COUNSEL: Lyon, for the appellant.

Sidney Woolf, for the debtor.

 

SOLICITORS: For creditor: E. R. Keele.

For debtor: Lewis & Lewis.

 

JUDGES: Baggallay, Cotton and Lindley, L.JJ.

 

DATES: 1884 June 13.

 

 

Bankruptcy – Bankruptcy Petition – Domicil of Debtor – Onus of Proof – Officer in British Army serving out of England – Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 6, sub-s. 1 (d).

 

Sub-s. 1 (d) of s. 6 of the Bankruptcy Act, 1883, enacts that a creditor shall not be entitled to present a bankruptcy petition against a debtor unless (inter alia) “the debtor is domiciled in England”:–

 

Held, that this must be taken to mean domiciled in England, as distinguished from Scotland or Ireland.

 

The onus is, in the first instance, on the petitioning creditor to prove the domicil, though he may adduce such primâ facie evidence as will throw the burden of disproving the domicil on the debtor.

 

But the mere fact that the debtor bears an English name, and is an officer in the British army, does not raise any presumption that his domicil is English as distinguished from Scotch or Irish, inasmuch as his domicil of origin might have been Scotch or Irish, and in either of those cases he would not by entering into the British army have lost his domicil of origin.

 

Yelverton v. Yelverton (1 Sw. & Tr. 574), and Brown v. Smith (15 Beav. 444), approved and followed.

 

The cases relating to Anglo-Indian domicil commented on and explained.

 

APPEAL from the dismissal, by Mr. Registrar Hazlitt, of a bankruptcy petition presented by Andrew Cunningham against Edward Mitchell. [*419]

 

The debtor was a Lieutenant-Colonel in Her Majesty’s Royal Engineers, and had been since September, 1881, commanding the Royal Engineers in Guernsey and Alderney, having an official residence in Guernsey.

 

On the 5th of September, 1882, Mitchell commenced an action for damages against Cunningham in the Queen’s Bench Division. Cunningham delivered a counter-claim for 16&L At the trial the jury could not agree as to Mitchell’s claim, but gave a verdict for the 16&L for Cunningham on the counter-claim, and judgment was entered accordingly, with costs. The costs were taxed at 119&L In the writ issued by Mitchell in this action he was described as “of No. 17, Glendower Mansions, Harrington Road, South Kensington, in the county of Middlesex,” and in an affidavit sworn by him in the action, on the 9th of March, 1883, he was described in the same way. The bankruptcy petition was presented on the 7th of March, 1884, and was founded on the judgment debt and costs (amounting to 135l.) in respect of which a bankruptcy notice had been served on Mitchell, with which he had failed to comply. The notice and the petition were, by the leave of the court, served on him in Guernsey. The petitioning creditor’s solicitor made an affidavit in which he said, that, to the best of his knowledge and belief, the debtor was domiciled in England, and that the head quarters of the Royal Engineers were at Chatham. In another affidavit the solicitor said that the debtor was residing at his official residence in Guernsey. The debtor made an affidavit, on the 26th of May, 1884, in which he said that from the 8th of September, 1881, when he commenced his official duties in Guernsey, down to the date of his affidavit he had resided at his official residence in Guernsey, and had had no other residence, and that the head quarters of the Royal Engineers as to the Guernsey district were in Guernsey. He said, also, that he had occasionally during the above-mentioned period obtained leave of absence, and upon such few occasions had temporarily stayed at No. 17, Glendower Mansions, South Kensington, which was an hotel.

 

The Registrar dismissed the petition on the ground that the debtor was not domiciled in England, and that within a year before [*420] the presentation of the petition he had not ordinarily resided nor had a dwelling-house or place of business in England.

 

The petitioning creditor appealed.

 

On the hearing of the appeal it was stated (though there was no evidence to that effect) that the debtor was by birth an Irishman, and the argument proceeded on that assumption.

 

Lyon, for the appellant. The debtor’s own evidence in the action shews that he had ordinarily resided or had a dwelling-house in England within a year before the date of the petition, and in this way the requirements of s. 6, sub-s. 1 (d)(1) of the Bankruptcy Act, 1883, are satisfied. But, at any rate, as he is an officer holding a commission in the British army, he is necessarily for that reason a domiciled Englishman, whatever his domicil of origin, even if he was by birth a Scotchman or an Irishman.

 

[Sidney Woolf, for the debtor, referred to Dicey on the Law of Domicil, p. 139.]

 

He must have an English domicil, though his domicil of origin may be retained for some purposes.

 

[BAGGALLAY, L.J. How can he have two domicils? The point appears to be decided against you by Yelverton v. Yelverton (2) and Brown v. Smith (3).

 

COTTON, L.J. Yelverton v. Yelverton (2) seems to be exactly in point.]

 

A Scotchman by birth, who entered the military service of the East India Company, acquired an Anglo-Indian domicil. If he left the service and returned to his own country his domicil of origin reverted, unless he had shewn an intention of abandoning it: Forbes v. Forbes (4).

