Inglis for reclaimer-The act of sederunt 10th July 1828, § 51, allows a party to add reasons of reduction to those stated in his summons. It provides, that "if the pursuer finds it necessary to add any farther reasons of reduction to those contained in the libel, it shall be competent for him, before the record is made up, to state the same as an amendment of the libel; but, in that case, he shall furnish the opposite party with a copy of the amendment 48 hours before it is given into process, and pay such expenses as the Lord Ordinary shall think reasonable; and the defender shall give in defences applicable to the said amendment." The act of sederunt deals with this matter in a way altogether different from that in which the judicature act deals with amendments of the libel.* To allow or disallow a proposed amendment of the libel, is a matter for the discretion of the Lord Ordinary. But the act of sederunt does not commit to the Lord Ordinary the power of refusing an additional reason of reduction to be stated. This matter is illustrated by the form of process which prevailed before the judicature act was passed. A reduction was then an Inner-House process. The Lord Ordinary ordered the production to be satisfied; and as soon as this was done, he made great, avizandum. When the process thus came into the Inner-House, additional reasons of reduction might be put in, and the process was then remitted to the Lord Ordinary. This was the form of procedure laid down by the act of sederunt 1726, which was in force till the judicature act was passed. There is one case in the books in which, after the cause had gone to the House of Lords, deathbed was allowed to be added to forgery as a reason of reduc tion, although these two reasons were inconsistent with one another. To allow this additional reason of reduc tion to be put in as craved by us, is not asking the Court to pronounce any finding on its relevancy. It is nothing else than allowing us to give notice that this is to stand as part of our summons. There are six rea sons in the summons; and we now propose to add a seventh. It be bad in fact; it may be bad in law; may it may be a reason which we have no title whatever to sue. On all these points nothing is determined, and everything left open to the defenders. All we ask leave for is, to state it by adding it to the summons. What illustrates this argument strongly is, that I could get. what I want in a more roundabout way by a supplementary summons. For the object of a supplementary action is just to supply an omission in the original action. Supposing the matter to be truly within the discretion of the Lord Ordinary, the objection of vagueness stated to this new reason of reduction comes with particularly

1

6 Geo. IV. c. 120, § 6. ". And if it shall appear to the Lord Ordinary that the grounds of action as set forth in the summons are in terms not sufficiently positive and clear, or the conclusion not regularly or legally deduced, according to the form and nature of the action, and the laws and practice of Scotland, he may either dismiss the action decerning for expenses, and reserving to the pursuer the right to bring a new action, or order an amendment of the libel, and give interimdecree against the pursuer for the expenses occasioned by the incorrect form of the summons."、

bad grace from the defenders, who have all along refused access to the documents on which it is foundeda

Cowan for defenders-This matter must be consi dered with reference to the state of the process, and the nature of the summons. It is said, that however bad this reason of reduction may be, the Lord Ordinary is not entitled to exclude it. The ground of reduction mainly insisted in, in this summons, is the ground deathbed. This new ground is clearly inadmissible itself, if it be competent for the Lord Ordinary to cons sider it. We say it was competent for the Lord Ordinary to consider it. This is shown by the terms of the att of sederunt, which requires 48 hours' notice to be given by the pursuer that such an amendment is to be pro posed. The only object of this notice is, that the p priety of admitting the amendment may be consider If so, then we say that the amendment here propo is utterly inadmissible. It is altogether inconsistent with the remainder of the summons. In the case to which reference has been made, the pursuer was, a heir-at-law, entitled to state both grounds of reduction, though they were inconsistent with one another. Here, the pursuer has no title to insist in this additional reason of reduction; and, besides, it is so vaguely stated, as to be altogether inadmissible. Terasap elka

Lord Justice-General.-We have heard powerful arguments against this proposed new reason of reduction, but I douts whether it be competent to state them at this stage. This mi question upon the construction of the act of sederunt. In that act I find that the pursuer is entitled to give in an amendment stating additional reasons of reduction. The only restriction under which this is to be done is, that 48 hours notice must be given. When Mr. Cowan referred to the 48 hours' notice,! thought he was going to say that this requirement had not bee complied with here. Are we, at this stage, to reject this new reason of reduction altogether? I am not prepared to say that this reason of reduction is so distinguished from the rest of the action, and is so inconsistent with it, that it must be rejected altogether. I

Lord Mackenzie.I am of the same opinion. I don't my the Lord Ordinary has no power over this amendment; he has the same power over it that he has, over the reasons stated in th summons. It must be admitted with the same privileges, a under the same power of control, as if it had been stated in te original summons. Nor do I see the harm that can arise from allowing this to be done. We don't express any opinion on th new reason of reduction; we merely allow it to be added sain quantum.

