Heyer v Gill (C.A. 30/1933.) [1937] EACA 54 (1 January 1937)

## ... COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Tanganyika), LUCIE-SMITH, Ag. C. J. (Kenya), and HORNE, J. (Kenya).

CLARA HEYER (Appellant) (Original Defendant)

$\mathbf{a}$

ERNEST BEASLEY GILL, as Executor of Charles Alfred Heyer, Deceased (Respondent) (Original Plaintiff).

C. A. $30/1933$ .

Domicil—Domi.: of origin—Abandonment—Acquisition of fresh domicil—Evidence—Onus of proof.

Held (2-2-34).—That there was insufficient evidence that deceased had abandoned his domicil of origin and adopted a domicil of choice.

Held Further.-That the onus was on the executor to prove abandonment of the domicil of origin.

Figgis, $K. C.$ (Schwartze with him) for Appellant.

Slade for Respondent.

$\mathcal{A}^{\mathcal{A}}$

$\sim$

Charles Alfred Heyer died on 1st October, 1931, in Kenya. On 2nd May, 1932, his executor (respondent) filed a suit in the Supreme Court of Kenya against the widow, praying (a) for an order that the widow should disclose and furnish an account of all her movable and immovable property as at 1st October, 1931; (b) that an account be taken of the combined assets of deceased and the widow as at 1st October, 1931, and that such assets should be aggregated and the liabilities of defendant paid therefrom; and (c) for an order that one-half of the surplus of such aggregated estate be paid to the executor and the other half to the widow. At the opening of the trial, the Court, by agreement of the parties, was asked to determine the preliminary issue, "Whether or not in fact the deceased was domiciled in South Africa at the time of the marriage," and if the decision of the Court was in the affirmative parties were in agreement that deceased and his wife were married in community of property. Counsel for plaintiff asked later that the Court should decide whether the parties were or were not married in community of property. Referring to the President of the United States of America v. Drummond, 55 E. R. 442, and Dicey's Conflict of Laws, 4th Edition at 147, the trial Judge found that deceased was domiciled in South Africa at the time of the marriage, and consequently that the marriage was in community of property. On 2nd November, 1933, judgment was entered for the plaintiff as prayed in the plaint with costs, and stay of further proceedings was ordered pending appeal. The facts are stated in the judgment of Lucie-Smith, J.

Figgis.—Appeal rests on correctness of otherwise of decision as to domicil. Referred to Moorhouse v. Lord (1863), 32 L. J. Ch. 295. Although Moorhouse v. Lord has not been expressly followed and has been dissented from, the tendency of the later cases is to require strict proof of the abandonment of a domicil of origin. There must be positive evidence of abandonment of domicil of origin to justify such a finding. Discussed Winans and Other v. Attorney General (1904), A. C. 287. Onus on the party setting up acquisition of South African domicil to prove animus manendi. The decision in Court of first instance substantially based on a finding that the joining of the British Forces in South Africa coupled with the evidence as to business in South Africa constituted satisfactory evidence as to South African domicil. Statement as to legal effect of joining the Army in Dicey's Conxict of Laws to be preferred to that in Foote's Private International Law, which is not borne out by authorities referred to.

Law on this point clearly set forth in Halsbury's Laws of England (New Edition), Vol. 6, p. 206, and the authorities cited therein: The circumstances of entering the Army must show an intention of permanent resident (Re Mitchell ex parte Cunninghame (1884), 13 Q. B. D. 423).

No evidence that there was an intention permanently to reside in South Africa. Subsequent so-called admissions as to marriage in community merely evidence of belief and must be judged in the light of the circumstances under which they are made. Conduct of the deceased inconsistent with a belief that he had been married in community.

