Nov. 26, 1859-REPORTS.] Ex.] RUSHWORTH . WADDINGTON.-HASWELL. HASWELL AND SANDERSON. COURT OF EXCHEQUER. Reported by F. BAILEY and J. DUNBAR, Esqrs., Barristers-at-Law. Friday, Nov. 18. BENNETT v. BAYES AND TWO OTHERS. Order of court for compelling the production of documents on the hearing of a motion-C. L. P. A. 1854, s. 46. Monk, Q.C. applied in this case, on behalf of two of the defendants, for a rule, directing the third defendant to produce, on the argument of the rule nisi which had been obtained herein, the warrant of distress, which was produced at the trial of the cause, as it was very important that it should be inspected by the court on the argument of the rule. It was evident that the other defendant, who had such warrant of distress, was not desirous to assist the other two defendants, and it was therefore deemed advisable to apply to the court under the C. L. P. A 1854, for a rule to compel the production of such document. By sect. 46 of that Act it is enacted that, upon the hearing of any motion or summons, it shall be lawful for the court or judge, at their or his discretion, and upon such terms as they or he shall think reasonable, from time to time to order such documents as they or he may think fit to be produced, and such witnesses as they or he may think necessary to appear, and be examined virâ voce, either before such court or judge or before the master; and upon hearing such evidence or reading the report of such master, to make such rule or order as may be just." By the COURT.-Give notice to the defendant who has, or had, the warrant of distress produced at the trial, to produce it to the court on the argument of the rale already obtained; and, if it be not produced, and the notice is required, we shall know how to deal with No rule. the case by its being withheld. Thursday, Nov. 24. [D. & M DIVORCE AND MATRIMONIAL CAUSES COURT. Reported by Dr. SWABEY, of Doctors' Commons. Thursday, Nov. 17. (Before the Full Court-CRESSWELL, J. O., WILLIAMS, J. and BRAMWELL, B.) HASWELL v. HASWELL AND SANDERSON. Petition for dissolution—Separation before adultery charged-20 & 21 Vict. c. 85, s. 31. When the petitioner has proved the allegations of his petition there must be affirmative evidence of 66 desertion," "wilful separation," etc., to enable the court to exercise the discretion given it by sect. 31 of Divorce Act, of refusing to pronounce a decree. Query, whether petitioner's counsel have a right to examine him to disprove the existence of such circumstances as, if established, would raise a case for the discretion of the court. If the court, to satisfy doubts raised by the petitioner's witnesses, examine the petitioner under 43rd section, his counsel will be at liberty to suggest any question tending to explain facts which may have been elicited by the examination of the court. This was a petition for dissolution of marriage, at the suit of the husband, by reason of the wife's adultery. No appearance was given for the wife. The marriage took place in May 1852; the petitioner was described as an artist, and was about twenty-one years of age at the time of the marriage. The respondent was then living with her mother, a Mrs. Gilbert, who kept au eating-house in Eastcheap. The petitioner's father The marriage lived in the neighbourhood, and he and his family had some acquaintance with Miss Gilbert. took place without the knowledge of the parents of either party, apparently because the petitioner had no means of commencing housekeeping. He visited his wife from time to time at her mother's till about Nov. 1852, when, in consequence of alleged misconduct Subseon her part, he refused to see her any more. quently to this the petitioner seems to have passed a (Before MARTIN, B., sitting alone in the Exchequer good deal of his time in Scotland, coming backwards Chamber.) RUSHWORTH v. WADDINGTON. Award-Diligence of arbitrator This was a rule obtained by the defendant calling Atherton, Q.C. and T. Jones showed cause. C. Pollock, contra, who contended (inter alia) that the arbitrator had exhibited too much haste in making his award. MARTIN, B., in discharging the rule, said :-Instead of there being any improper haste, I think he did what I wish all arbitrators would do-apply himself diliIt gently to the inquiry, and make his award at once. would make references much more popular and convenient in those numerous instances in which they are desirable; and Mr. Stansfield has my approval for his diligence. Rule discharged, with costs. and forwards to London, when he sometimes stayed in Subsequently there was no doubt that she had cohabited with Sanderson. Mr. Bayley, who had known both the parties, and had married a cousin of the respondent, said that he had talked with the respondent about a quarrel with "John came in her husband; that Mrs. Haswell had said that her husband had caught her with Holmes. one day in a hurry, and came into the front room and caught me with Holmes, and that was the beginning of the quarrel." Phillimore, Q.C. (T. Spinks with him) conducted the petitioner's case, and submitted that if under the 31st section of Divorce Act the court suspected the petitioner of "wilfully separating himself without reasonable excuse," it would under the power given by the 43rd section, allow the petitioner to be examined. This has been done in several cases. CRESSWELL, J. O.