to the Continent, where she resided for a year, and afterwards to England, where she continued for five years till her death, with the exception of a visit of a few months to Scotland; never having, after first leaving Scotland, any permanent place of residence, but living in furnished lodgings and hotels and sometimes with friends, both when on the Continent and in England. Upon these facts it was held that she had acquired a Scotch domicil before leaving Scotland for the first time, and that she retained this domicil at her death, notwithstanding the fact that she was under an engagement to be married to a gentleman in England a considerable time before she died." The Lord Ordinary (Lord Wood) said: "Nor does a matrimonial engagement indicate intention to change, for it is a mere intention to change de futuro, and that has no effect till it is actually accomplished; and it is fallacious to imagine that an engagement to marry an English merchant at some future time is equivalent to an engagement to settle permanently in England." The court (Lord Jeffrey dissenting) adhered; Lord Fullerton remarking: "Had there been anything to connect the removal to a residence in England with the intended marriage,- if, for instance, the fact had been that the marriage was to be immediately contracted with a gentleman fixed in England, and that the lady had gone to England in contemplation of the marriage, — there might have been some ground for connecting her removal to England with the prospect of permanently remaining there. But here the two circumstances have no connection with each other. It is not said that any time was fixed for the marriage; the parties are said to have been engaged, but an engagement is a term of indefinite continuance; and the statement is quite consistent with the supposition that she was to return and resume de facto her domicil in Scotland." Lord Jeffrey, on the other hand, thought continued presence in England and engagement to marry there sufficient to constitute domicil. 509 CHAPTER XXIII. CRITERIA OF DOMICIL (continued),— RESIDENCE AND ENGAGING IN BUSINESS, MODE OF LIVING, OWNERSHIP OF REAL ESTATE, ETC. § 410. Residence and Engaging in Business. Residence in a place and engaging in business there have generally been considered as evidence of animus manendi, the value depending much, however, upon the length of the residence and the nature of the business. If the latter be of an apparently permanent character, or as in Cockrell v. Cockrell 2 of great lucrativeness, the presumption is strong. But in many cases engaging in business for even a long time has been held insufficient to show a change of domicil. Thus, in Jopp v. Wood, it was held that a Scotchman engaging in business in India for twenty-five years did not thereby change his domicil; and in Re Capdevielle it was similarly held with regard to a Frenchman who had resided and engaged in business in England for twenty-nine years; and for further illustrations the learned reader is referred to the cases already mentioned under the discussion of the effect of length of residence.5 With regard, however, to the case of Jopp v. Wood, it may be said that in order to raise a presumption of animus manendi 1 Cockrell v. Cockrell, 2 Jur. (N. s.) 727; Allardice v. Onslow, 33 L. J. Ch. 434; Drevon v. Drevon, 34 L. J. Ch. 129; King v. Foxwell, L. R. 3 Ch. D. 518; Moore v. Darell and Budd, 4 Hagg. Eccl. 346; Shelton v. Tiffin, 6 How. 163; Mitchell v. United States, 21 Wall. 350; Kennedy v. Ryal, 67 N. Y. 379; Matter of Hawley, 1 Daly, 531; Hood's Estate, 21 Pa. St. 106; Smith v. Croom, 7 Fla. 81; White v. White, 3 Head, 404. Engaging in business is a particularly valuable test in the case of an unmarried Story, Confl. of L. § 47; Rue man. High, Appellant, 2 Doug. (Mich.) 515; State v. Frest, 4 Harr. (Del.) 538. In Bremer v. Freeman, 10 Moore P. C. C. 306, the fact of long residence "without any business or occupation" was relied upon by the Privy Council as a significant fact tending to show acquisition of domicil. 2 Supra. 8 34 Beav. 88; affirmed 4 De G. J. & S. 616. 4 2 Hurl. & Colt. 985. 5 Supra, § 393 et seq. in India, or indeed in any other Eastern country, somewhat different and more cogent facts are necessary than would be required to found a similar presumption with respect to any European or American State; the general presumption of fact founded upon the usual practice in such cases, being that an European residing in an Eastern country expects ultimately to return to his native country. § 411. Id. Opinions of the Civilians. The Civilians seem to have been inclined to look upon the fact of engaging in trade as an indication of temporary residence rather than otherwise. This was doubtless mainly because formerly residence for such purpose was usually but temporary, permanent settlement in trade being an exception and very far from the rule. But with the development of international law, and the greater protection given to the rights and property of foreign subjects by the governments of almost all countries in the most modern times, the disposition of men to settle permanently for purposes of commerce in foreign countries has increased, and has occasioned a modification of these views. § 412. Id. Municipal Domicil. In cases of municipal domicil, residence and engaging in business is ordinarily accepted as strong proof of animus manendi. § 413. Place of Residence preferred to Place of Business. As between residence and place of business, the former is preferred as the domicil,1 particularly as we have seen in the case of a married man who resides with his family or returns to them at intervals.2 In determining the effect of residence, the sleeping-place is an important element. If a person have more than one dwelling-house, the one in which he sleeps or passes his nights will govern. If he works and 1 Voet, Ad Pand. 1. 