Lord it impossible to ignore that he has all along continued to keep up his con- July 20, 1926. nexion with his landed estates in Scotland, and to reside at not infrequent Ross v. Ross. intervals at Balnagown, and has apparently done nothing to sever the ties which bind him to his native land. It was argued that the fact that Blackburn. he took a London house for his wife afforded some support to the suggestion that he was not averse from abandoning his domicile of origin. It is hardly necessary to say that the purchase of a London house by a Scottish landowner does not necessarily imply any intention of abandoning a Scots domicile of origin. But it is in my opinion a very material fact in considering whether the defender intended to acquire a domicile in New York, and quite inconsistent with his statement that he did so intend. That appears to me to be the true importance of the London house, and, if the defender has not acquired a domicile in New York, there is no doubt that his British domicile is in Scotland. I have had the opportunity of reading and considering the opinions already delivered, and I concur with the conclusions drawn from the reasons which induced the defender to acquire an apartment in New York; from the absence of any evidence that the defender at any time communicated his intention of changing his domicile to his wife or to his friends, other than to the professional gentlemen he employed to reduce the amount of his income tax; and from the correspondence and the documents produced. I am quite satisfied in my own mind that the defender's sole purpose in taking a residence of a permanent character in New York was to avoid income tax payment, and that his original idea of changing his nationality had the same object in view. He gave up the latter intention when he discovered that it entailed certain disadvantages which he had not contemplated, and he only returned to it when he realised that it might be useful to him in connexion with the present action. I do not think any importance is to be attached to this incident as evidence of an intention to change his domicile before this action was raised. The continued visits which the defender paid to Balnagown during the four years from 1920 to 1923 inclusive, when he professes to have been permanently resident in New York, appear to me to be quite inconsistent with a bona fide intention to abandon his domicile in Scotland. I do not think the extent of these visits has been referred to in detail, but I gather from the evidence that during that period he was at Balnagown on at least twenty-four different occasions, and resided there about twelve months altogether. I do not, of course, mean that he returned to New York between each visit. During the same period he is proved to have been absent from America for another sixteen months, leaving only twenty months available for his voyages between America and Great Britain and for his residences in New York. How much of that time he actually spent in New York is not proved, nor is there any evidence as to how much of the twenty-eight months in which he was absent from America he spent in London or other parts of Great Britain than Balnagown. But I do not think it is unfair to suggest that during these four years he must have spent nearly as much of his time at Balnagown and in Great Britain as he did in New York. Taking that into account along with the fact that he only rents a bachelor apartment in New York, Ross v. Ross. July 20, 1926. while he owns extensive estates in Scotland and bought a house in London as a permanent residence for his wife, I am of opinion that, whatever the defender may say was his animus in taking the apartment in New York, the facta in the case are quite insufficient to justify us in holding that he had abandoned his domicile in Scotland, when this action was raised, and acquired a domicile in New York. In my opinion, therefore, he is subject to the jurisdiction of this Court in the action against him by his wife, and the interlocutor of the Lord Ordinary should be recalled. LORD ASHMORE.-The main question for determination at this stage of the case is whether, as at 11th December 1923, the defender was domiciled in New York. Counsel for the defender argued that, at a date not later than 1901, the defender acquired a domicile of choice in Canada, and that, after abandoning that domicile, he removed to New York, and in or about 1920 acquired a second domicile of choice in New York. In my opinion the argument referred to is not well-founded. Assuming, however, that he ever acquired a domicile in Canada, it would follow that, if and when the domicile of choice in Canada was abandoned, the domicile of origin would at once revive and continue until a new domicile of choice was acquired — Udny v. Udny, 7 Macph. (H. L.) 89, L. R., 1 H. L. Sc. 441. In my view of the facts I think that the acquisition of a domicile in New York has not been established on the evidence adduced. In my opinion, what the defender desired to secure by keeping a residence, and occasionally residing, in New York, was the advantage conferred by American law on a resident alien, and, in particular, the right to deduct from his income, before taxation, expenses and losses incurred in Scotland or in any other country, combined with the opportunity of leaving New York from time to time to make visits to England or Scotland or other countries for