BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Robertson Aikman v. George Robertson Aikman and Hugh Henry Robertson Aikman [1861] UKHL 3_Macqueen_854 (12 March 1861) URL: http://www.bailii.org/uk/cases/UKHL/1861/3_Macqueen_854.html Cite as: [1861] UKHL 3_Macqueen_854 |
||
[New search] [Printable PDF version] [Help]
Page: 854↓
(1861) 3 Macqueen 854
REPORTS OF CASES ARGUED AND DETERMINED IN The House of Lords.
No. 41
Subject_Domicile. —
A natural-born Scotchman, having an admitted Scotch domicile of origin, in March 1772, when thirteen years of age, entered the mercantile maritime employment of the East India Company, and continued in it for thirty years, going on particular voyages and returning, but not in the character (properly speaking) of a permanent covenanted servant of the Company. He passed much of his time in London; but he had no occupation requiring his presence there. He was, moreover, the presumptive heir of a Scotch entailed estate. And the circumstances showed that he was anxious to take his place, ultimately, as a Scotch country gentleman. Held, (affirming the decision appealed from,) that he had not abandoned his original Scotch domicile.
This case (one entirely of facts) is very fully given in the Court of Session Reports (a).
The Second Division decided that the late Captain George Robertson Aikman had not lost his domicile of origin at the date of his marriage on the 13th of November 1820; and that the two Respondents, his prior born children, were legitimate by the operation of the Scotch doctrine of legitimation per subsequens matrimonium. Their next younger brother appealed to the House.
Mr. Roundell Palmer and Mr. Anderson appeared for the Appellant.
The Attorney-General (a), Mr. Rolt, and Mr. George Patton for the Respondents.
The case is exhausted by the following opinions.
_________________ Footnote _________________
( a) 21 Sec. Ser. 757.
( b) Sir Richard Bethell.
Page: 855↓
Lord Chancellor's opinion.
The
The only question in this case is, “whether Captain Robertson, the father of the Appellant and of the two Respondents was on the 13th day of November 1820 domiciled in Scotland or in England?”
I agree with the unanimous judgment of the Second Division of the Court of Session, that he was then domiciled in Scotland.
The principles on which the case is to be decided are so well settled and so familiar that there is no occasion to propound or to illustrate them.
Nor are the material facts on which the decision is to depend at all in controversy.
It is agreed that Captain Robertson was born in Scotland, and that Scotland was his domicile of origin. Therefore Scotland remained his domicile till it can be proved that facto et animo he transferred his domicile to another country.
The first contention was, that this transfer took place so early as March 1775, when, being a boy of sixteen, he entered as a seaman on board the ship “Bute” at Calcutta, to return in that vessel to London. But I am quite clear that he did nothing between 1773, when he first sailed to the East Indies in a ship chartered by the East India Company, till 1805, when he finally quitted the sea, from which such an inference can be properly drawn. During that time he made ten voyages to India and China in ships chartered by the East India Company; but he never was (properly speaking) in the service of the Company, and at all events he was only engaged in that service for each particular voyage. The ships in which he sailed belonged to private owners, who appointed the captain and officers, subject to the approval of the Company. He was paid by the Company; but this pay was deducted
_________________ Footnote _________________ (
a) Lord Campbell.
Page: 856↓
During all this time he had no fixed residence, and although a new domicile might certainly be acquired by a person who might be living in lodgings, or in a hotel, and although in this case Captain Robertson appears to have spent more of his time while ashore in England than in Scotland, I can discover nothing from which an abandonment of Scotland as his domicile can be inferred. He seems habitually to have been eager to return to Scotland at the end of his voyage from India; and in Scotland he spent a considerable portion of his time till he went on a new voyage. Sir Charles Douglas's case (a) goes to the extreme limit of giving effect to a residence in England; but there were in that case facts, nothing resembling which can be found here to show an abandonment of the domicile of origin.
The
Lord Ordinary, who, I must say, shows a stronger leaning in favour of change of domicile than
_________________ Footnote _________________ (
a) Robertson on Personal Succession, p. 152. See 3 Ves. 202; 3 Paton's App. Ca. 448.