-In those cases the petitioner I apprehend that was examined hostilely by the court. under the 43rd section the party may be called by the D. & M.] case. other side or by the court, but not to prove his own | party he said that he had found his wife submitting to indecent liberties, and on that ground did not again return to her mother's house where she resided. It is not necessary for the court to say that this would have justified him in turning her out of his house; that it would have enabled him to resist an action of debt for necessaries supplied her, or would have been a sufficient answer in a suit for restitution of conjugal rights. But the question is, whether we are in a position to exercise our discretionary power; and we cannot say that the petitioner in this case, where the adultery is fully proved, comes within the description of a person "wilfully separating himself without reasonable excuse." Decree dissolution of the marriage. By the COURT (after consultation).—We have considered this point, and, as regards the discretionary power of the court under the 31st section, it appears to us that when the petitioner has established his petition, alleging adultery against the wife, a case for the exercise of the discretion of the court does not arise, unless it is made out affirmatively that the husband deserted or wilfully separated himself without reasonable excuse, &c. As the case at present stands, you have established your allegation of adultery, and that the husband withdrew himself without reasonable excuse, is not affirmatively established. But the court are not prepared to accede to your argument on the 43rd section; they would be glad to have the point regularly argued by counsel for the respondent as well as the petitioner. But the court think that they may properly put the petitioner in the witness-box to satisfy their own minds, whether a case arises in which they would be called upon to exercise their discretion under the 31st section. The petitioner was then sworn and examined by the court. He said that the quarrel which led to his abandoning his wife took place some time before the Duke of Wellington's funeral; that he found his wife in a room up-stairs with Mr. Holmes, his hand in her bosom, and one arm round her waist-she was sitting quietly by him on the sofa; that he took some hours to consider what he should do, and then determined to have nothing more to do with her, and never went to her mother's house again; he then went to lodge in Lyon's-inn, where his wife came to him once to ask him to return letters, &c. This he did, and the letter which his father afterwards found he supposed was then inadvertently kept back. Had no particular recollection of that letter; it was probably written when he was living at Kingsland, where he had intended to provide a house for his wife. The COURT remarked to counsel that they were at liberty to suggest any question that might serve to explain anything that the court might have elicited which seemed adverse to the petitioner. JUDGMENT. COURT OF PROBATE. July 12 and 14, and Nov. 4. Probate-Residence abroad-Domicil of origin Burden of proof. For the purposes of succession, where there is an undoubted domicil of origin continued through many years, such domicil will be held to have been retained, unless there is evidence of an intention to abandon it, accompanied by acts sufficient to found the acquisition of a new domicil. The burden of proof is on the party who impugns the domicil of origin. For the purposes of succession a person can have but one domicil. Semble, by the law of France a will made by a domiciled Frenchman during the most temporary resi dence in a foreign country would be valid, if executed according to the law of that foreign country. In this case the plaintiff had called in probate of the will of Mary Ann Crookenden, widow, deceased, which had been granted in common form, and the executors proceeded to prove it in solemn form. The question was chiefly one of domicil, and the facts are sufficiently stated in the judgment. The case was argued on the 12th and 14th July, by K. Macaulay, Q.C., Addams, Q.C. and Roupell, for the plaintiff; by the Solicitor-General, Douglas Brown and G. Lake Russell for the defendant. Cur, adv. vult. show cause why the will should not be declared void. The executors brought in the probate and propounded the will, declaring that Mary Ann Crookenden, late of Croydon, in the county of Surrey, who died at Montfleury, near Cannes, in France, on Jan. 3, 1858, did on the 4th Nov. 1857 make her will and signed it in the presence of three witnesses, who attested it, &c., and that she was at the time of perfectly sound mind. The plaintiff pleaded, that at the time of making her will, and thence until her death, the testatrix was domiciled in France, and that the will was not made and executed in conformity with and in manner and form as required for the validity thereof by the laws of the empire of France then and still in force. Francis Fuller suggested the death of his co-executor, and replied, first, that the testatrix was not domiciled in France, as The COURT has felt some difficulty in putting a construction on this latter branch of the 31st section. We are satisfied that the petitioner's case is proved, Nov. 4.