No. 4. Bell v. Kennedy, 1 H. L. Sc. 319, 320.

the purchaser of Enterkine, which was after the period when the respondent's case requires that the domicil should be established. He was certainly upon the look-out (if I may use the expression) for a place in Scotland, and would no doubt have closed with any advantageous offer. But it seems to me to be equally clear that he

was not so wedded to the idea of a residence in Scotland as that if anything more eligible had presented itself in England he [*320] *would not have embraced it. To use his own expression upon his examination in the cause, he had " no fixed intention as to what he was to do for the future."

I think the respondents have failed to prove Mr. Bell's intention to acquire a new domicil before the death of his wife on the 28th of September, 1838; and therefore that the interlocutor finding that he became domiciled in Scotland at this date ought to be reversed.

Lord WESTBURY:

My Lords I have very few words to add to what has been already stated to your Lordships; and, perhaps, even those are not quite

necessary.

What appears to me to be the erroneous conclusion at which the Court of Session arrived is in great part due to the circumstance, frequently lost sight of, that the domicil of origin adheres until a new domicil is acquired. In the argument, and in the judg ments, we find constantly the phrase used that he had abandoned his native domicil. That domicil appears to have been regarded as if it had been lost by the abandonment of his residence in Jamaica. Now, residence and domicil are two perfectly distinct things. It is necessary in the administration of the law that the idea of domicil should exist, and that the fact of domicil should be ascertained, in order to determine which of two municipal laws may be invoked for the purpose of regulating the rights of parties. We know very well that succession and distribution depend upon the law of the domicil. Domicil, therefore, is an idea of law. It is the relation which the law creates between an individual and a particular locality or country. To every adult person the law ascribes a domicil, and that domicil remains his fixed attribute until a new and different attribute usurps its place. Now this case was argued at the bar on the footing, that as soon as Mr. Bell left Jamaica he had a settled and fixed intention of taking up his residence in Scotland. And if, indeed, that had been ascertained

No. 4.-Bell v. Kennedy, 1 H. L. Sc. 320, 321.

as a fact, then you would have had the animus of the party clearly demonstrated, and the factum, which alone would remain to be proved, would in fact be proved, or, at least, would result immediately upon his arrival in Scotland.

*The true inquiry, therefore, is, - Had he this settled [*321] purpose, the moment he left Jamaica, or in course of the voyage, of taking up a fixed and settled abode in Scotland? Undoubtedly, part of the evidence is the external act of the party; but the only external act we have here is the going down with his wife to Edinburgh, the most natural thing in the world, to visit his wife's relations. We find him residing in Scotland from that time; but with what animus or intention his residence continued there we have yet to ascertain. For although residence may be some small prima facie proof of domicil, it is by no means to be inferred from the fact of residence that domicil results, even although you do not find that the party had any other residence in existence or in contemplation.

The

I take it that Mr. Bell may be more properly described by words which occur in the Digest; that when he left Jamaica he might be described as quærens quo se conferat atque ubi constituat domicilium, Dig. lib. 50, t. 1, 27. Where he was to fix his habitation was to him at that time a thing perfectly unresolved; and, as appears from the letters which your Lordships have heard, that irresolution, that want of settled fixity of purpose, certainly continued down to the time when he actually became the purchaser of Enterkine. But the punctum temporis to which our inquiries are to be directed as to Mr. Bell's intention is of an earlier date than that. question is, had he any settled fixed intention of being permanently resident in Scotland on the 28th of September, 1838? I quite agree with an observation which was made in the Court of Session, that the letters are the best evidence in the case. To those letters your Lordships' attention has been directed, and whether you refer to the language of the wife's letters, or look exclusively at the language of the husband's letters written to his familiar friends or his relatives whom he had left in Jamaica, it is impossible to predicate of him that he was a man who had a fixed and settled purpose to make Scotland his future place of residence, to set up his tabernacle there, to make it his future home. And unless you are able to show that with perfect clearness and satisfaction to yourselves, it follows that the domicil of origin continues. And

therefore I think we can have no hesitation in answering the question where he was settled on the 28th of September. [* 322] It must be answered in this way: he was resident in Scotland, but without the animus manendi, and therefore he still retained his domicil of origin.

My Lords, it is matter of deep regret, that although it might have been easily seen from the commencement of this cause that it turned entirely upon this particular question, yet we find that ten years of litigation have taken place, with enormous expense, and an enormous amount of attention to a variety of other matters, which would have been wholly unnecessary if judicial attention had been concentrated upon this question, which alone was suffi cient for the decision of the case.

Lord COLONSAY:

My Lords, while I do not differ from the judgment proposed, I cannot say that the case has appeared to me to be so very clear and free from difficulty as it has appeared to my noble and learned friends. I think it is a case of nicety on the evidence. But having gone over that evidence more than once with much care, and having listened to the whole of the able argument for the respondents, I do not see any sufficient ground for rejecting the conclusion at which my noble and learned friends have arrived.