Lord Fullerton.I see very great difficulty in the course pro posed. If the only result of the judgment to be pronounced wi be to send the case back to the Lord Ordinary to receive th amendment, subject to the same objections to which it woul have been liable if it had been in the summons from the beg ning, then I don't see that much harm will be done. But if you admit this new reason, you must sustain it as an amendment It is said that this is as competent as to bring a new process reduction that is, always provided there was a reasonable sum mons. But this does not prevent the Lord Ordinary from co sidering whether the addition will be a proper one or not. An if he could refuse to admit it if in the original summons, he car refuse to admit it in this shape. Now, I hold this reason of re duction to be a bad reason; and if it had stood in the origina summons, I would have dismissed it. It is very vaguely worde If a party sets forth as a reason of reduction a deed or contract he must specify the deed or contract upon which he foun He must not only set forth the deed, but also his title and in terest under that deed. Here, the pursuer can't even tell th date of the deed on which this new reason of reduction is founded If he has a right to that deed, let him bring an action of exhibi tion to have that right determined. He has not made out case for the admission of these deeds into the summons as ground of reduction. This is a bad amendment; and if it ha been in the original summons, I should have dismissed it.

Dean of Faculty Your Lordships see that I have no other opportunity of stating my objection to the pursuer's title to sue this reason of reduction. too

Inglis A single word will clear away that objection. The act of sederunt provides that the defender shall be entitled to lodge defences to this amendment, whether on the ground of title, or any other ground. hour Lord Justice Generale We can reserve any objection to the title in the interlocutor at buorg wort eid T bodd cob InglisThat is not necessary. In the case of Robert

Ogilvie's Trustees, 20th Dec. 1844, a reservaon of a defence to the title was held to be implied in the interlocutor ordering the production to be satisfied. The Court pronounced the following interlocutor :-"Real, the interlocutor of the Lord Ordinary reclaimed inst, and remit to his Loo receive the amendment of he summons, agreeably to section of e act of sede

unt 11th July 1828 reserving all objections to title or otherise and also reserving all questions of expenses." ylrotto ai Land Ordinary, WoodAct. Buchanan, Deas, Inglis; John Cullen, W.S. Agent, Alt Dean of Faculty (M'Neill), Cowan, Dundas; Dundas and Wilson, C.S. Agents.-W. Clerk.—(F.H.) Hadions ano di inatianconi grew godt dgpodr Der lanoitibbs eidt ni taient of glit on and 19uang off botata vlouga Ath February 1850.; oober 30

EXCHEQUER COURT CANDLEMAS TERMOS ed or No. 91. In the Matter of the Estate of WILLIAM ob I tud noitonGORDON Deceasedeoqorq aids seninge Domicil-Legacy and Residue Duties A testator, whose domicil origin was in Scotland, entered the royal navy at the age of thirteen contined in active service for fifteen years, and then valon half-pay about £90), which he continued to draw till his death By the half-pay regulations, the officer receiving it is reged at all times to be ready to obey the orders of the Admiralty, gic notice of his place of habitation, reside where directed, and not be absent from the kingdom without leave. The testator ed in lodgings in Jersey five or six years after retiring from tive service, and then icent, talking his wife with him, to Tortola, Virgin Islands, West Indies as a stipendiary magistrate, appointed under the authority of the statute 3 and 4 Gul. IV. c. 73, for the abolition of slavery. His wife died there, and after a five years residence in that colony, he came to Scotland on a temporary rit, and married a second wife. He never had a dwellingbs in Scotlandse In the course of returning to Tortola with his Bond wife, he died at St. Kitts about six years after receiving the appointment of stipendiary magistrate. He also was president and senior member of council of the Virgin Islands, having preriously been a member of council. No salaries are attached to these offices. The appointment of stipendiary magistrate is made by the government of Great Britain, and is subject to the control and direction of the colonial secretary; and the salary (£300) is paid from the revenues of Great Britain Held that the testator, at the time of his death, was domiciled at Tortola, and, consequently, that his executors were not liable for legacy or residue duties upon is estate, enob od lliw mad odm Jedi 992 1'nob I nedt gnia The commissioners of inland revenue, as authorized by 42 Geo. III. c. 99. § 2. obtained an order upon the xecutors of the late William Gordon, described as of he island of St. Christophers, to show cause why they hould not deliver an account of the personal property the deceased, and pay legacy and residue duties hereon.laugar grov al 31 di bessimeib evad blow I,enomme The question raised in this case was entirely one of omicil. If the deceased was domiciled in Great Bri ain, legacy-duty was due; but if in the Virgin Islands, West Indies, or otherwise, it was not Thomson v. The Advocate-General, 13 Simons, 153; 12 Clark and 1; 4 Bell's Appeal Cases, Tign and even of mo 1. 30 uoisaimbe sio gar The testator left property somewhat exceeding £5000, and the rate of duty upon it (3 per cent.), according to

