evidence to settle this question fully in my humble apprehension, and to settle it against the decision of the Court below. The whole question appears to me to turn upon what took place between the year 1794 and the year 1801, when the marriage took place. The party, Sir Hugh Munro, left Scotland, where it is not denied he had resided previous to that time. In the year 1794 he left Scotland, in consequence of some difference with his mother, and came to London: he there formed a connexion which ended in a marriage in September, 1801. But previously to that marriage, namely, on the 16th of May, 1796, the pursuer was born, the child of that connexion. Now up to 1794 it is perfectly clear that the domicile was Scotch, and it appears to be agreed on all hands that the rules which Sir WILLIAM GRANT, then Master of the Rolls, extracted, as he said, from various decisions, the Annandale case, Bruce v. Bruce, and other cases, to all of which your Lordships have been referred, were correct rules. The third of those rules which he extracted from decisions is very material in the present instance, and seems undeniable as the rule of the Scotch, as well as of the English Courts; and I apprehend it is the rule universally that, where a domicile has been constituted, the proof of the change of domicile is thrown upon the party who disputes it, and that you must show distinctly that there has been the animus as well as the factum; that there has been a desire and intention to change the domicile, as well as the fact of leaving that place of residence, in order to alter the former domicile and to acquire a new one. my Lords, looking at the facts here, I do not think that they amount to anything sufficient to support the conclusion of a change of domicile. The mere taking of the lease, as some of the learned *Judges well observed in the Courts below, is explained, and much that otherwise would not be so well understood is explained by the same circumstance; I mean, by the connexion which the party had formed with the mother of the pursuer. That he had a constant intention of returning is certain; and I do not go merely upon the words he uses in the correspondence, when he talks of returning, because that might only mean going back to the place from which he had come; but it is the whole disposition of his mind; that which appears to me through this correspondence shows that it was the fixed intention of Sir Hugh Munro to consider Scotland still as the place of his residence, and that his being in London or any part of England was occasional rather than permanent. Now, My Lords, for the reason which I have given, namely, that I had MUNRO v. MUNRO. [ *893 ] not the advantage of being present during the argument, I shall not enter into the consideration of the question of fact further than to say that upon looking at the whole of this case with very great care, under the pressure of that anxiety which one naturally feels not only upon a question of such great importance to the parties, but upon a question where it was likely that the inclination of one's opinion should be against the judgment of the Court below, I certainly have come to the same conclusion with my noble and learned friend. Admitting that there may be some doubtadmitting that there may be some conflict in the circumstantial evidence upon which that case must rest-admitting that there is considerable force in several of the arguments of the learned Lord, Lord COREHOUSE, who agrees with the majority of the Judges as to the law, but differs from my noble and learned friend himself, on the fact of domicile; yet still those objections are, in my opinion, sufficiently answered, and those doubts sufficiently explained, by the considerations which arise from the rest of the evidence, and from the peculiarity of the circumstances in which these parties were placed; and I think that upon the whole your Lordships are entitled, or rather are called upon, to consider that at the period of the marriage the Scotch domicile had not been changed, and that the parties were domiciled as Scotch parties at the time when the contract took place. The consequence of this will be, that if your Lordships adopt the opinion of my noble and learned friend upon the subject, upon those two points you will concur in the question of law with almost the whole of the learned Judges; that you will upon that question give no decision which in the least breaks in upon any former decision; on the contrary, you will give a decision which is in concurrence with the principle of the former cases which approach the nearest to the present; and that you will give a judgment, in my humble apprehension, which is consistent with all the principles of the law governing such matters: and that upon the question of fact alone, you are called upon to differ from the Judges of the Court below, differing also, it may be observed, from a very narrow majority of the Judges; for whereas six were of opinion that the domicile was Scotch, seven only were of opinion it was not. Agreeing, as I have said, with almost the whole of them upon the question of law, and upon the question of fact differing with those Judges in the very narrow majority of one, your Lordships will, I trust, agree with my noble and learned friend in a decision reversing the decision of the Court below. I have * already referred to the terms of the decision. I apprehend that the decision to be given upon this case is not a judgment absolutely and generally finding that the party is legitimate, but it is a