domicil of origin comes instantly into action and continues until a second domicil of choice has been acquired.
Per LORD WESTBURY:– A natural-born Englishman may domicile himself in Holland; but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicil clings to him until he has set up his tabernacle elsewhere.
(1) Lord Hatherley.
[*442] Legitimation per subsequens Matrimonium.
Per THE LORD CHANCELLOR:– The status of the child, with respect to its capacity to be legitimated by the subsequent marriage of its parents, depends wholly on the status of the putative father, not on that of the mother.
According to English law – where at the time of a bastards birth the father has his domicil in England – no subsequent change of domicil can render practicable the bastards legitimation.
THE late Colonel John Robert Fullerton Udny, of Udny, in the county of Aberdeen, though born at Leghorn, where his father was consul, had by paternity his domicil in Scotland. At the age of fifteen, in the year 1794, he was sent to Edinburgh, where he remained for three years. In 1797 he became an officer in the Guards. In 1802 he succeeded to the family estate. In 1812 he married Miss Emily Fitzhugh, – retired from the army, – and took upon lease a house in London, where he resided for thirty-two years, paying occasional visits to Aberdeenshire.
In 1844, having got into pecuniary difficulties, he broke up his establishment in London and repaired to Boulogne where he remained for nine years, occasionally, as before, visiting Scotland. In 1846 his wife died, leaving the only child of her marriage, a son, who, in 1859, died a bachelor.
Some time after the death of his wife Colonel Udny formed at Boulogne a connection with Miss Ann Allat, which resulted in the birth at Camberwell, in Surrey, on the 9th of May, 1853, of a son, the above Respondent, whose parents were undoubtedly unmarried when he came into the world. They were, however, united afterwards in holy matrimony at Ormiston, in Scotland, on the 2nd of January, 1854, and the question was whether the Respondent, under the circumstances of the case, had become legitimate per subsequens matrimonium.
The Court of Session (First Division) on the 14th of December, 1866(1), decided that Colonel Udnys domicil of origin was Scotch, and that he had never altered or lost it, notwithstanding his long absences from Scotland. They therefore found that his son, the Respondent, though illegitimate at his birth, was legitimated by the subsequent marriage of his parents. Hence this appeal, which the House regarded as involving questions of greatly more than ordinary importance.
(1) 3rd Series, vol. v. p. 164.
[*443] The Appellant argued his own case.
Sir Roundell Palmer, Q.C., Mr. Mellish, Q.C., Mr. Fraser, and Mr. Bristow, appeared for the Respondent.
The following opinions of the Law Peers fully state the facts, the authorities, and the legal reasoning.
THE LORD CHANCELLOR:–
My Lords, – In this case the Appellant prays a judicial declaration that the Respondent is a bastard, – and is not entitled to succeed to the entailed estates of Udny, in Aberdeenshire.
The question depends upon what shall be determined to have been the domicil of the Respondents father, the late Colonel Udny, at the time of his birth, – at the time of the Respondents birth, – and at the time of the Colonels marriage with the Respondents mother.
The Appellant, who argued his case in person with very considerable ability, contended:– First: That the domicil of origin of Colonel Udny was English. Secondly: That even if that were not so yet that at the time of his first marriage, in 1812, he had abandoned Scotland for England, sold his commission in the army, took a house on lease for a long term in London, and resided there till he left England for France in 1844, for the purpose of avoiding his creditors; and that having thus acquired an English domicil he retained it, and never re-acquired his Scotch domicil. Thirdly: That, at all events, if he did recover his Scotch domicil, yet it was not recovered at the date of the Respondents birth in May, 1853, nor even at the date of the intermarriage of the Respondents parents in January 1854.
As regards the first question, your Lordships did not hear the Respondents. You were satisfied that Colonel Udnys father, the consul, had never abandoned his Scottish domicil. Consequently you held that Colonel Udnys own domicil of origin was clearly Scotch, that having been the domicil of his father at the Colonels birth.
A more difficult inquiry arose as to the domicil of Colonel Udny at the date of the Respondents birth in May, 1853.