the relationship of the legatees, would give a duty of about £150.

The executors filed an affidavit of the facts, the substance of which is as follows:-The testator was the eldest son of the late William Gordon of Aberdour, Aberdeenshire, and was born there on 18th January 1800. He was educated in Scotland, and entered the British navy in 1813 or 1814. He got a commission, dated 9th January 1823, as lieutenant in the ship Dauntless, and one dated 23d February 1827, for the ship Tyne. While at the Halifax station, North America, he married his first wife, in 1827 or 1828. Shortly after his marriage he retired, and during the rest of his life was not actually employed in the navy. He accepted half-pay as lieutenant, which was received by him down to the period of his death. Among other regulations applicable to such half-pay, it was ordered, by regulations of the 6th June 1814, that no officer should be entitled to the half-pay who should absent himself from his Majesty's service without the permission of the Lord High Admiral, or the commissioners for executing the office, or who should be dismissed from the said service for any misdemeanour, either by such High Admiral or commissioners, or by court-martial, or who should not behave himself to the full satisfaction of such High Admiral or commissioners: Further, that no officer who should have leave to be absent should be entitled to the half-pay, in case, during his absence, he should be employed in the service of any foreign prince or state, and thereby be rendered incapable to attend his Majesty's service when summoned thereunto: Further, that no officer be entitled to the half-pay during the time he should enjoy the benefit of any public employment: Further, that among other officers, lieutenants receiving half-pay should at all times be ready to obey such orders as they should receive from such

which end they were Admiral or commissioners; to required to transmit an account from time to time to the secretary of the Admiralty of the places of their habitation, that when his Majesty's service required their attendance, they might be the more readily called thereunto: And further, as it might be thought necessary for the service that some lieutenants, among other officers entitled to half-pay, should reside near his Majesty's dock-yards, to assist in the fitting out his Majesty's ships, or doing any other service, such lieutenants were to be obliged to reside in such place or places as such High Admiral or commis. sioners should from time to time direct, and diligently to perform all such services as might be required from them.A regulation was made, 22d June 1821, by the Lords Commissioners of the Admiralty, in the following terms: aidsiw vlunt ad of 19tam od goreoqqo

Admiralty, 22 June 1821. In order to prevent inconvenience to individual officers, as well as to his Majesty's service, thes Lords Commissioners of the Admiralty think it necessary to remind the officers of his Majesty's navy, and royal marine forces, that they cannot receive their half-pay for any period during which they may be absent from the kingdom without their Lordships leave, and that officers who may wish to remain abroad beyond their original leave should take care to apply for a renewal thereof in due time, (stating the date of their last letter of leave here), so that such application may be received at the office prior to the expiration of the former leave, as (unless any special circumstances can be stated in any particular case) no half-pay can be paid for any period of absence abroad which shall not be covered by their Lordships' leave.

On 20th April 1830, a further regulation was made, that at the expiration of three months after the leave had expired, the half-pay would be respited.

After the testator retired from active service, he resided with his wife in lodgings, in the island of Jersey, till 1833 or 1834. On 30th August 1834, he received an appointment as justice of peace for the special purpose of the act for the abolition of slavery for the island of Tortola, in the West Indies. The office is paid from the revenues of this country, and is subject to the control and direction of the colonial secretary.