 

[COTTON, L.J. Does that apply to a Scotchman entering the British Army?]

 

There are similar decisions in the case of officers entering the military service of a foreign sovereign: Ommaney v. Bingham (5);

 

(1) Sect. 6 (1). “A creditor shall not be entitled to present a bankruptcy petition against a debtor unless (inter alia) (d) the debtor is domiciled in England, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in England.”

 

(2) 1 Sw. & Tr. 574.

 

(3) 15 Beav. 444.

 

(4) Kay, 341.

 

(5) House of Lords, cited 5 Ves. 757. [*421]

 

Hodgson v. De Beauchesne (1); Somerville v. Somerville (2). The domicil of origin always remains to this extent, that, when the officer resigns his commission, it reverts at once. For the present purpose a Scotchman or an Irishman stands in the same position as a foreigner: Bruce v. Bruce (3). In Yelverton v. Yelverton (4) the question was as to the jurisdiction of the Divorce Court. A man may have one domicil for the purpose of succession to property, and another for the purpose of founding the jurisdiction of an English Court. Under the circumstances the onus is on the debtor to shew that he is not a domiciled Englishman.

 

Sidney Woolf, for the debtor, was not heard.

 

BAGGALLAY, L.J. (after referring to subs. 1 (d) of s. 6.) It appears to me that it is not established that the debtor, “within a year before the date of the presentation of the petition has ordinarily resided or had a dwelling-house or place of business in England.” But the question remains whether he is domiciled in England, and I am of opinion that the onus is on the petitioning creditor to shew that the debtor is domiciled in England. I can quite conceive that there may be cases in which there is such an amount of primâ facie evidence of an English domicil as to shift the burden on to the respondent. But all the evidence we have in the present case is, that the debtor bears a name which might be that either of a subject of Her Majesty or of a citizen of the United States of America, and that he holds a commission in the military service of the Queen. That he might hold if his domicil was Scotch or Irish, or possibly even Indian. It has been argued that the mere fact that a man is serving the Queen of England in her army makes him an Englishman, though his domicil of origin was Scotch or Irish. I cannot assent to this. The present case has been argued on the assumption that the debtor’s domicil of origin was Irish. The rules of law on the subject may be arranged under three heads:(1), a subject of Her Majesty entering into the military or naval service of a foreign power acquires a domicil in the country of that power;(2), a subject of Her Majesty entering into Her Majesty’s military or naval

 

(1) 12 Moo. P. C. 285.

 

(2) 5 Ves. 750.

 

(3) Cited, 5 Ves. 761; 2 B. & P. 229, n.

 

(4) 1 Sw. & Tr. 574. [*422]

 

service does not thereby lose his domicil of origin, which may be English, or Scotch, or Irish;(3), there are some anomalous cases in which a subject of the Queen had entered into the service of the old East India Company, and it was held that he had acquired what was called an Anglo-Indian domicil. Such cases can hardly arise now, because the separate government of the East India Company is at an end, and the army in British India is now part of the Queen’s army. Perhaps they rather depended on the notion that the officer had entered into the service of a quasi foreign power. But I think the second of the rules which I have mentioned applies to the present case. Whether Colonel Mitchell’s domicil of origin was Scotch or Irish when he entered the service of the Queen he did not thereby lose his domicil of origin. If, as has been assumed, his domicil of origin was Irish, he has never forfeited that domicil. The petitioning creditor therefore, has not established that which sub-s. 1 (d) of s. 6 requires, and the registrar’s decision was right. The case of Hodgson v. De Beauchesne (1) was a very peculiar one. The testator in that case went to India in the military service of the East India Company, and thus acquired an Anglo-Indian domicil. He returned to England on furlough, and while on furlough he went to reside in France and died there. He had while residing in France acquired the brevet rank of major-general in Her Majesty’s army, and, being still an officer in the Indian army, he was always liable to be recalled to India on active service. It was held that the presumption raised by his residence in France of an intention to put off his English domicil and acquire a French domicil was rebutted by the other facts, it being incompatible with his duty as an officer to acquire a domicil in a foreign state.

 

COTTON, L.J. I agree in the reasons which have been expressed by Baggallay, L.J., but I think it right to add a few words. It is not suggested that the debtor has within a year ordinarily resided or had a place of business in England. It is said that in the writ and in an affidavit in the action he described himself as of “No. 17, Glendower Mansions, South Kensington.” It

 

(1) 12 Moo. P. C. 285. [*423]

 

turns out that that house is an hotel, and, though a man might ordinarily reside at an hotel, his going there occasionally would not make it his dwelling-house.