The principle of domicil is one which occupies a very prominent place in our law, and in the law of all civilized countries. It exercises an influence almost paramount in regard to personal status and rights of succession, as well as to political international relations. It has therefore necessarily undergone much discussion in all countries, and both in ancient and modern times. Yet there is, perhaps, no chapter in law that has from such extensive discussion received less of satisfactory settlement. That is no doubt attributable, in no small degree, to the nature of the subject, involving, as it does, inquiry into the animus of persons who have either died without leaving any clear record of their intentions, but allowing them to be collected, by inference, from acts often equivocal; or who, being alive and interested, have a natural, though, it may be, an unconscious, tendency to give to their bygone feelings a tone and colour suggested by their present inclinations.

I am not disposed to take the evidence of Mr. Bell as the corner-stone of my judgment. I agree with the respondents in

No. 4. - Bell v. Kennedy, 1 H. L. Sc. 323.

thinking that what Mr. Bell wrote at the time, and what [* 323] he did at the time, are better materials and safer grounds for judgment than what he says now. And I should have been of that opinion even if his evidence had been less open to criticism, and less vulnerable than it is.

The case presents itself to my mind in this light. Mr. Bell's domicil was in Jamaica - not only his domicil by residence and property, and as being the seat of his mercantile pursuits and all his worldly interests, but also his domicil of origin. To this last I attach considerable importance, though I think that the measure of its importance on the question of evidence may be, and in this case is, modified by other considerations, such as the previous history of his family, and of his wife's family, and his own early associations by residence in Scotland for twenty years from childhood until manhood. Still I think the circumstance that Jamaica was the domicil of origin is not unimportant in this case, and especially on the question as to the extinction of that domicil.

Then I think it is very clear that Mr. Bell left Jamaica with the intention of never returning, or, as it is expressed in some of the letters, he left it " for good." I further think that his leading desire at that time, and for some time previously, was to acquire a land estate in Scotland, which would give him a desirable residence, and be at the same time a good investment for his money. This last was, I think, a desideratum, for it appears that he intended to invest in that way the whole, or nearly the whole, of his fortune, and was even disposed to borrow £14,000 or £15,000 to enable him to make such a purchase as he desired. But I do not think that his having sailed from Jamaica with that intent extinguished his Jamaica domicil. I know of no authority for that proposition. There are dicta to the effect that if Scotland had been the domicil of origin, and he had bid a final adieu to Jamaica and sailed for Scotland, and had died in itinere, the domicil of origin would be held to have revived; but there is no authority for saying that a person dying in transitu from the domicil of origin to a foreign land, had lost the domicil of origin. He could not so displace the effect which law gives to the domicil of origin, and which continues to attach until a new domicil is acquired animo et facto. He cannot have acquired a domicil in a new country which he has never reached.

[* 324]

*But Mr. Bell did reach Scotland, and there the difficulty of this case begins. His leading desire was to find in Scotland an estate such as he would be disposed to invest his fortune in. He arrived in Scotland in June or July, 1837. He immediately set about prosecuting inquiries as to estates, chiefly in Ayrshire, Dumfriesshire, and Galloway. Among these was the estate of Enterkine. For that estate he made an offer in 1838, which was refused. He made a higher offer in 1839, which was accepted. I have no doubt that from the date of that purchase he was to be regarded as a domiciled Scotchman. The leading desire with which he left Jamaica and arrived in Scotland, and which during two years' residence in Scotland he still entertained, had now been realized. He had found a property such as he had desired, with a mansion that suited him. He invested his fortune in that purchase, and took up his abode in that mansion, — and he and his whole interest thus became, as it were, identified with that estate and rooted in the soil. The question here, however, is whether in September of the preceding year he had acquired a Scotch domicil.

To that question an affirmative answer was given by all the five learned Judges who considered the case in the Court below. A negative answer has been given by all my noble and learned friends who have now addressed the House. In these circumstances, and it being very much of a jury question, I may be excused for regarding it as a question of some difficulty.

The argument of the respondents that Mr. Bell, having quitted Jamaica for good, and gone to Scotland, where he had many attractions, with the avowed intention of investing his fortune in land in Scotland, and having indicated no disposition to make any other investment, his Scotch domicil must be held to have commenced from the time he arrived in Scotland and set about the prosecution and realization of that object, although in the mean time, while prosecuting his inquiries, he provided himself with a temporary habitation, was very forcibly put, and under certain supposable circumstances might be entitled to the greatest weight. I do not think that the acquisition of a permanent habitation by purchase or lease is necessary to domicil, neither do I attach importance to the circumstance that his inquiries or views were not always directed to the same estate, or to estates in the same country. [*325] If it was clear that *prior to September, 1838, there was