5, t. 1, no. 98; Donellus, De Jure Civili, l. 17, c. 12, p. 978 b, no. 50; Zangerus, De Except. pt. 2, c. 1, nos. 31-54; Van Leeuwen, Cens. Forens. 1. 3, c. 12, no. 5; Henry, For. Law, pp. 193, 194, 197, 201 et seq.; Mascardus, De Probat. concl. 535, no. 23. 1 Dinning v. Bell, 6 Low. Can. 178; Cooper v. Galbraith, 3 Wash. C. Ct. 546; Greene v. Greene, 11 Pick. 410; Abing ton v. North Bridgewater, 23 Pick. 170; 3 Abington v. North Bridgewater, supra; Commonwealth v. Kelleher, 115 Mass. 103; and Cooper v. Galbraith, 3 Wash. C. Ct. 546. 4 Abington v. North Bridgewater, supra; and see Commonwealth v. Kelleher, supra. boards in one town and sleeps in another, the latter is to be preferred.5 § 414. Mode of Living. In Moorhouse v. Lord, Lord Chelmsford says: "In a question of change of domicil, the attention must not be too closely confined to the nature and character of the residence by which the new domicil is supposed to have been acquired." "Domum autem accipimus, sive in propria domo, quis habitet, sive in conducta, sive gratis, sive hospitio receptus sit;"2 and what is here said of domus might with equal propriety be said of domicilium. "Le vieux garçon a son principal établissement dans sa petite chambre solitaire, comme le plus opulent père de famille dans son hôtel, comme le négociant dans sa maison de commerce."3 "The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil," says President Rush in an oft-quoted passage in Guier v. O'Daniel; and he goes even so far as to say, "On a question of domicil the mode of living is not material, whether on rent, at lodgings, or in the house of a friend." But this last expression is not strictly accurate; for while the mode of living is often of little importance, yet it is not always so, inasmuch as it sometimes, indeed often, serves to throw light upon the intention of the person whose domicil is in question. Thus it is much easier to presume a change of domicil, when a person goes to a new place and there buys land and erects for himself and occupies a dwelling-house, particularly if at great expense in proportion to his means, or if he buys a dwelling-house and fits it up to suit the wants and tastes of his family, than if the same person the other circumstances remaining the same -took lodgings in a hotel or boarding-house. - There § 415. Residence in Hotels or Temporary Lodgings. is nothing in the latter mode of living per se inconsistent with an intention to remain permanently, but it is not as strongly indicative of such intention as the former.2 This subject was 5 Commonwealth v. Kelleher, supra. 1 10 H. L. Cas. 272, 286. 2 Inst. 4, tit. 4, § 8. 8 Demolombe, Cours de Code Napoléon, t. 1, no. 344. 4 1 Binn. 349, note. 1 Castor v. Mitchell, 4 Wash. C. Ct. 191; Burch v. Taylor, 1 Phila. 224; Hart v. Horn, 4 Kans. 232. 2 Aikman v. Aikman, 3 Macq. H. L. Cas. 854; Dupuy v. Wurtz, 53 N. Y. 556. discussed to some extent in Aikman v. Aikman,3 where Lord Wensleydale used this language: "I do not say that in order to obtain a domicil in a country a man must necessarily have a house 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 are rare." Lord Cranworth said, in the same case: "I will not say in point of law that a person may not acquire a domicil by residence at a hotel; but it can rarely happen, as a matter of fact, that such residence is intended to be of a permanent character." But in view of the fact that at the present time so many persons permanently resident live in hotels and boarding-houses, the ground taken by their lordships seems too strong, particularly as applied to quasi-national and municipal domicil; and it might be better to say that such mode of living is in itself but equivocal. § 416. Residence in Leased Houses or Lodgings.—The same may be said of leases of dwelling-houses or lodgings for short terms; no evidence of animus manendi can ordinarily be drawn from such source, although the opposite inference does not necessarily result.2 However, the leasing may be attended by such circumstances as would show great uncer 3 Supra. The Lord Chancellor, Campbell, said in the same case: "A new domicil might certainly be acquired by a person who might be living in lodgings or in a hotel." 1 Whicker v. Hume, 7 H. L. Cas. 124; Moorhouse v. Lord, 10 id. 272; Pitt v. Pitt, Macq. H. L. Cas. 627; Bell v. Kennedy, L. R. 1 Sch. App. 307; Somerville v. Somerville, 5 Ves. Jr. 750; Douglas v. Douglas, L. R. 12 Eq. Cas. 617; Isham v. Gibbons, 1 Bradf. 69. 2 Munro v. Munro, 7 Cl. & Fin. 842; Bremer v. Freeman, 10 Moore P. C. C. 306; Doucet v. Geoghegan, L. R. 9 Ch. D. 441. In Munro v. Munro, the report does not state the length of the lease, but the house was in fact occupied about five years. Lord Cottenham said: "That he tk a lease of the house in Gloucester Place, and formed an establishment there, has been much relied upon, and in the absence of better evidence of intention as to his future domicil, might be important as affording evidence of such intention, but cannot be of any avail when from the corre spondence the best means are afforded of ascertaining what his real intentions were. The having a house and an establishment in London is perfectly consistent with a domicil in Scotland." In Bremer v. Freeman, the testatrix took apartments upon short leases, renewed repeatedly for a period of fifteen years, and furnished them herself. So in Doucet v. Geoghegan, the testator refused to take a lease for a longer term than three or four years; but this he renewed repeatedly. |