The following cases were cited: Bruce $v$ . Bruce (1790), 126 E. R. 1251; Bempde v. Johnstone (1796), 30 E. R. 967; The Harmony (1800), 165 E. R. 331; Somerville v. Somerville (1801), 31 E. R. 839; Munro v. Munro (1840), 7 E. R. at 1301; In re Steer (1858), 28 L. J. Ex. 22; Crookenden v. Fuller (1859), 164 E. R. 804 at 810; Lord v. Colvin (1859), 28 L. J. Ch. 361; Aikman v. Aikman (1861), Vol. XI, E. & E. Dig. 312; Attorney General v. Rowe (1862), 158 E. R. 789; Moorhouse v. Lord (1863), 11 E. R. 1031 at 1037; Attorney General v. Wakstatt (1864), 159 E. R. 576; Drevon v. Drevon (1864), 34 L. J. Ch. 129 at 133-34; In re Capterielle (1864), 33 L. J. Exch. 306; Bell v. Kennedy (1868), L. R. 1 H. L. (A. C.) 307 at 319; Udny v. Udny (1869); L. R. 1 H. L. (A. C.) 441 at 452; Aitchison v. Diron (1870), L. R. 10 Eq. 589; Douglas v. Douglas (1871), 41 L. J. Ch. 74; Doucet v. Geoghegan (1875), 9 Ch. Div. 441; King v. Foxwell (1876), 3 Ch. Div. at 520-521; Ex parte Cunninghame (1884), 13 Q. B. D. at 421-422; In re Patience, Patience v. Main (1885), 29 Ch. Div. 976; Urquhart v. Butterfield (1887), 36 Ch. Div. 55; D'Etchegoyen v. D'Etchegoyen (1888), 13 P. Div. 132; In re Craignish (1892), ? Ch. Div. 180; De Nicols v. Curlier (1900), A. C. 21 at 26; De Almeda v. Keyser (1902), 18 T. L. R. 414; Winans and Other v. Attorney General (1904), A. C. 287; Huntly v. Gaskell (1906). A. C. 56; James v. James (1908), 98 L. T. 438; Casdagli v. Casdagli (1919), A. C. 145 at 171-172; Waddington v. Waddington (1920), 36 L. T. R. 359; Rudd v. Rudd (1924), P. Div. 72 at 76; Marjoribanks v. Askew (1930), 2 Ch. Div. 259 at 270 and 271; Pecl v. Peel (1930), 46 T. L. R. 645 at 646; Ross v. Ross (1930), A. C. 1 at 6; Attorney General v. Yule and Mercantile Bank of India (1931), 145 L. T. R. at 14.

Slade.—Sufficient proof as to abandonment. Deceased as result of his parents' emigration to America became an American citizen. adopting America as his domicil of choice. Consequently, domicil of origin having already been abandoned, much slighter onus on person alleging acquisition of new domicil of choice. Even apart from this, the question is one of common sense, and the ties of the deceased in this case to his domicil of origin were very remote. Here prima facie evidence of South African domicil and none to rebut same. Effect of entering service of a foreign power (British Army): Urguhart v. Butterfield (1888), 37 Ch. Div. at 382; Ex parte Cunninghame; In re Mitchell, 13 Q. B. D., at 421; Halsbury, Vol. 6 (New Edition), 206. Referred to the following cases: Potinger v. Wightman, 36 E. R. 30; Johnstone v. Beattie, 8 E. R. 694; Brunel v. Brunel, 12 Eq. 301; Attorney General v. Kent. 31 L. J. Ex. 396: Platt v. Attorney General of New South Wales, 38 L. T. R. at 76; Stevenson v. Masson, 17 Eq. 82; Forbes v. Forbes, 69 E. R. 145; Munro v. Rouglas, 56 E. R. 944; Gran v. Gran (cited by Foote's Private International Law, 5th Ed. 85; Attorney General v. Pottinger, 30 L. J. Ex. 284: Craigie v. Lewin, 163 E. R. 785; Hodgson v. De Beauchesne (cited by Dicey's Conflict of Laws, 4th Ed. 136); Marsh $v$ . Hutchison, 126 E. R. 1251; Wilson v. Wilson and Spurway v. Spurway (cited by Westlake's Private International Law, 7th Ed. 358); Jopp v. Wood, 34 L. J. Ch. 212. Apart from the question of domicil, learned Judge has found community of property established by admissions of the parties. Submitted this finding justified. Referred Evidence Act, sections 17 and 18; section 31 and commentary thereon; Soojan Bibi v. Achmut Ali, 21 W. R. p. 415; Hunsa Kover v. Sheo Gobind. Two separate issues, both found in respondent's favour on previous hearing.

Schwartze, in reply.—Domicil is only issue. Discussed and distinguished Brunel v. Brunel, L. R. 12 Eq. 298; Doucet v. Geoghegan, 9 Ch. Div. 441. Quoted Lord Halsbury in Winans and Other v. Attorney General (supra), at 287.