[*444] Colonel Udny appears to have left the army about the same time that he married his first wife, viz. in 1812, when he executed a contract and other instruments connected with his marriage, containing provisions referable to Scottish law, and describing himself as of Udny, in the county of Aberdeen. He, on his marriage, however, took a long lease of a house in London, in which he resided till 1844. He made frequent visits to Scotland, but had no residence there. He at one time contemplated restoring Udny Castle – and even three years after he had commenced his residence in London appears to have still thought it possible that he might complete the restoration – and plans were about that time submitted to him for that purpose. For many years, however, he seems to have abandoned all hope of so doing, owing to his means being insufficient. He was appointed a magistrate in Scotland, but appears not to have acted as such. When in Scotland he usually resided with friends, but occasionally at hotels in the neighbourhood of his property, and he continually received detailed accounts of the estates, and took much interest in their management. His choice of Englandas a residence appears to have been considerably influenced by his taste for the sports of the turf. By his first marriage he had a son, John Augustus Udny.
The Judge Ordinary and the Court of Session concurred in opinion that the long and habitual residence in England was not sufficient to amount to an abandonment of the Colonels Scottish domicil of origin. This point, I confess, appears to me to be one of great nicety. I am not prepared to say that I am satisfied with that conclusion; but neither should I be prepared, without further consideration, to recommend to your Lordships a reversal of the judgment appealed from on the ground that the opinions of the Court below. upon this point were erroneous.
Owing to this action having been raised in the Colonels lifetime, the Court below had the advantage of the testimony of Colonel Udny himself, a circumstance which does not often occur in questions of domicil. It appears to have been very candidly given, and (as was observed by the Lord Ordinary) by no means overstates the case in favour of the continuance of his Scottish domicil.
Several other witnesses were examined, who do not carry the case further. But, be this as it may, the events in the Colonels [*445] life, subsequent to 1844, appear to me to be those upon which the question of his domicil at the birth of the Respondent really depend.
In 1844, the Colonel, after having been involved for some time in pecuniary difficulties (owing chiefly to his connection with the turf), was compelled to leave England, in order to avoid his creditors. He at first thought of taking some house in the country, by which I think he meant in the rural parts of England; but afterwards the pressure of creditors became too great to admit of his so doing, and he appears, in the autumn, to have visited Scotland, where correspondence took place between himself and his agent as to arranging a trust deed by which Colonel Udny and his son, John Augustus, were to make provision, as far as possible, for the payment of their debts. On the 2nd of October, he writes to his agent, mentioning that a creditor is pressing for immediate payment of £1200 – So let there be no time lost. And by a letter of his son of the 4th of November, 1844, it appears that his father had left England for Calais on the previous day. He about this time sold the lease of the London house in which he had so long resided. He sold also (as he himself states in his evidence) all his furniture and everything that was in the house, including what had belonged to his mother, his sister, and his first wife. He went from Calais to Boulogne, and there resided in a hired house till 1853. He says in his evidence:
When I went to Boulogne I had no further connection with London. I had a married sister living there, and various other relations. During the nine years when my head-quarters were at Boulogne I never resided in London. The time that I came over for my wifes confinement in 1853 was the first time that I had visited London after leaving it for Boulogne. I remained there at that time only about a couple of days and returned to Boulogne. While I was at Boulogne I came over more than once to Scotland to visit my property. These were not long visits, but I did make them.
The wife alluded to in the above statement is the mother of the Respondent. The Colonels first wife did not go with him to Boulogne, but she joined him for a short time in 1845, leaving him afterwards on account of ill-health, and residing with his brother in London. She died in 1846.
The Colonel at Boulogne formed an illicit connection with the mother of the Respondent, and in May, 1853, came to England
[*446] in consequence of a wish that she should be attended in her confinement by an English accoucheur; and on the 9th of May, 1853, the Respondent was born at Camberwell. The Colonel appears to have returned almost immediately to Boulogne. He had been living on a very scanty allowance – his eldest son, too, was embarrassed – and at a very early period after the birth of the Respondent the father and son appear to have thought that the birth of this child might facilitate the barring of the entail of the Scotch estates; for in a letter of the 29th of May, 1853, the Colonel writes to his son: I hall be glad to hear of your interview with Mr Skinner (their legal adviser). I think the great difficulty will be the uncertainty of the childs life; however, you will talk over all these matters with him.