-Sir C. CRESSWELL.-In this case proand there is no suggestion of any of the matters in the bate of the will of Mary Ann Crookenden, widow, had first part of the section mentioned which would bar the been granted in common form. The plaintiff, the only court from granting a dissolution. So far then the son, and one of the next of kin of the testatrix, cited court is bound to pronounce a decree. But now comes the defendant and William Chamier, since deceased, the the proviso, "that the court shall not be bound to pro-executors named in the will, to bring in the probate and nounce such decree if it shall find that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner shall in the opinion of the court have been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage [none of these have any application to the present case], or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery." It is perhaps not very clear what the word "deserted" here means; it may be equivalent to "leaving her destitute." If "desert" stood alone in this clause it might signify simply "to abandon ;" but it is followed by the term "wilful separation," which is limited by "without reasonable excuse." Now there is evidence of the hus-alleged; secondly, that the will was made in conformity band going away in consequence of a quarrel about Holmes. According to Bayley's evidence the wife herself assigned this to him as the cause of the quarrel. The court cannot say that this was not a reasonable excuse. It is not necessary to prove all the precise circumstances; the expression "caught me with Holines "3 is equivocal, but on examination of the with the law of France; thirdly, that the will, except a certain portion, was made in pursuance of a power contained in the last will and testament of her deceased husband, of which the testatrix was sole executrix, and which was proved by her in the year 1842. Plaintiff joined issue on the first and second, and traversed the third replication. The cause came on for trial before PROB.] months. the court, without a jury, on the 12th July, and again | ings. Her son, the plaintiff, was also at Hyeres, at on the 14th, when many witnesses were examined. It an inn. In 1855 she came to England with Miss. appeared in evidence that the husband of the testatrix Lowe, remained until November, and then returned to died in May 1842, leaving his widow and four chil- France, and went to reside at Montfleury, at Cannes. dren, two sons and two daughters, him surviving. In the spring of 1855 the plaintiff had made a contract The daughters were married, one to William Cha- for the purchase of a property called Montfleury, on mier (who died after the commencement of this which there was a dwelling-house. He had seen the suit), the other to the Rev. George Lowe, in- property in the winter of 1853, when his mother was cumbent of Upper Ottery, in the county of Devon. at Cannes, and she admired it, but no contract was The eldest son died in 1843; the other three children then made, as he thought the owner asked too high a survived the testatrix, and she continued to live with price. In making this purchase he was encouraged by them all on terms of great affection during the whole his mother, who wrote to him from Hyeres on the 10th of her life. The testatrix and her husband, until his and 13th April. The testatrix lent her son the two sums death, lived on his estate at Bushford, in Suffolk. That of 1000l. each mentioned in the letter of the 10th was sold in Sept. 1842, and she then removed to April, and he gave a promissory note for them. The Woodthorpe near Wakefield, where her son-in-law plaintiff and his wife settled at Montfleury in Sept.. W. Chamier had taken a house. The testatrix, under 1855, and the testatrix joined them in November, and her husband's will, took his plate and furniture, which occupied the upper part of the house, according to her she removed to her house at Woodthorpe, and lived proposal made in the letter of the 13th April. The there with Mr. and Mrs. Chamier till the spring of house, when purchased, was partially furnished, and 1844. They all then left; the testatrix warehoused the testatrix bought other articles to make it more her furniture at Wakefield and sent her plate to Child's complete. She kept a lady's maid, butler, cook and bank in London, with whom she kept her only bank- scullery maid. Until Feb. 1856 she and her son's ing account during the remainder of her life, and the family took their meals together, but then ceased to do so. bankers held a power of attorney to receive all money In the summer of 1856 she left for Switzerland, taking accruing due to her. Her property consisted of 900l. per her lady's maid with her, but leaving the other servants annum from an estate in Barbadoes, 8007. per annum, at Montfleury. Before leaving Montfleury she told her the interest of money in the funds, two shares in the son that she intended bringing back friends with her, Great Western Railway, money at her banker's, plate and that she should want more