down a new principle in Moorhouse v. Lord. It rather recalled the old principle from which the law of domicil started. The first thing to be considered is, did the person in question abandon his domicil of origin? Now, here we have the whole of the life of John Smith depicted before us from his birth to his death. He was, in a sense, entitled to an estate in Scotland at his birth. He looked forward to the enjoyment of this estate before he left Scotland, and after he left Scotland. The hope and intention of going back to Scotland and residing on his estate were always before him. Now, had the question ever been put to him during his residence in India, "Have you abandoned Scotland?" can there be any doubt of an answer in the negative? He may then be taken never to have abandoned Scotland. The case of Moorhouse v. Lord applies. He never abandoned his domicil of origin, and, therefore, Scotland was his domicil from his birth to his death. The Indian cases form a class by themselves. They amount only to this: that where a man accepted an office in the East India Company's service, there was a presumption that he intended to adopt an Anglo-Indian domicil. It was a presumption only, and, like all other presumptions, was liable to be rebutted by evidence of an intention not to adopt it. They have, at any rate, no bearing on any other case.

The same cases were cited as in the argument in the Court below.

Mr. Hobhouse replied.

LORD JUSTICE KNIGHT BRUCE (Feb. 28). -Had Mr. Smith been in the employment of the Government in India, I assume from the authorities that, to say the least, the burthen would have been on those asserting that his domicil remained Scotch at his death, to establish that assertion. But he was never in the service or employment of the Indian government. He resided in India while there, for the mere purposes of his private business, and appears always to have retained the wish and intention of

returning finally to Scotland. His correspondence and conduct appear to prove that distinctly. A permanent residence in India seems never to have been in his contemplation. It appears to me that his domicil of origin was never lost, or intended

to be lost, and that the conclusion of the Master of the Rolls was right. Some, at least, of Lord Kingsdown's observations in advising the House of Lords upon the case of Moorhouse v. Lord, as reported in 10 House of Lords Cases, 291, seem especially apposite to the present contention.

LORD JUSTICE TURNER.-This is a question of domicil. The case has been so recently before the Court, that it is unnecessary to state the facts. The Master of the Roils has been of opinion that the testator was domiciled in Scotland, and I concur in that opinion.

The point principally relied upon by the appellant, in support of his contention that there was a change of domicil from Scotland to India, was, the long-continued residence of the testator in the latter country. But nothing is better settled in the law of domicil, than that the domicil can be changed only animo et facto, and that, though the residence may be changed as to the factum, it cannot, when looked at with reference to the animus, be regarded otherwise than as an equivocal act. The mere fact of a man residing in a place different from that in which he had been before domiciled, even though his residence there may be long and continuous, does not of necessity shew that he has elected that place as his permanent and abiding home. He may have taken up and continued his residence there for some special purpose, or he may have elected to make the place his temporary home. A domicil, although in some of the cases spoken of as home, imports an abiding and permanent home, and not a mere temporary one. The effect of residence on domicil is well explained by Dr. Lushington, in his very able judgment in Hodgson v. De Beauchesne; and I entirely agree in the opinion which is there expressed on the subject.

In considering cases of this description it must be borne in mind, that the acquisition of a new domicil involves an abandonment of the previous domicil, and that, in order therefore to effect the change, the animus of abandonment, or, as Lord Cranworth has strongly expressed it, the intention exuere patriam, must be shewn. Whether this intention of abandonment may not be inferred from a long and continuous residence alone, in a case in which

there may be no other circumstances indicative of the intention, is a question which, in this case, it is unnecessary to decide, and on which therefore I give no opinion. Such a case can very rarely, if ever, occur.

In the course of the argument on the part of the appellant, reliance was placed on the cases which have been decided as to covenanted servants of the East India Company; but there are considerations connected with those cases which have no bearing on a case like the present. At the time when those cases were decided, the government of the East India Company was, in a high degree, if not wholly, a separate and independent government, foreign to the government of this country; and it may well have been thought that persons who had covenanted obligations with such government for service abroad, could not reasonably be con-sidered to have intended to retain their domicil here. They in fact became as much estranged from this country, as if they had become the servants of a foreign government.

