}

An action was accordingly brought in the Court of Session by James Bruce of Kinnaird, against his brothers and sisters of the second marriage; and against the agents to whom parts of the property had been remitted, Messrs. Alexander Barclay and Son of Glasgow, and Mr. David Erskine of Edinburgh, writer to the signet; concluding that the defenders should be ordained to pay to the pursuer 20007., as his share of the estate and effects of the deceased, or to render a just account thereof, and pay to him his rateable share.

In the Court of Session, this case does not appear to have excited much interest: it is reported very briefly in the Faculty Collection; almost without any statement of the argument. The Lord Monboddo, Ordinary, pronounced this judgment:—“ Finds, 1st, that, as Major Bruce was in the service of the East India Company, and not in a regiment on the British establishment, which might have been in India only occasionally, and as he was not upon his way to Scotland, nor had declared any fixed and settled intention to return thither at any particular time, India must be considered as the place of his domicil (c); 2dly, that, as all his effects were either in India, or in the hands of the East India Company, or of others his debtors in England, though he had granted letters of attorney to some of his friends in Scotland, empowering them to uplift those debts, his RES SITÆ must be considered to be in England: Therefore finds, that the English law must be the rule in this case for determining the succession to Major

(c) In the case of Marsh v. Hutchinson (2 Bos. and Pull. 231.), Lord Eldon, speaking of this cause, says, "Lord Thurlow in his judg"ment adopted this distinction, that if he had gone out in a King's regiment, and died in the King's service, his domicil would not have "been changed; but that, having died in the service of the Company, "it was changed." It appears that this view originated with Lord Monboddo.

Bruce, and consequently that James Bruce of Kinnaird is entitled to succeed with the defenders, his brothers and sisters consanguinean, and decerns and declares accordingly.” And, upon a reclaiming petition, the Court adhered.

Pending this cause, some of the parties had died; but the two sisters, and James Hamilton of Bangour, the husband of Margaret, brought their appeal against this judgment to the House of Lords. Then its great and leading importance as a question of international law came to be perceived; and the case for the appellants (d) entered into a statement, not only of all the cases which had been decided in Scotland upon this subject, but also of the dicta of the foreign jurists, and of the decisions which had been given in England upon similar questions.

The cause was argued at the bar by advocates of great celebrity (e), and the opinions delivered by Lord Thurlow, then Lord Chancellor, with the judgment pronounced in this cause, have ever since been held to have fixed the law of Scotland upon this subject, on the basis of the law of nations. Lord Thurlow, at the time of giving judgment in the appeal, spoke to the following effect:

"As he had no doubt that the decree ought to be affirmed, he would not have troubled their Lordships by delivering his reasons, had it not been pressed, with some anxiety, from the bar, that, if there was to be an affirm

(d) Prepared or revised by Mr. Alexander, afterwards Sir William Alexander and Lord Chief Baron. (This information was received from the late Mr. Chalmer, the agent in London for the appellants, a gentleman, during a very long life, distinguished for legal acuteness, for integrity, and for every good quality that belongs to the professional character.)

(e) For the appellants, by Sir John Scott and Mr. Alexander; for the respondent, by Sir Ilay Campbell and Charles Hope, both afterwards Presidents of the Court of Session.

ance, the grounds of the determination should be stated, to prevent its being understood that the whole doctrine laid down by the interlocutor appealed from, and particularly that on which, it was said, the judges of the Court of Session proceeded principally in this, and former cases similar to it, had the sanction of this House. It had been urged, that the judgment should contain a declaration of what was the law, and he had revolved in his own mind whether that would be expedient. It was not usual in this House, or in the courts of law, to decide more than the very case before them, and he had particular reluctance to go farther in the present case; because, as had been stated, with great propriety, by one of the respondent's counsel (Mr. Hope), various cases had been decided in Scotland upon principles which if this House were to condemn, a pretext might be afforded to disturb matters long at rest.