The Colonel was advised that by marrying the Respondents mother he might, according to the law of Scotland, render the Respondent legitimate, and that then the concurrence of the Appellant in barring the entail would not be requisite. The advice on this latter point was erroneous; but it is enough to say that the Colonel came over to Scotland in November, 1853, clearly with the intent to celebrate a marriage with the Respondents mother, and with the hope of raising money for the benefit of his elder son and himself by getting rid of the entail. He was under an impression that his English creditors could not molest him whilst in Scotland. He was much mortified afterwards to find that this was not the case, and wrote several letters to his son and others expressive of his disgust at having been hurried away from Boulogne, and his dislike to residing in Scotland. But I cannot bring my mind to doubt that his intention in returning to Scotland was to do that which he accomplished, namely, to marry, in regular form, the Respondents mother, and for that purpose to be domiciled there.
In his letter of the 9th of July, 1859, he expressly asserts it to have been his intention in 1853 to be permanently domiciled in Scotland; but that letter may be open to the objection that it was written very shortly ante litem motam. I do not think that we can safely rely on the deed of disposition by his elder son of the 2nd of December, 1853, which recites that the Colonel had made arrangements to return again to and to remain in Scotland, because the father was not a party to that instrument. But, on the other hand, though the [*447] recital itself may not be evidence, yet the Colonel took advantage of that instrument. And the whole course of the arrangements made shews that the Colonels intent, for which alone he came to Scotland, was by his marriage to make the Respondent legitimate, and by means of that legitimation to deal with the estates. These objects required a Scottish domicil, and it would be singular to hold that he having, in fact, married on the 2nd of January, 1854, and resided in Scotland thenceforth to his death in 1861 (after the raising of the present action), the domicil must not be taken to have been Scottish, as it ought to be, for the purposes he had in view from the time of his return in 1853. It is true that the death of his elder son in the interval between the marriage and death of the Colonel, and the consequent falling in of the policies of insurance on his life, placed the Colonel to a certain degree in an easier position, and removed his apprehension of difficulty from his creditors: but I think his possible intention to leave Scotland (if molested by creditors) in no way disproves the existence of a resolution to remain, as he did, in that country (if allowed so to do) as his chose and settled abode.
It seems therefore clear to me that the Colonel was, at the time of his marriage, domiciled in Scotland; but the question remain as to what was his domicil in May, 1853, at the time of the Respondents birth.
If he were domiciled in England up to 1844, and retained an English domicil up to and after May, 1853, then the question would arise, which has not been determined in any case by the Scottish Courts, whether the child, being illegitimate at its birth, and its putative father not having at that time a power of legitimating him by means of a subsequent marriage with his mother, could be legitimated by his putative father subsequently acquiringa Scottish domicil before marriage with the mother.
I have myself held, and so have other Judges in the English Courts, that according to the law of England a bastard child whose putative father was English at its birth could not be legitimated by the father afterwards acquiring a foreign domicil and marrying the mother in a country by the law of which a subsequent marriage would have legitimated the child. I see no reason to retract that opinion. The status of the child, – with respect to its capacity to
[*448] be legitimated by the subsequent marriage of its parents, – depends wholly on the status of the putative father, not on that of the mother. If the putative father have an English domicil the English law does not, at the birth of the child, take notice of the putative fathers existence. But if his domicil be Scottish, or of any other country allowing legitimation, though the mother be English at the birth, the putative father (as in Munro v. Munro (1) is capable of legitimating the child. The foreign law, though deeming the child to be filius nullius at birth, yet recognises the father as such at the moment of his acknowledging the child, either by marriage and formal recognition, as in France, or by marriage only, as in Scotland. I do not think that the English law can recognise a capacity in any Englishman, by a change of domicil, to cause his paternity and consequent power of legitimation to be recognised. But however this may be, the question does not, in my judgment, here arise.