room, and arranged and furniture. In 1844 she went abroad with Mr. and with him that she should have the whole house except Mrs. Chamier, and spent the winter at Frankfort, and one room, and he in consequence made an addition to part of the next year at some German baths, and from a cottage adjoining to accommodate his own family. that time, in consequence of suffering from rheumatism, During the spring of 1856 the testatrix said that the she always spent her winters abroad at various places, house was too small, and she had to go up and down but in general came to England during the summer stairs too much, and she proposed making additions to Thus in 1845 she came to England, and re-it, for which plans were prepared by an architect, but mained for some time at Upper Ottery with her that intention was abandoned, as her friends advised. daughter Mrs. Lowe, and she was there again for a her to build an independent house. Plans were preconsiderable time in 1846. In 1845 an additional pared accordingly for a house on her son's property at room was built for her accommodation in Mr. Lowe's Montfleury, all on one floor, as she thought that would house, the expense of which she paid, and that room be best adapted to her increasing years and infirmities. and one for her maid were always set apart for her use On the 30th July 1856, while staying with the when there, and the principal part of the furniture in Countess St. George at Changins, she addressed a. them was her own, but at other times they were oc- letter to her son. The winter of 1856-57 she passed. cupied by Mr. Lowe's family. When the testatrix was at Montfleury, occupying, with her friends, the whole at Upper Ottery she contributed largely to the expense of the house with the exception before mentioned, the of the housekeeping. In 1846 her son the plaintiff plaintiff and his wife occupying the excepted room returned from a visit which he had paid to the and the adjoining cottage. In Feb. 1857 an agreement West Indies, and wished to settle in London was entered into between the testatrix and her son as a physician, and the testatrix took the lease with regard to the new house which had been comof a house in Eaton-square, which she gave up to him; menced on part of the estate purchased by him, and' the principal part of her furniture was brought from was then four or five feet above the ground. By this Wakefield and placed there. She never occupied that agreement it appeared that she was to find money for the house, but when passing through London on various building; that as to 25,000 francs he was to render no occasions stayed there as the guest of her son. In the account, but for any further sums required he was to. summer of 1847 she again came to England, and spent give notes payable, without interest, to her representasome time at Upper Ottery; the winter of 1847-48 tives after her death. The house had not been finished she passed at Paris, and in the summer came to London at the time of her death, and after that time nothing to dispose of the lease of the house in Eaton-square. further was done to it. In May 1857 she received at In 1850 she was in England from June till August; Montfleury a letter from Mr. Randall, a solicitor in the whole of 1851 she spent at Changins, in Switzer- London, whose firm had for many years been her legal land, at the residence of an intimate friend, the advisers, to which she replied. The testatrix came to Countess St. George, with whom she spent two or three England on the 2nd July, and during her stay there months of each subsequent year of her life till 1857, in the month of October Mr. Randall, by her direction, and the house of the countess she used to call her caused a new will to be prepared, which she duly Swiss home. Part of 1852 she spent in England, at executed so as to satisfy the statute 1 Vict. c. 26, at Upper Ottery, and when there paid all household ex- the house of her brother Col. Fuller, at Croydon, in penses except servants' wages. During this year she whose custody it was left, with other papers, amongst suffered very severely from rheumatism and sciatica. which was the promissory note for 2000. Amongst The whole of 1853 she remained on the continent, and his papers, after her death, a codicil was found in her passed the winter of that year at Cannes, in company own handwriting, signed by her, purporting to be with the Countess St. George, occupying part of the attested by two witnesses and bearing date 25th Oct.. house of a Mons. Girard. In 1854 she was in England 1855. The existence of this was not known until from August to November- part of the time at Upper after her death. When this new will was executed Ottery- then returned to the Continent with Miss she destroyed a former will made in 1854.. Anna Lowe, and spent the winter at Hyeres, in lodg- The testatrix, when in England, spent some time, PROB.] [PROB. and England, and explained how it might be done. On the other hand Emilia Fuller (wife of the defendant) proved that the testatrix for many years suffered from rheumatism and sciatica; that she often said that the climate of England was so cold during the winter that she was compelled at that season to reside in the south of France; that