a fixed determination to invest his fortune in land in Scotland, and to reside there, I think that there was enough of actual residence to support the case of the respondents. But I think that while he had a strong desire to invest in land in Scotland with a suitable mansion on it, the fulfilment of that desire was contingent on his finding an estate that would give him not only a suitable residence, but also an adequate return for his money. This was indispensable, because his whole fortune was to be invested. Such an investment is not always, or easily, to be got, and it is to me by no means clear that if he had not been able within a short time to obtain such an investment he would have remained in Scotland. Looking to what appears to have been the state of his health, and the opinions expressed as to the climate, it seems not at all unlikely that in that event he would have lived chiefly in a warmer climate, and perhaps occasionally visited his friends in Scotland. He might, or might not, have invested in land elsewhere. But I do not see sufficient ground for holding that he had resolved to make Scotland the country of his residence, except in the event of his being able to make such an investment as he desired. In the mean time his mind was unsettled as to where he should finally cast anchor. His location in Scotland was tentative.

If his final offer for Enterkine, in the spring of 1839, had been rejected, I see no reason to conclude that he would have remained in Scotland; and if he had then gone to a preferable climate and taken up his residence there, I think it could not have been held that he had in the previous September become a domiciled Scotchman. If he had gone to Scotland with intent to reside permanently there, without regard to any particular mode of investing his fortune, the contingency on which, I think, so much depends, would have been out of the case, and his location in Scotland would not have been attributable to that purpose of investigation previous to decision to which I think it may fairly be attributed. No doubt, the continuance of the residence of a person in any country, however long he has been there, may, in a sense, be said to be contingent on possible future occurrences. But that has no resemblance to the present case, for here the purpose to

*

settle in a particular country, and so acquiring a domi- [* 326] cil there, was contingent, and, as I think, in suspense.

Upon these grounds I am disposed to concur in the judgment proposed.

Other defences were pleaded in the action and were maintained in the Court below, and as the learned Judges in that Court were of opinion that the Scotch domicil had been established, it was proper, and, indeed, quite necessary, for them to deal with those other defences, and it would equally have been our duty to have done so if we had taken the same view as they did of the import of the evidence in regard to domicil; but in consequence of our having taken a different view of the import of that evidence, it has now become unnecessary to deal with those other defences. Interlocutors reversed.

Udny v. Udny.

L. R., 1 H. L. Sc. 441-461.

[441] Political and Civil Status. —Allegiance distinguished from Domicil.Domicil of Origin and Choice distinguished. - Legitimation per subsequens

matrimonium.

Every individual at his birth becomes the subject of some particular country by the tie of natural allegiance, which fixes his political status; and becomes subject to the law of the domicil, which determines his civil status.

Per Lord WESTBURY: To suppose that for a change of domicil there must be a change of natural allegiance is to confound the political and the civil status, and to destroy the distinction between patria and domicilium.

Per The LORD CHANCELLOR (Lord HATHERLEY): A man may change his domicil as often as he pleases, but not his allegiance. Exuere patriam is beyond his power. Dictum of Lord KINGSDOWN in Moorhouse v. Lord (10 H. L. C. 272), qualified.

Per Lord WESTBURY: It is a settled principle that no man shall be without a domicil; and to secure this end the law attributes to every individual as soon as he is born the domicil of his father if the child be legitimate, and the domicil of his mother if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law,—not of the party. It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal; but it cannot be destroyed by the will and act of the party.

Domicil of choice is the creation of the party. When a domicil of choice is acquired the domicil of origin is in abeyance; but is not absolutely extinguished or obliterated.

When a domicil of choice is abandoned, the domicil of origin revives,a special intention to revert to it being unnecessary.

Per Lord CHELMSFORD: Story says that the moment a foreign domicil is abandoned, the native domicil is re-acquired. The word "re-acquired" is an inaccurate expression. The meaning is, that the abandonment of an acquired domicil ipso facto restores the domicil of origin,

No. 5. Udny v. Udny, L. R., 1 H. L. Sc. 441, 442.

If after having acquired a domicil of choice a man abandons it and travels in search of another domicil of choice, the domicil of origin comes instantly into action and continues until a second domicil of choice has been acquired.

Per Lord WESTBURY: A natural-born Englishman may domicil himself in Holland; but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicil clings to him until he has set up his tabernacle elsewhere.

*Per The LORD CHANCELLOR: The status of the child, with respect [*442] to its capacity to be legitimated by the subsequent marriage of its parents, depends wholly on the status of the putative father, not on that of the inother.

According to English law where at the time of a bastard's birth the father has his domicil in England - no subsequent change of domicil can render practicable the bastard's legitimation.

The late Colonel John Robert Fullerton Udny, of Udny, in the county of Aberdeen, though born at Leghorn, where his father was consul, had by paternity his domicil in Scotland. At the age of fifteen, in the year 1794, he was sent to Edinburgh, where he remained for three years. In 1797 he became an officer in the Guards. In 1802 he succeeded to the family estate. In 1812 he married Miss Emily Fitzhugh, -retired from the army, — and took upon lease a house in London, where he resided for thirty-two years, paying occasional visits to Aberdeenshire.