I am of opinion that the English domicil of Colonel Udny, if it were ever acquired, was formally and completely abandoned in 1844 when he sold his house and broke up his English establishment with the intention not to return. And, indeed, his return to that country was barred against him by the continued threat of process by his creditors. I think that on such abandonment his domicil of origin revived. It is clear that by our law a man must have some domicil, and must have a single domicil. It is clear, on the evidence, that the Colonel did not contemplate residing in France – and, indeed, that has scarcely been contended for by the Appellant. But the Appellant contends that when once a new domicil is acquired, the domicil of origin is obliterated, and cannot be re-acquired more readily or by any other means than those by which the first change of the original domicil is brought about, namely, animo et facto. He relied for this proposition on the decision in Munroe v. Douglas (2), where Sir John Leach certainly held that a Scotsman, having acquired an Anglo-Indian domicil, and having finally quitted India, but not yet having settled elsewhere, did not re-acquire his original domicil; saying expressly, I can find no difference in principle between an original domicil and an acquired domicil. That he acquired no new
(1) 7 Cl. & F. 842.
[*449] domicil may be conceded, but it appears to me that sufficient weight was not given to the effect of the domicil of origin, and that there is a very substantial difference in principle between an original and an acquired domicil. I shall not add to the many ineffectual attempts to define domicil. But the domicil of origin is a matter wholly irrespective of any animus on the part of its subject. He acquires a certain status civilis, as one of your Lordships has designated it, which subjects him and his property to the municipal jurisdiction of a country which he may never even have seen, and in which he may never reside during the whole course of his life, his domicil being simply determined by that of his father. change of that domicil can only be effected animo et facto – that is to say, by the choice of another domicil, evidenced by residence within the territorial limits to which the jurisdiction of the new domicil extends. He, in making this change, does an act which is more nearly designated by the word settling than by any one word in our language. Thus we speak of a colonist settling in Canada or Australia, or of a Scotsman settling in England, and the word is frequently used as expressive of the act of change of domicil in the various judgments pronounced by our Courts. But this settlement animo et facto by which the new domicil is acquired is, of course, susceptible of abandonment if the intention be evidenced by facts as decisive as those which evidenced its acquirement.
It is said by Sir John Leach, that the change of the newly-acquired domicil can only be evidenced by an actual settling elsewhere, or (which is, however, a remarkable qualification) by the subject of the change dying in itinere when about to settle himself elsewhere. But the dying in itinere to a wholly new domicil would not, I apprehend, change a domicil of origin if the intended new domicil were never reached. So that at once a distinction is admitted between what is necessary to re-acquire the original domicil and the acquiring of a third domicil. Indeed, the admission of Sir John Leach seems to have been founded on the actual decision of the case of Colville v. Saunders, cited in full in Munroe v. Douglas, from the Dictionary of Decisions. In that case, a person of Scottish origin became domiciled at St. Vincent, but left that island, writing to his father and saying that his health was injured, [*450] and he was going to America; and that if he did not succeed in America he would return to his native country. He was drowned in Canada, and some memoranda were found indicating an intention to return to Scotland, and it was held that his Scottish domicil had revived.
It seems reasonable to say that if the choice of a new abode and actual settlement there constitute a change of the original domicil, then the exact converse of such a procedure, viz., the intention to abandon the new domicil, and an actual abandonment of it, ought to be equally effective to destroy the new domicil. That which may be acquired may surely be abandoned, and though a man cannot, for civil reasons, be left without a domicil, no such difficulty arises if it be simply held that the original domicil revives. That original domicil depended not on choice but attached itself to its subject on his birth, and it seems to me consonant both to convenience and to the currency of the whole law of domicil to hold that the man born with a domicil may shift and vary it as often as he pleases, indicating each change by intention and act, whether in its acquisition or abandonment; and further, to hold that every acquired domicil is capable of simple abandonment animo et facto the process by which it was acquired, without its being necessary that a new one should be at the same time chosen, otherwise one is driven to the absurdity of asserting a person to be domiciled in a country which he has resolutely forsaken and cast off, simply because he may (perhaps for years) be deliberating before he settles himself elsewhere. Why should not the domicil of origin cast on him by no choice of his own, and changed for a time, be the state to which he naturally falls back when his first choice has been abandoned animo et facto, and whilst he is deliberating before he makes a second choice.