Page: 857↓
But, assuming with the Lord Ordinary, that the domicile of origin continued till 1805, I see hardly any ground for contending that it was changed before 1812. The domicile of origin might well continue without the occupation of any fixed residence in Scotland. Captain Robertson, no doubt, was very fond of a London life; but suppose that he had been equally fond (as he might well have been) of a Paris life, and had passed all the time in Paris which he spent in London, even if he had hired a house and kept a mistress in it, would he thereby have lost his Scotch domicile? He was not engaged in any profession or occupation in London requiring his personal presence there. He had an account with a banker in London, and he belonged to a club in London, and he afterwards rented a house in London, which he insured in London; but surely all those facts are quite consistent with a
Page: 858↓
The Lord Ordinary does not even attach any importance to the purchase by Captain Robertson of the estate of Whitehill, because there was not a suitable mansion house upon it, and there was some talk with him about his laying out his money upon it by way of investment. But he actually took the whole of this property into his own hand, and continued ever after
Page: 859↓
When he had established himself at Auchengraymont, I must say that in my opinion, if he had once lost his original domicile, he would now have recovered it. I cannot accede to the doctrine, that if a man has lost his original domicile by acquiring a domicile in a foreign country, he cannot recover his original domicile while he retains any place of residence in the foreign country. He certainly cannot have two domiciles of succession at the same point of time; but the
animus must determine the effect of a residence in the foreign country being retained. We held in
Maxwell v. McClure
(a) that the English domicile continued, notwithstanding that the individual, whose domicile was in question, had actually again taken up his abode in Scotland, but upon this ground, that he had come back to Scotland for a temporary purpose, and that he still continued to resort to his English residence as a home, and there executed the duties of a magistrate. During the six years when Captain Robertson was established at Auchengraymont, where I think he must be considered as having his household goods along with him, instead of their being at Ibbotson's Hotel or Miss Cumby's humble mansion in Margaret Street. At Auchengraymont he has a reputable establishment;
_________________ Footnote _________________ (
a) See the immediately preceding case in this volume.
Page: 860↓
Therefore, notwithstanding his occasional visits to London, where Miss Cumby still chiefly resided, I should have been inclined to think that he would have been considered as enjoying his domicile of origin, in the same manner as if Miss Cumby had been privately entertained by him in Edinburgh or Glasgow, and he had visited her in either of these cities instead of visiting her in London. But I think the question does not arise as to the recovering of a domicile of origin; and I rest my judgment on the ground that his domicile of origin had never been lost.
I have next to consider the period between 1818 and the 13th of November 1820, when the marriage was celebrated.
Now it is quite clear to me that Auchengraymont was given up, not with any intention of abandoning Scotland as the place of Captain Robertson's permanent residence. He still kept the farm at Whitehill in his own hand, and he deposited the furniture he had used in the house at Auchengraymont in a place in Scotland, whence it might conveniently be carried to Ross when the entailed estate should at last come into his possession. He still passed a considerable part of his time in Scotland; he brought his future wife and some of his children to visit that country, and he made a trust disposition according to the laws of Scotland of his lands at Whitehill.
Having failed in the attempt which he had made to have his children recognized by his relations in Scotland,
Page: 861↓
I cannot doubt that he then believed that Scotland was his country, and that he then intended to settle all his family at the Ross as soon as the octogenarian Mr. Aikman should expire, and that he had resolved to live and to die there.
What afterwards happened is only material as it may weaken or strengthen the conclusion to be drawn as to the state of his mind with respect to his domicile at the time when the marriage was celebrated. He did not immediately fix his residence in Scotland, because his uncle and his sisters disapproved of his marriage, and his uncle survived till October 1821. But on his uncle's death, being entitled to the immediate possession of the mansion at the Ross, he agreed with the widow to purchase the furniture, which was left to her by her husband, and on the 3rd November 1821 he wrote a letter from the Ross to his wife, to give her this information, adding, “so that when we come down, we have nothing to do but to draw in our chair.”
