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civil status had occurred to his mind, and been accepted by his will, the attempt would in most cases fail. Few men think of, or wish for, a change of civil domicil as such, except, perhaps, in certain cases; as where a man, desiring to change his political domicil, contemplated the change of civil domicil as involved in it; and as, occasionally, where the object of the change is to escape into a freer condition of the marriage law. Cases like Haldane v. Eckford (ubi supra), where the change of civil status can be shewn to have been recognised and accepted by a person who had no special reason to desire it, and probably did not desire it, are very rare indeed. The stricter rule would, therefore, in the great majority of cases leave the domicil to be governed by origin, which, it seems to me, would in every respect be a convenient view. In this case, if I were to consider the stricter rule as law, I should have no difficulty whatever in holding that the testator never changed his domicil. I feel sure that the idea of changing his civil status from that of a Scotchman under Scotch law to that of an Englishman under English law never occurred to him, and that if it had occurred to him he would have repudiated it. Probably the question as to his eldest son's legitimacy would of itself have been conclusive on this point. But I cannot satisfy myself that the stricter rule, as I have called it, can be considered as the law of England. It never was, I believe, the law of any other country (except, perhaps, Scotland), or recognised as law by any of the text writers of European authority who have dealt with questions of domicil; and it is difficult to believe that the law of England has drifted so far from the general principles on which it professed to be founded, and which it always professed to follow. It seems to me, as it did to Vice Chancellor James in Haldane v. Eckford (ubi supra), that the intention required for a change of domicil (as distinguished from the action embodying it) is an intention to settle in a new country as a permanent home, and that if this intention exists, and is sufficiently carried into effect, certain legal consequences follow from it; whether such consequences were intended or not, and NEW SERIES, 41.-CHANC.

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perhaps even though the person in question may have intended the exact contrary. The case of a person wishing to settle permanently in a country different from that of his domicil, but to retain, as regards testamentary and matrimonial matters, and as regards civil status generally, the law of the country that he leaves, may have rarely arisen, and perhaps is not likely to arise. The determination ought, I think, to be that the intention was sufficient to warrant a conclusion in favour of a change of domicil. It may, perhaps, be added, that to prove such an intention as is necessary to establish a change of domicil, and in the absence of evidence that the intention actually existed (which can be shewn by express declaration and in no other way), the evidence must lead to the inference that if the question had been formally submitted to the person whose domicil is in dispute he would have expressed his wish in favour of a change. Possibly where the actual residence in the acquired domicil has been very large, an unconscious change of mind may be inferred, though it may be doubtful whether it would have been declared or admitted if the question had been actually raised. Such unconscious changes of opinion on the most important subjects happen not unfrequently in such a space of time as the thirty-two years of residence in England, which occurred in Udny v. Udny (ubi supra). But in cases not involving a very long time, I apprehend that in order to establish a change of domicil it must be shewn that the intention required (I have already stated what I consider that intention to be) actually existed in the mind, or was made reasonably certain that it would have been formed or expressed if the question had arisen in a form requiring a deliberate or solemn determination.

What, therefore, has here to be considered is, whether the testator William Douglas ever actually declared a final and deliberate intention of settling in England, or whether his conduct and declarations lead to the belief that he would have declared such an intention if the necessity of making his election between the countries had arisen? Any suggestion as to unconscious change in a

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long space of time can hardly apply to this case. For it seems impossible to date his supposed intention of change of domicil before his marriage, and the first letting of Brigton House; both of which events occurred in the latter half of 1863, and therefore less than six years before his death. In those six years his connection with Scotland was no doubt loosened.

Throughout 1864 he resided in England,

and in June of that year he gave up his

pew in the episcopal chapel which he had attended while living in Scotland. In January, 1865, his second child was born. In the same year he agreed to grant an additional term of three years to the tenant of Brigton House (in which he still reserved rooms), and thought of buy ing, but did not buy, a freehold estate at Harrow. In December of the same year he bought the long leasehold at Putney, which he afterwards bequeathed to his widow. This, I consider, he bought for the express purpose of making it a jointure house, and without any intention of ever living in it himself. The year 1865 was remarkable also as the last year in which he visited Scotland. In 1866 his third child was born; and he removed to a house in Streatham, which in the next year, 1867, he took for a term a little over five years. In the latter year, 1867, he meditated, but did not complete, another purchase of freehold. land in England and closed the banking account which he had up to that time kept at the Royal Bank of Scotland. In the same year certain circumstances occurred which were much relied upon by the plaintiff in the cross suit, but which when duly considered seem of no weight. The testator was an habitual maker of wills; and in 1867 he made one; the 7th or 8th, I think, of which there are traces.