Lord Cottenham in Munro v. Munro (1) says, So firmly indeed did the civil law consider the domicil of origin to adhere that it holds that if it be actually abandoned and a domicil acquired, but that again abandoned, and no new domicil acquired in its place, the domicil of origin revives. No authority is cited by his Lordship for this. He probably alluded to some observations which
(1) 7 Cl. & F. 871.
[*451] occur in the case of La Virginie (1) where Sir William Scott said:
It is always to be remembered that the native character easily reverts, and that it requires fewer circumstances to constitute domicil in the case of a native subject than to impress the national character on one who is originally of another country.
In the case of The Indian Chief (2) the question was whether the ship was the property of a British subject; for if so, her trading was illegal. The owner, Mr. Johnson, averred that he was an American. Sir William Scott held him to be an American by origin, but that having come to England in 1783 and remained till 1797, he had become an English merchant. But he quitted England before the capture of the vessel, and letters were produced shewing his intention to return to America, which he does not appear to have reached until after. And Sir William Scott says, The ship arrives a few weeks after his departure, and taking it to be clear that the natural character of Mr. Johnson as a British merchant was founded on residence only, that it was acquired by residence, and rested on that circumstance alone, it must be held that from the moment he turned his back on the country where he had resided on his way to his own country he was in the act of resuming his original character, and is to be considered as an American. The character that is gained by residence ceases by residence. It is an adventitious character which no longer adheres to him from the moment that he puts himself in motion bonâ fide to quit the country sine animo revertendi.
Story, in his Conflict of Laws, sect. 47 (at the end), says: If a man has acquired a new domicil different from that of his birth, and he removes from it with intention to resume his native domicil, the latter is re-acquired even while he is on his way, for it reverts from the moment the other is given up.
The qualification that he must abandon the new domicil with the special intent to resume that of origin is not, I think, a reasonable deduction from the rules already laid down by decision, because intent not followed by a definitive act is not sufficient. The more consistent theory is, that the abandonment of the new domicil
(1) 5 Rob. Adm. 99.
[*452] is complete animo et facto, because the factum is the abandonment, the animus is that of never returning.
I have stated my opinion more at length than I should have done were it not of great importance that some fixed common principles should guide the Courts in every country on international questions. In questions of international law we should not depart from any settled decisions, nor lay down any doctrine inconsistent with them. I think some of the expressions used in former cases as to the intent exuere patria, or to become a Frenchman instead of a Englishman, go beyond the question of domicil. The question of naturalization and of allegiance is distinct from that of domicil. A man may continue to be an Englishman, and yet his contracts and the succession to his estate may have to be determined by the law of the country in which he has chosen to settle himself. He cannot, at present at least, put off and resume at will obligations of obedience to the government of the country of which at his birth he is a subject, but he may many times change his domicil. It appears to me, however, that each acquired domicil may be also successively abandoned simpliciter, and that thereupon the original domicil simpliciter reverts.
For these reasons, my Lords, I propose to your Lordships the affirmation of the interlocutors complained of, and the dismissal of the appeal with costs.
My Lords, at the opening of the argument of this appeal for the Respondent his learned counsel were informed that your Lordships were of opinion that the domicil of Colonel Udny down to the year 1812 was his Scotch domicil of origin, and that the case was therefore narrowed down to the questions raised by the Appellant, – whether that domicil had been superseded by the acquisition of another domicil in England, and whether such after-acquired domicil was retained at the time of the birth of the Respondent, and continued down to the period of the marriage of the Respondents parents in Scotland.
In considering these questions it will be necessary to ascertain the nature and effect of a domicil of origin; whether it is like an after-acquired domicil, which when it is relinquished can be re-acquired
[*453] only in the same manner in which it was originally acquired, or whether, in the absence of any other domicil, the domicil of origin must not be had recourse to for the purpose of determining any question which may arise as to a partys personal rights and relations.
Story, in his Conflict of Laws (sect. 48), says, The moment a foreign domicil is abandoned the native domicil is re-acquired. Great stress was laid by the Appellant in his reference to this passage upon the word re-acquired, which is obviously an inaccurate expression. For, as was pointed out in the course of the argument, a domicil of origin is not an acquired domicil, but one which is attributed to every person by law. The meaning of Story, therefore, clearly is, that the abandonment of a subsequently-acquired domicil ipso facto restores the domicil of origin. And this doctrine appears to be founded upon principle, if not upon direct authority.