He immediately set to work on the improvements which he had so long meditated, employing a very large number of workmen for that purpose. As soon as the widow had removed, he brought his wife and children to the Ross, and there the children remained two years with a tutor. Now, Captain Robertson having taken the name and arms of Aikman, was
Page: 862↓
An attempt was made to introduce his wife into the genteel society of Lanarkshire. Had this succeeded, I do not know that, being still fond of life in London, he would have entirely given up the house in Great Portland Street, which he had purchased before his uncle's death; but his keeping it, and going to reside there during the fashionable London season, could not, in my opinion, have been at all inconsistent with his domicile being considered to be in Scotland. However, all argument for an English domicile from the continuing the London house is completely at an end when we have ascertained the facts that Mrs. Robertson Aikman was not visited in Lanarkshire; that she violently resented this slight; that she took a deep dislike to Scotland; and that afterwards she was continually importuning her husband to abandon it. Therefore, if there had been subsequent events (which I by no means say that there were) to show that her husband actually had before his death transferred his domicile to England, this change of domicile would not have been of the slightest importance to the decision of this cause, the legitimacy of the Respondents depending entirely on the domicile of their father on the day of his marriage in the year 1820.
I should not have advised your Lordships to reverse the judgment of the Court of Session in such a case, unless I had formed a very clear opinion that the judgment was erroneous; but I have great satisfaction in saying that I cordially approve of this judgment,
Page: 863↓
Lord cranworth's opinion.
The question for the House to decide in this case is one of a class which often presents great difficulties, namely, the question where a person was domiciled at the time of his death, or at some particular epoch of his life. Here the question is, where the deceased Captain Robertson Aikman was domiciled on the 13th of November 1820, when he married Miss Cumby, the mother of the Appellant and of the Respondents, the former having been born after, the latter before the marriage. In the present inquiry we are free from some of the difficulties which have occurred in other cases. There is no doubt as to the domicile of origin of the deceased. He was undoubtedly born in Scotland, and was the child of Scotch parents domiciled in Scotland; the domicile of origin was therefore certainly Scotch. There is no question here of an Anglo-Indian domicile, nor of a foreign domicile. The only question is, whether, having been born Scotch, he had become a domiciled Englishman on the 13th of November 1820.
It is a clear principle of law that the domicile of origin continues until another domicile is acquired, i.e., till the person whose domicile is in question has made a new home for himself in lieu of the home of his birth. The difficulty in these cases arises from the circumstance that the character of the residence of a man who is making his way in life, or passing idly through it, is often equivocal. His residence at a particular place may have been intended to be merely temporary; it may have been selected from motives of health, or economy, or convenience, or from mere restlessness or instability of character, without the
Page: 864↓
In the first place, as regards the period prior to October 1805, when Captain Robertson finally quitted the sea service, I think it clear he had not acquired an English domicile. His residences in London while he was in the sea service had no character of permanence, though on different occasions they lasted for two or three years, and once even more. He remained in London, not because he considered it as a home, but because by being there he was more in the way of obtaining employment in ships trading to India. During that period he had no settled home, and his domicile of origin therefore remained unaffected. Assuming then, that when he reached England in October 1805, on the conclusion of his last voyage, his domicile was still Scotch, the question is whether his domicile was changed between that date and the day of his marriage, 13th November 1820. I know of no mode of coming to a just conclusion on this subject except by tracing his course of life during the whole of this period, in order to make out, as far as the facts enable us so to do, whether he had at any time before the marriage fixed his residence in
Page: 865↓
There is no doubt that during the fifteen years which elapsed between October 1805 and November 1820 he lived longer in England than in Scotland. The evidence shows him to have passed in that period only about sixty-five calendar months in Scotland, leaving 115 passed wholly or almost wholly in England. But though the fact that a person has resided for a longer time in one place than in another may afford some evidence that the former was intended by him to be his permanent home, yet that evidence is liable to be rebutted by circumstances; and the question here is, what inference as to domicile we ought to draw from the residence in England of Captain Robertson, looking to all the circumstances connected with it.
