himself as "of Shanghai, in the Empire of China." Evidence, which was uncontradicted, was adduced showing that for some years before his death he had determined to reside permanently at Shanghai, and had relinquished all intention of ever returning to England. Under these circumstances (the question being one of legacy duty, which was due if T.'s domicil was English at the time of his death), counsel who opposed the English domicil "admitted that they could not contend that the testator's domicil was Chinese;" and this admission was held by Chitty, J., who decided the case, to have been rightly made. Counsel, however, set up the theory of an "AngloChinese" domicil, in analogy to "Anglo-Indian" domicil, upon the ground of the existence at Shanghai of an English community under treaty stipulations. But the court repudiated this theory, and held the domicil of the testator to be English. § 361. Id. Here, then, we have, according to the uncontradicted evidence, (1) complete abandonment of the English one of the European communities there, say, for an instance, the British community, he would, according to the petitioner's contention, have lost his domicil of origin, and would have acquired an Anglo-Chinese domicil, which for most practical purposes would be equivalent to an English domicil. In my opinion he would not acquire such a domicil. "It appears to me that there is no substantial difference as to the question I am considering between the residence of a British subject at Shanghai, or at any factory in Turkey or elsewhere, or the East, whether by virtue of special treaties, capitulations, sufferance, or the like. But such factories are not regarded as colonies or foreign countries for the purpose of domicil. There may be commercial domicil there in times of war with reference to the law of capture, but that is altogether a different matter. "No authority except those relating to Anglo-Indian domicil has been cited in support of the petitioner's contention as to domicil. In Maltass v. Maltass, already cited, Dr. Lushington admitted to probate the will, valid according to the law of England, of an English merchant resident at a British factory at Smyrna. He held that if the treaty between England and the Porte was applicable to British merchants resident or domiciled in the ordinary acceptation of the term in Smyrna, the provisions of the treaty decided what was to be done in the case of suc. cession to personal estate; namely, that it was to follow the law of England. But he considered that the deceased was domiciled, not in a colony, but in England. . . . For these reasons I hold that there is no such thing known to the law as an Anglo-Chinese domicil, that the testator's domicil remained English, and that the circumstances are not sufficient to create any exception from the broad principle that legacy duty is payable when the domicil is British." Dr. Westlake reviews this decision at length (Law Mag. & Rev. 4th ser. vol. ix. p. 363, August, 1884), and dissents from the apparent conclusion that an Englishman cannot acquire a domicil at a Chinese treaty port. domicil of origin, and (2) residence in China with intention to remain there permanently. If this case is to be accepted as an authority upon this point, therefore, something more is necessary for the establishment by an American or a European of his domicil in a country in which European civilization does not prevail, than abandonment of his domicil of origin, and mere residence with intention to remain permanently. What more is necessary has never been pointed out, although, doubtless, as Dr. Lushington intimates,1 a change of religion would be deemed sufficient. CHAPTER XX. CRITERIA OF DOMICIL; OR THE EVIDENCE BY WHICH DOMICIL IS SHOWN. § 362. Recapitulation of General Principles of Evidence already referred to. It has been frequently remarked that domicil is a mixed question of law and of fact. Having disposed of that branch of the subject which may be more properly termed the law of domicil, having discussed its definition, its nature and classification, its attribution by law, and its acquisition by choice, its relation to particular classes of persons and to particular places, etc., we come now to consider the evidence by which it is shown. And it may be well here to recapitulate a few principles of evidence already referred to; namely, (1) Domicil of origin is prima facie at the place of birth, subject to correction upon proof that the parent was domiciled elsewhere at the time of the birth of the child.1 (2) The domicil of origin of a foundling is prima facie where he is found, subject to correction upon discovery that he was born elsewhere, or upon discovery of his parents domiciled elsewhere.2 (3) Domicil once shown to exist is presumed to continue, and the burden of proof rests upon him who asserts a change. (4) It requires fewer circumstances to show a change of municipal than of national or quasi-national domicil. (5) The same is true as between quasi-national and national domicil, though in a less degree; slighter proofs being required to show a change of the former than of the latter.5 (6) It requires stronger proofs to show the acquisition of a domicil of choice, in derogation of a domicil of origin, than the substitution of one domicil of choice for another; and slighter proofs than either to show a reverter 3 1 Supra, § 105. 