While making this, which was in the English form, a well-founded doubt occurred to him, whether it would pass his real estate in Scotland; and being advised that it would not do so, he, on the 19th of September, 1867, executed the trust disposition of Brigton under which Colonel Douglas claims. This circumstance was relied on in argument as bringing the case within Haldane v. Eckford (ubi supra), where a testator's

recognition of himself as being under the law of Jersey for certain testamentary purposes was held tantamount to a declaration that he had intended to acquire, and considered himself to have acquired a Jersey civil domicil. But the argument entirely fails. A domiciled Scotchman can, according to Scotch law, and independently of the Act 24 and 25 Vict. c. 114, which had in 1867 been some years in force-make a valid will as to moveables, if he does so according to the forms of the country in which he is resident. And if this be kept in mind the inference that the testator considered himself a domiciled Englishman because he thought it clear that his moveable property would pass by an English will, appears to fail altogether.

To revert to the narrative of the testator's life: he seems in 1868 to have relaxed still further his hold on Brigton by giving up part of the rooms which he had reserved to himself in the house and transporting to England or selling some of his furniture which remained there; and in June of that year, he agreed to grant to the tenant a further term of three years, from Whitsuntide, 1869. On the 16th of February, 1869, he died. I have mentioned, I believe, the principal circumstances which are relied on as evidence that the testator, in or after 1863, changed his domicil from a Scotch one to an English one. There is no allegation of any declared intention on his part to settle finally out of Scotland. If anything, the evidence as to declarations (though in no way conclusive) seems to be the other way. The change must be established, if at all, as an inference from facts; and without the important element of any such lapse of time as can for the present purpose be considered a long

one.

It seems to me that when carefully looked at, the facts do not warrant the inference which, on behalf of Colonel Douglas, it is sought to draw from them. The circumstance of the alleged domicil being the residence of the testator's wife and children has been-and was-much relied on in Forbes v. Forbes (ubi supra), and other cases; though the supposed rule that a man will be considered as domiciled where his wife and

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children permanently reside, which is found on the marginal note in Aitchison not to be supported by the judgment in that case, or by Forbes v. Forbes (ubi supra), and is hardly to be reconciled either with the general tenor of the authorities or with principle. Moreover, it may not be immaterial to remark that the relation between the testator in this case and his wife and children was not quite the normal one; so that the general rule, if it existed, might not apply to this quite so strongly as to many cases. He certainly had some hesitation in introducing his wife to his family in Scotland as his wife, and there is evidence that he never considered either of his sons, though the younger was undoubtedly legitimate, as his heir, in the sense of being the person to succeed to the Brigton estate, and be the Scotch head of his own branch of his ancient family. The fair inference from the facts seems to me to be that though the testator intended his wife to live in England after his death (which, considering the disposition of his Scotch property, was the natural arrangement, at least up to the date of his last will), he had never definitely abandoned the idea of returning to Brigton himself, and believed that after a certain time, and possibly a tentative visit or two, he might do so with Mrs. Douglas and his children; so that, in fact, he never contemplated England as the site of his ultimate matrimonial home if his life and his wife's were prolonged. That he was a man accustomed to change his mind appears from his numerous wills, and indeed from his whole history. It is clear that he did not consider any of the places which he successively occupied in England as his settled and ultimate home. Though all the places which he took active steps to buy were in England, there seems no reason to doubt (and some reason for believing) that even if he had finally abandoned Brigton he would have availed himself of any very favourable opportunity that offered itself of buying a place for residence in some other part of Scotland.