when in England in 1857 the testatrix said that one of her reasons for coming to England was to make a new will, for some fresh case made her fear that her property would not be distributed according to English law; that she was very fond of the climate of the south of France, but was also very fond of Upper Ottery, and of being there with her grandchildren, and wished she could reside there with safety to her health. Charlotte Fuller, daughter of defendant, proved that she had frequently accompanied the testatrix abroad for the winter since 1843; that she always spoke of her prefer-ence for England over France, and regretted that she could not live there; that she went to Cannes in the autumn of 1856, and remained with testatrix till June 1857; that at Montfleury there had been conversations about the decision of the Privy Council in Bremer v. Freeman, and in June testatrix said she should go to England and make a new will. In the winter of 1856-57, testatrix told the witness that she had only taken such things abroad as she wished to leave there, and that the more valuable part of her pro about two months, at Upper Ottery, with her daughter Mrs. Lowe, and expressed a hope that she should be able to come and pay her a longer visit in the next year. She returned to Cannes in November, and died there Jan. 3rd, 1858. In the summer of 1857 some considerable repairs were done to the house at Montfleury by the directions of the testatrix, and were paid for by her executors. During the same summer she caused some of her furniture to be brought from England, and at Montfleury expressed satisfaction at having the favourite things about her. Such were the principal acts done, according to the evidence before me, from which an inference may be drawn as to the domicil of the testatrix. But, in addition to them, each party gave evidence of conversation and declarations, which, unless accompanying acts, have, I think, been properly described as the lowest species of evidence. They must not, however, be discarded, but duly weighed together with the rest of the evidence adduced. In support of the allegation that her domicil was French, it was proved that in the summer of 1856, when at the house of her friend the Countess St. George at Changins, when speaking of building a new house at Montfleury, she said, "You know I have no home in England;" that to Mrs. Cookenden, wife of the plaintiff, she always spoke of Montfleury as her home from her first going there, and as the place where she meant to live all her life. To Mr. Dimes, a gentle-perty remained in England. She mentioned having man living at Cannes, she said, early in 1857, that she should be glad when the new house was finished, for then she should have a comfortable home of her own; and when about to depart for England, she said she must go there on business, and would then arrange to have her furniture sent over, as English furniture was better than French, and having her old furniture about her would revive agreeable recollections; that when her house was finished she should have room to receive her friends, and that would prevent the necessity of taking long journeys, which she found fatiguing. Another witness, Eliza Williams, stated that she travelled with her to Canues in Oct. 1855; that on one occasion afterwards, when going to Nice, she said she was glad that it was arranged for her son and herself to settle at Cannes, for it suited her better than Nice, and she was glad he had not resolved to settle at Nice; and that she wished to be near him the remainder of her days. Mary Ann Patteson proved that she accompanied the testatrix from England to Cannes in the autumn of 1857, and she was taken very ill on the journey. During the journey she said she hoped always to live at Cannes, and said the witness was under a mistake in supposing that she could not live at Cannes as comfortably as in England, and that she intended doing so. Ellen Coleridge, proved that when the testatrix was on a visit to her daughter Mrs. Lowe at Upper Ottery in 1857, she spoke of the house she was building at Cannes; the witness expressed surprise that she should build at her age; to which she replied, "Oh, people always do so abroad, it is so difficult to get houses." The plaintiff deposed that in 1856, in a conversation at Cannes with his mother and others about the mode of disposing of the bodies of the dead, he expressed himself in favour of burning. She observed, "Don't have me burned; I should prefer lying on the hill;" alluding, as he supposed, to a cemetery there. Augustin Boiniol, British Vice-Consul at Cannes, stated that he became acquainted with testatrix in 1851; that in Jan. 1856 she told him she had participated in the purchase of Montfleury with the intention of fixing her residence there till the end of her days; that after the decision of the case of Bremer v. Freeman, she expressed much anxiety about her will, and asked his advice upon the subject, saying that she must be considered as domiciled in France; whereupon he advised her to make one that would be legal both in France furniture at the rectory at Chelsea and Upper Ottery, and plate at her banker's, and said that she had taken a very small portion