In the first place it is plain that Captain Robertson was a man of very loose habits of life. Mrs. Coombes states in her cross-examination, that she had been informed by the deceased Mr. Wigglesworth, that before the year 1802 Captain Robertson had lived with a woman named Ball in Green Street, to whom the witness understood he allowed 100 l. a year. The truth of this statement is confirmed by the fact, that in his banker's books for many years there are frequent cheques for 25 l. payable to the name of Ball or Sarah Ball, the earliest dated on the 13th of July 1804, when he was in India, the last on the 26th of March 1811. These were probably quarterly payments in respect of the 100 l. a year. Two payments, one of 20 l., the other of 30 l., appear to have been made to Mrs. Ball in 1812, after which her name does not occur in the accounts, from which I presume she had then died.
Page: 866↓
In 1802 or 1803 Captain Robertson formed an intimacy with Mrs. Wigglesworth, and from the time of his return to England after his last voyage he cohabited with her at her house in. Upper Baker Street, always, however, having a room of his own at Ibbotson's Hotel, which he represented to all persons, except very intimate friends, as being his place of residence. In the first five years after his return in October 1805 he only visited Scotland twice, i.e., once in August 1806, when he remained there five months, and again in July 1808, when he remained eight months. But after the autumn of 1810 his visits to Scotland were more frequent and regular. Except in 1818, when he made a short excursion to France, he went to Scotland regularly every year in the autumn, and stayed on an average about five months. While he was in Scotland, in the autumn of 1810, he purchased the farm of Whitehill, near the entailed estate of Ross, and began to look out for a residence in that neighbourhood. Two years afterwards, i.e., at Martinmas 1812, he became tenant from year to year at a yearly rent of 78 l. 10 s of the house of Auchengraymont, also situate in the neighbourhood of Ross and of Whitehill. He continued to be the tenant of this house up to Whitsuntide 1818. Though it was hired as a furnished or partly furnished house, yet he brought into it a great deal of furniture of his own, and kept up there a considerable establishment, both of servants and horses, his eldest sister Margaret acting as mistress of the house, and managing also the farm of Whitehill. While he had this house he passed rather more time in Scotland than in England.
It was in the summer of 1811, the year after his purchase of Whitehill, that he became acquainted with Miss Cumby.
Page: 867↓
The case does not disclose the circumstances which led to his acquaintance with her. She merely states in her evidence that it commenced in the summer of 1811, when she was in the twenty-third year of her age, and was living with her married sister, Mrs. Wade. It was not till after his return from Scotland in 1812 that she began to live with him as his mistress. In that year he went to Scotland in the month of September, and for the three or four previous months she had lived with him in lodgings at the house of a tradesman in Marylebone Street; but when the Captain went to Scotland, she, at his request, returned to the house of her sister, Mrs. Wade. On his coming back to London, in March 1813, he again cohabited with her in furnished lodgings in Welbeck Street. In July of that year he returned to Scotland, and at his desire she joined him there at lodgings he had taken for her in Edinburgh. They returned to London in April 1814, and passed the summer partly in lodgings in London, first in Buckingham Street and afterwards in Oxford Street, and partly at Cheltenham, where they both went on the ground of health. From September 1814 to February 1815 Captain Robertson was in Scotland, and during his absence, as indeed during all his other absences in Scotland up to this time, Miss Cumby lived with her sister, Mrs. Wade. Very soon after his return to London in 1815, i.e., in March of that year, he agreed to purchase the house in Margaret Street. The purchase was not completed till the following month of August, at which time it appears from a letter from his solicitor that he was living in lodgings, No. 212, Oxford Street. I suppose Miss Cumby was living with him. He went to Scotland in September or October 1815, and it does not appear whether he lived in the Margaret Street house before he went. He had apparently given orders as
Page: 868↓
In October 1820 he went with Miss Cumby to Scotland, and on the 13th of the following month of November they were married at Glasgow.
