that he had, to their knowledge, at that time determined ultimately and finally to settle in Scotland.

These being the admitted facts, let me next turn to the character of the parol evidence in the case. As to the evidence of the members of the Hosack family, and of the servants, very little is to be extracted from it in the shape of information upon which we can rely. They speak of what they considered and believed was the intention of the appellant; but as to anything he said or did, to which alone your Lordships could attend, they tell us nothing beyond what we have from the letters. As to the evidence of the appellant himself, I am disposed to agree very much with what was said at the bar, that it is to be accepted with very considerable reserve. An appellant has naturally, on an issue like the present, a very strong bias calculated to influence his mind, and he is, moreover, speaking of what was his intention some twenty-five years ago. I am bound, however, to say, and therein I concur with what was said by the Court of Session, that the evidence of the appellant appears to be fair and candid, and that certainly nothing is to be extracted from it which is favorable to the respondents as regards the onus of proof which they have to discharge.

I will now ask your Lordships to look at what to my mind appears the most satisfactory part of the case, namely, the correspondence contemporaneous with the events in the years 1837 and 1838. I do not propose to go through it at length, but I will ask you to consider simply certain principal epochs in the correspondence from which, as it appears to me, we derive considerable light as to the intentions of the appellant.

In the first place, I turn to a letter written by the appellant on the 26th of September, 1837, three months after the appellant and his wife had come to Scotland. He is writing from Minto Street, Edinburgh, to his brother-in-law, Mr. William Hosack, in Jamaica, and he says: "I have not got rid of my complaint as yet, and still find difficulty in walking much, and was obliged to forego the pleasures of shooting, on which I had so much set my heart. This country is far too cold for a person not having the right use of his limbs. In fact I have been little taken with anything, and would go to Canada, Jamaica, or Australia, without hesitation. I enjoy the fresh butter and gooseberries:" Of the latter — that is, of the gooseberries — he proceeds to state some evil consequences which he had suffered, and then he says: "Everything else is as good, or has an equivalent fully as good, in Jamaica. My mind is not made up as to the purchase of an estate. Land bears too high a value in proportion to other things in this country, owing to the members of the House of Commons and of Lords being all landowners, and having thereby received greater legislative protection. The reform voters begin to see this, and as soon as the character of the House of Commons changes enough (and it is changing prodigiously) the value of land

will come to its true value in the State. I have formed these views since I came home, and have lost in proportion my land-buying mania." Thus, having, as I have stated, a domicile by birth in Jamaica, and having come to this country with an indeterminate view as to what property he should become the purchaser of, writing three months afterwards, he says: "I have been little taken with anything, and would go to Canada, Jamaica, or Australia, without hesitation." Nothing can be more significant as to the absence of any determination in his mind to make Scotland his fixed home, and to spend the remainder of his days there.

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I come to the 27th of December, 1837, when the appellant, again writing to the same brother-in-law in Jamaica, says: 'As to the country, I like none of it. I have not purchased an estate, and not likely to do so. I had my guns repaired, bought a pointer, purchased the shooting of an estate for £10, have never been there, nor fired a shot anywhere else. Have had a fishing rod in my hands only for two hours, and caught nothing. I bought a horse, and might as well have bought a bear. He bites so, it would have been as easy to handle the one as the other. I exchanged him for a mare, and, positively, I have sent her to enjoy herself in a farm straw yard, without ever having been once on her back, or even touched her in any way." Here, again, we find that so far from his expressing a liking for the country upon better acquaintance, he says he does not like it, and so far from a determination to purchase an estate in Scotland and end his days upon it, he says, "I have not purchased an estate, and am not likely to do so."