There are several minor circumstances on which the appellant also relied: the purchase of land in India by the testator when he embarked in the indigo trade; his having retained his house in Calcutta during his temporary visit to this country in 1819; and the fact of his having been described as of Calcutta in his will, and in the other instruments which he executed on the occasion of that visit. But the purchase of the land in India was a necessary incident to the trade in which the testator was then engaged; his retaining a house in Calcutta was the necessary consequence of his intending to return to that place; and the description of him in his will, and in the other instruments, was almost necessary for the purpose of identifying him. These circumstances are, in my opinion, but of little, if of any, weight.

Supposing, then, the case had rested here, I should have felt scarcely a doubt upon it; but any possible doubt which there might have been seems to me to be wholly removed by the evidence on the part of the respondents. It appears by that evidence, that this testator was the only son of a Scotch laird, the proprietor of a considerable estate; that he went to India in 1805, when a minor, and did not

attain twenty-one till 1807.; that, on the death of his father in 1814, he became entitled to the surplus proceeds of the sale of the paternal estate, which was then heavily encumbered; that the estate, however, remained unsold; that he immediately on the death of his father wrote a letter to his mother indicating strongly his intention of ultimately returning to Scotland; that in 1819 he came over to that country, and during his residence there took an active part in the conduct and management of the estate, and that from the time of his return to India after this visit until the time of his death he kept up a constant correspondence with agents of the estate, in the course of which he constantly referred to his return, directed different parts of the estate to be planted, and mentioned his intention of building upon it; and, further, that he remitted money to be applied in paying off charges on the estate, and actually purchased an adjoining property; and that he caused himself to be put upon the roll of freeholders in his county. These are facts which, in my opinion, conclusively shew that this testator, so far from having abandoned his domicil in Scotland (which, it is to be observed, was his domicil of origin, and therefore not so readily to be considered as abandoned as an acquired domicil), desired at all times to retain it. It was attempted, on the part of the appellant, to displace the weight of this evidence by suggesting that the testator acquired a domicil in India before 1814, and thus to bring the case within the range of the authorities in which it has been held that a domicil cannot be resumed by intention merely. But I see no foundation for this suggestion. The evidence shews that there was correspondence before 1814 of similar purport to that which is above referred to. Besides, there could have been no change of the domicil before 1807, when the minority ceased; and the interval between 1807 and 1814 would, as I think, be too short to have operated the change of domicil in the absence of any evidence of intention to change it.

This appeal appears to me to be wholly unfounded, and should, I think, be dismissed, with costs.

Practice Administration Suit-Taxa

tion-Costs, Charges and Expenses properly incurred-Executors' Costs of other Suits.

Under an order in an administration suit to tax the costs of executors, including any costs, charges, and expenses properly incurred by them as executors not being costs in the cause, costs, incurred by them in their fiduciary character, of litigation, though unsuccessful, in other suits, may be allowed; and the omission of any directions in those other suits respecting the executors' costs is not equivalent to a refusal of them out of their testator's estate.

After the ordinary decree in a creditors' suit had been made at the Rolls against executors, a bill was filed, in the Court of one of the Vice Chancellors, against the execu tors, and against a former partner of their testator, to establish a claim arising out of a misrepresentation made by the testator and his copartner, in respect of which the plaintiff had already recovered at law against the surviving partner. The executors, without applying for directions in the administration suit, defended this new suit; and a decree for an account, without costs, was ultimately made against their testator's estate:-Held, that having regard to the previous proceedings at law, the executors ought not to be allowed the costs of defend ing the second suit down to the hearing; but held also, it appearing that a claim had been carried in, in the first suit, by the plaintiff in the second suit, but adjourned until after the decision in the second suit, that they ought to be allowed their costs of the second suit subsequent to the decree.

In March 1850 Mr. Rawlins bought, for 2,5007., a share, and was admitted as a partner in the Winchester and Hampshire Bank, which was at the time conducted by Mr. James Wickham, the testator in the cause, and Mr. Bailey. But the affairs of the firm becoming involved, mainly owing, as was shortly afterwards discovered, to the defalcations of a clerk (1), the business was

(1) See Wickham v. Gatrill, 2 Sm. & Giff. 353.

transferred to the Hampshire Banking Company, on the terms that the three partners should be personally liable to refund to the latter company what it should pay in respect of the debts of their bank over and above the assets. Under this agreement the three partners became largely indebted to the Hampshire Banking Company.

