Scottish Court of Session Decisions

It is not unlikely that Udny, after his appointment as consul, attempted the same sort of artistic speculations as those in which Smith had engaged. He is said, in Smith's letter to Mr Pitt, to have succeeded to Smith's house and business; and in the correspondence of a later date, which has been preserved, we see a great deal about his buying and sending home pictures for sale. Counterfeits of all kinds were then abroad, and any one who held an official position would possess a guarantee for his respectability and honesty. At the time of his Venetian appointment there was abundant room for such dealings, and for turning them to good account. We have certainly no evidence that at Venice Udny engaged in any trade that implies the purpose to disconnect himself with his own country and become a domiciled Venetian.

But an important and perhaps a decisive feature in Consul Udny's position is his removal to Leghorn, which took place in 1776. The year 1777 is mentioned in these proceedings as the year of his appointment; but it appears from the London Gazette that he was appointed on 16th July 1776, in the room of Sir John Dick, who had previously held the office for some years, and who, it is well known, had shortly before that time been served heir to a Scotch baronetcy. Now, where a foreigner is chosen British consul in any country, the choice must in general be made from his peculiar acquaintance with the special locality; and it is not in the usual course of things that he should be removed to the same office in a different country with which he is unconnected. But it is quite regular and usual for a native of Britain appointed as consul in one place to be removed to another of more importance, when his experience and ability have already been tested, and seem to qualify him for the change. The removal of Consul Udny to Leghorn was undoubtedly a step in the way of his promotion, as a person in the service of the British Government in a confidential and quasi diplomatic character. For Leghorn was then one of the largest and most valuable seats of commerce in the Mediterranean. The change thus made illustrates the slender hold which connected Udny with Venice, and shows that he had not properly taken root in that place, but held merely an official position there such as he was ready and willing to assume elsewhere. Consul Udny soon afterwards married at Leghorn an English lady, and Colonel Udny was the fruit of that marriage.

It is well known that at this time there was a British factory at Leghorn, with a regular chaplain and other accompaniments of such an establishment, and to this state of things allusion is made in various letters and documents in process. Residence in a British factory abroad has always been looked upon as tending to preserve the nationality and native forum of British merchants or agents so situated; and at Leghorn, even more than at Venice, the consul must then have acted as an important political agent. In 1776 we were at war with our colonies; in two years more we had France arrayed in arms against us, and our ascendancy in the Mediterranean was the subject of anxious interest while these hostilities lasted. Afterwards, again, when a new and more deadly contest broke out with the France of the Revolution, the Mediterranean was a principal scene of our naval exertions, and the utmost efforts were made to maintain our commerce and our naval supremacy in that quarter, until its final triumph by the victories of Nelson.

In the measures adopted during this period by Buonaparte against the British, the importance of Leghorn was specially evinced. It is correctly stated in a historical work (“M'Pherson's Annals of Commerce”) as to the French Government in 1796, that, “as they rightly considered the British commerce as the feeder and support of the war, they took possession of the port of Leghorn, the capital station of the British trade in the Mediterranean Sea, and seized all the British property found in it.”

The property of Udny, as consul, seems to have been seized among the rest; and he is warned repeatedly by his brother in the correspondence to have his effects removed from Leghorn as effectually as possible.

During all this time we have no evidence of any trade or branch of commerce carried on by Udny that could tend to give him a Tuscan domicile. He purchased occasionally some pictures to send home to his brother for sale in this country. He supplied his Majesty's ships with fresh provisions when they touched at Leghorn, which was a perquisite of the consulship; and he seems further, in partnership with some other English parties at Leghorn, to have entered into contracts for victualling the Mediterranean fleet, an arrangement which could not fail of being attended with considerable profit, as all branches of the commissariat service then were. We have a good deal of evidence on this point in process, including Udny's correspondence with Nelson and other British admirals with whom he communicated. This kind of business could not, any more than the other transactions, confer a Tuscan character upon Udny's position. He was then at Leghorn, as he had been at Venice, a political agent of his country, and he could not by his residence in Italy in that character acquire a new domicile, or lose the one which he previously possessed.

I might, perhaps, have dealt with this part of the case much more shortly, as the substance and true character of the facts are to be found in the very explicit and important letter of Consul Udny to Lord Granville, dated at London the 8th November 1799.

This statement, supported as it is by the evidence, seems to be just the picture and history of a man who passes an official life in the service of his country in different localities, and whose official residence can never affect his domicile. It follows that Consul Udny, who is not shown to have ever acquired an English domicile, and who died in the anticipation of immediately returning to his official duties, from which he had only a temporary leave of absence, must be held to have retained all along his domicile of origin, which was Scotland. It may be added, that while in Britain he visited his friends in Aberdeenshire, and seems all along to have continued his interest in those estates which one day or other were to belong to him or his son, but which he did not himself live to succeed to.

