HUNTLY (MARCHIONESS) v. GASKELL, H.L. Brooks at the date of his second marriage in 1879, or at the date of his death in 1900, lost his English domicil of origin, and acquired a domicil of choice in Scotland?'

After a review of the authorities, the learned Lord President (with whom the other Judges concurred) came to the conclusion that Sir William Cunliffe Brooks had not abandoned his English domicil.

Eve, K.C., and Lord Kinross (of the Scottish Bar) (Coldridge with them), for the appellants.-Sir William Cunliffe Brooks had clearly intended to make Glen Tana his permanent home; he always spoke of it with affection, and as his "true home." For thirty years his visits to England were brief, and for business or political purposes only. The test of domicil lies in the intention, and the intention is evidenced by conduct. It is abundantly clear that the testator intended to reside for the rest of his life in Scotland.

[They cited the authorities which are always referred to in cases on domicil.]

Sir Edward Clarke, K.C., The Lord Advocate (T. Shaw, K.C.), W. J. Cullen, K.C. (of the Scottish Bar), Charles Church and J. Adam (of the Scottish Bar), for the respondents, were not heard.

EARL OF HALSBURY.-Notwithstanding the length to which this case has gone, and the exhaustive learning that has been brought to bear upon it in the Courts below and at your Lordships' Bar, it appears to me that it turns upon a very small point, and I myself have not been from the first able to entertain the smallest doubt that the judgment of the Lord Ordinary in the first instance, and the Inner House afterwards, was perfectly correct. More than once in the course of the case I have had occasion to observe that I do not believe that there is any question or doubt about what the law on the subject is. It is very often a question of complicated facts from which the tribunal has to infer a variety of things with reference to the domestic and commercial life of the person whose status is being enquired into; and naturally, when that is the case, there has been a great

variety of forms of expression, sometimes figurative, which the learned Judges from time to time have used in order to indicate what the particular facts then in debate before them point to as the principle upon which the question should be decided. I myself have entertained no doubt what that question is, and the way in which it should be decided, but, of course, other minds take different views about the mode in which it should be expressed. I myself think that it is expressed very well indeed by Lord Curriehill, approved and quoted by Lord President Inglis in the case of Steel v. Steel [1888]. "It is, I think," says the learned Judge, "by no means an easy thing to establish that a man has lost his domicil of origin, for, as Lord Cranworth said in the case of Moorhouse v. Lord [1863],2 In order to acquire a new domicil a man must intend Quatenus in illo exuere patriam,' and I venture to translate these words into English as meaning that he must have a fixed intention or determination to strip himself of his nationality, or in other words to renounce his birthright in the place of his original domicil. The serious character of such a change is very well expounded by Lord Curriehill in the case of Donaldson v. M'Clure [1857].3 He says, To abandon one domicil for another means something far more than a mere change of residence. It imports an intention not only to relinquish those peculiar rights, privileges, and immunities which the law and constitution of the domicil confer on the denizens of the country in their domestic relations, in their business transactions, in their political and municipal status, and in the daily affairs of common life, but also the laws by which the succession to property is regulated after death. The abandonment or change of a domicil is therefore a proceeding of a very serious nature, and an intention to make such an abandonment requires to be proved by satisfactory evidence.'"

I do not believe that it could be expressed more clearly or distinctly than it is in that judgment; and, applying that

(1) 15 Rettie, 896, 908.

(2) 32 L. J. Ch. 295; 10 H.L. C. 272.
(3) 20 Dunlop, 307.

somewhere, which of course involves residence as part of it; and if it was suggested that a man had gone to settle at some particular place and had abandoned all other connection and all other country, I think that inference might be natural and just; but to suggest in the case of, a man of great wealth, who is wandering from one place to another from time to time, although he may spend a larger part of his time in Scotland than elsewhere, that that of itself should be anything from which anybody could draw an inference that he meant to change his domicil, seems to me a very monstrous proposition.

HUNTLY (MARCHIONESS) v. GASKELL, H.L. principle to the question now before your Lordships, I say that I regard with something like amazement the fact that the question should have been debated so long under the circumstances which are in proof before your Lordships. I should have thought that it was very difficult indeed to suggest with respect to this particular testator that there was the slightest indication in any part of his career of an intention to abandon his domicil of origin. He was an Englishman, his property in great measure was in England, his constituency which he represented in Parliament was in England, and I should have thought that it was impossible to doubt that there were at least three residences which he had, about which it might have been equally said he made his home there. It does not follow that they were all three equally popular with him, or any one of three the main abiding-place for the greater part of the year during which he lived in each of them in turn. But what is the inference to be derived from that? I should have thought that the obvious inference which anybody would draw would be that there was no intention to change his domicil. That he had three residences is true; but unless you can shew something else than the fact that a man of great wealth, who had three residences, preferred one rather than another, either in respect of sport at the earlier period of his career or in respect of the state of his health at a later part of his career, clearly he found that Glen Tana agreed with him better and that the air was better, are you to infer, or is there any evidence from which you can infer, an intention to change his civil status? It seems to me that every part of his career points to the same conclusion. Being a very wealthy man, and doing whatever he liked to do, he might go to Antibes at one time with as much idea of change, in the sense of changing his status at Antibes, as at Glen Tana; but the real truth was that no change of any sort or kind is suggested by what he did. It is admitted that mere residence is in itself nothing. There may be continuous residence, or, what I think has been appropriately suggested as being the most satisfactory word to use," settling"