Was he at that time a domiciled Englishman or a domiciled Scotchman? The conclusion at which I have arrived is in conformity with the decision of the Court below, and that at which my noble and learned friend has arrived. I think he had never lost his domicile of origin. It is true that from the time when he quitted the sea service he lived more in England than in Scotland; but that was the result, as I interpret his acts, not of his having intended to substitute England for Scotland as his home, but of his finding London better suited than Scotland to the ill-regulated
Page: 869↓
Page: 870↓
This brings us to his connexion with Miss Cumby, whom he afterwards married. The connexion with her as his mistress began, as I have already stated, in the spring or summer of 1812; but until 1815 he had nothing like a home for her. They lived at temporary lodgings, as might be convenient; and whenever he went to Scotland, she returned to the house of her sister, except during the winter of 1813, when she, at his desire, followed him to Scotland, and he procured her a lodging in Edinburgh.
There was surely nothing in this to indicate any intention of settling in England. On the contrary, even if there had not been a Scotch domicile of origin, there was much to lead to the inference that he was settling permanently in Scotland. He knew that in the course of nature he would probably succeed, on the death of an uncle, then advanced in life, to an entailed family estate in Lanarkshire. He had (obviously looking to that as a probable event) purchased a farm in the neighbourhood of the settled property, and he hired a residence in the same neighbourhood, where he spent a large part of every year, with a suitable establishment. These facts are surely far stronger, if that were necessary, to show an intention to acquire a Scotch domicile, than are the circumstances of his connexion with Miss Cumby as his mistress up to 1815 to show an intention to acquire an English domicile. That, however, is not the question. We have not to say whether he acquired a Scotch, but whether he lost his Scotch and acquired an English domicile. Such an inference cannot be drawn from anything which occurred up to 1815. But in that year he purchased the house in Margaret Street, and became a householder. He was rated to the poor rate from the year 1815 in respect of this house, and from the year 1817 his name appears in
Page: 871↓
Page: 872↓
Page: 873↓
Page: 874↓
I agree with what was said at the bar, that much stress cannot in cases like the present be laid on casual expressions, as, for instance, that the person whose domicile is in question has spoken of going “home.” It was truly said that the word “home,” when so used can have little or no weight in determining a question of domicile. But there is an expression in one of Captain Robertson's letters which does appear to me to be entitled to considerable attention. In writing from Hamilton to Miss Cumby on the 24th of February 1817, in speaking of his intention to leave Scotland shorty, he says, “I
Page: 875↓
It remains only that I should say a few words on what occurred after the marriage. Nothing which Captain Robertson then said or did could affect his previous status; but his subsequent conduct may not improperly be looked at for the purpose of considering whether it throws light on his previous course of life. The character of acts prior to the marriage of an equivocal nature may be explained by what he did subsequently. But looking to his subsequent history, I see nothing to alter or qualify the opinion I have expressed, founded on his conduct up to the time of his marriage. In the spring of 1821 he purchased and removed into a much better house than that in which he had been living in Margaret Street. This change was necessary in consequence of his rapidly increasing family. But even if this had occurred before instead of after his marriage I could not, looking to what occurred six months later, have considered it as indicating an intention to make London his home, to the exclusion of his connexion with Scotland. In the autumn of the same year 1821 his uncle died, and he became entitled to the family house and estate. He went down to his uncle's funeral, and in order to be able to enter into immediate occupation of the house, he purchased the furniture from his uncle's widow. In fact, however, he allowed her to remain in the occupation
Page: 876↓
Page: 877↓
On these grounds, as I have already stated, I think the decision of the Court of Session was right, and ought to be affirmed.
Lord Wensleydale's opinion.
My Lords, this case, which was argued at your Lordships' bar very ably and elaborately, and at great, but not unnecessary length, considering its importance to the parties, depends upon one question only, whether the Appellant has proved to your Lordships' satisfaction that his late father, Captain Robertson Aikman, was on the 13th November 1820, when he was married at Glasgow, domiciled in England? If he has established that fact, then the marriage could not render his brothers, who were born before it, legitimate; if he has failed to do so, it did, and the eldest was, consequently, entitled to the Scotch estate.