On receiving this appointment, he went with his wife to Tortola, resided there, and executed the duties of his appointment. His wife remained with him until her death. On 15th October 1838 he was appointed by her Majesty a member of council of the Virgin Islands, and on 29th December 1838 he was appointed president and senior member of the council. No salary is attached to these appointments, unless the senior member and president of the council is called upon to administer the government in the absence of the officer appointed by the Crown to be "president administering the government," in which case he is paid from the revenue of this country. The permanency of the offices of stipendiary magistrate, and president and senior member of the council, is not affected by a change of ministry here, or of the governor of the colony.

Mr. Gordon came to Scotland on a temporary visit in 1839, having obtained leave of absence from his duties at Tortola, and entered into a second marriage with a daughter of John Gordon of Cairnbulg, in the county of Aberdeen. Shortly after his marriage, and before his leave of absence expired, he embarked with his wife in a vessel which was to touch at the island of St. Kitts, and then proceed to Tortola. In May or June 1840, he reached St. Kitts in a state of bad health, and died on 18th June 1840, and his widow died on 3d July 1840. He left no family, and never had a dwellinghouse in Great Britain.

"

The affidavit further set forth the deceased's commissions as lieutenant in the navy, stipendiary magistrate, member of council and president, and senior member of council of the Virgin Islands; his marriagecontract with Miss Gordon of Cairnbulg, his last will, and the papers forming the record of the multiplepoinding in the Court of Session regarding the distribution of a sum of £400, provided by the marriage-contract to the widow of the deceased, and the interlocutor of the Lord Ordinary, and note issued therewith.*

* The Lord Ordinary having heard counsel in this multiplepoinding, and thereafter considered the record, and whole process, finds that the legal import of this contract of marriage, libelled as a deed framed and executed in Scotland in reference to a marriage contracted between parties who were natives of this country, in which the bride had been previously domiciled, must be determined by the law of Scotland: Finds that, according to the just and legal construction of the said contract, the provision in question vested in Mrs. Gordon immediately on her husband's death, and that his wife's domicil was in the same place at that period: Finds that Mrs. Gordon died without issue a few days after her husband, without having changed, or intimated any intention to change, her domicil; Finds, therefore, that her succession must be regulated by the laws of the colony in which she died; and in respect it is not denied that, by that law, the father is entitled to the intestate succession of his daughter, prefers the claimant, John Gordon, Esq. of Cairnbulg,

There is no question but that the decision of the domicil settle the matter of legacy-duty. If Mr. Gordon was not domicile here at his death, no duty is due. The domicil of origin this case is not disputed. The testator, Mr. Gordon, was b in Scotland, of Scotch parents; was educated, and resided the till he entered the British navy. The law as to change of micil is laid down by Lord Alvanley in the case of Somerva v. Somerville, 5 Vesey, 787; and by Lord Cottenham in case of Munro v. Munro, 10th August 1840, 1 Robinson, Col The question under these authorities is, did Mr. Gordon ah don his Scotch domicil for a new one? and if so, when?merely where did he afterwards reside; but did he go to the residence with the intention of abandoning his domicil of orig In 1828 he is put on half-pay, which he drew up to the date his death. It is important to observe the position of drawing half-pay. They are to be at all times ready to d the orders of the Admiralty, give notice of the place of habitation, and reside where directed. They cannot be ab from the kingdom without leave. Upon going on hai 1828, he resided in Jersey his first wife. He lived in lodgings, which indicated no intention of a permanent në dence, until 1833 or 1834, when he received the appointme stipendiary magistrate at Tortola, in pursuance of 3 and IV. c. 73, § 14. The commission of stipendiary magistrate from the Crown of this country, and the salary (£300) out of the revenues of this country. He was subsequently pointed a member of council of the Virgin Islands, and pra dent and senior member of council there, to which appointment no salary is attached. So it is apparent he could not have be resident there for the purpose of holding these offices, and thes fore his residence was in no way affected by his having receive such appointments.

1-pay

[Lord Robertson.—Do you say he had a domicil at Tortola in pendent of the half-pay?]