SIR JOSEPH SHERIDAN, C. J.—The first question to be decided in this appeal is what issue was the learned Judge asked to decide. Mr. Figgis, the only counsel before us who appeared in the Court below, is emphatic that there was only one issue raised, viz. "Whether or not in fact the deceased was domiciled in South Africa at the time of his marriage"; and that in the event of that issue being answered in the affirmative counsel were agreed that the deceased and his wife, the appellant, were married in community of property. Apart from this statement made by Mr. Figgis, the ruling of the learned Judge at page 6 of the typewritten record makes it clear that the issue submitted for decision was one of domicil. That ruling reads: "The question is one of domicile." It has been urged that on account of admissions as to marriage in community of property the onus falls upon the defendant. In my opinion, such admissions might be considered on the question whether they were in some way or other married in community of property, but they do not go so far necessarily as to admit the question of domicil. Therefore "in my opinion it is for the plaintiff to begin". The learned Judge towards the conclusion of his judgment said: "I conclude that at the time of his marriage C. A. Heyer was domiciled The answer thus being in the affirmative it in South Africa. must be held, in accordance with the agreement of counsel, that the marriage was in community of property." The judgment then proceeds: "But apart from the question of domicil there is the proviso in the deed of separation and the deed of separation and the statement in the affidavit. The former was assented to by C. A. Heyer as well as by the defendant. In the face of that proviso solemnly assented to in a deed, it would be impossible. even without my ruling as to domicil, to hold that they had not been married in South Africa with community of property." And the judgment concludes: "The plaintiff having succeeded in this preliminary matter is entitled to his costs." Mr. Slade, for the respondent, has contended that on the judgment of Mr. Justice Thomas a finding that the marriage was with community of property can be supported even though this Court were to hold against him on the issue of domicil. I do not think this contention is sound. Domicil was pleaded by the plaintiff, the ruling to which I have referred states "the question is one of domicil", the affirmative finding is that because of the domicil being held to be South African the marriage, "in accordance with the agreement of counsel", was in community of property, the penultimate paragraph of the judgment does not contain an affirmative that there was a marriage in community of property, and the final paragraph refers to the decision having been on a preliminary matter which is presumably the issue of domicil, with the agreed consequence on which the ruling was asked. Accordingly. I propose to consider this appeal on the issue of domicil only, though in doing so the statement on the subject of marriage in community of property alleged to have been made by the deceased and the appellant, in so far as they throw light on that issue, are relevant. The deceased, it is agreed, had a domicil of origin in Germany, which country he left for America with his father at the age of two years. It would appear that he was brought up in America, which country he left, so far as

the evidence shows, after the outbreak of the South African War. He joined the British Forces, but where or in what circumstances the evidence does not disclose; he served with the Cape Medical Staff Corps, from which he received his discharge in August, 1902. Prior to his discharge, he married the appellant, a lady of Polish nationality, who had at the time a dressmaker's shop in South Africa. The case for the respondent really rests on the success of the argument that the deceased, who was a German by birth, and who in C. C. 14/1911 described himself as a naturalized American, by joining the British Forces acquired a British (South African) domicil. To succeed, it has to be shown that he acquired this domicil prior to his marriage; the fact of the marriage to a lady who was already in South Africa was relied on, as was the subsequent act of the deceased in opening a business, as showing that at the time of his marrige he had the animus manendi required for a change of domicil. It would appear to me that the learned Judge took the view that to establish a South African domicil at the time of the marriage, it would have to be based on the deceased having joined the British Forces operating in South Africa. Apart from this, the evidence as to the deceased's residence and conduct in South Africa is quite insufficient to establish a South African domicil. The effect of the declarations made by him and the appellant in documents subsequently to their having been married in community of property I will consider later. I will now consider whether C. A. Heyer, by joining the British Forces (the Cape Medical Corps), acquired a South African domicil. He was a foreigner, and joined up for the period of hostilities, as distinct from entering the regular army. By joining the latter he would have been bound, as Mr. Schwartze pointed out, to go where he was sent in peace and war. Immediately the war was over, he took his discharge. What his rank was does not appear; I think in a Medical Corps it may be presumed he was not a commissioned officer. Now before finding that Heyer had acquired a South African domicil we have to be satisfied on the point beyond any reasonable doubt. If the matter be left in doubt, then the case for the respondent must fail. This is clear from the judgment of Lord Halsbury in Winans v. Attorney General, A. C. (1904), 287. It was urged by Mr. Slade at first on the authority of Foote's Private International Law, 5th Edition, page 87, that Heyer, on entering the service of Great Britain by joining the British Forces, acquired a British domicil. The passage in Foote on which Mr. Justice Thomas relied is: "If a British subject enters the service of a foreign power, or if an alien enters the service of the British Crown, generally speaking, they each acquire a domicil, a domicil in the new State, and if that State comprises different territories, the domicil is acquired in that part where residence is taken up." This view differs from that stated in Vol. 6 of the Hailsham Edition of Halsbury, at p. 206, para.