abroad, but took plated articles instead, and sometimes borrowed of her son. The Rev. George Lowe, her son-in-law, stated that when the testatrix was with him in 1855, at Upper Ottery, she expressed a wish to spend the winter at the vicarage, but thought it impossible, on account of her health. She also said that she much wished to be buried in Upper Ottery churchyard, where her son had been buried, and that she would leave directions that it should be done. She pointed out a place where she wished a vault to be made, and her son's body to be removed to it. In July 1857, when again at Upper Ottery, she said she understood from Mr. Randall that it was necessary to come to England to make her will, so as to meet the French law; that she could not understand what they meant by saying she was domiciled in France; that she was not so, that she merely went abroad on account of her health, and that, according to that law, a person travelling would have to make a will according to the law of the country where he happened to be at the time. When about to leave Upper Ottery for Chelsea in Sept. 1857 she said that she hoped certainly to return in June 1858, and observed that the house wanted the outlay of a good deal of money, and added, “We will do that when I return next year." The Rev. Thomas Drosier, who had frequently in former years seen the testatrix at Upper Ottery, met her there in 1857, when she told him she was going to London to consult Mr. Randall about her will, and that if there was any danger of her property being disposed of according to French law, she would never set her foot in France again. Ellen Reeves, who had been governess in the family of testatrix, and on intimate terms with her for many years, stated that she passed several winters with her on the continent, and in 1856 accompanied her to Cannes, and remained there till May 1857. During the winter she spoke of the pleasure of being with relations, and said that, as her health improved, she hoped she might be able to try a winter in England. She often spoke of admiring Upper Ottery, and of the pleasure it gave her to be there with her son and his family, and said that if she could choose her residence she should live there entirely. The witness saw her at Croydon in Oct. 1857, when she said she was obliged to go to a milder climate in consequence of her rheumatic complaints. Fanny Lydiard, a con PROB.] CROOKENDEN . FULLER. [PROB. quired another, but has manifested and carried into execution an intention of abandoning his former domicil and taking another as his sole domicil; and this rule has been reaffirmed in several modern cases: (Munro v. Munro, 7 Cl. & F. 842; Collier v. Rivaz, 2 Curt. 855; and Hodgson v. De Beauschesne, P. C. Dec. 1858; 33 L. T. Rep. 36.) Now in this case there is no doubt that the domicil of origin of testatrix was English, and, according to Somerville v. Somerville, that must prevail, unless she acquired another, and also manifested and carried into execution an intention to abandon her former domicil. Upon this subject, and upon the nature of the evidence necessary to establish such a case, I think the language of Kindersley, V.C., in Lord v. Colvin, is well worthy of attention: "In truth, to hold that a man has acquired a domicil in a foreign country is a most serious matter, involving, as it does, the consequence that the validity or invalidity of his testamentary acts, and the disposition of his personal property, are to be governed by the laws of that foreign country. No doubt the evidence may be so strong and conclusive as to render such conclusion unavoidable; but the consequences of such a decision may be, and generally are, so serious and injurious to the welfare of families that it can only be justified by the clearest and most conclusive evidence." Let us see, then, what evidence there is of the acquisition of a new domicil, or, as Lord Cranworth describes it, "permanent home," by the testatrix. From 1844 till her death she had no home in England, and, in conse nection of Mrs. Kingsley, the wife of the rector of Chelsea, stated that the testatrix came on a visit to the rectory about Oct. 1857; that Mrs. Kingsley was absent, and witness had to entertain her; that they conversed intimately about her affairs; that she accompanied her several times to Mr. Randall's, but was not present at their interviews. She told witness that she had been very unhappy about the new law, and was going to alter her will in consequence before she returned to Cannes for the winter, and added that she should never forsake her country. Upon the second issue, viz., whether the will of testatrix was made in conformity with the laws of the empire of France, one witness only was examined, the Chevalier François de Rosay, who had for many years practised as an advocate in Paris. He stated that if a Frenchman, born in France, and who had lived there all his life, were to go to London for a day and there make a will good according to English law, that will would, by French law, be good; and that the same rule would apply to the case of an Englishman born, who had forsaken his domicil of origin, and become domiciled in France. In support of his opinion so expressed the witness referred