CHAPTER IX. REVERTER OF DOMICIL. § 190. THE maxim "Domicil of origin reverts easily," has already been discussed so far as it is a principle of evidence by which to decide between acquired domicil and domicil of origin. But there is in the principle of reverter also a technical and peculiarly artificial side, according to which the factum required in the ordinary change of domicil to wit, a change of bodily presence from one place to another is in part dispensed with. § 191. The Rule of Reverter as laid down by Story. - Story thus lays down the rule: "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 he states as the rule applicable "to changes of domicil from one place to another within the same country or territorial sovereignty;" that is to say, quasi-national domicil. With respect to changes between different countries or sovereignties, he lays down the following: "A national character, acquired in a foreign country by residence, changes when the party has left the country animo non revertendi, and is on his return to the country where he had his antecedent domicil. And especially, if he be in itinere to his native country with that intent, his native domicil revives while he is yet in transitu; for the native domicil easily reverts. The moment a foreign domicil is abandoned, the native domicil is re-acquired. But a mere return to his native country, without an intent to abandon his foreign domicil, does not work any change of his domicil." 3 1 Confl. of L. § 47. 2 And perhaps, although not probably, municipal domicil. The only fair construction which can be put upon these passages is that reverter takes place only when the party has abandoned his acquired domicil and is in itinere to the place of his original domicil; and this, as we shall see, is the American doctrine. This is but reasonable and just; for it seems but right that a person who has turned his back upon his adopted country and his face toward his native country, should be deemed to intend to deliver himself from the dominion of the laws of the former and subject himself to the laws of the latter, and but right, further, for courts to give effect to such intention. § 192. The British Doctrine.—Udny v. Udny. — The British doctrine, however, goes further. It has already been referred to, and can now be best stated in the language of the judges who created it. In Udny v. Udny1 was a case involving legitimation per subsequens matrimonium. It originated in Scotland, and came up from the Court of Session to the House of Lords on appeal. The facts were as follows: Colonel Udny, though born at Leghorn in 1779, where his father was consul, had by paternity his domicil in Scotland. He does not appear to have acquired any new domicil up to 1812, when he was married and took upon lease a house in London, where he resided for thirty-two years, paying occasional visits to Scotland. 1844, having got into pecuniary difficulties, he broke up his establishment in London and repaired to Boulogne, where he remained for nine years, occasionally visiting Scotland as before. In 1846 his wife died. Some time after the death of his wife he formed an illicit connection at Boulogne with Miss A., which resulted in the birth in England of a son in 1853; Miss A. having come to England, and Udny having accompanied her, for the purpose of procuring the attendance of an English accoucheur. The parents of this child-who was the respondent in this case-were subsequently, in 1854, Although the first sentence of the last quotation would seem to contemplate reverter of acquired as well as original domicil. But this is inadmissible (see infra, § 208), and it is not cer tain that Story distinctly meant to lay down such doctrine. 5 Infra, § 201. 1 L. R. 1 Sch. App. 441; s. c. 7 Macph. (Sc. Sess. Cas. 3d ser. 1869) 89. married in Scotland; and the question was whether respondent, under these circumstances, had become legitimate per subsequens matrimonium. The Court of Session 2 decided that Colonel Udny's domicil of origin was Scotch, and that he had never subsequently lost it, notwithstanding his long absence from Scotland; and that his son, the respondent, "though illegitimate at his birth, was legitimated by the subsequent marriage of his parents." The House of Lords ordered and adjudged that the interlocutor of the Court of Session be varied by substituting for the words "that he never lost his said domicil of origin," these words, "and if such domicil of origin was ever changed, yet by leaving England in 1844 his domicil of origin reverted;" and with this variation affirmed the interlocutor. It thus appears that the question of reverter was squarely before the House; and after the case had been argued by eminent counsel, the Law Lords delivered their opinions as follows. As the case is one of much importance they are here given at length. § 193. Id. id. Lord Hatherley's Remarks. Lord Chancellor Hatherley said: "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. 25 Macph. (Sc. Sess. Cas. 3d ser. 1866) 164, Douglas, 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 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. A 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. Lauder, cited in full in Munroe v. Douglas,2 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, 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 -namely, 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, 1 Morrison, Dict. Dec. Succession, App. No. 1; Robertson, Pers. Suc. p. 166. 25 Madd. 379. |