periods of about six months in each year. Witnesses were adduced by the defender whom he had consulted on the subject, and who deponed as to what he said to them regarding the desire he had to avoid, or to reduce, taxation of his income, and yet secure the advantage of travelling elsewhere from time to time. It is evident from what they say that links of no ordinary kind bound the defender to Scotland-links that could not lightly be severed by him, having regard to his family and territorial associations in their varied aspects. Yet, so far as the evidence goes, never, at any time, did he tell any of his friends, either in this country or in Canada or in New York or elsewhere, that he had the desire or intention of renouncing his domicile of birth or that he had in fact renounced it. There are various indications to the contrary. The witness Grange, who has known the defender since 1909, who has been on what he describes as specially friendly terms with him, paying visits to him in Quebec and elsewhere, meeting him frequently at Ottawa, in New York, and in Ontario, deponed that the defender never told him that he had severed or meant to sever his connexions with Scotland. The omission is the more striking, if the defender had really changed his domicile first in 1901, and then again in 1920, because Mr Grange had conversations with him about Balnagown. Another of the defender's witnesses, who has known the defender since 1917, asked him in 1920 Ld. Ashmore. why he did not go back to Balnagown, and his reply was-"Oh, but you July 20, 1926. don't understand; there is nothing for me in Scotland," and he explained Ross v. Ross. that his affairs were very efficiently managed by his secretary and his factor, so that it was unnecessary for him to go to Scotland. The defender, whatever opinion he has of the capacity of Scotsmen to seek and find fortunes abroad, has doubts as to the chances of gaining a fortune in this country, which he described as adorable but not a place for a man to live in and make money in. That may explain his own long sojourn in Canada and America. What is more important on the question at issue in this case is the fact that the defender has retained the ownership of the Balnagown estates, with the apparent exception of Balnagown Castle. I say apparent exception, because the evidence that the defender has really parted with the property and possession of the Castle is most unsatisfactory and unconvincing. A company known as the Bruce Corporation, Limited, has been formed in America; and it appears that the Castle of Balnagown with some adjacent land has been transferred to the company, but that the whole remainder of the estates of Balnagown and Benmore still belong in property to the defender and stand in his name. Nevertheless, the defender was occupying the Castle in the autumn of 1924, and he explained, when giving his evidence in this case, that he had been residing there as a tenant. In the absence of fuller information than that available in the evidence adduced, I feel doubt as to whether the Bruce Corporation has the right to oust the defender from the possession or occupation of the Castle. The evidence regarded as a whole is unsatisfactory, and is markedly deficient in information available to the parties which would have cleared up what has been left doubtful and difficult of solution. I have come to the conclusion that the defender has failed to establish that he has acquired, animo et facto, a domicile in New York. I think that the reasonable inference is that his Scottish domicile continues; that the judgment of the Lord Ordinary ought to be recalled; and that the jurisdiction of the Court ought to be sustained. THE COURT recalled the interlocutor of the Lord Ordinary; repelled the first plea in law for the defender; and remitted to the Lord Ordinary to proceed as accords. DUNDAS & WILSON, C.S.-P. MORISON & SON, W.S.-MACPHERSON & MACKAY, W.S. No. 105. CHRISTOPHER BOLAND, Pursuer (Respondent).-R. M. Mitchell, K.C. -T. D. K. Murray. July 20, 1926. THE WHITE CROSS INSURANCE ASSOCIATION, LIMITED, AND ANOTHER, Defenders (Appellants).-W. A. Murray. Boland v. Insurance Association. Sheriff of Arrestment-Subjects arrestable-Liability to account-Arrestment of sum due by insurance company to an insured-Repudiation by the insurance company of liability to the insured-Ascertainment of liability dependent on arbitration-Furthcoming-Competency. A person who had been knocked down and injured by a motor car obtained a decree for damages against the owner of the car. Thereafter he used arrestments in the hands of an insurance company, with whom the owner was insured against third party risks, for the sum alleged to be due by them to the owner under the policy; and, in a subsequent action against the company, he sought to make furthcoming the sum so arrested. The company-who had taken up the position that the owner of the car had no claim against them, in respect that he was in breach of a condition of the policy at the time of the accident-objected to the competency of the action of furthcoming, on the ground that the existence of liability on their part was a condition precedent to valid arrestment, and that the question of the existence of such liability fell to be determined, in terms of the policy, by arbitration. Held that the arrestments had been competently laid on, in respect that a liability to account was arrestable even if, as here, the actual fact of the arrestee's liability to pay was contingent upon the result of an arbitration; that an action of furthcoming was the appropriate procedure to complete the effect of the arrestment in the event of the liability to account becoming a liability to pay; and action of furthcoming accordingly sisted to await the result of the arbitration proceedings under the policy. Riley v. Ellis, 1910 S. C. 934, followed. 