be settled upon her, and whether these excluded all legal provisions on the part of her, or her next of kin; 4. In regard to the legitim,-whether certain shares of Bank of Scotland stock, which Mr. Hog had transferred to his son many years before his death, but of which the father had continued to receive the dividends, belonged to the father's estate, or were vested absolutely in the son; and whether certain other shares which were transferred to the son a few months before his father's death, to be laid out in the purchase of land, belonged absolutely to him, or still remained part of his father's estate; 5. Whether the father was accountable to his eldest son for the price of the estate at Kingston, which was devised to the eldest son by his mother, and sold by him, and the price paid to the father; 6. Whether Mrs. Lashley should deduct from her claims what she had received from her father on account of the provision intended for her; 7. Whether Mrs. Lashley's claims were subject to deduction on account of the expence of the probate of her father's will in England, and the confirmation in Scotland.

The extent and variety of these questions, and their importance in regard to some of the most interesting doctrines connected with the present inquiry, were altogether unprecedented. (p)

(p) A very few of them are briefly noticed in the report of this case in the Faculty Collection, 16th June, 1795, Morrison, 4628. - In his appendix, voce Foreign, p. 12., he states, through mistake, that the judgment was affirmed on appeal to the House of Lords. It was reversed on one of the most important points stated in the Faculty Collection and in Morrison; namely, the effect of a marriage in England, and of the English marriage articles.

So, on the point of legitim, and the gratuitous deeds of the father inter vivos, Morrison does not appear to have known that the judgment was reversed. Dictionary Legitim, Appendix hoc tit. 2.

So also in Brown's Synopsis, voce Legitim, the decision of the Court of Session is mentioned, but its reversal is not stated.

The question of domicil was involved in a great variety of circumstances. Mr. Hog was a Scotsman born; as early as 1750 he had expressed his wish to fix his residence in Scotland, when he could retire from his business in London; in the end of 1752 he purchased the estate of Newliston in Scotland; from that period he resided sometimes at Newliston, and sometimes in London. In 1754 he assumed as a partner in his business Mr. Kinloch, whom he brought from Scotland; and in the articles of partnership for three years, executed between them, it was stated, that he intended "chiefly to reside in Scotland during the continuance of this copartnership;" but there was a provision for what was to be done if he came to London in the winters. In 1757 the contract of copartnership was renewed for four years more.

A great variety of circumstances of occasional residence, and expressions in Mr. Hog's letters, were founded on, on both sides, in the respective arguments of the parties. In July 1759, Mr. and Mrs. Hog left London for Newliston, and Mrs. Hog died at that place in February 1760. It appeared, in the investigation which took place, that, from the time when he purchased the estate of Newliston in 1752, till the period of Mrs. Hog's death, he had resided in London thirty-five months, and at Newliston fiftythree months. In October 1760, Mr. Hog brought his daughters to England, and placed them in schools in that country; he continued still occasionally to reside in London. In 1765 he renewed his copartnership with Mr. Kinloch, and then gave his second son, Roger Hog, half his stock in the company. In the articles of partnership, he still styled himself as "of London, merchant." In December 1772, he gave up the other half of his business to his son Roger; and (on the part of the defender Thomas Hog) it was contended, that not till then was his domicil

Upon this branch of the cause, which related to the domicil at Mrs. Hog's death, and the right of her representatives to a share of the personal estate at that period, the Lord Ordinary at first decided, "that there were two domicils at the dissolution of the marriage, one in London and the other in Scotland, but that the last was the principal; and that when parties marry in one country, and afterwards remove to another, in which the legal rights of married persons are different, the change of domicil ought not to operate any change on any of the rights pre-established in them in the country where they married; and that all those rights ought to be preserved and enforced by the law of the country to which they have removed, unless they were incompatible with the morality or religion of that country."

