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recent Act, (q) Her Majesty, by convention with any foreign State, may agree, and by order in Council direct, that, from and after the publication of such order, no British subject resident at death in a foreign country shall be deemed to have acquired a domicile therein, unless resident in such foreign country for one year immediately preceding his or her death, and shall also have made and deposited in a public office of such foreign country a declaration in writing of his intention to become domiciled in that country.

Residence for a year in a furnished house without an intention of making it a permanent home was held insufficient to found a domicile.(r) The question, therefore, falls to be solved by the party's acts and declarations.(s) Prima facie, the place of residence is the domicile, provided there is animus manendi.(t) A person in the military service of India acquires an Anglo-Indian domicile.(u) But residence on foreign service does not affect the domicile of officers in the army or navy (v); nor of ambassadors(w); nor, it would appear, of consular agents without local connections.(a) Governors of Colonies,(y) of military stations,(z) and other local functionaries of the British dependencies, acquire the domicile of the station to which they are attached; but the appointment of a merchant to a British consulate does not affect his foreign domicile. (a) A domicile in one part of the United Kingdom is not altered by military service in another part.(b) By attending Parliament in London, a Scotchman does not change his domicile.(c) Where the residence is partly at two places-one a place of business, and the other where the wife and family reside -the domicile is at the latter place. (d) A domicile of origin is merely superseded by a domicile of choice, and, on the abandonment of the latter, the former revives.(e)

3. Domicile by Operation of Law. --Thus, by marriage, the domicile of the husband becomes that of the wife, (f) and con

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tinues thereafter, even though they be living apart under a voluntary deed of separation; (g) but not, it would seem, if judicially separated. (h) A widow may choose her own domicile, and also that of her minor children, if not done with a fraudulent intention.(i) As before observed, a British subject does not acquire a foreign domicile until he shall have complied with certain statutory provisions.(k)

83. Moveable Property: what it consists of-As already noticed, everything and every right a person can possess and hold, falls to be classed under the head of either heritable or moveable.

This distinction is of the essence of legal succession, inasmuch as heritable property goes to the heir-at-law, whilst moveable property goes to the next-of-kin of the intestate.

The distinction corresponds substantially with the moveable and immoveable rights of the civil law, and of general jurisprudence.

The two classes of property are divided into things corporeal and things incorporeal; and this classification corresponds with the rules of the civil law as stated by Justinian.

Things corporeal are those which are tangible by their nature, as land, furniture, money, &c.

Things incorporeal are those which are not tangible, as rights and obligations of all kinds.

The character of a thing, as heritable or moveable, may be impressed on it either—

(1.) By its nature, as land; or

(2.) By accession to some other thing which has the character by nature of heritable or moveable; or

(3.) By destination, in respect of either accession or succession. I. Corporeal Things—

(1.) By Nature-Land, trees, minerals, and generally things immoveable, are heritable; while everything that moves, or is capable of being moved from place to place, is moveable. So money, household furniture, plenishing, and goods of every description, stock-in-trade, farm stock and implements, ships and their furniture, and, generally, all subjects not attached to the soil, are moveable.(1)

(g) Dolphin, 4th August, 1859, 3 Macq. 563.

(h) Allison, 15th June, 1839, 1 D. 1025.

(i) Arnott, supra.

(k) 24 & 25 Vict. c. 121.

(1) Bell's Prin. § 1470; Ersk. 2,2,7; M'Laren, § 368; 17 & 18 Vict. c. 104.

(2.) By Accession-Houses, buildings, walls, &c., are heritable, as being attached to land; while trees, stones, minerals become moveable by separation: trees when cut down, stones when taken out of the quarry, minerals when brought to the surface.(m)

Industrial fruits are moveable, though still attached to the land; including not merely corns, but everything that is produced by skill and capital, as potatoes, turnips, &c.(n)

So also are shrubs and other perennial plants growing in a nursery for sale.(0)

Natural fruits of land are moveable when separated from the land.(p)

Machinery, fixtures, &c. As a general rule, a moveable subject is to be regarded as heritable-1. Where it cannot be disjoined without injury either to itself or to the heritable subject; or, 2. though less completely fixed (1) if it is essential or material to the use of the heritage, or (2) if there is a special adaptation in the construction of the personal subject to the use of the heritable subject which it would not have if it had been placed elsewhere, or (3) where there is an express declaration of the owner that the subject should be heritable (q). But where there is no intention of making the fixtures an accessory of the heritage these rules do not apply.(r)

It must be here kept prominently in view that the rules which regulate the character of these things arise in four different positions as between

1. Heir and executor;

2. Fiar and executor of a liferenter;

3. Heritable and personal creditors; and

4. Landlord and tenant.

In a question of succession, the tendency has been to hold fixed machinery, &c., as attached to the land or building, and so to be heritable; but a more liberal interpretation would be given in favour of a tenant, by holding such machinery, &c., when erected by the tenant, rather as connected with the tenant's trade, and so to be moveable, and removeable by the tenant, than as part of the heritable subjects let.

