Udny v Udny
| Jurisdiction | England & Wales |
| Judgment Date | 03 June 1869 |
| Date | 03 June 1869 |
| Docket Number | No. 5 |
| Court | House of Lords |
Ld. Chancellor (Hatherley).
Lord Chelmsford.
Ld. Westbury.
Ld. Colonsay.
Domicil—Foreign—Parent and Child—Legitimation per subsequens matrimonium.—
Legitimation per subsequens matrimonium.—
Domicil—Domicil of Origin and of Choice.—
Domicil—Abandonment of Acquired Domicil.—
Domicil—Civil and Political Status.—
(IN the Court of Session, ante, vol v, p. 164.)
This was a declarator of bastardy at the instance of George Udny, barrister in London, a substitute heir of entail to the estates of Udny, in Aberdeenshire, concluding to have it found that the defender, John Henry Udny, who, if legitimate, was entitled to succeed to said estates, was illegitimate, and so not entitled to succeed.
The defender was born at Camberwell, near London, on the 9th May 1853, and was the son of Colonel John Robert Udny and Ann Allat, a domiciled Englishwoman. It was not disputed by the defender that at the date of his birth his father and mother were not married, and it was not disputed by the pursuer that the defender's father and mother were married at Ormiston, in the county of Haddington, on the 2d January 1854. The question was, whether the defender was legitimated by the subsequent marriage of his parents, the points in dispute being—(1) Whether Colonel Udny, the defender's father, was or was not a domiciled Scotchman at the date of the defender's birth on 9th May 1853; (2) Whether he was or was not a domiciled Scotchman at the date of his marriage with the defender's mother on 2d January 1854; and (3) Whether, if he was not a domiciled Scotchman at the date of the birth, but was so at the date of the marriage, the defender was or was not legitimated by that marriage.
The facts of the case, as they appeared from the admissions on record and a voluminous proof, may be shortly stated as follows:—
John Udny, the father of Colonel Udny, and the grandfather of the defender, was born at Aberdeen, in 1727, of Scottish parents, and his domicil of origin was undoubtedly Scotch. He went to Italy, at what time the evidence did not shew, and for several years prior to 1760 lived at Venice, and was engaged in some kind of business there. In 1761 he was appointed British Consul at Venice, and he held that office till 1777. In that year he was appointed British Consul at Leghorn, which office he continued to hold until his death, which took place in London, while he was there on leave of absence from Leghorn in 1800. During his residence at Venice and Leghorn he was in the practice of buying Italian works of art and sending them home for sale. He also supplied His Britannic Majesty's ships with fresh provisions when they touched at Leghorn, which was a perquisite of the consulship, and he seemed, further, in partnership with some other parties at Leghorn, to have entered into contracts for victualling the Mediterranean fleet. In 1794 his elder brother became proprietor of the estates of Udny, and, as he had no sons, the Consul became the heir of entail next entitled to succeed. During the latter years of his life, the Consul carried on a considerable correspondence with his brother, and he purchased parts of a property contiguous to the Udny estates. In 1777 he was married to an English lady, Selina Shore Cleveland. There were two children of this marriage, John Robert Udny, the defender's father, who was born in 1770, and a daughter. They were both born at Leghorn. Mrs Udny continued to live at Leghorn with the Consul till 1784, when she went to London, accompanied by her children.
John Robert Udny, the Consul's son, lived with his mother in London from 1784 till 1794, when he was sent to Edinburgh University by his uncle Robert, the proprietor of Udny. He remained there from 1794 to 1797. In 1796 he visited Aberdeen on the suggestion of his...
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