The Court, however, altered the interlocutor of the Lord Ordinary in regard to the domicils, and "found that the deceased Mr. Hog, at the dissolution of the marriage, had his domicil in Scotland; and they found that Mrs. Lashley, in right of her mother, had no claim to any share of the moveable estate belonging to her father at the time of her mother's death."

In regard to the amount of the legitim as due at the death of the father, the Court found, " 1st, That the 120 shares of Bank of Scotland stock, which had been transferred to, and vested in the defender by his father, in the father's lifetime, were not subject to the pursuer's claim of legitim: 2d, That the late Roger Hog, by a general settlement of date 5th February 1787, disponed his estate, heritable and moveable, to the defender, his eldest son; and that he appears at one time to have vested his property in Bank of Scotland stock, in trust to be laid out in the purchase of lands to be entailed on the defender, though he afterwards changed his mind, and transferred the same directly and inter vivos to the defender; and therefore that, in the

circumstances of this case, there was no room for the presumption of law debitor non præsumitur donare; and that the defender, in competition with those claiming a right of legitim, was entitled, at the period of his father's death, to state himself a creditor upon the moveable estate left by his father for the price of the estate near Kingston in England, which belonged to the late Mrs. Hog, was left by her to the defender, and which price was uplifted and unaccounted for by the late Roger Hog; and that he was likewise a creditor at the period of his father's death for the principal sum of 1000l., contained in a bond granted by Roger Hog to the defender and his wife Lady Mary Hog, in conjunct fee and liferent, and to the children of the marriage in fee, being the tocher which the defender received with his wife; and that those, as well as the other debts resting by the said Roger Hog at his death, must in the first place be deducted from the moveable estate of the said Roger Hog, and that the claim of legitim can only attach upon the remainder of the said moveable estate: 3d, That the ordinary expence of obtaining confirmation in Scotland, or of obtaining a probate in England by the defender, in order to carry into effect the late Roger Hog's will, being expences which arose subsequent to the existence of the pursuer's right of legitim, cannot be a deduction from, or burden upon, the late Roger Hog's moveable estate, in computing the extent of said claim: and they found, that the sums advanced to Mrs. Lashley and to Alexander Hog (q), with interest from the dates of advancing, must be considered as debts due to the moveable estate, subject to the legitim; and that the said sums due by them respectively were to be deducted out of their respective shares of legitim; but, of

(9) At this time Alexander's claims had not been decided on by the

consent, that interest was not be charged upon the annual payments of 65l. to Mrs. Lashley."

Mrs. Lashley and her husband brought their appeal against those parts of the interlocutors of the Court of Session, which related to her claim to a share of the personal estate at the dissolution of the marriage in right of her mother, and in regard to the amount of the funds of the father out of which legitim was due; and Mr. Hog brought his cross appeal against that part of the judgment which found that Roger Hog was domiciled in Scotland at the dissolution of the marriage, and which found that the ordinary expences of the confirmation in Scotland, and probate in England, were not to be a deduction from, or burden upon, the personal estate of Roger Hog.

These most important questions came on to be heard in the House of Lords on the 11th of May 1802. The cause was argued by the then Attorney General (Mr. Perceval) and Mr. Clerk (afterwards Lord Eldin) for the appellants, and by Mr. Romilly and Mr. Erskine (afterwards Sir Samuel Romilly and Lord Erskine) for the respondents. The hearing lasted for five days in that session, and two days in the following session, and concluded on the 9th of August 1803. An objection was taken to the cross appeal, that it had not been brought within the time limited. by the standing order of the House of Lords of the 8th of March 1763, which ordered that a cross appeal should not be received unless it were presented within one week after an answer put into the original appeal.

After the pleadings had been finished the judgment was adjourned till the next session of Parliament 1804; nothing was done till towards the close of that session. At length, after a speech of two days by Lord Eldon, Lord Chancellor (r), judgment was given on the 16th of July 1804

(r) Notes of his Lordship's speech in this very important cause have been preserved, and are given in the Appendix.