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country, where the law was unknown, and the effects being now in Scotland, in the hands of the legatees, the Court had jurisdiction over them, and the widow's claim to her jus relicta ought to be sustained.

On the other hand, the defenders contended, 1st, That they were in possession, by the law of the place where the effects were situated at the time of the death of the deceased; that therefore no claim of succession to them could be sustained by the law of Scotland; and that if they had been brought to Scotland without authority, the law of the country where they were situated at the death of the deceased, would regulate the succession to them. 2d, That the British residing in the East Indies, whether in a civil or military capacity, are under the law of England, and every question as to their persons or effects must be governed by that law, as received in the English courts there. As Captain Maclean died upon an expedition into an enemy's country, the law of that country could not regulate his succession while in the British camp.

The Court found, "that the pursuer has no claim to a jus relicta out of the estate and effects of the said Captain Maclean, conveyed by the said will.”

Though the same decision in rem was given here that would be pronounced at this day, the principles upon which the decision proceeded were not then settled; thus it does not appear whether the judgment proceeded upon the law of the domicil, or the lex loci rei sitæ.

In the case of Morris v. Wright (10th January 1785)(u) a decision was given in favour of the lex loci rei sitæ, against the law of the domicil. A person, domiciled at the time of his death in England, had effects situated in Scotland. These were intromitted with by Robert Wright,

(u) Fac. Col. Morrison, 4616.

a relation of the deceased, who was executor by the law of Scotland. (x) Mary Morris, as next of kin according to the law of England, brought an action against Wright to account for the property to her.

The general question again occurred, whether succession in moveables should be regulated by the law of the place in which the deceased proprietor resided, or by the law of the country in which the effects were situated at his death. The case was taken to report upon informations; and the Court, without entering into a particular discussion of it, considered the point as now firmly fixed that the LEX LOCI ought to be the rule. Accordingly, the defences were unanimously sustained.

It was noticed on the Bench at the decision of this case, that the case of Brown v. Brown (y) was the only one that could be adduced in support of a contrary doctrine; that it was given by a thin Bench upon a verbal report; and though not altered, because never brought under review, "was exploded by the most eminent lawyers of the time."

It is not a little singular to see that, at this comparatively late period, a doctrine had been established in Scotland, contrary to those principles which had long been clearly laid down by the foreign jurists, and by their own early writers. This was the last of the decisions reported before the law was settled upon its proper basis, in the case of Bruce v. Bruce, to be afterwards mentioned.

At a subsequent period it was made matter of inquiry (z), how it had happened that the doctrine of succession, in moveable property, by the lex loci rei sita had been thus

(x) It does not appear that there was any will in this case; the executor here mentioned must have meant the executor dative qua nearest in kin, of the law of Scotland.

(y) Supra, p. 92.

(z) In the case of Hog v. Lashley, to be afterwards stated.

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TAN

recognized, in the decisions of the courts of law in Scotland. It is stated as matter of legal anecdote, that this train of decisions had been introduced in consequence of an opinion given by Sir Dudley Ryder, when AttorneyGeneral of England, in regard to the succession of Alexander Lord Banff, who died at Lisbon in November 1746, without making a will. Lord Banff appears to have had personal estate in England, as well as in Scotland. There were, of competitors for his succession, an aunt by the father's side, who was next of kin according to the law of Scotland, and three brothers uterine, who were preferable by the law of England. It was stated, that Lord Banff's principal domicil was in Scotland, and that he never had any settled domicil in England; but it is said, that Sir Dudley Ryder having given an opinion" that the succession to effects situated in England was to be governed by the law of England," it came to be taken for granted in Scotland, that, in England, the courts of law regarded only the lex loci rei sita. Accordingly it is said, that in the case of Lorimer v. Mortimer, mentioned above (a), it was laid down by one party, and not controverted by the other, "that by the law of England, effects, as well heritable as moveable, situated in England, do descend ab intestato, agreeably to the rules of descent established by the laws of England, without any regard to the lex domicilii."

And in like manner in the case of Davidson v. Elcherson, decided in 1778 (b), the same erroneous statement was made in the following words: " if a Scotsman leave effects in England, the person entitled by the law of England will obtain letters of administration in Doctors Commons; and it will be in vain for an uncle or an aunt to compete with a mother, no such thing being known in the law of England ;

(a) Supra, p. 97.

(b) Supra, p. 97.

and in conferring the office in Doctors Commons, the civilians there will not give themselves the trouble to inquire what the law of Scotland is with regard to succession."

It is obvious that the matters alluded to in these two cases are very different; the first related to succession, the other to the right of obtaining administration, points in themselves totally distinct, but confused in the statement here given. There appears never to have been any doubt in either country, in recent times, that a right of administration, or confirmation, was to be treated of, and discussed, in the courts of the lex loci rei sitæ. It seems likely, from the confusion of these two different subjects, that the opinion of Sir Dudley Ryder had related rather to a question of administration, than to one of succession. He must have been conversant with the cases which had been decided by Lord Hardwicke upon this subject so recently before; and he could scarcely have given an opinion contrary to the law so clearly laid down in those cases.

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But whatever the opinion of Sir Dudley Ryder may have been, it must be admitted that there was some degree of supineness in taking a matter of this importance for granted upon so slender an authority, when the point, as will apafterwards, had been repeatedly considered and decided in the English courts. If the cases of Pipon, and of Thorne and Watkins (to be immediately mentioned) had been then distinctly known, a great deal of litigation would probably have been prevented in Scotland, in regard to the cases in that country; as well those noticed above, as those to be afterwards stated.

CHAP. VII.

OF THE CASES UPON INTERNATIONAL SUCCESSION DECIDED IN THE ENGLISH COURTS BEFORE THE TIME OF THE CASE OF BRUCE V. BRUCE.

As far as has been seen, it is only in modern times, that questions of international succession have attracted attention in England.

The earliest case that appears to have occurred connected with this branch of the law, was one relating to a conflicting rule of succession in the customs of the city of London and of the province of York. This was the case of Cholmley v. Cholmley (1688.) (a) The custom of London was held to prevail over the custom of the province of York. A freeman of London died within the province of York, leaving a widow, and issue, two sons and a daughter. An estate of the father of about 50l. a year, within the province of York, descended to the elder son; and if the custom of the province of York should prevail, he would thereby have been excluded from having any share of the personalty, which was of the value of about 20,000l. A bill was filed in the Court of Chancery, for the direction of the Court how and in what manner the personal estate should be disposed of; and the Court was of opinion, that the deceased being a freeman of London, the custom of the city for the distribution of the personalty should prevail, and control the custom of the province of York; and that, notwithstanding the custom of the province to the contrary, the heir should come in for

(a) 2 Vern. 47. 82.

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