We don't admit that; and we say the whole circumstances m be looked at together. The appointment of stipendiary ma trate was under an act for a temporary purpose, which had a expired at the time of his death; it flowed from the governmes of this country, and the salary was paid by this country; a further, he had no intention of a permanent residence so his drawing the half-pay distinctly indicated an intentica u returning home. The domicil must be acquired animo et fert The want of intention to remain being fixed by lús drawe half-pay, he cannot be held to have abandoned his dat origin; and so he was a British subject, domiciled in this try at the time of his death. A multiplepoinding was g in the Court of Session as to the party entitled to a sum of £ by marriage-contract provided to the testator's wife, in place furniture, in the event of her survivance. The chief parties the process were the deceased's brother, who, by the testat will, bad right to his whole estate, real and personal, ali father of the widow; and as between them the point of dem was not involved at all. The question between them was to the interpretation of the marriage-contract, and the Le

to the fund in medio, under deduction of £45: 9: 7 of disbur ments on account of Mrs. Gordon's personal expenses, as c descended on by her executor, with interest on the balance stipulated in the contract: Repels the claims of the other p ties; and decerns.

"Note. Had the provision which is the subject of this e petition been an ordinary legacy, it would clearly have ves on the death of the testator, though six months were allowe the trustees of the husband to raise the money after his dea The day of payment was thus certain; and the trite ma of dies incertas was inapplicable. See the case of Hardn 6 S. D. 920. But if a legacy would have vested, a fortiori this onerous provision in favour of a wife in her marriage traet be so considered. The conventional provision was par the stipulation in lieu of her legal provision, which unquest ably would have vested instantly on her husband's 'death. was, moreover, a compensation for furniture which, had it b provided in corpora, would also have belonged to the widow mediately on the death of the husband; and, therefore, whe the law of legacy or of special provision apply, the Lord nary conceives that the claim of the lady's executor is insu able."

linary found, on the ground of its being a deed framed and cuted in Scotland, in reference to a marriage contracted Scotland, between parties who were natives of this country, which the bride had been previously domiciled, that the legal ort must be ruled by the law of Scotland. The point of nicil only came to be of any importance as between the er of the widow and his other children; and it was not, in raised as a question at all, but was assumed; and the fact Mr. Gordon having been in the navy, and being in the receipt alf-pay, was not stated on the record. Although the domi1s, by the interlocutor, found to be in a colony abroad, the int is not noticed in the Lord Ordinary's note, as in truth e was no discussion regarding it. The finding, therefore, the domicil, by the Lord Ordinary in that process, not by was res inter alios acta, but cannot be adduced as a preceut to guide the Court in the present question.

Lard Advocate.-I am told that the opposite counsel ngaged at the bar of the Lord Ordinary, and I wish know whether your Lordships are of opinion that her dd attend here irrespective of this."

Lord Robertson. Certainly; if the Lord Ordinary himself at attend here, the counsel must give preference to this Court. I ord Advocate.—I shall ask judgment for the Crown this case if the opposite counsel do not attend here morrow at nine o'clock.

Foung for the Executors

question is, where was Mr. Gordon's domicil at the time E's death. Mr. Gordon was born in Britain-in ScotlandScotch parents, and received his education there. When a re child of 13 or 14 years of age, he entered the navy, and mained in the service till 1827 or 1828, when he got married, red on half-pay, and went to Jersey, and remained there till 4. Under the act 3 and 4 Gul. IV. c. 73, abolishing slavery, ditional magistrates were appointed to see the required change perly carried out. The testator received the appointment stipendiary magistrate for the Virgin Islands in 1834, and up that time had no residence in Britain. He then removed to tol alongst with his wife, and there remained discharging duties of his important office. Section 15 of the act prothat the salary of such judge should not exceed £300. be salary was £800——£100 for a house, and £50 for a horse→→→ ther £450. The half-pay was truly an addition to the 7. With such addition, he was enabled to live more retably, without further burden to the government. The werment might, at any time, have required him to resume service in the navy; but can it be said that the half pay deyed the effect of residence, arising from the more important vice? Is it not more natural to hold, that it was an addition * appointment of judge, the salary attached to which was ali? From 1834, when Mr. Gordon was appointed stipendiary trate, until his death in 1840, he resided in the West Indies. aring this period his first wife died there, and in 1839 he got ve of absence and came to Scotland, and in 1840 married his ad wife. He left with her the same year, and died at St. ts, where he made his will, on his way back to his duties. Now, micil is where a man has substantially a permanent place Desdence where he has lived for many years, and indicates intention but to remain-where he must reside to discharge adaties of his office-where, when he comes on a visit to see trends, he is to return with his wife. This is his home or ; the chief establishment of that man. Lord Thurlow, Bruce, (Robertson on Personal Succession, 123), says, 'Where find a man living, that is his domicil prima facie; and it is the party objecting to take off the effect of that fact by wing that it was temporary and casual; that he was there a precarious or temporary purpose; that he is there as a veller, and not there by his consent, but against his will. It not signify that he had a longing eye to the place of his th. Every man going to India fondly hopes to return. If were held to have any effect on the domicil, not a subject this country would die domiciled in India. This is mere inon to change; and if death overtake him, as Lord Thurlow ya, his domicil is fixed at the place where he is at the time. Er Gordon's domicil of origin was Scotland. He went to sea. acquired no new domicil at sea; but, then, he left sea in 47 and went to Jersey, where he lived five or six years. But said that his domicil of origin remained with him there,