Dixon (ubi supra), seems

That he wished to make, in some place which he never discovered, a home more

permanent than he possessed (after Brigton ceased for a time to be his home) seems clear. That he tried in vain to find it in England seems also clear; but it is not clear that he made up his mind to find it there, and only there. The true conclusion from the facts seems to me to be that the testator remained from 1863 to his death in a state of mind which might have resulted in his determining to settle in England permanently, but which never did so result; that if he had lived a few years longer, and had found by experiment that Mrs. Douglas and his children would be welcomed in society at Brigton he would have transferred himself there; that if this proved impracticable he would have sought another home in England or Scotland as might have happened to be convenient, and that in fact he remained to the end of his life undecided on the point which is now in question. If so, the onus which lies on those who assert a change of domicil, has not been discharged; and without denying that the case is a peculiar and difficult one, I think, after anxiously weighing all the evidence, of which of course I have noticed part only, that the domicil of William Douglas the testator was Scotch from his birth to his death. If this be the true conclusion, the widow had originally a right to elect between her rights as a Scotch widow and her rights under the will. That she made no binding election before filing the bill seems to me to be clear, having regard to the principle on which the Court deals with such elections; and I think that the bill, which was obviously not intended as an election, cannot be treated as amounting to one. The decree must, I think, be made in both suits, and will be substantially according to the minutes prepared on behalf of the plaintiff in the original suit. But it will be better, I think, to place first the declaration as to domicil, and let the accounts and enquiries follow.

Solicitors-Messrs. Burgoynes, Milnes, Burgoyne, & Thrupp, for plaintiff'; Mr. W. M. Webster, for Colonel Douglas; Messrs. Wright, Bonner & Wright, for trustees.

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Trade-mark-Discovery-Production of Documents- Names of Customers-Price List-Order Book.

In a suit to restrain the infringement of trademarks the defendants refused to disclose the names of their customers, the places to which they had consigned their goods, and the prices which had been paid for them. They also, while producing their boks which confessedly shewed orders for goods bearing some of the trademarks claimed by the plaintiffs, sealed up such portions of the entries therein as they swore contained orders for the impression of devices other than those claimed by the plaintiffs:-Held, that the defendants need not disclose the names of their customers or the prices of the goods, as such disclosure could not be material to the plaintiffs and might injure the defendants in their business, but that they must make the rest of the disclosure which they objected to, and that where one of a line of trademarks had been disclosed in the order book, the whole line must be disclosed.

Howe v. M'Kernan, 30 Beav. 547, followed.

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This was a suit in the Duchy Court of Lancaster to restrain the infringement of trademarks, and it proceeded on the double ground of invasion of the plaintiffs' property in the trademarks, and injury to them by the sale of goods represented as, but not being theirs. Both the plaintiffs and defendants were firms carrying on business as commission agents in Manchester. The devices which the plaintiffs called trademarks (but which the defendants denied to be or to operate as such) were imprinted on, woven in, or attached to the outer covering or other conspicuous part of parcels of cotton cloth exported by them to Portugal, and consisted of various numbers, letters, designs, symbols, etc., described in the bill, and in particular of a pattern formed by a combination of such marks, numbers and symbols, consisting of a border of blue, green and red stripes woven into the fabric, the number 10.), the figure of an eagle and the letters R H im

printed on the fabric, together with a green label or ticket attached thereto, with a black ornamental border and the words, "Joas Cassel, Oporto," printed on it. The plaintiffs also claimed a right to the exclusive use of each of the above numbers or devices independently of their right to the combination.

The plaintiffs filed interrogatories on their bill, but before the answer was put in took out the usual summons for production of documents; and on that summons it was ordered on the 11th of April, 1870, that the defendants should, within twenty-one days, make the usual affidavit as to documents in their possession or power relating to matters in question in the suit, and should produce the same for inspection, with liberty to the defendants to seal up such parts of the documents which they should produce as did not relate to the matters in question in the suit.

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The defendants accordingly on the 17th of June, 1870, made an affidavit as to the documents, setting them out in a schedule, and with regard to the portion of their books, etc., which they sealed up, they said "We further say that we have sealed up certain parts of the documents referred to in the schedule, and we swear positively that there is not contained in any of the portions so sealed up any memorandum, minute, or entry relating directly or indirectly to the matters in question in this cause, or wherefrom the plaintiffs could gather any information or knowledge which would in anywise enable them to establish or aid them in endeavouring to establish the claims set up by them in their bill."