 

The great contest, however, has been on the question of domicil. I agree that the onus of proof is on the petitioning creditor, though of course there might be cases in which there was primâ facie evidence to shift the burden. I am of opinion that “domicil in England” means in England as distinguished from Scotland and Ireland as well as from foreign countries, because Scotland and Ireland have their own separate legal tribunals. It is meant that the debtor’s domicil must be strictly in England, as distinguished from other parts of the United Kingdom. What is the primâ facie evidence in the present case? The debtor is an officer in the Royal Engineers, the head-quarters of the Engineers being at Chatham. It is said that this establishes that his domicil is English. I am of opinion that that conclusion is erroneous. No doubt, if a foreigner enters the British army and resides in England his domicil will be in England. But is there in the present case any primâ facie presumption that the debtor’s domicil is in England? It is said that a Scotchman by entering the service of the East India Company acquired an Anglo-Indian domicil. I take exception to the expression “by entering the service” of the East India Company. The ground of the decisions in those cases was that the officer was residing in India under circumstances which shewed that he intended to abandon his domicil of origin, under circumstances which rendered it his duty to reside there permanently. It was not the entering the service, but the residence in India under circumstances which required him to remain there, which caused the change of domicil. This is really what was said by Wood, V.C., in Forbes v. Forbes (1): “When an officer accepts a commission or employment, the duties of which necessarily require residence in India, and there is no stipulated period of service, and he proceeds to India accordingly, the law, from such circumstances, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India.” A Scotchman entering into the British army does not by that fact alone acquire a different domicil. His

 

(1) Kay, p. 356. [*424]

 

residence in England is only a temporary one for the purpose of discharging his military duties. All we know in the present case is that the officer holds a commission in the Engineers, and his residence in Guernsey is merely for the purpose of discharging his duty as an officer. That duty does not require his permanent residence at Chatham. The point was really decided in Yelverton v. Yelverton (1), and in Somerville v. Somerville (2) it was assumed that the mere acceptance by a Scotchman of a commission in the English army did not make him lose his domicil of origin. I am of opinion that those cases were rightly decided. It is said that this view is contrary to the cases in which a Scotchman has entered into the Russian or Dutch military service. But it was not the mere fact of entering into the foreign service, but the going to Russia or Holland under circumstances which would require the officer to reside there permanently, which brought about the change of domicil. All that was decided in Hodgson v. De Beauchesne (3) was this, that an officer in the English army who was also in the service of the East India Company, could not while he was in those services acquire a domicil in a foreign country, because that would be inconsistent with the duty which he owed to the Queen and to the East India Company. In my opinion the decision of the registrar was right.

 

LINDLEY, L.J. I am of the same opinion. It is incumbent on the petitioning creditor to prove, if it is disputed, that the conditions prescribed by sub-s. 1 (d) of s. 6 exist. Upon the facts it is pretty plain that Colonel Mitchell has not, within a year before the date of the presentation of the petition, ordinarily resided or had a dwelling-house in England. The evidence shews that his residence at Kensington was a temporary one at an hotel. It is said, however, that he is domiciled in England, and the first question is, on whom is the onus of proof? I think it is on the petitioning creditor. Has he discharged it? It is true that the debtor has an English name, and that he is an officer in the English army. But these circumstances alone do not raise any presumption that his domicil is English, as distinguished from Scotch or Irish, though, it may be, they raise a presumption that

 

(1) 1 Sw. & Tr. 574.

 

(2) 5 Ves. 750.

 

(3) 12 Moo. P. C. 285. [*425]

 

he is a British subject. It is said that, whether his domicil of origin was Scotch or Irish, it became English by his entering into the English army, and in particular by his entering the Royal Engineers whose head quarters are at Chatham. I think that this is not a correct view of the law. This depends on whether that which Mr. Dicey says in his book correctly represents the result of the authorities. He says, p. 139: “A soldier or sailor in the service of his own sovereign retains the domicil which he had on entering the service, wherever he may be stationed,” and he refers to Yelverton v. Yelverton (1) and Brown v. Smith (2). I think that his statement is fully borne out by those authorities. The point appears to me perfectly plain. It is not suggested that those cases have been overruled, but reliance has been placed on the cases relating to Anglo-Indian domicil. Those cases were anomalous and exceptional, and the theory of them is not very clear. I think it was correctly explained by Turner, L.J., in Jopp v. Wood (3). He said: “At the time when those cases were decided the government of the East India Company was in a great degree, if not wholly, a separate and independent government, foreign to the government of this country; and it may well have been thought that persons who had contracted obligations with such a government for service abroad could not reasonably be considered to have intended to retain their domicil here. They in fact became as much estranged from this country as if they had become servants of a foreign government.” Looking at what the Lord Justice there says, and at what Wood, V.C., said in Forbes v. Forbes (4), it may well be that the fact of residence in the East Indies may have introduced an anomaly into the law of domicil. While they were law those cases very much confused the English law of domicil, and they were always anomalous cases. But, when we are asked to say that, by merely entering into the English army, an Irishman loses his domicil of origin, I think there is no authority for the proposition.

 

Appeal dismissed.

 

(1) 1 Sw. & Tr. 574.

 

(2) 15 Beav. 444.

 

(3) 4 D. J. & S. 623.

 

(4) Kay, 341.