because he could not acquire a domicil while living in lodgings, that not being a permanent residence-not an establishmentnot a home. A man may live all his days in lodgings. Many a respectable person has spent his whole life in lodgings, from boyhood, when he began to reason on the propriety of an establishment, till he died an old rich man. To live in lodgings in the city of London is the more common way. A man hires a house, he hires furniture, he hires servants, and has thus a house of his own; what is really the difference between this and hiring lodgings? If the testator acquired a domicil by residence in Jersey, his domicil in Scotland is destroyed, and won't return unless he returns to Scotland. A domicil acquired is stronger than a domicil of origin. This appears from the opinion of the Vice-Chancellor in the case of Dr. Munro, (Phillimore on Domicil, 64), where it was attempted to be argued, that after the domicil of acquisition in India had been abandoned, the domicil of origin revived, although the party had not returned to the country of origin. Then, in the case of Sir Charles Douglas-who is described as a migratory sort of man, now in Russia, now in Holland, and actually in the service of several countries-the Lord Chancellor says that his domicil of origin was lost when he acquired a domicil in Russia or Holland. By acquiring that domicil, his original domicil was completely destroyed; so much so, that when he left the service of Russia or Holland, and entered the service of England, he did so as a Dutchman or Russian. That is the force of the passage in Mr. Phillimore's book (p. 75), and it is referred to again and again as the established doctrine by that learned author. If the original domicil is lost by the acquisition of a domicil of choice, the domicil of origin never returns until he returns to his native country. Now, in the present case, the domicil of origin was destroyed by the acquisition of a domicil in Jersey. And if the subsequent appointment is only to continue the domicil, it fixes it there. Very few, perhaps, leave their place of birth willingly, particularly in the case of going to a climate which is unhealthy; but still it is choice to go there. Mr. Gordon receives an appointment in Tortola, and in Tortola he must reside-and he does reside there, and is allowed to draw his half-pay, and does so to the period of his death. Is he not to acquire a domicil in the place where he has chosen to reside for years, from the circumstance of drawing half-pay? The regulations of the Admiralty, no doubt, make it a condition of his drawing it, that if at any time he gets an order to enter the service, he must do so, or give up the half-pay; that is the only condition. Half-pay is not even a retaining fee. It is no part of the bargain to enter the service when required. It is a remuneration for past services, and, in point of fact, is given in many cases where it is never meant the party should return to active service during his life. If Mr. Gordon had been required to enter the service, he might have said, 'I cannot give up my office at Tortola-I will give up my half-pay;' and suppose he had done that the day before his death: Suppose the government had been so unreasonable as to say, 'Unless you give up your half-pay, you must return on shipboard.' Mr. Gordon had rather more than £90 of half pay, and £450 of salary. Suppose the proposition made the day before his death, the result is obvious-if he could not turn round and say, 'I am drawing this half-pay, not as an officer but as a magistrate-I will renounce the £90 of half-pay, and remain a magistrate. Now, in absence of all authority, will the mere assertion do, that this £90 odds of half-pay had the effect of maintaining the domicil of origin so long as he drew it, and prevented his acquiring a domicil in that country, the laws of which he was appointed to administer as a magistrate, and where he had resided for six years, excepting a few months on leave to marry his second wife? Will it also prevent him fixing a domicil anywhere, and, consequently, from having a domicil in Jersey ?