Now upon one part of this case I confess it appears to me that sufficient reliance has not been placed by those who have had this matter under discussion, and that is the nature of the man himself, the sort of character he had, and what he was endeavouring to settle. These are all elements to be taken into consideration when you come to this question. The idea had occurred to him during his lifetime that some question might arise as to his domicil; he had seen some case in the Scottish Law Reports which suggested to him that there might be some question raised after his death, and he had been dealing very accurately and carefully with the question of how he was to settle his affairs. He applies to a lawyer whom he had great confidence in, and says, "Now, is it true that I am a domiciled Scotchman?" Can any one doubt what the meaning of that was? I must say I infer, together with all the other learned Judges who have dealt with this question, that what he meant was to satisfy his own mind, because he thought some question, which unfortunately has, notwithstanding his care, arisen, might arise after his death. He wanted to be advised whether there was anything he could do in order to prevent such a question arising, upon which he is assuredand I think accurately assured-by the learned gentleman who was advising him, that there was no doubt whatever that he was an Englishman, and that he need not trouble himself about any questions which might arise on the difference between Scottish and English law and the suggestion

HUNTLY (MARCHIONESS) v. GASKELL, H.L. that he was a Scotchman. More than once he has this assurance given to him. Now is there the slightest evidence that after that he did or said, or desired to do or say anything which could raise any doubt upon the matter about which he had been so completely assured by his legal adviser? Of course, the answer must be that there was nothing. What is the inference which your Lordships must draw from that? To my mind it is perfectly clear that he knew, because it had been explained to him-he was not without advice-what the distinction was, and what domicil meant, and the assurance that he was an Englishman contented him and satisfied him, and he did

hausted by the Scottish judgments, and the only conclusion is that the appeal ought to be dismissed.

HUNTLY (MARCHIONESS) v. GASKELL, H.L. when addressing Deeside people-as his true home, and the place where he felt at home. But it is a fallacy to regard this as an election of one home in substitution for another. A great many people who have a house in town and a house in the country have two homes-they speak of them as such, each is the home when the household gods are there; and the country house, being the place of recreation, is generally the object of the more exuberant expressions of attachment.

But, speaking of the present case, it seems to me that this attempt to turn a strenuous English banker and great landed proprietor into a Scotchman is, on the face of the broad facts, hopeless. The good sense as well as the law of the matter were, as has been mentioned by my noble and learned friend on the woolsack, expressed by Mr. Wood in answer to what clearly was the alarmed enquiry of Sir William, "Am I a domiciled Scot?" "No; your domicil of origin is English. Although you have a residence in Scot land, you have not abandoned your English domicil." And in Sir William's own considered descriptions of himself for books of reference the true perspective of his English and Scottish connections is restored.

I think it wholly unnecessary once more to examine the authorities on the law of domicil, as the facts of this case do

not come near any question of delicacy. I have only to add an expression of regret that the parties should have brought on themselves such enormous expense by exploring and presenting minute and complicated details when the broader facts are conclusive.

LORD LINDLEY.-I am entirely of the same opinion. I have listened with great attention and great pleasure to the extremely able arguments addressed to us by Mr. Eve, but the conclusion which I have arrived at, after carefully considering the whole of the evidence to the best of my ability, is that the only intention which is consistent with the whole of this gentleman's conduct, and with what he said, is an intention not to abandon his English domicil. I quite agree. I think the case is quite ex

Appeal dismissed.

Agents - L. Weatherley, agent for Alex.
Morison & Co., W.S., Edinburgh, for appel-
lant; H. G. Church, agent for J. & A. F.
Adam, W.S., Edinburgh, for respondents.

1905.

[Reported by J. Eyre Thompson, Esq., Barrister-at-Law.

July 18, 19.
Nov. 7.

HAWTHORN CORPORATION

V.

KANNULUIK.*

Victoria-Local Government-SewerInsufficiency of Drainage.

A local authority which pours offensive matter into a receptacle or channel insufficient for the purpose, and thereby causes damage to private property, is guilty of negligence, and liable in damages to the owner of such property; and it is no defence that the system was sufficient at the time of its construction.

Appeal from a decision of the Supreme Court of Victoria affirming a judgment of Williams, J. The facts are stated in the

judgment. The case is reported 29 Vict.

L. R. 308.

Danckwerts, K.C., and Mark Romer, for the appellants.-There has been no breach of statutory duty, and, even if there be a nuisance, it was not created by the appellants. In these circumstances no action will lie against the corporation-Glossop v. Heston and Isleworth Local Board [1879].1 There has been no excess of powers or abuse of authority, and consequently no liability; the corporation have only allowed the user of the drain

Att.-Gen. V. Dorking Union [1882].2 There is therefore no remedy open to the appellants-East Fremantle Corporation

* Coram, Lord Macnaghten, Lord Davey, Lord James of Hereford, and Sir Arthur Wilson.

(1) 49 L. J. Ch. 89; 12 Ch. D. 102.
(2) 51 L. J. Ch. 585; 20 Ch. D. 595.

HAWTHORN CORPORATION v. Kannuluik.

v. Annois [1901],3 in which Sutton Clarke [1815] was approved. In the view most favourable to the respondent the corporation is not liable. for other drains for which they are not responsible-Raleigh Corporation v. Williams [1893].5 At most the appellants can only be charged with nonfeasance, and not with misfeasance, and it is well settled that a public body can only be made liable for the latter and not for the former Cowley v. Newmarket Local Board [1892] and Sydney Municipal Council v. Bourke [1895].7