249, where it is stated: "On the other hand, a British subject entering the service of a foreign power, and a foreigner entering the service of the British Crown, under circumstances showing an intention of permanent residence, acquire in general a domicil in the State by which they are employed; and where that State comprises more than one system of law a domicil is acquired in that part of the State where the individual resides." One of the cases referred to is Ex parte Cunninghame. In re Mitchell. 13 Q. B. D. (1884), 418. At p. 424, Cotton, L. J., says: "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." To my mind, there is a wide gulf between the case of a foreigner entering the regular military service of the British Crown and the case under consideration. where Heyer joined the expeditionary forces for a particular campaign, in presumably the rank of a non-commissioned officer. there being no evidence as to where or in what circumstances he joined. Mr. Slade receded from his first contention as to the fact of joining the forces raising an irrebuttable presumption of change of domicil, and was content to put his case on the fact of joining when taken with other facts as proving that Heyer had the necessary animus manendi at the time of his marriage. On the evidence beofre the Court, with the exception of the declarations on the subject of marriage in community of property with which I will next deal, I am left in no doubt, and find that Heyer has not been proved to have acquired a South African domicil. And what I have got to say on the question of their declarations is very short. I accept the explanation offered on behalf of the appellant. The most I would hold against the appellant and Heyer in consequence of the proviso in the deed of separation is that it is the expression of a belief that they were married in community of property. The subsequent averment of Mrs. Hever in an affidavit that they were so married does not carry the matter any further. Such statements could be held to remove the onus of proving the acquisition of a South African domicil which rests on the respondent, and as additional evidence to show that there was an *animus manendi* at the time of the marriage I regard them as of little or no importance. I would allow this appeal with costs in this Court and the Court below. We have been asked to allow costs on the higher scale and costs of two counsel.

I am unaware of any power to make an order allowing appeal Court costs on a higher scale. The costs to be allowed are regulated by Rule 29 and the second schedule to the Rules, which contains a provision that "The Taxing Officer may, for good cause to be recorded by him, allow a fee exceeding that set out in the following scale, provided that the fee actually allowed be reasonable." LUCIE-SMITH, Ag. C. J.—This is an appeal from the finding of Mr. Justice Thomas that the appellant and Charles Alfred Hever were domiciled in South Africa at the time of their marriage on 12th August, 1902.

The following facts were agreed or are in evidence:—

1. That C. A. Heyer was born at Osterierk, near Hamburg. on 4th February, 1880.

2. That the domicile of his parents at that date was German.

3. That he accompanied his parents when they emigrated to the United States of America about 1882.

4. That he was educated in the United States of America, and remained there until between 1899 and 1902.

5. That between 1899 and 1902 he went to South Africa.

6. That he served with H. M. Forces in South Africa until about August, 1902, when he obtained his discharge.

7. That he married appellant at Capetown without an antenuptial contract.

8. That the appellant was in business in South Africa before her marriage.

9. That after their marriage, appellant and C. A. Heyer went into business together in Capetown, and continued business until December, 1904, when he left for Germany with the expressed intention of raising money and returning to South Africa.

10. That he arrived in Nairobi in 1905, having meantime yisited Germany and German East Africa.

11. That the deed of separation contained a proviso as regards "community of property", which proviso was inserted by appellant's advocates, presumably on her instructions.

12. That in an affidavit of 2nd October, 1931, appellant alleged marriage in community.

13. That the deceeased at one time expressed an intention of only remaining in South Africa until he had made enough money to return to United States of America.

