A Century of English Jîidicature.
437
Westbury was at his best in the discussion of topics in which the authorities were con flicting and in questions that lay outside the ambit of well-settled authority. His great opinion in the -case of Taylor v. Meads, 4 DeG., J. & S. 597, on the testamentary ca pacity of married women, is a good illustra tion of his remarkable skill in settling dis cussion of a complex subject. The domain of what has been called private international law afforded scope for his peculiar powers. Udny v. Udny, i Sc. & Div. App. 457; Cookney v, Anderson, 32 L. J. Ch. 427; Ex parte Chavasse, 34 L. J., Bank. 17; Enohin v. Wylié, ю H. L. Cas. i; Bell v. Kennedy, i Sc. & Div. App. 320, and Shaw v. Gould, 3 E. & I. App. 80, on various aspects of the conflict of laws are among the best specimens of his rare skill in exposi tion.1 The law relating to trade-marks and patents was another congenial subject. See, on such topics, his opinions in Leather
Cloth Co. r. same, 33 L. J. Ch. 199; McAndrew v. Basse«, 33 L. J. Ch. 561; Witherspoon v. Currie, 5 E. & I. App. 521; Hills 71. Evans, 31 L. J. Ch. 458; Betts i'. Menzies, i o H. L. Cas. 151. His contributions to the law of easements are of permanent value. Tapling Î-. Jones, il H. L. Cas. 303; Suffield i: Brown, 33 L. J. Ch. 249; Backhouse v. Bonomi, 9 H. L. Cas. 503. Many of his judgments have become landmarks in the law. It will suffice to mention Holroyd v. Marshall, ю H. L. Cas. 208; Cooper г1. Phibbs, 2 H. L. Cas. 149; St. Helen's Smelt ing Co. i1. Tipping, ii H. L. Cas. 649; Blades r. Higgs, il H. L. Cas. 630; Isenberg v. East Indian Estates Co., 33 L. J., Ch. 392; Lister v. Ferryman, 5 E. & I. App. 538; Sackville West r. Holmesdale, 5 E. & I. App. 565. It is difficult to characterize the mind and career of Lord Cairns (1868; 1874- '80) with out seeming to exaggerate. I prefer, there
is a great deal more trust, a great deal more speculation, and a great deal more readiness to confide in the proba bilities of things with regard to success in mercantile transactions, than there is on the part of those whose habits of life are entirely of a different character. It would be extremely wrong to import into the considera tion of the case of a person acting as a mercantile agent, in the purchase of a business concern, those principles of extreme caution which might dictate the course of one who is not at all inclined to invest his property in any ventures of such a hazardous character." M le was accustomed to present at the outset of his opinion a summary statement of the general principles of law by which the Issue was to be determined. His lucid statement of the doctrine of domicil in Udny v. Udny is worth quoting as an illustration : "The law, of England, and of almost all civilized coun tries, ascribes to each individual at his birth two distinct legal states or conditions, — one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil sfiititsor condition of the individual, and may be quite different from his politi cal status. The political stntns may depend on different laws in different countries; whereas the civil stnfifs is governed universally by one single principle, namely, that of domicil, which is the criterion established bylaw for the purpose of determining civil status. For it is on
this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, must de pend. International law depends on rules which, being in great measure derived from the Roman law, are com mon to the jurisprudence of all civilized nations. It is a settled principle that no man shall be without a domi cil, and to secure this result the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother, if illegitimate. This has been called the domicil of origin, and is involuntary. Other domicils, including domicil by operation of law, as on marriage, are domicils of choice. For as soon as an individual is stti juris it is competent to him to elect and assume another domicil, the continu ance of which depends upon his will and act. When another domicil is put on, thedomicil of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicil of choice; but as the domicil of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed to suppose that it is capable of being, by the act of the party, entirely obliterated and extinguished. It revives and exists when there is no other domicil, and it dees not require to be regained or reconstituted animoctfacto, in the manner which is necessary for the acquisition of a domicil of choice. Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to re side there for an unlimited time."