to Dalloz Rep. 1843, 1st pt., p. 208, from which he read the following passage:-"In order that a will made by a Frenchman in a foreign country be reputed as made by authentic act, it is sufficient that the formalities used in that country have been observed, though no public officer have been employed, if the intervention of a public officer is not required by the law of that foreign country." And he referred also to the report of a casequence of rheumatic affections, she always passed the where it had been so held by the court at Rouen, and winter abroad, in general returning to England for the the decision affirmed on appeal; and this agrees with summer months, which she spent with different friends, the opinion said to have been given by Senard (an ad- but sometimes she remained abroad throughout the vocate of the Cour d'Appel in Paris) in the case of year. From 1844 to 1853 she had no residence Bremer v. Freeman, 10 Moore P. C. 324. Upon this abroad which could in any sense be considered as fixed state of facts three points were urged for the defendant or permanent, and there was no evidence whatever of in support of his claim to probate: first, that the the acquisition of a foreign domicil. In 1855 she entestatrix never abandoned the domicil of origin, and couraged her son to purchase the property of Montwas, therefore, at the time of her death at Cannes fleury, at Cannes, and assisted him to do so by a loan domiciled in England, and consequently her will made of 20007. This was relied on by the plaintiffs as eviin conformity with the statute 1 Vict. c. 26 was valid; dence of an intention to fix her residence permanently secondly, that according to the evidence of François de there, and to relinquish her English domicil; but her say, which was wholly uncontradicted, even assum- letters of the 10th and 13th April 1855 furnish ing the testatrix to have become domiciled in France arguments to each side. Thus, in the letter of the the will was nevertheless good; and thirdly, that as far 10th, she speaks of the arrangements as to alterations, as it was an execution of a power given by the will of furnishing, &c. to be done at Montfleury, as if it was her deceased husband, the rule that the will must be the concern of both; and further on: "It is because according to the law of the domicil did not apply, for I have found lodgings so particularly disagreeable in the rule was founded on the maxim mobilia sequuntur the south of France, that I had resolved to have a place personam, which could not be applicable to an instru- to myself, and not to be where I am almost poisoned ment which merely executed a power over certain pro- by foul air;" from which it may be inferred that she perty given by another person. It seemed to me at the intended to establish herself permanently at Montfleury time that this third point could not be sustained, for But, on the other hand, that property was not purthat I could only grant probate of that which is a will, chased by her, but by her son, and was conveyed to and if a will, it must be a will duly executed, and I him. She lent him 2000l. to help him to pay for it; can only recognise that as a will duly executed which but that was to be repaid by him to her executors, and is in conformity with the law of the domicil; and to this he gave her a promissory note for it; and with regard opinion I adhere. In dealing with the first point raised, to her resolution to have a place to herself, it may well namely, that the domicil of the testatrix was English, be that she meant it, not as a permanent residence I have only to consider domicil for the purpose of suc- throughout the year, but in substitution for the lodgcession. I do not propose to try the question by a ings which she had been in the habit of taking at reference to any of the definitions of domicil given by various places for the winter months. Again, in foreign jurists. The very learned and elaborate judg-the letter of the 13th April she speaks of the ment of Kindersley, V.C., in the case of Lord v. Colein, arrangements as to having possession of Mont28 L. J. 361, S. C. 32 L. T. Rep. 377, shows that fleury as his business; and then proceeds to state none of them would be safe guides in this case; and, what are her intentions towards him :-"I proindeed, they are all disposed of in a very summary pose paying you 1007. per annum as long as I conmanner by Lord Cranworth in Whicker v. Hume, Ib.tinue to occupy the upper part of your house, com396, H. of L. The principles upon which the case depends are clearly stated in the judgment of the M.R. in Somerville v. Somerville, 5 Ves. 786: first, that a man can have only one domicil for the purpose of succession; secondly, that the original domicil, or, as it is called, the forum originis, or the domicil of origin, is to prevail until the party has not only ac R mencing, if you please, from the 1st of October next." She offers to pay a sum in advance, but adds, "I would rather have nothing to do with monthly payments of rent, &c. ;" and this was relied on for the defendant as showing that the testatrix did not mean to make any permanent arrangement, but only to pay as long as she continued at Cannes, contemplating the proba |