14. That deceased raised no question as to community when appellant sued him.

The learned trial Judge would appear to have based his finding on the fact that at the time of his marriage C. A. Heyer was serving with the British Forces, and quotes a remark of Sir John Romilly in his judgment in President of $U. S. A.$ , v. Drummond, 55 E. R. 442. He also refers to the propositions put forward by Dicey at p. 147 of his Conflict of Laws (4th Edition) and Foote at p. 87 of his Private International Law (5th Edition).

In argument, learned counsel for both appellant and respon dent dealt most exhaustively with the case law on the subject of domicile, and I feel that no useful purpose can be served by reviewing the mass of authorities quoted.

It is undoubtedly good law that the domicil of origin remains until it is clearly abandoned and a domicil of choice adopted. I will not refer to the authorities that support this proposition, but will only cite what I think is the latest case on the subject, i.e. Abraham v. Attorney General, 102 L. J., P. D. and A., 115.

Having carefully gone through the very meagre evidence in this case, and considered the admitted facts, I feel in much the same mental condition as did Lord Halsbury in Winans v. Attorney General (1904), A. C. 287, when he said at p. 289: "And the conclusion $\hat{I}$ have come to is that I cannot say that I can come to a satisfactory conclusion either way." That being so, I find, like Lord Halsbury, that the law relieves me from the embarrassment which would otherwise condemn me to the solution of an insoluble problem, because it directs me in my present state of mind to consider upon whom is the burden of proof. Undoubtedly it is upon the respondent, and as I cannot bring myself to a conclusion, either way, whether Mr. Heyer did or did not intend to change his domicil, his domicil of origin, whatever that may have been, must remain, and as such domicil of origin was certainly not South African, I am therefore of opinion that the judgment of the lower Court must be reversed, and the appeal allowed with costs here and in the Court below.

HORNE, J.—Though there has been much argument to the contrary, there was in fact only one issue at the trial of this action, viz. whether or not Charles Heyer was domiciled in Cape Colony at the time of his marriage to the appellant.

The action went to trial on certain admitted facts, one of which is that there was no ante-nuptial settlement or contract. No post-nuptial settlement or agreement was pleaded, but it has been zealously urged by Mr. Slade that there was an alternative issue on which the learned trial Judge could find that the parties were married in community of property. His submission is apparently based on para. 9 of the plaint, where the respondent pleads certain alleged admissions. Admissions ought not to be pleaded at all. If they are they cannot be now used to set up a case based upon the existence of a post-nuptial agreement.

In my view, the final decree, in so far as it is based upon the last part of the judgment of the learned trial Judge, cannot be upheld, whatever conclusion this Court may come to on the question of domicil, because there has been no evidence of the foreign law in question given before the Court of trial. The agreement of counsel that if the question of domicil is decided in the affirmative the parties are to be considered to have been married in community in 1902 will not support a decree in this form, because the Court before making such a decree in 1933 must nevertheless be satisfied that the incidents attaching to a marriage in community would entitle the respondent to such a decree in the light of events which have happened between 1902 and 1933.

Even allowing that the effect of a marriage in community in Cape Colony normally gives a right to the executor of one spouse to call upon the survivor for an account, before an English Court will enforce that right it would have to be satisfied that the right sought to be enforced does not conflict with the policy of our own law. And in these days of married women's separate property Acts, and all that has been done to free wives from the control of their husbands, I should hesitate before giving effect to an antique rule of foreign law, which, as has been truly said, "does not affect the poor because they have no property, and does not affect the rich for they always contract out of it".

The utmost therefore that the executor in this case (the respondent) could obtain in the Court below, on the case there presented, was a bare declaration that his testator was domiciled in Cape Colony at the time of his marriage. The question for this Court is: Was there evidence upon which the learned Judge could make such a declaration.

Now there is no evidence that Charles Heyer at any time throughout his life ever claimed that he had been married in community. It is submitted that there is evidence that his wife so claimed and that this evidence goes to support the claim of the executor of Charles Heyer that Heyer was domiciled in Cape Colony at the time of his marriage. The first piece of evidence is said to be C. C. No. 114 of 1911; some years after the marriage, six years after their arrival in Kenya. It is a little strange if community was then in existence how the wife came to sue the husband to establish a trading partnership, for, as Mr. Figgis points out, she is in effect a minor. It is only if the husband is wasting the assets of the community that she could sue for the appointment of a curator. Even if the words, appearing in her evidence in this case. "Community of Property. Roman Dutch Law", can be taken as actually being her own words and as expressing a belief on her part that she had been married in community—a belief as to existing legal rights—they can only amount to a very much mistaken belief, when such belief causes her to sue for a half share in her husband's business. Without going into any question of foreign law, it is obvious that a wife regarding herself as her husband's partner and a wife regarding herself as married in community are two totally different and conflicting conceptions. Heyer's answer to such an action, if he knew anything about his domicil, was to set up community, which he did not do.

