Title. An Act for naturalising such foreign Protestants and others therein mentioned, as are settled or shall settle in any of His Majesty's colonies in America, An Act to extend the provisions of an Act An Act to explain two Acts of Parliament, one An Act to declare His Majesty's natural-born aliens. An Act to alter and amend an Act passed in An Act to amend the laws relating to aliens.. PART II. ACTS OF THE IRISH PARLIAMENT WHOLLY REPEALED. Title. An Act for encouraging Protestant strangers An Act for naturalising of all Protestant An Act for naturalising such foreign merchants, An Act for extending the provisions of an Act PART III. ACTS PARTIALLY REPEALED. An Act for reviving, con- Extent of Repeal. An Act for consolidating The whole of sect. 47. relative to Jurors and Juries. An Act consolidating and The whole of sect. 37. amending the laws relat ing to Jurors and Juries in Ireland. PART I. PERSONS. CAP. I. PART I. PERSONS. CHAPTER II. DOMICIL. CAP. II. Domicildefined and explained. By the law of England, and of all other civilised countries, each individual has ascribed to him at his birth two distinct legal status or conditions: one by virtue of which he becomes. the subject of some particular country, binding him by the tie of natural allegiance, which is called his political status or nationality, and which has been discussed in the preceding chapter; the other, by virtue of which he becomes the citizen of some particular country, as such possessed of certain municipal rights, and subject to certain obligations. This is called his civil status, entirely distinct from the first, which depends on different laws in different countries; whereas the civil status is governed universally by the single principle of domicil, the criterion established by international law for determining it.(a) As to the proper definition of domicil, much difficulty has always been felt. Dr. Phillimore defines it as "a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.”(b) There can be no doubt that this is the kind of residence which is essential to domicil, but the conception itself may be, perhaps, more accurately explained as the relation of an individual to a particular State which arises from his residence within its limits as a member of its community. There must be always one particular State towards which this relation exists, and there can never be more than one at the same time.(c) (Story's Conflict of Laws, § 45.) Mr. Westlake (Private International Law, § 30) asserts that domicil is "the legal conception of residence," particularised and defined only for the sake of legal precision; but as he admits immediately afterwards that residence is not (a) Per Lord Westbury in Udny v. Udny, L. R. 1 H. L., Sc. 460. (b) Phillimore's Law of Domicil, p. 13. Adopted by Lord Westbury in Udny v. Udny. In Bell v. Kennedy, L. R. 1 H. L., Sc. 307, the same judge said that domicil was "the relation which the law creates between an individual and a particular locality or country;" which is said in Abd-ul Messih v. Farra, 13 App. Cas. 431 ; 57 L. J. P. C. 91, to be more accurate. (c) As to the possibility of a double domicil, see Somerville v. Somerville, 5 Ves. In PART I. PERSONS. CAP. II. domicil, unless accompanied by the particular circumstances under which the law will recognise it, it is evident that such a definition is not entirely satisfactory.(a) What those circumstances are, is just the question which it is the object of definition to answer. Where a man resides is always a matter of fact,(b) and when this fact is once ascertained, the legal idea of domicil comes at once into existence. There must therefore be a territory or country with which to associate the idea of domicil; and mere residence in a community, exempt from the real local jurisdiction (as at Shanghai in China), will not do.