The question of domicile is a very large one, and it is not easy to ascertain affirmatively all that belongs to it, particularly when applied to English law. It is somewhat remarkable that "domicile" is now very frequently the subject of discussion in our Courts, and, as we have more than once observed, the word is comparatively entirely new to the English law, for neither it nor the notion it conveys belongs to anything English. The word "domicile" is not to be found in Viner's Abridgment, Bacon's Abridgment, Comyn's Digest, or in English law books from Bracton down to Blackstone. An English subject is domiciled in every part of England; but that is not so in foreign countries where the law of domicile prevails. There a man is domiciled at the particular part of the dominions where he was born, and there are certain acts which he cannot perform unless at his place of domicile. The English law knows no such disability. A British subject may marry or make a will in any part of the British dominions. I think that for certain purposes a person may have more than one place of domicile. I apprehend that a peer of England, who is also a peer of Scotland, and has estates in both countries, who comes to Parliament to discharge a public duty and returns to Scotland to enjoy the country, is domiciled both in England and Scotland. A lawyer of the greatest eminence, formerly a member of this Court, and now a member of the House of Lords, to whose opinion I, in common with all the profession, attach the highest importance, once admitted to me that for some purposes a man might have a domicile both in Scotland and England. I cannot understand why he should not. Then why may not the same thing occur with reference to commerce, manufactures, or any other purpose? Suppose, for instance, a person born in England of French parents (and therefore a French subject, with an English domicile of origin), had a large commercial establishment in both countries, without any particular attachment to either, but only intending to make the most money he could in both. Why should he not, for the purposes of the particular establishment, be domiciled in both countries, so that his property in England would be administered according to the law of England, and his property in France according to the law of France? But somehow or othe:

a notion has crept in that although there may be three sorts of domicile, as in France, there can be only one for the purpose of administering property in England. I cannot conceive what reason or necessity there is for any such distinction, and in the case which I have put I cannot understand why a person, for the purpose of commerce and manufacture, should not have a domicile both in England and France.

Now, the conclusion to which the authorities lead is, that the testator was domiciled in England. Where British subjects have settled in the East Indies and there realized a large personal property, it has been considered exempt from legacy duty because they have acquired what is called an Anglo-Indian domicile. But there can be no doubt that in every one of those cases the party intended to return to this country and here spend the remainder of his days. I very much doubt whether the noble and learned lords who, in the case of Morehouse v. Lord, expressed the opinions which have been adverted to, intended to say that the decisions with respect to Anglo-Indian domicile were wrong. The argument of the Attorney-General has satisfied me that the testator acquired an English domicile; at the same time I think that my learned brothers are correct in saying that the opinions expressed by the noble and learned lords who decided the case of Moorehouse v. Lord are calculated to convey the notion that the definition of Mr. Justice Story (Story on the Conflict of Laws, sec. 43, p. 53) is not correct, and that a new definition of domicile may be given and acted upon in this country. However, a judgment of the House of Lords is only binding so far as it necessarily determines some certain proposition; it is not binding as to the reasons given by each of the noble lords, even though they should all concur in giving the same. If, indeed, the reasons for a judgment are so interwoven with the decision as to form a necessary part of it, no doubt it is an authority which no one ought to treat lightly, and to which every Judge ought to defer if he can; but he is not bound to do so, though he is undoubtedly bound by the judgment, or what may be called its essence and principle. In the case of Moorehouse v. Lord I should have come to precisely the same conclusion as the noble and learned lords who decided it, without thinking it neces

sary to give a new definition, or to enunciate any doctrine to be regarded as a new and improved view of the law of domicile, as if Mr. Justice Story was no authority, and all the antecedent writers on the subject wrong. I own I am not of that opinion. In my judgment the definition of Mr. Justice Story is for all practical purposes far more reasonable than any other that I am aware of. Seeing that the definition given in Moorehouse v. Lord was not necessary for the decision of that case, I am not disposed to adopt it in this. I am rather disposed to adopt the argument of the Attorney-General, and agree with him that the testator was domiciled in England, and therefore his personal property is liable to legacy duty.