Mr. James Wickham died, in October 1855, insolvent, but having by will given his property, real and personal, to his three sons, the defendants, one of whom had since died, on certain trusts, with a bequest of the ultimate residue to them and his daughter for their own benefit. The executors proved the will in February 1856; and, on the 25th of April in the same year, the Hampshire Banking Company commenced an action, for the recovery of their debt against them as such executors, and at the same time against Messrs. Rawlins and Bailey. These proceedings were suspended, an administration suit, Graham v. Wickham, having been instituted against the executors by a separate creditor of Mr. James Wickham on the 26th of April 1856. But on the 3rd of January 1857 the Hampshire Banking Company commenced fresh actions against Rawlins and against the executors. A decree was made in Graham v. Wickham, on the 17th of January 1857.

In May 1855 Rawlins had brought an action against James Wickham the testator and Bailey for damages, on the ground of a misrepresentation by them of the assets of their firm, by which he was induced to join it. On James Wickham's death this action was continued against Bailey alone; and, on the 3rd of July 1856, a verdict was obtained against Bailey, subject to a reference to Mr. (now Justice) Keating. The executors attended before the arbitrator; and an award was made, in December 1856, in favour of Rawlins for 11,800. Bailey, however, being insolvent, no part of this sum was paid, except a sum of 3001. on account of costs.

In February 1857 Rawlins filed a bill, Rawlins v. Wickham, before Vice Chancellor Stuart, against the executors and Bailey, to have the partnership entered into by him declared void, and for an indemnification out of James Wickham's estate for the losses arising to him through having joined

the firm, which he alleged himself to have been induced to do by James Wickham's misrepresentations. The bill prayed accounts of the partnership transactions and of James Wickham's real and personal estate, and for the appointment, if necessary, of a receiver of the partnership assets, and also of the outstanding assets of James Wickham, and the rents and profits of his real estate. But no application was in fact made for the appointment of a receiver till the institution of the suit of Wickham v. Bailey.

In April 1857, Rawlins carried in a claim, in Graham v. Wickham, against James Wickham's separate estate; and this claim was subsequently adjourned to abide the result of the hearing in Rawlins v. Wickham.

In the same month the executors themselves filed a bill, in the Rolls Court, against Rawlins and Bailey, to take the partnership accounts, and for the appointment of a receiver. This suit, Wickham v. Bailey, was transferred to Vice Chancellor Stuart's Court; and a receiver was appointed in the two suits.

In May 1858, upon the hearing of the two suits, a decree was made in Rawlins v. Wickham, but without costs, declaring the partnership void, and that Bailey and the estate of Wickham were bound to repay Rawlins the 2,500l. paid by him as the consideration for a share of the business, and to indemnify him against the liabilities of the firm, and directing an account of what was due in respect of the 2,500l., and of the plaintiff's payments and receipts in respect of the partnership business, and the plaintiff was to be at liberty to go in under the decree in Graham v. Wickham. The other suit, Wickham v., Bailey, was at the same time dismissed without costs (2).

The executors appealed; but the decree was confirmed by the Lords Justices in December 1858, with the variation that the executors were declared entitled, in their accounts with Rawlins, to the benefit of any sums which the latter might recover from Bailey at law over and above the costs of the action. No costs were given of the appeal (3).

On the 4th of June 1860, a further order

(2) 1 Giff. 355.

(3) 3 De Gex & J. 304 ; s. c. 28 Law J. Rep. (N.S.) Chanc. 188.

The

was, by consent, made in the cause of Rawlins v. Wickham, directing an account of the partnership assets come to the hands of either of the parties to the cause. accounts in Rawlins v. Wickham were subsequently prosecuted in the chambers of Vice Chancellor Stuart, and the taking thereof was attended by the solicitor for the executors, and upon their opposition a sum of 2,000l. and upwards was disallowed to Rawlins, and the chief clerk of the Vice Chancellor made his certificate, dated the 5th of May 1862, finding the amount due to Robert Rawlins, who was subsequently admitted as a creditor in Graham v. Wickham for the amount so found due, with subsequent interest, the evidence in support of his claim being the certificate in Rawlins v. Wickham.

The chief clerk made his certificate in Graham v. Wickham on the 28th of July 1862, and by the order made in that cause on further consideration, on the 5th of December 1862, the Master of the Rolls directed a reference to the Taxing Master to tax the plaintiff and the defendants their costs of the suit, also the costs of Rawlins from the 2nd of November 1859, the costs of the defendants as between solicitor and client, the said several costs to include any costs, charges, and expenses properly incurred by the defendants as executors and trustees of the said testator, not being costs in the cause; and the order directed, in effect, that the separate creditors of the testator should be paid their debts out of his separate estate, and that the balance of that estate, after payment of costs, should be apportioned amongst the joint-creditors of the testator, including Rawlins, in respect of the amount for which he had been admitted creditor as above mentioned.

