Author: Laurence Usunier

Jopp v Wood (No. 3), 55 E.R. 566 (1864) |

For educational use only
*566 Jopp v Wood (No. 3)
| No Substantial Judicial Treatment

Court
Court of Chancery
 
Judgment Date
2 December 1864
 
Report Citation
(1864) 34 Beavan 88
55 E.R. 566
 
1864
[88] Nov. 5, Dec. 2, 1864.
 
[Affirmed, 4 De G. J. & S. 616; 46 E. R. 1057; 34 L. J. Ch. 212; 12 L. T. 41; 11 Jur. (N. S.) 212; 13 W. R. 481. For previous proceedings, see 28 Beav. 53; 54 E. R. 285; 2 De G. J. & S. 323; 46 E. R. 400; 33 Beav. 372; 55 E. R. 411. See In re Tootal’s Trusts , 1883, 23 Ch. D. 537; Ex parte Cunningham , 1884, 13 Q. B. D. 425. Cf. Lady Brooks v. Brooks’ Trustees , 1902, 4 F. 1014; Winans v. Attorney-General [1904], A. C. 287.]
 
A domiciled Scotchman went to India where he was engaged in mercantile pursuits for nine years. Held, that this residence and occupation in India did not, in the absence of any expression of intention, change his domicil.
 
J. S., a domiciled Scotchman, went to India in 1805, where he followed mercantile pursuits for nine consecutive years. In 1816 he married there, and he returned to Scotland in 1819, with his wife, and remained there a year. While there, he described himself in his will, and in a bond, as “of Calcutta, presently residing at Ayre,” he obtained a plan for the improvement of his old family mansion, and was enrolled a freeholder of Ayrshire. He returned to Calcutta in 1820, and remained there until his death in 1830. During the nine first years of his residence in India he expressed no intention as to his domicil; but, during the last sixteen, he *567 expressed his intention of returning to Scotland, but which he never accomplished, except by his visit in 1819. Held, that the domicil of J. S., at his death, was Scotch, and that the domicil of his children, who were born in India, and died infants there, was that of their father.
 
The rule of law, that an engagement in India in the military service of the East India Company, or as a covenanted servant to that company, changes the domicil into Anglo-Indian, does not extend to a person who becomes the servant in a private establishment abroad, or who goes abroad for the purpose of acquiring a fortune, with the intention of returning, at some undefined period, when his object has been attained.
 
The case now came before the Court upon the petition of rehearing. (33 Beav. 372.) The question was as to the domicil of two children, Eleanor Smith and Mungo Smith, who died infants in India. Their domicil depended on that of their father John Smith, a domiciled Scotchman by origin, who went to India in 1805, and died there in 1860, having been engaged in mercantile pursuits for the whole of that period, except during a visit to Scotland in 1819. The facts are more fully detailed in the judgment of the Court.
 
Mr. Hobhouse and Mr. H. M. Jackson, in support of the petition.
 
Mr. Selwyn, Serjeant Atkinson and Mr. B. L. Chapman, for the principal Respondents, and Mr. Hanson, for the Crown.
 
The cases of Aikman v. Aikman (3 Macq. 854): Allardice v. Onslow (10 Jur. (N. S.) 352); Attorney-General v. Dunn (6 M. & W. 511); Attorney - [89] - General v. Kent (1 Hurl. & C. 12); Attorney-General v. Fitzgerald (3 Drew. 610); Bruce v. Bruce (2 Bosanquet & P. 229, n., and 6 Bro. P. C. 566); Cockerell v. Cockerell (2 Jur. (N. S.) 727); Drevon v. Drevon (10 Jur. (N. S.) 717); Forbes v. Forbes (Kay, 341); Lord v. Colvin (4 Drew. 366); Maxwell v. M’Clure (6 Jur. (N. S.) 407); Moorhouse v. Lord (10 H. of L. Cas. 272); Munroe v. Douglas (5 Madd. 379); Raffenell, In re the Goods of (3 Swab. & Tr. 49); Whicker v. Hume (13 Beav. 366), were cited.
 