Passing over three months more, I come to a letter dated the 20th of March, 1838, by Mrs. Bell, the wife's expressions being even more significant than those of her husband; for it is obvious that she, of the two, was more inclined to settle in Scotland. She writes: "The extreme severity of the winter has put us a good deal out of conceit of Scotland, but independent of that, I don't find the satisfaction in it I anticipated. If circumstances permitted, I would not mind to return to Jamaica, though, I dare say, after being here a few years I might not like it. This country is so gloomy, it is sadly depressing to the spirits, so unlike what one has been used to in dear, lovely Jamaica. The vile pride and reserve of the people is here too great a source of annoyance. A man is not so much valued on the manners and education of a gentleman as on the rank of his great grandfather that is to say, among a certain class. You will perceive from this we are still at Number 9. Bell has several properties in view, but is as undetermined about where we may settle as when he left Jamaica. Next week he goes to Ayrshire to look at an estate, and from thence to Galloway and Dumfriesshire. If we don't fix very soon we purpose taking a furnished house in the country for twelve months." Now, the whole of this passage, I think, is of considerable importance, but the last sentence I have read affords a key

which may be useful in letting us into the design of the spouses in taking the furnished house of Trochraigue. The interpretation given by this letter is, that it was equivalent to saying that they had not at that time fixed upon a residence.

I pass on for two months more. The offer which in the interval he had made for Enterkine had been refused. The furnished house at Trochraigue had been taken. The appellant and his wife were upon the eve of taking possession of it on the 1st of June, 1838, and on the 28th of May, 1838, the appellant writes to his brother-in law in Jamaica: "I have taken a country house at Trochrigg." "I leave this for it on the 1st of June. It is situated two miles from Girvan, which is twenty miles west of Ayr, on the seacoast. Therefore for the next twelve months you can address to me Trochrigg, near Girvan, Ayrshire, Scotland. The offer which I wrote you I have made for Enterkine I received no answer to until sixteen days after, and then I got an answer stating they had a better offer. Of this I believe as much as I like, for I see it advertised again in the Saturday's paper. I do not know whether I shall make anything of this estate for the present, and I care not. It is still very cold, and if I do not make a purchase in the course of this year, I perhaps will take a trip next summer to the south of France, and see whether I don't find it warmer there." That is to say in the next summer, which would be the summer of 1839, he was in expectation that Mrs. Bell and his family would be able to accompany him to "take a trip to the south of France, and see whether he did not find it warmer there," not, as it seems to me, for the purpose of enjoying a temporary sojourn, but, if he found it a more agreeable climate, for the purpose of making it his permanent residence.

There is only one other passage to which I would ask your Lordships' attention. It is in a letter written one month afterwards, while Mr. and Mrs. Bell were at Trochrigg, on the 16th of June. Writing to Mr. William Hosack, the appellant says: "There are several gentlemen's seats in the neighborhood, but none of them reside in them. We will probably have only three or four acquaintances, and shall be, in that respect, much the same as in Jamaica. We must, however, make the most of it for twelve months, in the hope that during that time I may be able to find some estate that will be suitable for me as a purchase."

I find nothing after this material in the correspondence before the death of Mrs. Bell, and the last sentence I have read appears to me to sum up and to describe most accurately the position in which the appellant was at Trochrigg; he was there in the hope that, during the "twelve months," he might be able to find some estate which might be suitable to him for purchase; but upon that contingency, as it seems to me, depended the ultimate choice which he would make of Scotland, or some other country, as a place of residence. If his hope should be realized, we might from this letter easily infer

that Scotland would become his home. If his hope should not be realized, I see nothing which would lead me to think, but everything which would lead me to doubt, that he would have elected to remain in Scotland as his place of residence.