Nothing more is heard of community until the deed of separation in 1927, by which time the marriage had become definitely impossible. If community existed it would be interesting to have had expert testimony as to the effect upon community of a mutual separation under the deceased husband's present domicil. The appellant insisted upon a proviso under circumstances which have been admitted, and in addition there is her oral evidence upon this matter, which is to the effect that she did not know what community of property meant.

There is in fact nothing to show that the appellant advanced in knowledge as to her rights or lack of rights under community since 1911. She is, so far as I can discover, still trying to preserve whatever she thought she had in 1911.

The next thing is her filing an affidavit in the probate matter on 4th November, 1931, in which she asserts that she was married in community. I cannot put more weight on this affidavit than to accept it as an expression of belief as to her legal rights. But to assume from that fact that she understood what her legal position had been—that her deceased husband was to her knowledge domiciled in Cape Colony at the time of her marriage—would be, to my mind, too great an assumption. Mr. Slade argues from these facts that she must have been aware of the obligations inherent in community. I cannot agree with that argument, but even were it accepted by this Court, it does not prove the domicil of her husband. That being so, the one fact remaining on which the finding of domicil can be based is military service.

In Westlake, 7th Edition, paragraph 278, the learned author formulates a rule in the following terms:-

"When a person whose domicil is non-British enters the service of the British Crown, he may acquire a domicil in that. part of the British dominions in which his duties oblige him to reside, if he displays the intention which is necessary for that purpose. This will be the case if the service is likely to be permanent, and he displays the intention of remaining in it."

This formulation is based upon *Urguhart v. Butterfield*, 37 Ch. Div. p. 377, and Cunninghame Ex parte, 13 Q. B. D. 418.

In the former case, the party whose domicil was in question served in the Customs service in England from 1824 to 1834. His domicil of origin was Portuguese, and an attempt was made to show that he had a Scotch domicil.

Cotton, L. J., at p. 382, in dealing with the matter says: " But we have to deal with him at the time he went to England as a domiciled Portuguese; ... and by residence in England, though for the purpose of performing his duties in the service of the Crown, there was enough to show an intention to make that

his residence, not only for a limited period, but so long as he should remain in that service, which in all probability would be the term of his natural life." The same learned Lord Justice, in the earlier case of Cunningham $Ex$ parte, at page 423: ". 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'... The grounds of the decisions in those cases was that the officer, by residing in India under circumstances which showed that he intended to abandon his domicil of origin, under circumstances which rendered it his duty to reside there permanently." And again on page 424 he says: "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."

Moreover, without going into the masses of authorities which have been cited, it is the rule that a person setting up the abandonment of a domicil of origin and acquisition of a domicil of choice must satisfy the Court as to that allegation. I can discover no evidence of circumstances requiring permanent residence -or even residence for an indefinite time-present in this case.

There is nothing certain except the bare fact that Charles Heyer was serving during the Boer War in the Cape Medical Staff Corps; where he enlisted, and when he came to Cape Colony, are facts which have not been ascertained. All that is known is that he obtained his discharge and married. And it is on those two facts—that he served and married—that the Court is asked to find that he abandoned his domicil of origin and acquired a domicil in Cape Colony.

Cape Colony is not and was not a sovereign State with military forces and power to declare war against a neighbouring republic; and there is nothing in connexion with service in the forces of Great Britain within Cape Colony at the time Great Britain is engaged in a war against a neighbouring State which can be said to avoid the necessity of proof of circumstances requiring permanent residence or residence for an indefinite time. Nothing of the kind is shown until after marriage, and, even then, when it is attempted to show from these subsequent facts a pre-existent intention to settle, there is other evidence that at least weakens their effect and, in my opinion, destroys their For these reasons. I am of opinion that it must be effect. held that the domicil of origin of Charles Heyer was German, and that at the time of his marriage he had not acquired a domicil of choice in Cape Colony.

I would allow the appeal with costs here and in the Court below.