The rule of law which leads to this conclusion is perfectly settled. Every man's domicile of origin must be presumed to continue until he has acquired another sole domicile by actual residence, with the intention of abandoning his domicile of origin. This change must be animo et facto; and the burthen of proof unquestionably lies upon the party who asserts that change. This rule is laid down in the case of Somerville v. Somerville (a), and has been acted upon ever since.
It is perfectly clear that Captain Robertson Aikman was a domiciled Scotchman by origin; he was born in Scotland, and his family and connexions were established there. Has the Appellant proved that his father had changed that domicile for an English one at the date of his marriage?
_________________ Footnote _________________
( a) 5 Ves. 787.
Page: 878↓
If the question had related to the disposition of his personal estate, which must be made according to the law of the domicile of the deceased at the time of his death (and for this purpose a man can have only one domicile), I think that I should have come to the conclusion that he was then domiciled in England. He died in London in January 1844. For twenty-three years he had had a house in Portland Street, and lived there with his family; and though he obtained possession of the ancestral house of Ross in September 1821, and occupied it, he quitted it in 1834, and continued to let it as long as he lived, and resided from 1834 till the time of his death, about ten years, in London. This very long residence in a house in London held on a long lease, with his family, unbroken by any actual residence in Scotland, would probably have led me to think that he had finally elected to make that his home, and spend the residue of his life there.
But the question to be decided is, had that domicile commenced before the 13th November 1820? Had he then finally abandoned his domicile of origin and elected England as his home? This makes it necessary to look at the whole course of his earlier life.
In 1810 he appears to have purchased a small estate at Whitehill, near to Auchingraymont, and in 1812 he took a house to reside in at that place, and did reside there, but not exclusively. He became a justice of the peace for the county of Lanark, and performed the duties of that office by attending the quarter sessions. In May 1818 he gave up his residence at Auchingraymont, but did not dispose of his furniture, which he left at various places in the neighbourhood, which has the appearance of an intention to use it again in Scotland. In 1821 he became possessed of Ross by the death of his uncle, and occupied the
Page: 879↓
Looking at these circumstances, if there was nothing in the previous course of his life to show an intention to abandon his domicile of origin altogether, I should say that your Lordships ought not to be satisfied that the Appellant has proved what he was bound to do, viz., that his father was domiciled in England at the period of his marriage.
Little reliance can be placed upon the circumstance of his going to Scotland to be married, as indicating his domicile at that time. If he knew the law, he would have known that a marriage in Scotland was not necessary to give a retrospective operation, so as to legitimatize his previously born children, and if he did not know the law, he may have supposed that a marriage in Scotland was necessary for that purpose, and would effect it, and therefore adopted that course. The most material point as to the marriage is, that he told Mrs. Aikman (if she is to be believed) that he would be married according to the laws of his own country.
The important question then is, Whether he had by his previous course of life and his residence in London, acquired a sole domicile in England? If he had, that acquired domicile could not be lost again by his residence for a part of the year in Scotland, according to the doctrine of Sir
William Scott
(a). “The native character easily reverts, and requires fewer circumstances to constitute domicile, in the case of a native subject, than to impress the national character on one who was originally of another character.” But if a fresh sole domicile is acquired, so as to supersede the domicile of origin, it cannot be got rid of, according to
_________________ Footnote _________________ (
a)
La Virginie, 5 Rob. Ad. Cas. 99.
Page: 880↓
I understood my noble and learned friend on the Woolsack to throw a doubt upon that doctrine. I am not quite sure whether I rightly understood him or not, but it appears to me immaterial to decide that point for the purpose of coming to a conclusion upon this case.