It is undoubted law that no one can be without a domicil. If, then, a person has left his native domicil and acquired a new one, which he afterwards abandons, what domicil must be resorted to to determine and regulate his personal status and rights? Sir John Leach, V.C., in Munroe v. Douglas (1), held that in the case supposed the acquired domicil attaches to the person till the complete acquisition of a subsequent domicil, and (as to this point) he said there was no difference in principle between the original domicil and an acquired domicil. His Honours words are: A domicil cannot be lost by mere abandonment. It is not to be defeated animo merely, but animo et facto, and necessarily remains until a subsequent domicil be acquired, unless the party die in itinere towards an intended domicil. There is an apparent inconsistency in this passage, for the Vice-Chancellor having said that a domicil necessarily remains until a subsequent domicil be acquired animo et facto, added, unless the party die in itinere towards an intended domicil; that is, at a time when the acquisition of the subsequent domicil is incomplete and rests in intention only.
I cannot understand upon what ground it can be alleged that a person may not abandon an acquired domicil altogether and carry
(1) 5 Madd. 405.
[*454] out his intention fully by removing animo non revertendi; and why such abandonment should not be complete until another domicil is acquired in lieu of the one thus relinquished.
Sir William Scott, in the case of The Indian Chief (1), said: The character that is gained by residence ceases by residence. It is an adventitious character which no longer adheres to a person from the moment he puts himself in motion bonā fide to quit the country sine animo revertendi, and he mentions the case of a British-born subject, who had been resident in Surinam and St. Eustatius, and had left those settlements with an intention of returning to this country, but had got no farther than Holland, the mother country of those settlements, when the war broke out; and it was determined by the Lords of Appeal that he was in itinere, that he had put himself in motion, and was in pursuit of his native British character.
Sir John Leach seems to me to be incorrect also in saying that in the case of the abandonment of an acquired domicil there is no difference in principle between the acquisition of an entirely new domicil and the revival of the domicil of origin. It is said by Story, in sect. 47 of his Conflict of Laws, that If a man has acquired a new domicil different from that of his birth, and he removes from it with an intention to resume his native domicil, the latter is re-acquired even while he is on his way in itinere; for it reverts from the moment the other is given up. This certainly cannot be predicated of a person journeying towards a new domicil which it is his intention to acquire.
I do not think that the circumstances mentioned by Story in the above passage, viz., that the person has removed from his acquired domicil with an intention to resume his native domicil, and that he is in itinere for the purpose, are at all necessary to restore the domicil of origin. The true doctrine appears to me to be expressed in the last words of the passage: It (the domicil of origin) reverts from the moment the other is given up.
This is a necessary conclusion if it be true that an acquired domicil ceases entirely whenever it is intentionally abandoned, and that a man can never be without a domicil. The domicil of origin always remains, as it were, in reserve, to be resorted to
(1) 3 Rob. Adm. 20.
[*455] in case no other domicil is found to exist. This appears to me to be the true principle upon this subject, and it will govern my opinion upon the present appeal.
Upon the question whether Colonel Udny ever acquired an English domicil which superseded his domicil of origin, there can be no doubt that his long residence in Grosvenor Street for the space of thirty-two years from 1812 to 1844, is calculated to produce a strong impression in favour of the acquisition of such a domicil. Time is always a material element in questions of domicil; and if there is nothing to counteract its effect, it may be conclusive upon the subject. But in a competition between a domicil of origin and an alleged subsequently-acquired domicil there may be circumstances to shew that however long a residence may have continued no intention of acquiring a domicil may have existed at any one moment during the whole of the continuance of such residence. The question in such a case is not, whether there is evidence of an intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil. As already shewn, the domicil of origin remains till a new one is acquired animo et facto. Therefore, a wish or a desire expressed from time to time to return to the place of the first domicil, or any looking to it as the ultimate home, although wholly insufficient for the retention of the domicil of origin, may yet amount to material evidence to rebut the presumption of an intention to acquire a new domicil arising from length of residence elsewhere. In this view it would be a fair answer to the question, Did Colonel Udny intend to make Englandhis permanent home? to point to all his acts and declarations with respect to Scotland and his estates there, to the offices which he held, to the institutions to which he belonged, and to his subscriptions to local objects, shewing, that though his pursuits drew him to England and kept him there, and his circumstances prevented his making Udny Castle fit for his residence, he always entertained a hope, if not an expectation, that a change in his fortunes might eventually enable him to appear in his country of origin, and to assume his proper position there as a Scotch proprietor.