The conclusion thus reached as to Consul Udny's retention of his original domicile, is decisive at the same time as to the domicile of origin of Colonel Udny, the consul's son, and the father of the defender. His birth in Tuscany was of no legal importance as giving him a domicile, and it need scarcely be added that the circumstances could create little attachment to a locality with which his father's connection was purely official, and from which he himself was very soon separated. From an early period, indeed, young Udny was looked forward to as the future representative of the Udny family, and as the heir of those estates which are now in dispute. He was sent to Scotland to be educated and to see his family friends, and every anxiety was shown by his father and uncle to bring him up as a Scotchman and as a Scotch laird. For three years he attended the University of Edinburgh, and during that time was boarded in the family of the excellent person who afterwards became the bishop of the Scottish Episcopal Church in Edinburgh. Great care was used to impress upon him his prospects of succession to the family estates in Scotland, and to interest him in the arrangements which his father and uncle were making for improving and extending that property by new purchases and by paying off burdens. It was even wished by them that young Udny should come to the Scottish bar; but his predilection was for another profession, and he entered the army, in which he continued for several years.

That step could not, of course, affect his domicile, and consequently the only question that here arises relates to the course of life which he adopted after leaving the army in 1812. It is true that at this time he removed to and tool a house in London, which he continued to rent and occupy for many years, and he resided there for a considerable period of each year. But it is a fair observation that a residence in London, though locally an English residence, is not unequivocally an English domicile. London, being the metropolis of the United Kingdom and seat of the Imperial Parliament, and of the highest judicial tribunal of the country, as well as the place in which the greatest national institutions are concentrated, is a common field for natives of all parts of the empire who may be connected with, or interested in, the business there transacted, or in the pursuits of science or art, or fashion, or pleasure, which are there to be met with in the greatest perfection. It is therefore nothing new, but, on the contrary, quite in the common course of things, that persons residing and having houses in London should yet maintain such a connection with Scotland or other parts of the United Kingdom as to possess a domicile elsewhere than in London, particularly when their original domicile was in a different place.

Now, what was Colonel Udny's position in this respect? He lived in London after leaving the army and marrying; but he had no fixed employment or occupation of any kind in England, except what might arise from his taste for the turf, with the occasional diversity, as it would appear, of a resort to the card table. These propensities might more fully be indulged in London than elsewhere, and this apparently was the attraction which drew him into that circle. But even there, and in the midst of these pursuits, his friends seem chiefly to have been countrymen of his own; and his status was that of a Scotch proprietor, who was proud of his Scotch estates and of his ancient Aberdeenshire family. We have scarcely any details as to his sporting life, and know chiefly that the gratification of his racing and gambling propensities involved him ultimately in deep embarrassments which drove him entirely from England. He had no estate in that country; he had no establishment there beyond a rented house in Grosvenor Street. Any horses he had were kept at Newmarket; but it is as probable that his difficulties arose from betting on the horses of others as from the expense of keeping a stable of his own. His losses at cards can be regarded only as the result of the expensive follies of an idle man.

Compare this career, on the one hand, with his course of life, in reference to his connection with Scotland, on the other. Regarded as he was in England as a Scotchman and a Scottish proprietor, whose only claim to a social position arose from that source, we find him at the same time maintaining in Scotland the character which thus belonged to him. He took an active and minute personal interest in the management of his estates, and came to Scotland almost every year to look after his affairs there. His house at Udny Castle was not in such repair as to enable him to live there, but this did not prevent him from exercising the rights and discharging the duties of a landowner. He was a freeholder of the county of Aberdeen from 1802. He was a justice of peace, and latterly a deputy-lieutenant of the county for a number of years. He was a member of various local clubs and associations which could not have had any attraction for him except as an Aberdeenshire proprietor desirous to mix with his neighbours, and take an interest and a part in county matters. He had many such neighbours of good rank and position, to whose houses he was ever welcome while thus employed, and his correspondence with his men of business, as well as the evidence of tenants and others connected with his estates, shows a warm and persistent desire to meet the various duties and demands of his position. I agree with the Lord Ordinary in thinking that these interests and ties were more permanent and important than any that bound Colonel Udny to England.

If it be held that his residence in London did not in the circumstances destroy Colonel Udny's Scotch domicile of origin, as little could this be done by the residence at Boulogue, which was obviously adopted for a special and, it might be, a temporary purpose, to avoid the prosecutions or persecutions of creditors.

It seems, therefore, to be clear that at the time of the defender's birth, in May 1833, his father, Colonel Udny, though then at Bonlogue, was a domiciled Scotchman; and it need not be argued that he continued to be so at the date of the marriage in 1854, when he was living at Ormiston, in Scotland. If this be so, it follows, on the undoubted law established by the authorities, that the defender was thereby legitimated.

It can be of no consequence, though it should be thought that Colonel Udny was partly moved to take this step by the prospect of facilitating an intended plan for disentailing his estates and paying his debts. The fact of the marriage is sufficient, whatever the motive may be, and the influence of concurring motive is too vague a consideration to be entered upon.

The continued residence of Colonel Udny in Scotland after his marriage is not immaterial, as showing how slight was the bond that connected him with France, and how completely he had thrown off any connection with England.

In holding that the domicile of Colonel Udny was Scotch, both at the date of the defender's birth and at the date of the Colonel's marriage, it becomes unnecessary to consider the separate question, how far it would be sufficient for the defender's case if his father's domicile was Scotch at the date of the marriage, though not so at the date of the birth. That question, as involving a point of general law, is important, and may or may not be difficult; but it does not arise upon the facts as I view them, and therefore need not be decided.

The other Judges concurred.

The Court therefore found that the defender, though illegitimate at his birth, was legitimated by the subsequent marriage of his parents—Assoilzied the defender, and found him entitled to expenses.