Ross v Ellison or Ross
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Viscount Dunedin,Lord Atkin,Lord Thankerton,. |
| Judgment Date | 24 July 1929 |
| Judgment citation (vLex) | [1929] UKHL J0724-2 |
| Docket Number | No. 1. |
| Court | House of Lords |
| Date | 24 July 1929 |
[1929] UKHL J0724-2
House of Lords
Lord Buckmaster.
Viscount Dunedin.
Lord Warrington of Clyffe.
Lord Atkin.
Lord Thankerton.
After hearing Counsel, as well on Monday the 6th, as on Tuesday the 7th, Thursday the 9th, and Monday the 13th, days of May last, upon the Petition and Appeal of Sir Charles Henry Augustus Frederick Lockhart Ross, Baronet, of Balnagown, Ross-shire, residing at Nogales, Sonora, Mexico, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely four Interlocutors of the Lords of Session in Scotland, of the First Division, of the 20th of July, 1926, the 15th of February, 1928, the 16th of March, 1928, and the 8th of December, 1928, respectively, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Lady Patricia Ellison or Ross, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause: It is Ordered and Adjudged by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutors of the 20th day of July 1926, the 15th day of February 1928, and the 16th day of March 1928, respectively, in part complained of in the said Appeal, be, and the same are hereby, Affirmed: And it is further Ordered, That the said Interlocutor of the 8th day of December 1928, complained of in the said Appeal, be, and the same is hereby, Reversed, except so far as regards the words:
"Find the defender liable in expenses to the pursuer and remit the account of said expenses, when lodged, to the Auditor to tax and to report,"
and that the Interlocutor of the Lord Ordinary in Scotland (Lord Morison), of the 4th day of June 1927, thereby Recalled, be, and the same is hereby Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland, to do therein as shall be just and consistent with this Judgment: And it is also further Ordered, That each party do bear and pay their own costs in respect of the said Appeal to this House.
My Lords,
The Appellant in this Case is Sir Charles Ross and the Respondent is his wife.
The appeal is brought against four interlocutors of the First Division of the Court of Session, but two of these relate only to procedure. The two that form the substance of the appeal are:—(1) One dated July 20th, 1926, declaring that on December 11th, 1923, when the summons was issued the Appellant was a domiciled Scotchman and (2) another dated 8th December, 1928, declaring that the Appellant had committed adultery with a Mrs. Dalziel. Mrs. Dalziel was originally a party to the proceedings, but has died since they were instituted.
Each of the judgments the subject of appeal overruled judgments of the Lord Ordinary. It is obvious that the two questions raised are distinct and that of domicile which lies at the threshold of the dispute should be considered first. Upon this point I have no hesitation in reaching the conclusion that the interlocutor of the Court of Session should stand. I see no flaw in their reasoning and I should be content to accept their judgments, but as the matter is one of great importance, it may be desirable to state shortly the reasons for the opinion that I hold. Sir Charles Ross is the heritable proprietor of an ancient Scottish Estate of Balnagowan, owning but little other property in Great Britain. Finding the estate but a poor source of income, he left Scotland in 1895 to make his fortune first in America and then in Canada. He married the Pursuer in November, 1901, in America, she being an American by birth. He moved to Canada in 1902, and there in Quebec established and brought to a high pitch of success a business of manufacturing arms. The Pursuer and the Appellant lived together in Quebec, with occasional visits to England, and America until 1917. During the whole of this time he was busily engaged in the development of his factory. His business was ultimately sold in 1917 to the Canadian Government. In that year he went to Washington as an expert adviser on munitions and stayed there till September, 1918. After this he stayed a certain time in Great Britain and in 1918 purchased the lease of a house No. 33, Warwick Square. In 1913 he took a flat in New York to superintend over there the investment of his money which, for social and political reasons, he decided to invest in the United States, and in 1922 took a lease of a flat in 25, East 48th Street, New York, of which he remained tenant when these proceedings were begun. Up to 1920 there is no statement whatever of his intention to abandon his Scottish domicile. In letters to his wife he refers to Balnagowan, but never in terms suggesting that he did not still regard it as his real home. Further, on three separate occasions between December, 1919, and December, 1920, it became necessary for him to state his residence, once in a statement of claim against the Canadian Government, once in a statement of defence in an action against him by a man called Guthrie, in each of these legal documents he was described as of "Balnagowan Co. of Ross, Scotland", and finally in an affidavit made on the 3rd of December, 1920, he states in plain terms "I am a domiciled Scotchman". It is impossible to escape from the conclusion that that statement was deliberately made and it is in accordance with the proper inference to be drawn from the antecedent facts. In December, 1920, therefore his domicile remained unchanged. Between that date and the institution of these proceedings he was engaged in trying to get the benefit for purposes of taxation of being a resident alien in the United States. He had been advised that his position in relation to taxation both here and there would be made easier if he became a domiciled citizen of that country. He succeeded in April, 1923, in establishing his position for income tax purposes as a resident alien in the United States, but it was not until January, 1924, after the institution of these proceedings that he sought to be naturalised as an American citizen. He spent increasing periods of time at Balnagowan and in a letter to his wife written from Balnagowan, November 22nd, 1922, he complains that during the last six years she had only spent forty days a year "at home here" while in the same letter he says "my home is always ready for you, but I am afraid the truth of the whole matter is that you dislike the country". The home he referred to was the home of Balnagowan; his flat in New York was not regarded by him as his home, nor could it have been one suitable for himself and the Pursuer to have lived in. It is perfectly true that throughout this period he made statements in documents and verbally to a number of business people as to his intention to live permanently in New York, but such statements were never made to his wife nor with one exception to any personal friend.
Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made and they must further be fortified and carried into effect by conduct and action consistent with the declared expression. So regarded the evidence of declared intention fails to satisfy and is not established by the proved facts. I am therefore of opinion that so far as the question of domicile is concerned, the appeal must fail.
The other question gives rise to more difficulty. Adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents, e.g., letters and diaries, or antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence. The facts of this case must be regarded in the light of that principle. In 1915 Lady Ross had ceased to live with her husband as his wife; in 1917 she found life with her husband in Quebec impossible. It is not suggested that this was in any way due to his conduct. The social environment was uncongenial to her, and on the 8th July, 1917, she wrote a letter to her husband which contains these statements:
"When you took a home for a year without even telling me, I made up my mind you were settling there and I am not going to, in fact I am done with it for all time".
Again she says:
"I am not going to pine away in Quebec while this goes on, I don't care a single penny of what happens to me, so it's not that kind of dry rot",
and at no time after that did she ever live there. She came to England and took a house first at 18, Portman Street and afterwards at 33, Warwick Square, and she sometimes joined her husband in America and sometimes in London and Scotland. I do not refer to these facts for the purpose of imputing blame to Lady Ross. The relative conduct of this lady and her husband to each other is wholly immaterial in this case except so far as it throws light on the question of misconduct, and these facts to some extent assist her case since in such circumstances other associations may be more readily formed. His letters to her and hers to...
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