The question as to what portions of their books and letters the defendants were, under the order of the 11th of April, 1870, to be at liberty to seal up, came before the registrar in chambers on the 7th of July, 1870, when the registrar expressed his opinion and made a memorandum to the following effect

"As to books where any entry refers in any manner to the matters of the suit, the whole of such entry and the notes, &c., relating to it, should be disclosed, excepting only that the defendants may cover over the names of manufacturers or customers, and also the particular numbers

or trade marks of goods other than those which are the subject of the suit.

"With these exceptions the whole of the line or lines in the books containing such entry should be disclosed across the whole of the double page.

"As to letters, the whole of every letter to be disclosed which relates in any manner to these matters, excepting only that manufacturers' and customers' names and trade marks not the subject of the suit may be covered."

This memorandum was adopted by the Vice Chancellor in an order made by him on the 14th of July, 1870.

The plaintiffs moved to discharge this order, and thereupon the Court on the 22nd of August, 1870, ordered that the defendants should disclose the entirety of every entry in their books relating to the matters in the suit, and should accordingly unseal and uncover the names of manufacturers, customers, or other persons, and of places, and the prices and other particulars forming part or parts of such entries in every case in which such names, prices, or particulars were then sealed up or covered.

The documents which were the subject of this controversy, and which the plaintiffs were as anxious fully to inspect as were the defendants to conceal as far as would be allowed them, consisted of entries in certain trade books, described as order books, purchase books, and certain portions of a bundle of invoices. Each item in the order book ran across a double page and was divided into seven parts. The first and seventh of these were only index numbers. The other five shewed:-First. The date of the order; Second. The description of the goods; Third. Who gave it; Fourth. Whence it came; and Fifth. To what manufacturer the execution of it was entrusted. Each item in the purchase book ran also across a double page, and after the date and the number of the order, contained the following columns:-"Marks," "Of whom bought," "Quantity," "Price," "Description," "Value," Delivery," "Terms, &c., and "Instructions." The invoices were from stamp manufacturers who had supplied the stamps by which the marks were impressed on the goods.

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The purchase and order books, as produced by the defendants in pursuance of these various orders, were sealed up to an extent which can scarcely be understood without inspection. As an example of what had been done, in one of the columns headed "marks" in the purchase book, the number "109 " was alone visible; the rest of the column was sealed up.

Both sides were still dissatisfied with the amount of discovery required of or given to them respectively by these orders. Cross motions were accordingly made by the plaintiffs and defendants to discharge or vary the existing orders. The motions were argued before the Vice Chancellor at the end of the year 1870. His Honour reserved his judgment (1) until the de

(1) Vice Chancellor Wickens said — In order to explain why I so reserved my judgment, and for other purposes, it is proper to state here, in the first instance, the view that I take of the existing practice as to the discovery of documents.

Before the alteration in 1852, there was a distinction between the right to a full answer and the right to discovery of documents, inasmuch as the plaintiff was entitled to a full answer (in the absence of a plea or demurrer) to every question relevant to the statements in the bill, whereas the order for the production of documents was so far discretionary, that the Court only made it if, on comparing the bill and answer, the Court thought that the plaintiff had a prima facie right to see them. This was sometimes said to involve a contradiction, since it would be idle to refuse production of a document which the plaintiff might require the defendant to set out verbatim. Still, as a matter of fact, it was recognised in practice.

The alteration of practice in 1852 gave the plaintiff a right to an order on summons for the production and inspection of documents before answer. But it was not, I conceive, intended to enlarge the plaintiffs' right to discovery by a sidewind. I apprehend that the defendant is still entitled to resist the production of documents before answer, not only on the ground that he intends to plead, or plead and answer, but also on an allegation supported by such evidence as the circumstances render necessary that his answer when filed will displace the plaintiffs' right to production in whole or in part. It seems to me that these principles must apply to the question of sealing up. That which a defendant is entitled to seal up must be that which if in a separate paper he would not be bound to produce.

It was on these grounds that I postponed my decision on the defendants' motion till I had seen the answer. The defendants deny the plaintiffs' property in the marks, and any deception on the public effected by means of them. They say that

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