The whole case, in my view of it, resolves itself into the effect of the evidence of the conduct of Captain Robertson from 1773, when he first entered into the sea service on board private vessels trading to the East Indies, up to the year 1812, when he first had a residence in Scotland. If he had been in the regular service of the East India Company, in their navy, he would have acquired an Anglo-Indian domicile, which is equivalent to an English one. But this is a case of a temporary employment on different occasions for the East India Company, imposing no permanent obligation to serve in the East Indies, and, therefore, of itself, without more, created no such domicile. He resided sometimes in London in the intervals of his employment in voyages, and occasionally he visited Scotland up to the time, in 1805, when he left the sea service finally. During that period he was longer in London than in Scotland; but his London residence may be explained by the greater facilities it afforded for his obtaining employment in ships sailing to the East Indies, and not because he had meant to make it his home. He took no house for his residence, which shows strongly that he did not mean to settle himself there permanently. He led an irregular and dissolute life.
_________________ Footnote _________________
( a) Craigie v. Lewin, 3 Curt. 435.
Page: 881↓
In 1802 or 1803 he formed a connexion with Mrs. Wigglesworth, and stayed in her house, paying a part of the expense of 16, with a nominal residence at Ibbotson's Hotel, no doubt for the sake of appearances. In 1811 he formed an attachment to Miss Cumby, whom he afterwards married, and lived with her in lodgings till the end of 1815.
I do not say that in order to obtain a domicile in a country a man must necessarily have a home of his own and reside in it. Circumstances may be so strong as to show a fixed purpose of abandoning his own country and making his home in another, and to show also the accomplishment of that object, though he lives in inns or temporary lodgings. But such cases must be rare. Here there are no material circumstances tending to show that he had made his home in London. The fact of his having ultimately made it so, after he had quitted Scotland, in 1834, can hardly be considered as tending to show that he had formed the same resolution when the circumstances were so different in 1805.
There are some facts of no great importance urged on both sides upon this part of the case. That he executed a will in the English form in 1802, evidently prepared by an attorney, is of no weight to show that he then considered that his domicile was in England. For the rule, that the will must conform to the law of the domicile, was certainly not then well understood, as it is now; and the attorney would probably not ask any question about the domicile of a man wishing to make a will.
That he made another will in 1815, in Scotland, is of as little weight, for the same reason, on the other side; and besides the will seems to have been made in a form applicable to both countries. His being made a member of the Royal Society of Edinburgh, and a burgess of Burnt Island in 1791-2, tends to show
Page: 882↓
Until he took a house of his own to reside in, there is no evidence that weighs with me much of an acquired domicile in England. This he did at the end of 1815, when he took a house in Margaret Street on a lease for years, and resided with Miss Cumby there. But at the very time he did so, he had taken another residence in Scotland, namely, in 1812, and that circumstance, I think, prevents his house in London being thus considered his sole home; and without a sole domicile, his domicile of origin cannot be lost. This is a great difficulty in the Appellant's case. When we come to the first evidence of a satisfactory nature of a domicile in England, it is met by evidence of another domicile acquired in Scotland. The double residence continued till May 1818, when he gave up residing at Auchingraymont. Until that time it seems to me that no sole domicile could be considered as established in London. Could the continuance in the house in Margaret Street up to November 1820, without any additional circumstances, have the effect of creating a sole domicile in England from May 1818 till November 1820, especially when it is borne in mind that though he quitted Auchingraymont, he left his furniture in Scotland, which is some evidence of his intention to resume a Scotch residence, which he did soon after when he came into possession of Ross.
It is not improbable that if he meant to make London his home at any time, he meant it to be so only until he should become entitled to his ancestral house at Ross; but a residence for a definite time, though of uncertain duration, would not, I conceive, confer a domicile. It is essential in all the definitions given of the meaning of this term, that it should not
Page: 883↓
On the whole, though not without some doubt, I concur in the advice given to your Lordships that there is no clear proof of an English domicile in November 1820, and, therefore, no sufficient reason to disturb the decision of the Court of Session in this case.
The
Mr. Attorney-General: Will your Lordships forgive me one moment. My client, the Respondent, notwithstanding this Appeal, wishes to be relieved from the necessity of enforcing the payment of any costs against his brother, the Appellant; and, therefore, if the House agrees, with his consent, the Appeal will be dismissed without costs.
The
Interlocutor appealed from affirmed, and Appeal dismissed, but without Costs.
Solicitors: Aikman — Maitland and Graham.