2D DIVISION. ON 23rd September 1923 Christopher Boland, 233 Main Street, Lennoxtown, was injured by a motor car driven by Alexander Smith, Kirkintilloch. He brought an action against Smith in the Court of Session, and, on 27th June 1924, obtained decree against him for the sum of £250 and expenses. Smith was insured with the White Cross Insurance Association, Limited, against third party risks under a policy of insurance, the sixth condition annexed to which was in the following terms:"All differences arising out of this policy shall be referred to .. arbitration and an award shall be a condition precedent to any liability of the Association." On 8th April 1925 Boland executed arrestments, under his Court of Session decree, in the hands of the Insurance Association for the sum of £350, alleged to be due and addebted by them to Smith. Thereafter, on 16th May 1925, Boland brought an action of furthcoming in the Sheriff Court at Glasgow against the White Cross Insurance Association, the arrestees. In this action he sought to make furthcoming the arrested sum of £350 in satisfaction of the debt due by Smith to him. Defences were lodged by the White Cross Insurance Association. The parties averred, inter alia [amendments allowed when the was before the Inner House being printed in italics]:(Cond. 4.) "By said policy or policies of insurance the defenders, case The Association. the White Cross Insurance Association, Limited, undertook and July 20, 1926. are bound to indemnify their said assured, the defender Smith, Boland v. against all liability at law for compensation (including law costs White Cross of claimant) for bodily injury, whether fatal or otherwise, to Insurance persons not in the service of the assured caused by the use of assured's said motor car. At the date of the arrestments now founded on by the pursuer, and hereinafter referred to, the defender Smith was entitled by virtue of the said policy of insurance to call upon his insurers to put him in funds to enable him to pay the sums contained in the said Court of Session decree, and it is believed and averred that he did so. With reference to the answer it is explained that the said policy has not yet been produced, and the demand for production thereof is hereby repeated. The copy policy No. 307981 since lodged by defenders is admitted to be a true copy of the original policy, and is referred to and founded upon. letters of 8th November 1923 founded on in answer are referred to for their terms. Quoad ultra the explanations in answer are denied. Explained that at the time of the accident the defender Smith's motor car was not let out on hire or being used otherwise than for private purposes." (Ans. 4.) (Ans. 4.) "Explained and averred that these defenders are under no liability to the said defender Smith under their policy of assurance with him in respect of the accident to the pursuer. The defenders were, in terms of the said policy, only liable to indemnify the defender Smith for damage caused by his insured car while used for private and not for hiring purposes. At the time of the accident the defender Smith was using his car as a hackney carriage for hiring purposes, and these defenders are accordingly under no liability to him under said policy in respect of the accident sustained by the pursuer above condescended on. These defenders duly intimated this fact to Smith by letter on 8th November 1923, and he accepted the intimation and acquiesced in these defenders' refusal to admit liability. On said 8th November these defenders also intimated to the pursuer that they were not liable to indemnify Smith in respect of said accident. A copy of the said policy is produced herewith, together with a copy of the correspondence passing between the arrestees and James Martin (Kirkintilloch), Limited, which is referred to for its terms, beyond which no admission is made. In any event, it is a material condition of the said policy that any difference arising between the Company and the assured shall be submitted to arbitration, and that an award in the arbitration shall be a condition precedent to any liability of the Company." The pursuer pleaded (after amendment) :-(3) "Esto that there exists a difference arising out of the said policy which falls to be referred to arbitration, the present action should be sisted pending the result of such reference to arbitration." The compearing defenders pleaded (after amendment) :—(3) " The defenders not being due to pay any sum under said policy until their liability to pay and the amount payable have been determined by arbitration, they should be assoilzied from the conclusions of the summons.” On 29th July 1925 the Sheriff-substitute (Macdiarmid) granted decree of absolvitor. The pursuer appealed to the Sheriff (A. O. M. Mackenzie), who, on 29th March 1926, allowed parties a proof habili modo of their averments, and, on 31st March, granted leave to appeal. The White Cross Insurance Association appealed to the Second |
