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The other case of the Hans Towns v. Jacobson, mentioned in Thorne v. Watkins, as far as has been observed, is not reported.

hand, Ist, That the inquisition in England was no legal evidence in Scotland; and, 2d, That the Lord Chancellor had no power to direct the management of any estate extra territorium. The other party insisted that personal statutes of the place of the domicil were of force every where; and that the powers of the committees of the lunatic extended to Scotland. The obtaining a power of attorney from the lunatic was but a rude way of solving this difficulty. Lord Elchies says (notes, p. 200.), "I reported the case, and the Lords unanimously found, that "neither the Chancellor's commission, nor the letter of attorney, gave

a sufficient title to carry on this suit. But this was reversed by the "House of Lords, and the title sustained to maintain the action in "Morison's name, 13th Feb. 1750, which was founded on the letter of attorney, as I was told."

In the proceedings in this cause, it appears that English counsel had been consulted, and had given an opinion," that an idiot's tutor appointed in Scotland could not, on that title, maintain an action in England."

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In the case of Otto Lewis, 2d August, 1749 (1 Vesey, senr. 298.), Lord Hardwicke acknowledged a proceeding before the senate of Hamburg, where the party resided, as establishing a lunacy in England.

In the well-known case of the lunacy of the Marquis of Annandale (infra), the proceedings took place in the two countries independently of each other. In 1747 a commission of lunacy was issued against him, under which he was found a lunatic, and Marchioness Charlotta, his mother, was appointed his committee in England. In 1757, he was cognosced a lunatic in Scotland, and the Earl of Hopetoun was appointed his curator. It does not appear that the English committee interfered with the property in Scotland; nor the Scotch curator with the property in England. The domicil of the Marquis was, as will afterwards be seen, extremely doubtful.

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In another case in Scotland, Leith v. Hay (Fac. Coll. 17th January, 1811), the Court of Session sustained action in Scotland upon the bond granted to the King by the committee of an English lunatic and his sureties, such committee and sureties being domiciled in Scotland. this action, decree was granted for payment of the bond, and the money was directed to be paid into the Bank of Scotland upon receipt, till, upon application to the Lord Chancellor, his Lordship should" direct "in what manner the money so to be paid shall be remitted to the proper officer of the Court of Chancery, for the benefit of the estate

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In 1787, a case occurred at the Rolls, Kilpatrick v. Kilpatrick, which was decided by Sir Lloyd Kenyon, then Master of the Rolls, upon the same principles of the law of the domicil, as in that of Thorne v. Watkins. Kilpatrick of Bengal, in 1781, made his will in India, bequeathing certain legacies, to be paid partly out of his effects in India, partly out of his effects in England, and, amongst others, 300l. to Archibald Fleming residing in Scotland. Fleming died in 1783, before this legacy was paid, having made a will disposing of his whole personal estate and effects. Fleming's widow (there being no children) put in her claim to half of her late husband's personal estate jure relictæ, and in particular to the half of the legacy given by Kilpatrick's will. A suit was depending in the Court of Chancery in regard to Kilpatrick's estate. Sir Ilay Campbell, then Lord Advocate, was consulted on a case relative to the rights of the widow, and gave his opinion, "That by the law of Scotland those effects which are called simply moveable, belonging either to husband or wife at the time of the marriage, fell under the communion of goods between the married parties, and in which also the children, if any existed, had an

"of the said lunatic." I see nothing in the report in regard to the domicile of this lunatic.

I observe that, in America, questions have occurred upon this point, of the effect of a commission of lunacy under a different jurisdiction. Dr. Story says of the case of Morison (Conflict of Laws, p. 414.), "Whether this decision has been since acted on in England does not distinctly appear. It has certainly not received sanction in America "in the states acting under the jurisprudence of the common law. "The rights and powers of guardians are considered as strictly local, "and not entitling them to exercise any authority over the person or personal property of their wards in other states, upon the same general reasoning and policy which has circumscribed the rights and authorities of "executors and administrators." And he cites as authorities the American cases of Morrill v. Dickey, 1 John. Ch. Rep. 153., and Kraft v. Vickery, 4 Gill. and John. Rep. 332.