-

In 1844, having got into pecuniary difficulties, he broke up his establishment in London and repaired to Boulogne, where he remained for nine years, occasionally, as before, visiting Scotland. In 1846 his wife died, leaving the only child of her marriage, a son, who, in 1859, died a bachelor.

Some time after the death of his wife, Colonel Udny formed at Boulogne a connection with Miss Ann Allat, which resulted in the birth at Camberwell, in Surrey, on the 9th of May, 1853, of a son, the above respondent, whose parents were undoubtedly unmarried when he came into the world. They were, however, united afterwards in holy matrimony at Ormiston, in Scotland, on the 2nd of January, 1854, and the question was whether the respondent, under the circumstances of the case, had become legitimate per subsequens matrimonium.

The Court of Session (first division) on the 14th of December, 1866 (3rd series, vol. v. p. 164), decided that Colonel Udny's domicil of origin was Scotch, and that he had never altered or lost it, notwithstanding his long absences from Scotland. They therefore found that his son, the respondent, "though illegitimate at

No. 5. Udny v. Udny, L. R., 1 H. L. Sc. 442-444.

his birth, was legitimated by the subsequent marriage of his parents. Hence this appeal, which the House regarded as involving questions of greatly more than ordinary importance. *The appellant argued his own case.

[*443]

Sir Roundell Palmer, Q. C., Mr. Mellish, Q. C., Mr. Fraser and Mr. Bristow, appeared for the respondent.

The following opinions of the Law Peers fully state the facts, the authorities, and the legal reasoning.

The LORD CHANCELLOR :

My Lords, In this case the appellant prays a judicial declaration that the respondent is a bastard, and is not entitled to suc ceed to the entailed estates of Udny, in Aberdeenshire.

The question depends upon what shall be determined to have been the domicil of the respondent's father, the late Colonel Udny, at the time of his birth, at the time of the respondent's birth, and at the time of the Colonel's marriage with the respondent's mother.

The appellant, who argued his case in person with very consid erable ability, contended: First: That the domicil of origin of Colonel Udny was English. Secondly: That even if that were not so, yet that at the time of his first marriage, in 1812, he had abandoned Scotland for England, sold his commission in the army, took a house on lease for a long term in London, and resided there till he left England for France in 1844, for the purpose of avoiding his creditors; and that having thus acquired an English domicil, he retained it, and never re-acquired his Scotch domicil Thirdly: That, at all events, if he did recover his Scotch domicil, yet it was not recovered at the date of the respondent's birth in May, 1853, nor even at the date of the intermarriage of the respondent's parents in January, 1854.

As regards the first question, your Lordships did not hear the respondents. You were satisfied that Colonel Udny's father, the consul, had never abandoned his Scottish domicil. Consequently you held that Colonel Udny's own domicil of origin was clearly Scotch, that having been the domicil of his father at the Colonel's birth.

A more difficult inquiry arose as to the domicil of Colonel Udry at the date of the respondent's birth in May, 1853. *Colonel Udny appears to have left the army about the same time that he married his first wife, viz., in 1812,

[* 444]

when he executed a contract and other instruments connected with his marriage, containing provisions referable to Scottish law, and describing himself as of Udny, in the county of Aberdeen. He, on his marriage, however, took a long lease of a house in London, in which he resided till 1844. He made frequent visits to Scotland, but had no residence there. He at one time contemplated restoring Udny Castle and even three years after he had commenced his residence in London, appears to have still thought it possible that he might complete the restoration—and plans were about that time submitted to him for that purpose. For many years, however, he seems to have abandoned all hope of so doing, owing to his means being insufficient. He was appointed a magistrate in Scotland, but appears not to have acted as such. When in Scotland he usually resided with friends, but occasionally at hotels in the neighbourhood of his property; and he continually received detailed accounts of the estates, and took much interest in their management. His choice of England as a residence appears to have been considerably influenced by his taste for the sports of the turf. By his first marriage he had a son, John Augustus Udny.

The JUDGE ORDINARY and the Court of Session concurred in opinion that the long and habitual residence in England was not sufficient to amount to an abandonment of the Colonel's Scottish domicil of origin. This point, I confess, appears to me to be one of great nicety. I am not prepared to say that I am satisfied with that conclusion; but neither should I be prepared, without further consideration, to recommend to your Lordships a reversal of the judgment appealed from on the ground that the opinions of the Court below upon this point were erroneous.

Owing to this action having been raised in the Colonel's lifetime,, the Court below had the advantage of the testimony of Colonel Uday himself, a circumstance which does not often occur in questions of domicil. It appears to have been very candidly given, and (as was observed by the LORD ORDINARY) by no means overstates the case in favour of the continuance of his Scottish domicil.

Several other witnesses were examined, who do not carry the case further. But, be this as it may, the events in the Colonel's life, subsequent to 1844, appear to me to be [*445] those upon which the question of his domicil at the birth. of the respondent really depends.

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