The defendants claimed to have allowed to them under the order made by the Master of the Rolls the costs of the suits of Rawlins v. Wickham and Wickham v. Bailey; and, the Taxing Master having refused these costs, they sent in objections which he disallowed, giving as his reasons that these costs "were not such costs as were intended by the Court under this direction in the order; that they were not costs incurred by them as executors and trustees in discharge of their fiduciary duty which ought to be paid out of the

trust estate, but that they were the costs of personal litigation for their own personal interests; and that the costs of this litigation had been already adjudicated upon by the Court before which the causes were heard." A motion by the executors to have it referred back to the Taxing Master to review his taxation in this particular was refused with costs by the Master of the Rolls on the 25th of July 1864.

Subsequently, there being then in court a sum of 6007., which had been carried over by an order of the 4th of August 1864 to a separate account in the cause of Graham v. Wickham, entitled "The Costs Account," the executors petitioned for liberty to retain a sum of 150l. 6s. 9d. in their hands, in part payment of their costs in Rawlins v. Wickham and Wickham v. Bailey, and for payment of any balance due to them in respect of those costs out of that 6007., after the payment of costs thereout directed by the order of the 4th of August 1864. But his Honour, on the 5th of December 1864, dismissed the petition with costs, being of opinion that it would be irregular to make the order asked, since the Vice Chancellor and the Lords Justices, in Rawlins v. Wickham and Wickham v. Bailey, had not directed that the executors should be allowed to apply in Graham v. Wickham for their costs in those two suits (4).

The executors now presented a petition of appeal from the orders of the 25th of July 1864 and the 5th of December 1864.

Mr. Hobhouse and Mr. G. Lake Russell, for the defendants, contended, first, as to the point of form, that it was competent, most convenient, and also the established practice for the Taxing Master, on an order granting "costs, charges, and expenses," to inquire whether any litigation, the costs of which were asked, had been necessary or expedient. The present form of the order in such cases was only an abbreviation of the old one, and the old form certainly gave the Master such discretion. It was, as given in Seton on Decrees (5): "And let the Taxing Master inquire whether the plaintiff (or defendant) has properly incurred any and what (4) 5 New Rep. 158.

(5) Vol. II., p. 767, No. IV, 3. (3rd edit.).

costs, charges, and expenses relating to the administration of the testator's estate, &c. beyond his costs of this cause," &c. It had been decided that under 6 & 7 Vict. c. 73. (the Attornies and Solicitors Act) the Taxing Master had a discretion to disallow costs where he thought that an action ought never to have been brought—

Re Clark, 1 De Gex, M. & G. 43; s. c.

21 Law J. Rep. (N.S.) Chanc. 20. There would, in fact, have been no doubt as to the Master's jurisdiction but for the case of Payne v. Little (6). But the ground in that case for not allowing the costs of certain actions under the direction respecting "costs, charges, and expenses," was, that there the costs of particular actions had been specifically asked for and given, whence a negative was inferred in regard to the costs of other actions not thus specified. As to the opinion of the Master of the Rolls, that the defendants should have asked the Vice Chancellor for liberty to apply in Graham v. Wickham for their costs in the proceedings before the Vice Chancellor, the dangers of appearing to interfere with the judicial discretion of a Judge in another Court as to the allowance of costs were shewn by—

Jones v. Jones, ante, 11.

-Secondly, as to the merits. There was no reason in this case to deviate from the general rule which allowed executors their costs of a suit undertaken by them. The same principle applied to them as to a receiver who having, without the sanction of the Court, successfully defended an action would be reimbursed his extra costs

Bristowe v. Needham, 2 Ph. 190. The case had been put on behalf of Mr. Rawlins as though the question were, whether these costs should be paid by him personally. But it was a mere accident that, Mr. Rawlins happening to be the principal joint creditor, the costs, if the appellant succeeded, would chiefly come out of his pocket. The one question really was, whether the costs had been incurred properly. If they had been, then they came necessarily within the administration of Mr. James Wickham's estate; and, till that estate had been administered, no part of it could be said to belong to Mr. Rawlins, or therefore to be taken from him, by being applied to the payment (6) 27 Beav. 83.