judgment finding, according to the conclusions of the libel which proceeds upon the statements of the facts, that she ought to be found and declared as lawful daughter, entitled under the will as next heir of entail. It is rather a finding of her having the right, as heir of entail quasi lawful daughter, than in terms or in fact a distinct judgment affirming the legitimacy; it is rather a judgment that she is heir of entail, notwithstanding what happened as to her being born before the marriage, than a distinct judgment that she is legitimate; and it is so, taking into account that, in construing the Scotch law, "legitimate" may mean legitimate per subsequens matrimonium. In The Countess of Dalhousie v. M'Douall, the interlocutor was affirmed with costs. In Munro v. Munro, the interlocutor was reversed, and the cause remitted, with the declaration advised by the LORD CHANCELLOR. MUNRO 2. MUNRO. [ *894 ] WRIT OF ERROR FROM THE COURT OF KING'S BENCH. BIRTWHISTLE . VARDILL (1). 1830. (2 Clark & Finnelly, 571-600; S. C. 9 Bligh (N. S.) 32; 7 Clark & Finnelly, ALEXANDER, 895-957; S. C. West, 500). Questio status-Legitimacy. A child born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland (there being no lawful impediment to their marriage, either at the time of the birth or afterwards), though legitimate by the law of Scotland, cannot take, as heir (2), lands of his father in England. C.B. 1835. Sept. 2. 1839. July 2. 1840. July 20. August 10. Lord L.C. Lord Lord LYNDHURST. Lord DENMAN. IN Hilary Term, 1825, the plaintiff in error brought an action of trespass and ejectment against the defendant in error, for one COTTENHAM, undivided third part of lands situate in several parishes in Yorkshire, and the same was tried at the Yorkshire Spring Assizes of BROUGHAM. that year, when the jury found a special verdict; which was in substance, that William Birtwhistle, being seised in his lifetime, in his demesne as of fee, of and in one undivided third part of and in (1) As to the status of the child in England and elsewhere, see Skottowe v. Young (1871) L. R. 11 Eq. 474, 40 L. J. Ch. 366; In re Goodman's Trusts (1881) 17 Ch. Div. 266, 50 L. J. Ch. 425; In re Andros, Andros v. Andros, (1883) 24 Ch. D. 637, 52 L. J. Ch. 793; as to the adoption of the English law in Trinidad, (2) The rule does not apply to a Lord WYNFORD. [ 2 Cl. & F. 571] the premises mentioned in the declaration, died so seised on the 12th of May, 1819, without leaving any issue of his body; that all the brothers of the said William Birtwhistle had died, in his life-time, unmarried and without issue, except Alexander, who married and had issue in the manner hereinafter mentioned: That the said Alexander Birtwhistle went from England to Scotland in the year 1790, and became domiciled there, and dwelt there until the time of his death; that one Mary Purdie was also a person dwelling and domiciled in Scotland during the whole time that the said Alexander Birtwhistle was domiciled there, and the said Alexander Birtwhistle did there cohabit with the said Mary *Purdie, and did beget upon her the said John Birtwhistle (the plaintiff in error), who was their only son, and was born in Scotland on the 15th of May, 1799; that on the 6th of May, 1805, the said Alexander Birtwhistle and Mary Purdie were married in Scotland, according to the laws of Scotland, and on the 5th of February, 1810, the said Alexander Birtwhistle died in Scotland, seised to him and his heirs of divers lands and tenements there situate, leaving the said John Birtwhistle him surviving, who, after the death of his father, was duly, according to the law of Scotland, served heir to the said lands and tenements of the said Alexander Birtwhistle, and now holds and enjoys the same in his own right, having from the time of his birth hitherto remained in Scotland, and been domiciled there; that if a marriage of the mother of a child with the father of such child takes place in Scotland, such child, born in Scotland before the marriage, is equally legitimate by the law of Scotland with children born. after the marriage, for the purpose of taking land, and every other purpose, &c. (1). The question was, whether he could, as heir of his father, take the lands in England. The case was argued by Mr. (now Lord Chief Justice) Tindal, for the plaintiff, and by Mr. Courtenay for the defendant; and the COURT, consisting of Lord Chief Justice ABBOTT (afterwards Lord TENTERDEN), and Justices BAYLEY, HOLROYD and LITTLEDALE, gave judgment for the defendant. The present writ of error was then brought, and the matter was argued in 1830 before the Judges, and a question was put to them, and they took time to consider it. (1) It was admitted on the argument in the Court below, that the Scotch law was not correctly stated in the case, but should have had subjoined to it this qualification: "if begotten and born while such father and mother respectively were unmarried, and if they respectively continued unmarried from the time when such child was begotten until their intermarriage." (See 5 B. & C. 438 et seq.) ALEXANDER, C. B., subsequently delivered their opinion as follows: My Lords, in this case the Judges have agreed upon the answer which is to be given to the question put to them by your Lordships. The question is: "A. went from England to Scotland, and resided and was domiciled there, and so continued for many years till the time of his death. A. cohabited with M., an unmarried woman, Scotland, and had by Several years after the during the whole period of his residence in |