(c) The domicil which attaches to a man at the moment of his Domicil of origin. birth, generally spoken of as the domicil of origin, is in ordinary cases that of his father; though where a child is posthumous or illegitimate (d) the domicil of its mother is necessarily taken to decide its own. Cases can of course be suggested where the domicil must be decided by the place of birth, or even some other place; as, for instance, in the case of a child found exposed, whose parents are unknown. ordinary cases, however, the domicil of origin is that of one of the parents, and during legal infancy it changes with that from which it is derived. Mr. Westlake points out (P. I. Law, § 37) that a married minor must be regarded as sui juris for the purposes of domicil, since on his or her marriage a new home is founded. In such a case the question would appear to be one of fact, and if the minor, after the ceremony of marriage, continued to reside with his or her parents, there would be no occasion to consider it, inasmuch as there would be only one locality to which the domicil could possibly be attributed. It is apparent that the domicil of an orphan must be decided by that of its legal guardian, and when this test cannot be applied, it becomes a question of the place where the child in fact resides. A doubt has, however, been raised, whether the legal guardian of an infant can change its domicil, with the effect in many cases of bringing it under the influence of a law of succession more favourable to himself. It is quite clear that when that guardian is a surviving mother, or even, it would (a) See Maltass v. Maltass, 1 Roberts, 74, and Munro v. Munro, 7 Cl. & F. 842. (b) Bempde v. Johnstone, 3 Ves. Jun. 201. (c) Tootal's Trusts, 23 Ch. D. 532. "Residence in a territory or country is an essential part of the legal idea of domicil": per Chitty, J., at p. 538. The same was held in Abd-ul Messih v Farra, 13 App. Cas. 431; 57 L. J. P. C. 78. And per Chitty, J., In re Craignish (1892), 3 Ch. 180, "The domicil of a person is that place or country in which his habitation is fixed, without any present intention of removing therefrom." (d) If, however, an illegitimate child have a father whose paternity is fixed, by acknowledgment or otherwise, the domicil of that father attaches to it: Re Wright's Trusts, 2 K. & J. 595. PART I. PERSONS. CAP. II. Domicil by acquisition. and transit. seem, a step-mother, and there is no suggestion of fraudulent intention, the change can effectively be made.(a) But if the mother marries again, and probably even without this contingency, the question appears to be one of fact, the mother having the power of changing the infant's domicil, or of abstaining from so doing.(b) A new domicil so acquired by an infant is not equivalent to a domicil of origin; i.e., it does not revert on any subsequent abandonment of the domicil acquired. In cases other than those of parent and child, there is more doubt, and Story suggests that it is extremely difficult to find any reasonable principle by which a guardian, not a parent, can alter by a change of domicil, the right of succession to the minor's property. English law is barren of authority on the subject, (c) but the inquiry as to what is sufficient to change the domicil of adults is a more fruitful one, and has given rise to a mass of litigation. The domicil of origin adheres until a new domicil is acquired, (d) and in the case of an adult this change is effected by a de facto removal to a new place of residence, together with Abandonment an animus manendi.(e) As to the factum of removal, it is apparently now settled by the case of Udny v. Udny (ƒ) that a new domicil is not acquired until the transit is complete, and that when a domicil of choice is abandoned, the domicil of origin revives until a new one is completely fixed. In Lord Hatherley's words in the case cited, a man may not only change his domicil, but also abandon each successive domicil simpliciter, so that the original domicil simpliciter reverts; and this doctrine was accepted and approved by the Master of the Rolls (Sir G. Jessel) in the later case of King v. Foxwell.(g) In the absence of evidence the domicil of origin must of course be presumed to have continued, so that the burden of evidence will be on the party who alleges its abandonment.(h) If the domicil of origin reverts when an acquired domicil is abandoned without a new one being acquired, it would naturally (a) Potinger v. Wightman, 3 Meriv. 67. (b) In re Beaumont (1893), 3 Ch. 490; In re Craignish (1892), 3 Ch. 180. (c) Story, § 506, n. ; Burge on For. and Col. Law, pt. i. c. 2, pp. 38, 39; Robertson on Succession, p. 196. (d) Bell v. Kennedy, L. R. 1 H. L., Sc. 307; Udny v. Udny, ibid. 460. (e) The Lauderdale Peerage, 10 App. Cas. 692; Douglas v. Douglas, L. R. 12 Eq. 617; Haldane v. Eckford, L. R. 8 Eq. 631; De Bonneval v. De Bonneval, I Curt. 864. (f) L. R. 1 H. L., Sc. 460. (9) L. R. I Ch. D. 518. (h) Crookenden v. Fuller, 29 L. J. P. & M. i ; The Lauderdale Peerage, 10 App. Cas. 692. |