But it was further argued, on the part of the Crown, that assuming the testator was domiciled in France, and his property exempt from legacy duty, the case of In re Wallop's Trust is an authority that it is liable to succession duty. I think that the opinions of the learned Judges of the Court of Appeal in Chancery are entitled to the greatest respect, but that Court is not, in matters of revenue, a Court of co-ordinate jurisdiction with this Court. I own that if in this case there had been a French domicile I should have entertained considerable doubt whether the property was liable to succession duty. But I so far respect the opinions of the learned Judges who decided Wallop's Case that I should be disposed to adopt their view. But whether we take one view or the other, according to the decision of the Lords Justices the Crown is entitled to duty; and if the Attorney-General is right in saying that the domicile was English, which I think is really the correct view, there can be no doubt on the subject. I therefore agree with the rest of the Court that the Crown is entitled to duty; at the same time I have thought it right to make these remarks, because there are principles involved in our decision which I think by no means free from doubt.

Cause shown for non-delivery of the account and nonpayment of the duty and costs, disallowed; and order for payment of the duty and costs.

DOMICIL IN UNCIVILIZED COUNTRIES.

DICEY CONFLICT OF LAWS, APPENDIX, NOTE 1.*

THE Rules in this Digest apply only to rights acquired under the law of a civilised country. What, however, is the law, if any, which in the opinion of English Courts governs transactions taking place in an uncivilised country, e. g., in the Soudan, or in some part of the world not under the sovereignty of any ruler recognised by European law?

The question is one which may at times come before an English Court; it is also one to which, in the absence of decisions, nothing like a final answer can be given; all that can be done is to note a few points, as to the matter before us, on which it is possible to conjecture, at any rate, what would be the view taken by English Courts.

We may assume that the legal effect of a transaction taking place, e. g., a contract made, in an uncivilised country could not come before an English Court unless one of the parties at least were the subject of some civilised state.

(1) As to domicil.-An Englishman-and probably the citizen of any civilised country-does not, it would seem, by fixing his permanent residence, or settling in an uncivilised country, acquire, for legal purposes, a domicil in such country. A domiciled Englishman who settles in China, and a fortiori who settles in a strictly barbarous country, retains his English domicil. A, an Englishman, was settled at Shanghai. "In these circumstances it was ad"mitted by the petitioner's counsel [in a case as to liability to "legacy duty] that they could not contend that the testator's domi"cil was Chinese. This admission was rightly made. The differ"ence between the religion, laws, manners, and customs of the "Chinese and of Englishmen is so great as to raise every presump"tion against such a domicil, and brings the case within the prin"ciples laid down by Lord Stowell in his celebrated judgment in "The Indian Chief [1801, 3 Rob. Ad. Cas. 29], and by Dr. Lush"ington in Maltass v. Maltass" [1844, 1 Rob. Ecc. Cas. 67, 80, 81]. (In re Tootal's Trusts, 1883, 23 Ch. D. 532, 534, judgment of

*This "note" is inserted by permission of the American publisher of "Dicey on the Conflict of Laws."

Chitty, J. Semble, however, that the cases do not show that an Englishman might not for legal purposes acquire a domicil in such a country as China. All they actually establish is the strength of the presumption against his intending to acquire a domicil in China, or rather to subject himself to Chinese law.)

The principle laid down or suggested in these words by Mr. Justice Chitty-namely, that settlement in an uncivilised country does not change the domicil of the citizen of a civilised country, or at any rate of a domiciled Englishman-goes (if it can be maintained) some way towards solving one or two difficult questions, e. g., What is the law governing the validity of a will made in an uncivilised country by an Englishman domiciled in England?

(2) As to marriage.-A marriage made in a strictly barbarous country between British subjects, or between a British subject and a citizen of a civilised country, e. g., an Italian, and it would seem even between a British subject and a native of such uncivilised country, will, it is submitted, be held valid as regards form, if made in accordance with the requirements of the English common law; and it is extremely probable that, with regard to such a marriage, the common law might now be interpreted as allowing the celebration of a marriage per verba de præsenti without the presence of a minister in orders. A local form, also, if such there be, would seem to be sufficient, at any rate where one of the parties is a native. It is, however, essential that the intention of the parties should be an intention to contract a "marriage" in the sense in which that term is known in Christian countries, i. e., the union of one man to one woman for life to the exclusion of all others. Capacity to marry would apparently depend upon the law of the domicil of the parties, or perhaps more strictly of the husband.

(3) As to contract.-Capacity to contract must, it would seem, depend upon the law of the domicil of the parties to the agreement. If either of the parties were under an incapacity by the law of his domicil to enter into a contract, an agreement made by him in an uncivilised country would probably not be enforceable against him in England. This we may be pretty certain would be the case were the party under an incapacity an English infant domiciled in England.