If the residence in England began under circumstances which indicate no intention that it was to be permanent, when did it
[*456] assume the character of permanence by proof that the Colonel had intentionally given up his Scotch domicil and adopted a different one? It appears to me upon this question of fact, that throughout the whole of the Colonels residence in London there was always absent the intention to make it his permanent home which is essential to constitute a domicil; residence alone, however long, being immaterial unless coupled with such intention. But even if it should be considered that Colonel Udnys residence in England, though not originally intended to be his permanent home, after a certain length of time ripened into a domicil, yet in 1844 he gave up the house in Grosvenor Street and returned to Boulogne, where he remained for nine years without any apparent intention of again taking up his residence in England. This abandonment of the English residence, both in will and deed, although accompanied with no immediate intention of resuming the Scotch domicil, put an end at once to the English domicil, and the domicil of origin ipso facto became the domicil by which the personal rights of Colonel Udny were thenceforth to be regulated.
This makes it unnecessary to consider what would have been the condition of the Respondent if his birth had taken place in Englandbefore the resumption of the Scotch domicil by Colonel Udny, and the subsequent marriage of his parents in Scotland after that domicil had been resumed. Because the domicil being Scotch, the place of the birth of the Respondent is wholly immaterial, and the case is completely governed by the authority of the cases of Dalhousie v. McDouall (1) and Munro v. Munro (2), in each of which the birth of the illegitimate child, and also the subsequent marriage of the parents, took place in England, but the domicil being Scotch it was held that neither the place of the marriage nor the place of the birth affected the status of the child.
The existence of the Scotch domicil renders it also unnecessary to consider whether the parents of the Respondent went to Scotlandfor the purpose merely of legitimating the Respondent by their marriage there, and deprives the case of Rose v. Ross (3), which was insisted upon by the Appellant, of all application. For in that
(1) 7 Cl. & F. 817.
[*457] case, as stated by the Lord Chancellor, the parties were domiciled in England, the child was born in England, the parties went to Scotland for the purpose expressly of being married, and having been married they returned to England to the place of their former domicil.
I agree with my noble and learned friend that the interlocutors appealed from ought to be affirmed.
The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called hid political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. International law depends on rules which, heine in great measure derived from the Roman law, are common to the jurisprudence of all civilized nations. It is a settled principle that no man shall be without a domicil, and to secure this result the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother if illegitimate. This has been called the domicil of origin, and is involuntary. Other domicils, including domicil by operation of law, as on marriage, are domicils of choice. For as soon as an individual is sui juris it is competent to him to elect and assume another domicil, the continuance of which depends upon his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished, and
[*458] remains in abeyance during the continuance of the domicil of choice; but as the domicil of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicil, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicil of choice.
Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established.
The domicil of origin may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal; but it cannot be destroyed by the will and act of the party.