2 Id. 3 Supra, §§ 115, 122 et seq., 151. 4 Supra, § 180. 5 Supra, § 123. 6 Supra, § 115 et seq. of domicil of origin," domicil of origin clings closely," and "reverts easily."7 § 363. The Discussion relates directly to the Domicil of Independent Persons. With respect to the domicil of dependent persons there need be no discussion here. To ascertain the domicil of such a person, all that is necessary, the dependence being shown, is to go a step farther back in the inquiry, and to ascertain the domicil of the independent person upon which depends the domicil of the person in question. The discussion here will relate to the evidence by which the acquisition and loss of domicil of choice by independent persons are usually shown. § 364. The Necessary Factum Simple and Easy to prove. We have seen that into a change of the domicil of an independent person two elements enter, -factum et animus.1 The factum, which is the transfer of bodily presence from one place to another, is usually capable of easy proof. It is purely a physical fact, generally open and notorious, and rarely in dispute, and there is, therefore, no need for resort to inference, presumption, or a nice balancing of conflicting proofs. "Residence and change of place are obvious, and cannot be mistaken." 2 § 365. The Necessary Animus Complex and often Difficult to prove. But with regard to the animus or intention with which the change of bodily presence is made, it is otherwise. That is a mental fact, and, therefore, more difficult to discover, and liable to misconception and dispute. It is provable in two ways; namely, (1) by the testimony of the person himself, and (2) inferentially or inductively by the proof of other facts, which are physical in their character, and, therefore, capable of proof by means other than his testimony, and which tend more or less strongly to indicate the mind of such person. "Acta exteriora indicant interiora secreta." But when we come to inquire what facts are to be taken as indicative of intention, we are met by great difficulty; so great that, to use the language of Shaw, C. J.,1 "The ques Supra, §§ 110 et seq., 119 et seq., 190 et seq. 1 Supra, § 125 et seq. 2 Tenney, J., in Wayne v. Greene, 21 Me. 357. 1 Thorndike v. Boston, 1 Met. 242, tions of residence, inhabitancy, or domicil . . . are attended with more difficulty than almost any other which are presented for adjudication." stances. § 366. Each Case must be determined upon its own CircumThe circumstances which go to make up the lives of different individuals differ so widely that no two can be judged precisely alike. What would be highly important and of great probative force in the case of one, may be trifling and meaningless in the case of another. Said Rush, President, in Guier v. O'Daniel:1 "Employments of the most opposite character and description may have the same effect to produce a domicil. A man may be alike domiciled, whether he supports himself by ploughing the fields of his farm or the waters of the ocean. It is not exclusively by any particular act that a domicil, generally speaking, is acquired, but by a train of conduct manifesting that the country in which he died was the place of his choice, and, to all appearance, of his intended residence. The sailor who spends whole years in combating the winds and waves, and the contented husbandman whose devious steps seldom pass the limits of his farm, may, in their different walks of life, exhibit equal evidence of being domiciled in a country." Hence it is impossible to lay down any positive rule upon the subject, but each case must be judged by its own facts and circumstances.2 § 367. 1a.-Lord Penzance, in Sharpe v. Crispin,1 remarks: "Did he voluntarily adopt England as his home and domicil 245. In McDaniel v. King, 5 Cush. 469, See White v. Brown, 1 Wall. Jr. C. Ct. 217; Eustis, C. J., in Cole v. Lucas, 2 La. An. 946; Sanderson v. Ralston, 20 id. 312; Colburn v. Holland, 14 Rich. Eq. 176. 1 1 Binn. 349 note. 2 Hodgson v. De Beauchesne, 12 Moore P. C. C. 285; Cockrell v. Cockrell, 2 Jur. (N. s.) 727; Ennis v. Smith, 14 How. 400; Lyman v. Fiske, 17 Pick. 231; Sears v. Boston, 1 Met. 250; Dupuy v. Wurtz, 53 N. Y. 556; Hegeman v. Fox, 31 Barb. 475; Dupuy v. Seymour, 64 id. 156; Guier v. O'Daniel, supra; Hairston v. Hairston, 27 Miss. 704. 1 L. R. 1 P. & D. 611. |