Dec. 2. The Master of the Rolls [Sir John Romilly]. Upon the best consideration that I have been able to give this case, I am of opinion that the domicil of the infant children was Scotch. Their domicil depends on the domicil of their father, and the question is, whether at the death of John Smith, their father, his domicil was Indian or Scottish.
 
John Smith was born in Scotland in 1786, and down to 1805 his domicil was that of his origin, and therefore Scottish. In 1805 he went to India, and was engaged as a clerk in the banking firm of Ferguson & Co. at Calcutta. In 1807 he became an indigo planter. In 1811 he returned to the bank, and became a partner in the bank of Ferguson & Co. In January 1816 he married, in Calcutta, Eleanor Gale his wife. On the 6th of November 1817 Eleanor, one of his children, was born, and she died on the 13th of July 1818.
 
The present question I have to consider is, whether at this time, viz., the birth of the child in 1817, John [90] Smith had acquired an Indian domicil, and had lost his domicil of origin. With respect to his intention of remaining permanently or temporarily in India, there is no evidence whatever prior to the year 1814. In July 1819 he visited Scotland with his wife, and while there, in October 1819, he executed a bond, in which he described himself as “of Calcutta, presently residing in Ayr.” In December 1819 he made a testamentary disposition of his property, in which he described himself in like manner, as “of Calcutta, presently residing in Ayr.” He says in this instrument, “In case I happen to die abroad, I direct my trustees to pay the expenses of my dear wife to this country.” In 1819, also, he obtained plans for the improvement of his house at Drongan in Ayrshire, which was the old family mansion. In 1820 he was enrolled a freeholder of Ayrshire.
 
In October 1820 he returned to Calcutta; and on the 23d of August 1823 Mungo Smith the second infant child was born, and he died on the 3d of August 1824.
 
If the domicil of John Smith was Indian, when Eleanor was born and died, I am quite clear that he had not changed it in 1823 and 1824, when Mungo Smith was born and died.
 
In 1825 his wife set out on her return to England, she died on her voyage, in *568 May of that year, near the Mauritius; and in the same year he erected a monument to his wife in Calcutta. A year before his death he sent wine to Drongan for his own consumption.
 
On the 3d of December 1830 John Smith himself died at Calcutta.
 
[91] This is a short outline of ithe facts of the case, so far as related to his movements and his overt acts.
 
It is quite settled that two things are necessary to constitute a change of domicil; first, the factum of the change of residence; and next, the animus manendi . In other words, in order to effect a change of domicil, the person must have settled in a residence out of his former domicile, whether it be the domicil of origin or an acquired domicil; and he must also have the intention of making that residence his permanent home.
 
If John Smith had ever acquired an Indian domicil, it is clear that he never lost it, for the factum of a subsequent change of residence never existed. The real question, therefore, before me is, whether John Smith ever acquired an Indian domicil. This is certain: that in 1805 he went to reside in India, and that he continued to reside there till his death in 1830, with the exception of about a year that he spent in Scotland. There was, therefore, the factum of an Indian residence. If, therefore, the father of the infant had the intention of making India his home, he acquired an Indian domicil.
 
On this point a good deal of evidence is put in, consisting of letters of his, on which many comments have been made, and also on the inferences to be drawn from the facts I have already stated. The evidence amounts to this: that up to 1814 there is no expression of intention of John Smith either way, and that after 1814 there is a strongly expressed intention on his part of returning to Scotland. To state it otherwise:—For the first nine years of his residence in India there is nothing, except the facts I have stated, to disclose his intentions, and they amount to nothing. For [92] the last sixteen years of his residence in India, his intention of returning to Scotland, in my opinion, is clearly expressed.
 
I am of opinion that the facts I have stated and the acts done by him during the first nine years of his residence in India, do not shew an intention to remain there permanently, and that the fair and reasonable inference from the letters written by him during the last sixteen years of his residence in India is that his intentions, during the first nine years of his residence there, were the same as those which he entertained during the last sixteen years of his life. Unless, therefore, there is an irresistible inference to be drawn from the fact of his residence in India, coupled with his occupation there, which gave him an Indian domicil, I am of opinion he never lost his domicil of origin, but that he remained a domiciled Scotchman during the whole time of his residence in India.
 