It appears to me, on the whole, upon consideration of the facts which are admitted in the case, and the Farol evidence, and the correspondence to which I have referred, that so far from the respondents having discharged the onus which lies upon them to prove the adoption of a Scotch domicile, they have entirely failed in discharging that burden of proof, and that the evidence leads quite in the opposite direction. There is nothing in it to show that the appellant's personal status of domicile as a native and an inhabitant of Jamaica has been changed on coming here by that which alone could change it, his assumption of domicile in another country. I am, therefore, unfortunately unable to advise you to concur in the opinion of the Court of Session. The Lord Ordinary entertained the opinion that the appellant, from the first moment of his arrival in Scotland, and of his sojourn at Mrs. Hosack's house, had acquired a Scotch domicile. But nothing could be more temporary nothing more different from the state of things that would lead to the conclusion of the assumption of a Scotch domicile than the circumstances under which that sojourn took place. Lord Cowan, in delivering the opinion of the Court of Session, appears, on the other hand, to have thought that the Scotch domicile was not acquired at the time of arrival in Scotland, but was acquired at the time of taking possession of Trochrigg. But if we are to put upon the occupation of Trochrigg the interpretation which the appellant himself put upon it at the time, so far from its being an assumption of a Scotch domicile, it appears to me to have borne an entirely different construction, and to have been a temporary place of sojourn, in order that a determination might be arrived at in the course of the sojourn as to whether a Scotch domicile should or should not ultimately be acquired.

There is one passage in the judgment of the Court of Session, delivered by Lord Cowan, to which I must ask your Lordships more particularly to refer, for it appears to me to afford a key to what I think, with great respect, I must call the fallacious reasoning of the judgment. After speaking of the parol evidence given by the appellant, Lord Cowan uses these words: "For after all, what do the statements of the defender truly amount to? Simply this, that prior to September, 1838, he had not fixed on any place of permanent residence, and had not finally made up his mind or formed any fixed intention to settle in Scotland before he bought Enterkine. There is no statement that he had it in his mind to take up his residence elsewhere than in Scotland." If, my Lords, I read these words correctly, Lord Cowan appears to have intimated that in his opinion it would not be enough to find that the appellant had not fixed on any

place of permanent residence prior to September, 1838, and had not decidedly made up his mind or formed a fixed intention to settle in Scotland, unless proof were also adduced that he had it in his mind to take up his residence elsewhere than in Scotland. I venture to think that would be an entirely fallacious mode of reasoning, and would be entirely shifting the position of the proof which has to be brought forward. The question, as it seems to me, is not whether he had made up his mind to take up his residence elsewhere than in Scotland, but the question is, had he, prior to September, 1838, finally made up his mind or formed a fixed intention to settle in Scotland. Lord Cowan appears to admit that the parol evidence itself would show that that had not been done, and that parol evidence is, in my mind, fortified and made very much more emphatic by the evidence of the correspondence to which I have referred.

I have humbly, therefore, to advise your Lordships to assoilzie the defender from the conclusions of the summons, and to reverse the sixteen interlocutors which have been pronounced by the court below.

LORD WESTBURY. My Lords, I have very few words to add to what has been already stated to your Lordships; and, perhaps, even those are not quite necessary.

What appears to me to be the erroneous conclusion at which the Court of Session arrived is in great part due to the circumstance, frequently lost sight of, that the domicile of origin adheres until a new domicile is acquired. In the argument, and in the judgments, we find constantly the phrase used that he had abandoned his native domicile. That domicile appears to have been regarded as if it had been lost by the abandonment of his residence in Jamaica. Now, residence and domicile are two perfectly distinct things. It is necessary in the administration of the law that the idea of domicile should exist, and that the fact of domicile should be ascertained, in order to determine which of two municipal laws may be invoked for the purpose of regulating the rights of parties. We know very well that succession and distribution depend upon the law of the domicile. Domicile, therefore, is an idea of law. It is the relation which the law creates between an individual and a particular locality or country. To every adult person the law ascribes a domicile, and that domicile remains his fixed attribute until a new and different attribute usurps its place. Now this case was argued at the bar on the footing, that as soon as Mr. Bell left Jamaica he had a settled and fixed intention of taking up his residence in Scotland. And if, indeed, that had been ascertained as a fact, then you would have had the animus of the party clearly demonstrated, and the factum, which alone would remain to be proved, would in fact be proved, or, at least, would result immediately upon his arrival in Scotland.

The true inquiry, therefore, is, Had he this settled purpose, the moment he left Jamaica, or in course of the voyage, of taking up a