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DALHOUSIE

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COUNTESS OF confined, it could have no operation in the present case; for here the birth and the form of marriage, such as it was, were both English. M'DOUALL. The civil law gave a bastard rights independent of the father. The English and the Scotch law refused to do this; and in that, as in many other things, such as the disposition of property by will, there was the greatest difference between the Scotch and the civil law. The one cannot, therefore, be universally cited as authenticating or justifying the other.

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The Attorney-General, interrupting the reply, asked leave to read the following passage from Balfour's Practics (1), in order to show that at the time of the publication of that work, the doctrine of legitimation by subsequent marriage was well known in Scotland, and the mode of proceeding in the Courts settled: *" If any children be begotten and born between ane man and ane woman, not being at that time joined in the bands of marriage, and thereafter it shall happen that the same man shall lawfully marry the same woman, the bairns begotten and born before the completion of the same marriage are made lawful, and may sue as right heirs to their parents. And if any controvert or question whether they were begotten or born before the completion of the said marriage, the same shall discussed be before the Spiritual Judge, as is immediately before said of bastardy."

Sir F. Pollock continued:

That quotation proves the previous assertion. The law was introduced by the spiritual Judges. It must of course be taken, on Balfour's authority, that such was deemed to be the law at that time. That was in the time of Queen Mary, who had directed this law to be administered by the Bishops. Still it is curious that it is not found in the subsequent authority of Lord Stair. The question of domicile is as little known in the Scotch as in the English law: in both it has only been recently introduced, and introduced for certain purposes. It has not been borrowed from the civil law: it could not exist there, for the universality of the Roman empire prevented such a doctrine from being of any importance. The argument respecting allegiance has not been fairly met. It was put on the supposition of a case like this arising before the union of the two Crowns. In such a case it is clear that birth here would constitute the child an English subject, and his status would in

(1) P. 239, s. 9.

DALHOUSIE

v.

M'DOUALL.

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all respects be settled by the English law. In Rose v. Ross, Lord COUNTESS OF LYNDHURST said, "It is sufficient that the child should have been born in a country in which illegitimacy is indelible; *no subsequent marriage could render him legitimate." If that principle should not be adopted, if any rule to ascertain the status of a person should be allowed besides the intelligible rule of the place of his birth, the greatest confusion will be introduced into the law, and every case will be made to depend on the doubtful issue of various and conflicting laws.

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Lord

L.C.

Lord BROUGHAM,

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A Scotch gentleman of rank and fortune left Scotland in 1794, and came on a visit to London. In the course of that year he became acquainted COTTENHAM, with an English lady. In 1795 he took lodgings for her in London, where, in 1796, a child, the fruit of their intercourse, was born. He then took a house on lease and furnished it, and continued to reside in that house with her till 1801, unmarried. In September of that year he married her in an English church. In 1802 he returned to Scotland, taking with him his wife and child, and settled himself in his patrimonial mansion. During the whole period of his residence in London he had been accustomed to write letters to Scotland, declaring from time to time his immediate intention to return, and desiring things to be done which could only be necessary on that account: Held, that he had not lost his Scotch domicile, and therefore that his marriage was in all respects a Scotch marriage, and his child capable of succeeding as his lawful heir to entailed estates. THIS was an action of declarator of legitimacy, brought by the appellant for the purpose of establishing that she was the lawful daughter of Sir Hugh Munro, of Fowlis, Bart., and as such the heiress of entail entitled to succeed to the estates of Fowlis. Sir Hugh held those estates under an entail to him and the heirs male, and failing heirs male, then to the heirs female of his body. The respondents, in the event of failure of heirs of the body of Sir Hugh, would succeed to the estates. Sir Hugh Munro succeeded on the death of his father, in 1781, to the estates at Fowlis, and to the dignity of a baronet, but was then under age: he attained his full age in 1784. He took an active share in the management *of his

(1) See cases referred to in notes, p. 86, ante; In re Patience, Patience v. Main (1885) 29 Ch. D. 976, 54 L. J. Ch. 897; In re Grove, Vaucher

v. Sol. to Treasury (1888) 40 Ch. Div.
216, 58 L. J. Ch. 57; In re Craignish,
Craignish v. Hewitt [1892] 3 Ch. 180,
67 L. T. 689 (C. A.).-R. C,

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MUNRO

v.

MUNRO.