Although the Vice-Chancellor Sir R. T. Kindersley, in the case of Allardice v. Onslow (10 Jur. 352), states that he held, and that the House of Lords also held that Dr. Cochrane, in the case of Lord v. Colvin , had acquired an Indian domicil, although his correspondence shewed an intention, during the whole of that period, to return to Scotland, I do not find, on reading carefully the judgment given by the Vice-Chancellor, that that question was, in fact, raised or determined before him, or that it was argued before or determined by the House of Lords. It seems to me to have been decided, in that case, that assuming that Dr. Cochrane’s domicil was Indian, he had regained his Scotch domicil by his return to Scotland and his residence at Clippensen, Renfrewshire; [93] and that though he left it afterwards, and went to reside in Switzerland and in France, where he ultimately died, he had not lost his reacquired Scotch domicil.
 
In the case of Bruce v. Bruce (6 Bro. P. C. 566, and 2 Bos. & Pull. 229, n.), it was determined that a residence in India, for the purpose of following a profession there, in the service of the East India Company, created a new domicil; and in Munroe v. Douglas (5 Mad. 379), Sir John Leach considered this point to be settled by that case, and observed that “it was not to be disputed, therefore, that Dr. Munroe had acquired a domicil in India,” although he repeatedly expressed his intention of returning to spend his latter days in Scotland. (Page 380.)
 
This point and the reason for it is put very clearly by Sir W. Page Wood in *569 Forbes v. Forbes (1 Kay, 341). He says (p. 356), “I apprehend that the question does not turn upon the simple fact of the party being under an obligation by his commission to serve in India; but when an officer accepts a commission or employment, the duties of which necessarily require residence in India, and there is no stipulated period of service, and he proceeds to India accordingiy, the law, from such circumstances, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India.
 
And he subsequently adds, “And I think it concluded by authority, in which conclusion my reason entirely acquiesces that a service in India, under a commission in the Indian Army, of a person having no other residence creates an Indian domicil.”
 
[94] I have not found any case in which this doctrine has been extended to a person who becomes the servant in a private establishment abroad, or who goes abroad for the purpose of acquiring a fortune, with the intention of returning at some defined period, when his object has been attained. If it were so, any merchant who goes to and settles in any foreign country, in order to correspond with a London and Liverpool house and to do this until he has acquired a sufficient fortune to enable him to live comfortably at home, would gain a domicil there, notwithstanding the repeated expression of his intention not to remain there, but to return as soon as he could.
 
Assuming the fact to be that one essential ingredient in a change of domicil (to use the expression of Lord Cranworth) is “ exuere patriam ,” or, in other words, the “intention of making it the home of the party” (p. 47) (to use the expression of Mr. Justice Story), it is a strong thing that the law should draw an irresistible inference that he did entertain such an intention, from the fact that he ought to have entertained it, by reason of the nature of the duties he had to perform; and should not merely draw this inference of intention, but make the inference itself incapable of being rebutted by the strongest evidence of a contrary intention; this, however, is settled by the cases I have referred to. But I doubt whether such an inference can fairly be presumed in the case of a man who goes abroad to acquire a fortune in the best way he can, so as to make this inference so overwhelming, as to control and override the strongest expressions of a contrary intention.
 
It is clear that if it apply to India, it must apply to [95] France, Italy, and every foreign country. There cannot be any law on this subject as regards India, and another as regards the rest of the world. I must regard this exactly as I should have done if the residence and acts of John Smith had been at Bordeaux or Constantinople, instead of being at Calcutta.
 
I consider that the cases I have referred to, viz., Bruce v. Bruce , Munroe v. Douglas , Cragie v. Lewin , and Forbes v. Forbes , have settled the rule as to officers and covenanted servants of the East India Company resident in India, but I consider this to be the exception.
 
In this case, I find that the father of the infants always intended to return to Scotland, and never intended to make India his home. I am of opinion that his residence there from 1815 to 1830 did not give him an Indian domicil, and that he never lost his domicile of origin, which was Scotch; and I retain the opinion I before expressed on this subject, when the first petition was heard before me.
 
The petition of rehearing must, therefore, be dismissed with costs.
 
Note .—Affirmed by the Lords Justices, 28 February 1865. [4 De G. J. & S. 616.]

 
  Beavan

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