"But he could have no objection to declare what were the grounds of his own opinion, and how far he coincided with the rules laid down by the Court below. Two reasons were assigned for having declared that the distribution of Major Bruce's personal estate ought to be according to the law of England: First, that India, a country subject to that law, was to be held as the place of his domicilium, and certain circumstances from which that was inferred. These he considered only as circumstances in the case; that is, though these had been wanting, the same conclusion might have been inferred from other circumstances. In his mind, the whole circumstances of Major Bruce's life led to the same conclusion. The second reason assigned by the interlocutor was, that the property of the deceased, which was the subject of distribution, was, at the time of his death, in India or in England. As to this, he founded so little on it, that he professed he could not see how the property could be considered as in Eng

land; it consisted of debts owing to the deceased, or money in bills of exchange drawn on the India Company. Debts have no situs; they follow the person of the creditor; that proposition, therefore, in the interlocutor fails in fact.

may

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"But the true ground upon which the cause turned was, the deceased being domiciled in India. He was born in Scotland, but he had no property there. A person's origin, in a question of where is his domicil, is to be reckoned as but one circumstance in evidence, which may aid other circumstances; but it is an erroneous proposition that a person is to be held domiciled where he drew his first breath, without adding something more unequivocal. A person's being at a place is, primâ facie, evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence. It may be rebutted, no doubt. Α on a visit ; he person may be travelling; there for a time, on account of health or business; soldier may be ordered to Flanders, and be detained there for many months; the case of ambassadors, &c.; and what will make a person's domicil or home, in contradistinction to these cases, must occur to every one. A British man settles as a merchant abroad - he enjoys the privileges of the place he may mean to return when he has made his fortune; but if he die in the interval, will it be maintained that he had his domicil at home? In this case Major Bruce left Scotland in his early years; he went to India; returned to England, and remained there for two years, without so much as visiting Scotland, and then went to India, and lived there sixteen years, and died. He meant to return to his native country, it is said; and let it be granted: he then meant to change his domicil, but he died before actually changing it. These were the grounds of his opinion, though he would move a simple affirmance of the decree; but he would not hesitate, as from himself,

to lay down for law generally, that personal property follows the person of the owner; and, in case of his decease, must go according to the law of the country where he had his domicil; for the actual situs of the goods has no influence. He observed, that some of the best writers in Scotland lay down this to be the law of that country, and he quoted Mr. Erskine's Institute as directly in point. In one case it was clearly so decided in the Court of Session; in the other cases, which had been relied on as favouring the doctrine of lex loci rei sitæ, he thought he saw ingredients which made the Court, as in the present case, join both domicilium and situs. But to say that the lex loci rei sitæ is to govern, though the domicilium of the deceased be without contradiction in a different country, is a gross misapplication of the rules of the civil law, and jus gentium, though the law of Scotland on this point is constantly asserted to be founded on them." (ƒ)

(ƒ) In this case the following references were made to foreign jurists :

Vattel, lib. 1. c. 19. s. 218.; lib. 2. c. 8. s. 110.

Voet, Comment. ad Pandect., lib. 38. t. 17. s. 34.

Vinnius, Quest. sel., lib. 2. c. 19.

Van Leuwen, Censura Forensis, lib. 3. c. 12. s. ult.

Huber. Prælectiones Juris Civilis et Hodierni, pars i. lib. 3. tit. 13. s. 21.; pars ii. lib. 1. tit. 3. s. 15.

Denisart, voce Domicile, s. 3, 4.

It may be remarked here, that in this and other references to the foreign jurists, made in the different cases cited, it has not been deemed necessary to quote the passages referred to at large. The citations are generally insulated dicta of these writers, quoted on either side, as they appeared to bear on the arguments of parties; and often referred to in a way that rendered it difficult to trace the passages meant to be relied on. In no case have I seen the attempt made to go over the whole range of foreign authorities (often conflicting ones) upon any point. They frequently do not quote the passages referred to. The library of the British Museum, and the public law libraries in the metropolis, are very defective in regard to the writings of the foreign jurists.