Young also referred to the decision in the Court of Session by Lord Cuninghame, involving this question; but on the Court intimating an opinion adverse to an argument founded upon it, he did not proceed.

Lord Advocate in reply

Mr. Gordon was born in Scotland in January 1800, and was educated there, and there can be no doubt but Scotland was his domicil of origin. In 1813 he entered the British navy, where he remained until he obtained the rank of lieutenant, He married his first wife while off America, and continued a lieutenant till his ship was paid off in 1828. Now, we have his domicil of

residence acquire a domicil - they have no choice at all Neither by residence while on leave of absence ean they do go What is the difference with half-pay? The condition of a party drawing half-pay is, that he must come to Great Britain and reside there. How, then, can Mr. Gordon say I am acquir ing a domicil at Tortola, and still continue to draw this hal pay? It won't do to assume what he would have decided if the proposition of entering the navy again had been put to himby doing that you add an element not in this case, in order t decide the question of intention. I am perfectly right here likening half-pay to full-pay-it is impossible to draw the diste tion. Is it not a fact shewing that he was in Tortola subject the command of his Sovereign? It will never do to say, his residence at Tortola he gave up his native country-th intended to live permanently in the West Indies, never to retar to Great Britain again, except with the direct intention of lo the domicil he had acquired in that colony. Can your Lon ships say this? This is an intermediate case between service and service in the East Indies. When a man the East Indies, he selects the East Indies precisely wit intention of residence. The East India Company insist party residing within their bounds as his domicil; it is th fore his intention-it is a statutory condition-residence that colony. Accordingly, the East India Company's Service instead of preventing the acquisition of a domicil, in pa fact establishes the acquisition of a foreign domicil facto. That such are the condition and effect of entering the service of the East India Company, are seen in the ease Bruce. Residence in their territory is one of the condition service in the East India Company-acquiring a domicil is th effect of such residence; and the distinction between residence elsewhere is thus seen. If the residence be by will of the Crown, or by permission of the Crown, so that party has no choice-staying by permission is the same as be sent by the Crown-it cannot be possible to say that such dence is in your own power. While a person remains in army or navy on full-pay, he cannot acquire a domicil, alth the residence be for a term of years. What is the differ with respect to half-pay? Half-pay is coupled with this dition, that the party shall not pass out of this country, pose this gentleman to have been asked to return to the navy could he have said, 'I have a domicil at Tortola in your ployment-I went there with the express intention of acqu a domicil and drawing £450? Would this answer do? H can you say you went with this intention when wanted? Are you not actually in the receipt of half-pay, and have been for years? Did you not come here because you were appointed to reside in Tortola, in order to administer the laws under pr ticular acts of parliament? The half-pay is clearly in tent with his objection; and it cannot be received as an ele ment, that, although drawing half-pay, yet, if called to retu to service, he had not the least intention of doing so that would have given up his half-pay. Where is the rest of t case? The government appointment is very strongly agai the domicil. Whether the person be a diplomatist or if he actually shall be sent abroad upon a mission, though continues for any length of time, he acquires no domicil cause he is in the public employment, and has neither will nor intention of acquiring a domicil." What is this pointment? The pay is from this s country. The employm is temporary to serve a declared number of years. If last after the acts giving authority for the appointment. acts expire, and the appointment lasts no longer. Noth can here rest on the mere residence, and the length of time of no moment. Whether the appointment was for months years, it will not determine the abandonment of the old, or t acquisition of a new domicil. The residence will not do. necessary to show the intention. This appointment is und government, and the party draws his half-pay. Both these clearly adverse to the acquisition of a new domicil. The int tion must be shown to be residence in the West Indies for express purpose of acquiring a domicil there, otherwise Scotch domicil remains. Where is the evidence of this int tion? There is nothing more than residence, and the residen is not permanent-there is no domicil animo et facto-and the can be no doubt but that is the principle to be established. appointment is not permanent. The acts of parliament m it temporary. Such appointment is perfectly consistent the receipt of half-pay-implying only a few years' absence der an act of parliament; and is consistent with the belie