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own estates, and was frequently an attendant at the sittings of the town council of Fortrose, to which he was admitted a member soon after becoming of age. In 1785, 1787, and 1788, he visited the Continent, but always returned to Scotland, where he resided, not at the family mansion, Fowlis Castle, but at Ardullie, a house belonging to his mother. He resided with her till 1794, when, in consequence of some differences with her, he left Scotland professedly on a short visit to London. In November of that year he became acquainted with a Miss Mary Law in London, and an attachment arose between them. In October, 1795, her pregnancy being declared, he took apartments for her in Balsover Street, Oxford Street, where, on the 14th of May, 1796, the appellant was born. He afterwards took a house on lease in Gloucester Place, Portman Square, where he and Miss Law resided together till 1801. In September of that year he married her at the parish church of St. Mary-le-bone, according to the form of the ritual of the Church of England. He continued to reside in London for some months after his marriage, but then broke up his establishment in Gloucester Place and went to Scotland, and there introduced his wife and daughter to his friends and connexions. In August, 1803, Lady Munro and two female attendants were drowned while bathing on the shore near Fowlis Castle. As some rumours had been raised of the legal incapacity of Miss Munro to succeed as heiress to the entailed estates, the suit for declarator was brought to determine that question. The conclusion of the summons was, that "it should be found and declared that the pursuer, the said Miss Mary Seymour Munro, as lawful daughter, and at present only lawful child, of the said Sir Hugh Munro, is entitled, failing her said father and heirs male of his body, to succeed to the estate of Fowlis and others, in virtue of the clause of destination and other clauses in the entail aforesaid; and that she has a vested interest therein, and jus crediti over the same, as heir female procreate of the body of Sir Hugh Munro." The LORD ORDINARY (COREHOUSE) reported the case to the Lords of the First Division of the Court of Session, by whom the other Judges were consulted. In this, as in the preceding case, the LORD PRESIDENT thought that the domicile of the father had nothing to do with fixing the status of the child; but he was also of opinion, that if it had, then the domicile was altogether English, and therefore the child was indelibly impressed by the law of England with illegitimacy. Six of the other Judges thought the

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child legitimated by the subsequent marriage, on the ground that the domicile of the father was Scotch; six others thought the domicile was English, and therefore that the appellant was illegitimate. In accordance with the opinion of the majority of the Judges, a decree was pronounced relieving the defenders (the respondents) from the conclusions of the libel. This was the decree now appealed from.

Mr. Pemberton, for the appellant:

*

The arguments here will be confined as much as possible to those points in which this case differs from that of Dalhousie v. M'Douall, and to those which the discussion in that case has suggested. The first distinction between the two cases is to be found in the conclusion of the summons, which in the present case does not seek for a declarator as to the status of the appellant, but, according to the terms of the entail, prays that she may be declared entitled, as persona designata, as immediate heir in succession after the death of Sir Hugh, to the estate of Fowlis. If by the Scotch law the appellant is the heir of Sir Hugh Munro, she is entitled to have the judgment of the Court below reversed, and the declarator directed to be in her favour. The question of the domicile of Sir Hugh Munro, at the time of the birth of the appellant and at the time of his marriage, is most important. All the circumstances here show it to have been a Scotch domicile. Six of the Judges were of opinion that it was an English, six that it was a Scotch domicile; but all twelve agreed, that if the domicile was English, Miss Munro was not entitled; if it was Scotch, she was entitled to the declarator prayed for. The thirteenth Judge, the LORD PRESIDENT, was of opinion that domicile had nothing to do with the matter, which must be decided by the place of the birth of the child, and that that being English, the status of illegitimacy had indelibly attached itself to her. This case therefore is unprejudiced by anything which has occurred in the Court below; and if this House should be of opinion that the domicile was Scotch, the course will be to affirm the judgment of the twelve Judges who thought that that would of itself entitle the appellant to the declarator which she sought to obtain. It may now be assumed, for the purposes of this argument, that the place of the marriage is immaterial. The foundation of this appellant's title is the domicile of Sir Hugh Munro, her father. If that is Scotch she is entitled to what she asks. The principle is laid down very clearly

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in the case of Somerville v. Somerville (1), where it was held that
the mere place of birth or death does not constitute the domicile,
the *domicile of origin, which arises from birth and connexions,
remaining until clearly abandoned and another taken. The
MASTER OF THE ROLLS there said (2), "The third rule I shall
extract is this, that the original domicile, or, as it is called, the
forum originis, or domicile of origin, is to prevail until the party
has not only acquired another, but has manifested and carried into
execution an intention of abandoning his former domicile and
taking another as his sole domicile." In England, the domicile
of a family follows that of the father; his domicile is that of his
family. We propose here to show by the evidence that Sir Hugh
was clearly by domicile of origin Scotch; that he retained that
without interruption or doubt until 1794; that when he left
Scotland in that year he did so with no intention of abandoning
his Scotch domicile, but merely to pay a visit, as any other
gentleman might do, to another country, and to return at the
end of his visit; that though he remained in England from 1794
to 1802, he had never any intention of abandoning his Scotch
domicile, but looked on himself and required others to look upon
him as a person who was temporarily absent from his home, but
who, though constantly prevented from executing his intention,
had the most settled intention of speedily returning to it. On
attaining his full age in 1784, the first thing he did was to make
use of his newly-acquired power, in order to sever the only tie he
had with England. He had succeeded to the estate of Woodlands
in Dorsetshire; his father got that estate through Sir Hugh's
grandmother. His father died indebted. The Scotch estates were
equally liable with the English estates to the payment of those
debts; *but the first thing he did was to sell the English estates
for the payment of those debts. That was a strong indication of
intention, and the more so as the estates sold for 30,000l., being
considerably more than the amount that was necessary for the
purpose of the payment, and the surplus of the money thus
obtained he invested in property in Scotland. (The learned
counsel here went through a series of letters written by Sir Hugh
when on his travels before he was of age, upon his attaining
twenty-one, and while residing in London after 1794, with the
view of showing that he had always considered Scotland as his
home, and that when staying away from Fowlis he was perpetually
(1) 5 R. R. 155 (5 Ves. 750),
(2) 5 R, R. 161 (5 Ves. 787).

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