Domicil of choice, as it is gained animo et facto, so it may be put an end to in the same manner. Expressions are found in some books, and in one or two cases, that the first or existing domicil remains until another is acquired. This is true if applied to the domicil of origin, but cannot be true if such general words were intended (which is not probable) to convey the conclusion that a domicil of choice, though unequivocally relinquished and abandoned, clings, in despite of his will and acts, to the party, until another domicil has animo et facto been acquired. The cases to which I have referred are, in my opinion, met and controlled by
[*459] other decisions. A natural-born Englishman may, if he domiciles himself in Holland, acquire and have the status civilis of a Dutchman, which is of course ascribed to him in respect of his settled abode in the land, but if he breaks up his establishment, sells his house and furniture, discharges his servants, and quits Holland, declaring that he will never return to it again, and taking with him his wife and children, for the purpose of travelling in France or Italy in search of another place of residence, is it meant to be said that he carries his Dutch domicil, that is, his Dutch citizenship, at his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country? Such a conclusion would be absurd; but there is no absurdity and, on the contrary, much reason, in holding that an acquired domicil may be effectually abandoned by unequivocal intention and act; and that when it is so determined the domicil of origin revives until a new domicil of choice be acquired. According to the dicta in the books and cases referred to, if the Englishman whose case we have been supposing lived for twenty years after he had finally quitted Holland, without acquiring a new domicil, and afterwards died intestate, his personal estate would be administered according to the law of Holland, and not according to that of his native country. This is an irrational consequence of the supposed rule. But when a proposition supposed to be authorized by one or more decisions involves absurd results, there is great reason for believing that no such rule was intended to be laid down.
In Mr. Justice Storys Conflict of Laws (the last edition) it is stated that the moment the foreign domicil (that is the domicil of choice) is abandoned, the native domicil or domicil of origin is re-acquired.
And such appears to be the just conclusion from several decided cases, as well as from the principles of the law of domicil.
In adverting to Mr. Justice Storys work, I am obliged to dissent from a conclusion stated in the last edition of that useful book, and which is thus expressed, The result of the more recent English cases seems to be, that for a change of national domicil there must be a definite and effectual change of nationality. In support of this proposition the editor refers to some words which appear to have fallen from a noble and learned lord in addressing [*460] this House in the case of Moorhouse v. Lord (1), when in speaking of the acquisition of a French domicil, Lord Kingsdown says, A man must intend to become a Frenchman instead of an Englishman.
These words are likely to mislead, if they were intended to signify that for a change of domicil there must be a change of nationality, that is, of natural allegiance.
That would be to confound the political and civil states of an individual, and to destroy the difference between patria and domicilium.
The application of these general rules to the circumstances of the present case is very simple. I concur with my noble. and learned friend that the father of Colonel Udny, the consul at Leghorn, and afterwards at Venice, and again at Leghorn, did not by his residence there in that capacity lose his Scotch domicil. Colonel Udny was, therefore, a Scotchman by birth. But I am certainly inclined to think that when Colonel Udny married, and (to use the ordinary phrase) settled in life and took a long lease of a house in Grosvenor Street, and made that a place of abode of himself and his wife and children, becoming, in point of fact, subject to the municipal duties of a resident in that locality; and when he had remained there for a period, I think, of thirty-two years, there being no obstacle in point of fortune, occupation, or duty, to his going to reside in his native country; under these circumstances, I should come to the conclusion, if it were necessary to decide the point, that Colonel Udny deliberately chose and acquired an English domicil. But if he did so, he as certainly relinquished that English domicil in the most effectual way by selling or surrendering the lease of his house, selling his furniture, discharging his servants, and leaving London in a manner which removes all doubt of his ever intending to return there for the purpose of residence. If, therefore, he acquired an English domicil he abandoned it absolutely animo et facto. Its acquisition being a thing of choice, it was equally put an end to by choice. He lost it the moment he set foot on the steamer to go to Boulogne, and at the same time his domicil of origin revived. The rest is plain. The marriage and the consequences of that marriage
(1) 10 H. L. C. 272.
[*461] must be determined by the law of Scotland, the country of his domicil.
I regard this case as one of very considerable importance, inasmuch as it has afforded an opportunity for bringing out, more clearly than has been done in any of the former cases, the radical distinction between domicil of origin and domicil of choice. The principles of that distinction and the facts have been so clearly put before the House that I need do no more than express my concurrence.
JUDGMENT:– Ordered and Adjudged, that the said interlocutor of the Lords of Session in Scotland, of the Second Division, of the 14th of December, 1866, complained of in the said appeal, be varied by substituting for the words that he never lost his said domicil of origin these words, and that if such domicil of origin was ever changed, yet by leaving England in 1844 his domicil of origin reverted; and that, with this variation, the said interlocutor be, and the same is, hereby affirmed, and that the said petition and appeal be, and the same is, hereby dismissed this House.