interest; and that the husband jure mariti had the administration and disposal of them while the marriage subsisted, but upon the dissolution thereof a division took place, and the wife (if she was the survivor) took one third, and the children another third as their legitim in case a widow existed, and one half if no widow; and that the remaining share alone the husband could dispose of by testament, for that he could not by any testamentary deed exclude the children's legitim or the wife's jus relicta; and that the jus relicte might, however, be excluded by settlement, or provisions made upon the wife, with her own consent, before or after marriage; and that in Scotland there was no distinction between choses in action and effects actually recovered."

The Master therefore reported, "that the petitioner, Ann Fleming, the widow of the said defendant, Archibald Fleming, not having any settlement or provision made upon her by her husband, and he having died without issue, she was entitled to one moiety of the legacy in question and the interest thereof." This report was confirmed by the decree of the Master of the Rolls, who directed one moiety of the legacy and interest to be paid to the widow, and the other moiety to Archibald Farquharson, the executor of Archibald Fleming. (m)

(m) Appellant's case, Bruce v. Bruce, 15th April, 1790, p.4. Respondent's case, Hog v. Lashley, 17th May, 1792, p. 7. The decree was printed at large in this last cause, from which the above abstract of it is taken.

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OF THE DECISION

CHAP. VIII.

GIVEN IN THE CASE OF BRUCE . BRUCE,

BY WHICH THE LAW OF PERSONAL SUCCESSION WAS FIXED UPON THE LAW OF THE DOMICIL; AND OF THE SUBSEQUENT CASES UPON INTERNATIONAL SUCCESSION, IN ENGLAND AND IN SCOTLAND.

We have now brought down our deduction of the subject to the case of Bruce v. Bruce, which has attracted equal notice in both countries, and which, according to universal assent, has established this branch of the law upon its proper basis, as part of the law of nations. In the further progress of our inquiries, the cases decided belong equally to both countries. They may be divided into two branches; one regarding the succession in personal estate alone; the other of a mixed nature, where questions in relation to the succession of real and personal estate were involved in the same decision.

SECT. I.

Cases regarding Personal Estate alone.

THE case of Bruce v. Bruce belongs to the first of these branches. (a) David Bruce of Kinnaird left issue, by his first wife, James Bruce (b); and, by his second wife, three sons, William, Robert, and Thomas, and two daughters, Elizabeth and Margaret.

(a) Fac. Coll., 25th June, 1788, Morrison, 4617. House of Lords, 15th April, 1790.

(b) This was Bruce the Abyssinian traveller.

William Bruce, the eldest son of the second marriage, went out to India, at first in the sea service; but afterwards, about 1767, he entered into the military service of the East India Company, on their Bengal establishment, in which he gradually rose to the rank of major. In his letters written home to his relations, from time to time, and particularly so late as the 18th of December 1782, he constantly expressed an anxious desire to return to his native country, to spend his last days there, as soon as his circumstances would permit.

Having acquired about 9000l., he remitted 500l. to a friend in London; and his attorney at Calcutta, in January and February 1783, remitted to Messrs. Alexander Barclay and Son of Glasgow, bills on the East India Company for 57087. 2s. 3d., with a power of attorney from Mr. Bruce, and instructions to lay out the proceeds in securities on his behalf.

On the 30th of April 1783, Major Bruce died at Calcutta, a bachelor, and intestate; part of his property was then in London, part was invested in the Indian bills before mentioned, and on its way to Europe; and the remainder was in India. Disputes arose in the family in regard to this succession. James Bruce, the brother consanguinean, contended, that the succession was to be regulated by the law of England, which made no distinction between the full and half blood; and the children of the second marriage contended, that, as the deceased was a Scotsman by birth, as his residence in India was merely occasional, and as he had expressed his intention of returning home as soon as he had acquired a competent fortune, the law of Scotland ought to be the rule; and more particularly in regard to that part of his fortune which, at the time of Major Bruce's death, was on its passage home, and which could not be said to be in England more than in Scotland.

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