(m) Bell's Com. 710.

(n) Stair, 2, 1, 2; Ersk. 2, 2, 4.
(0) Begbie, 15th Dec. 1837, 16S.232.
(p) Stair, 1, 4, 17.

(q) Dowall, 11th July, 1874, 1 R. 1180.

(r) Dixon, 6th March, 1843, 5 D.

775.

The following cases may be stated as examples of the distinctions here indicated(s):

I. IN A QUESTION BETWEEN HEIR AND EXECUTOR.

1. Things held to be Heritable.

Large conservatory or greenhouse within garden; also, forcinghouses and vinery outside garden; also extensive iron fences in policy grounds.(t)

Fixed machinery for working minerals.(u)

Steam-engines bolted to log seats, which rested on brick foundations, but not fastened by any mechanical means; also, an underground railway, the rails being nailed to sleepers, and the sleepers laid upon the strata.(v)

Machinery in coal and iron works directly or indirectly attached to the ground, and capable of being removed either entire or in pieces; also, loose articles not physically joined, yet necessary for working the particular machinery, and not susceptible of being applied to other engines of the same kind.(w)

Salt-pans necessary to the possession of the inheritance.(a)

Pictures and glasses put up instead of wainscot, or where wainscot otherwise would have been put. (y)

Iron stoves.(2)

Furnace fixed with mortar to freehold. (a)

Furnace not fixed to walls, but to middle of house. (b)

2. Things held to be Moveable.

Telescope in an observatory.(c)

Spinning machines in a factory and attached to building for convenient use. (d)

Plants in a nursery garden kept for sale.(e)

Brewer's copper cauldron; also vats, utensils, and other machinery for trade.(ƒ)

(s) Several of these examples are taken from Mr. Archibald Brown's excellent "Treatise on the Law of Fixtures."

(t) Tod's Trs., 30th Jan. 1872, 10 Macp. 422.

(u) Brand's Trustees, 16th March, 1876, 3 R. (H. L.) 16.

(v) Brand's Trustees, 2nd Feb. 1878, 5 R. 607. These would be moveable in a question between landlord and tenant.

(w) Dixon, 6th March, 1843, supra. (c) Lawton, 1; Black, H. 259. (y) Cave, 3; Vern. 508. (z) Goddard, 7; Mass. 432. (a) 20 Hen. VII. c. 13. (b) 21 Hen. VII. c. 26. (c) Tod's Trustees, 30th Jan. 1872, supra.

(d) Dowall, 11th July, 1874, supra. (e) Gordon, 2nd Dec. 1806, Hume, 188.

(f) Fisher, 17 Jur. 568.

Ranges, ovens, and set pots.(g)

Furnace, though fixed to freehold and purchased with same;

also, hangings nailed to wall.(h)

Hangings, tapestry, and iron backs to chimneys.(?)

II. IN A QUESTION BETWEEN FIAR AND EXECUTOR OF
LIFERENTER.

1. Things held to be Heritable.

Buildings of an agricultural nature.(k)

Wainscot, pictures, mirrors, tapestry in frames in a musicroom and ante-room, and forming the visible walls and roof, and so attached thereto; kitchen range, ornamental vases in flowergarden and pleasure grounds; sashes of forcing-beds, with their frames.

Fixtures Tile hearths laid on the hearthstone of a mansion, and bedded in cement, &c., and plants growing in the kitchengarden.

2. Things held to be Moveable.

Steam-engine erected on a colliery by a tenant for life.()
Fire engines erected in a colliery.(m)

Bookcases, grates, brackets moveable, but gas-pipes heritable.(n) Grates, gas brackets fastened in the ordinary way, and fireclay vases in the gardens, attached by stucco to stone parapet walls, and plants in pots which were bedded in the ground.(0)

III. IN A QUESTION BETWEEN HERITABLE AND PERSONAL

CREDITORS.(p)

1. Things held to be Heritable.

Steam-engine and the large or fixed gearing of a mill.(q)

Leaden cisterns in a manufactory, incapable of being removed without being cut into pieces.(r)

Bell hung upon a frame, and fastened to it by a hasp, the frame being nailed to cupola of barn.(s)

(g) Wynne, 1 D. and R. 247. (h) Squire Freem, 249; contrary to rule in Herlakenden, 4 Co. (i) Harvey, 2; Stair, 1141. (k) Buckland, 2 B and A. 54. (1) Lawton, 1743; 3 Atk. 13. (m) Dudley, Ambler, 113.

(n) Stewart V. Douglas, 1870 (noted in App. to Brown on Fixtures).

(0) Nisbet and Others, 20th Feb. 1880, 7 R. 575.

(p) Some of the cases cited under this head were between seller and purchaser.

(9) Arkwright, 3rd Dec. 1819, 20 F. C. 52.

(r) Niven, 6th March, 1823,2 S. 270. (s) Weston, 102; Mass. 514.

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