bachelor and a lunatic. The question was, whether his personal estate, which was very considerable, arising from the accumulation of his rents during a long life, should be distributed by the law of Scotland or the law of England. Sir Richard Johnstone Vanden Bempde, and Charles Johnstone, half-brothers of the Marquis on the side of his mother, were his next of kin by the law of England; and Lady Christian Graham, the only surviving issue of Henrietta Countess of Hopetoun, the Marquis's half-sister by the father's side, being his nearest agnate, was his next of kin by the law of Scotland.

The material facts were, that William Marquis of Annandale, the father of Marquis George, in 1718, married, for his second wife, the daughter of Mr. Vanden Bempde, in England. He was one of the sixteen peers elected to represent the peerage of Scotland. He never afterwards returned to Scotland, but lived at Whitehall, and at Ashted in Surrey, in houses which he rented. He died at Bath, in 1721.

He was succeeded by Marquis James, his eldest son of the first marriage, who died in 1730; and James was succeeded by Marquis George, the eldest son of the second marriage. George was born in 1720, at his father's house in London; he continued there till he went to Eton, and remained at that seminary till 1734, except in vacation time, when he was with his mother in London. Leaving Eton, he went abroad, and continued abroad in various places till 1738, when he returned to London. Thence, in a few days, he went to Scotland. He continued there little more than a month; returned to London, remained there two months, and then again went abroad. He remained abroad till December, 1739, when he returned to England. In April, 1740, he went to Scotland; he returned to England about the middle of July. In January, 1742, he again went abroad; in November he returned to England, and

remained there, with a short exception of three weeks or a month at Paris, till December 1743. In December 1743 he went abroad. In April 1744 he returned to England, and remained there till his death. In 1747 a commission of lunacy was issued against him, and he was found to have been a lunatic from December 1744.

Under the will of Mr. Vanden Bempde, his maternal grandfather, Marquis George took, in strict settlement, certain estates in Yorkshire, and a house in Pall Mall. He did not get possession of the family estates in Scotland till 1733 or 1734, after a long litigation in regard to some settlements of those estates.

Marquis George went to Scotland also in 1741, to assist in his brother's election for the district of burghs which were near his estate. Upon the two other occasions of his going to that country, he went upon visits to his mother and others. He lived in lodgings, and ready-furnished houses, in England.

Much evidence was produced from the Marquis's letters to show his preference of one country over the other. The arguments took up the greater part of Hilary term, and (as stated in the report) "went very much at large into the learning of the civil law," as to the domicil of the Marquis and his father. The cases of Bruce v. Bruce, Hog v. Lashley, Balfour v. Scott (g), and Ommanney v. Bingham, were also cited.

The Lord Chancellor Loughborough spoke to this effect at giving judgment:—

"The great value of the property, and the consideration of the parties, produced in this case a large field of argument; and I am much obliged to the bar for their great ingenuity, and the great research they made. I do not recollect ever to have heard with more satisfaction an

(g) Infra.

M

argument carried on upon any point. I do not go into the detail of it, not from any disrespect to it, or any idea that the points do not deserve to be stated, and to receive such answer as might occur to me to give them; but all questions of succession are, in their nature, questions of positive law, and if the argument had raised a doubt in my mind, and I were not inclined to follow the rule that has prevailed in other cases, I am bound by repeated decisions in the House of Lords to make the decree I intend to make, that the Marquis had that domicil in England that decides upon the succession to his personal property, and carries the distribution according to the law of England. The point has been established in the cases in the House of Lords, which, if it was quite new and open, always appeared to me to be susceptible of a great deal of argument, whether, in the case of a person dying intestate, having property in different places and subject to different laws, the law of each place should not obtain in the distribution of the property situated there. Many foreign lawyers have held that proposition. There was a time when the courts of Scotland certainly held so. The judgments in the House of Lords have taken a contrary course; that there can be but one law; they must fix the place of the domicil; and the law of that country where the domicil is decides, wherever the property is situated. That, I take to be fixed law now. The Court of Session has conformed to those decisions, according to which the Courts of Great Britain, both of Scotland and England, are bound to act. The question, what was the domicil, has been, with regard to Lord Annandale, established upon a very few propositions. Born in this country, educated in this country, this country was the seat of his expectations for the greater part of his life, reckoning his life to terminate at the period of his lunacy. During the greater part of that period, he had no expectations of fortune, settlement, or establishment, any

where but in this country, according to the disposition his maternal grandfather made in his favour. The habit of his education carried him abroad at an early period. Returned, he never had a residence in Scotland. He never was there at any period, with a fixed purpose of remaining. His existence there was purely a purpose of either visit or business, and both circumscribed and defined in their time. Wherever he had a place of residence, which could not be referred to an occasional and temporary purpose, that is found in England, and nowhere else. I am not clear that the period of his lunacy is totally to be discarded; but I will take him to have died then. For the greater part of the period previous to that, he was fixed in this country; and fixed by all those ties that describe a settled residence, and distinguish it from that which is temporary and occasional. The argument, then, rests upon the domicil of his father. In the first place, that question, what was the domicil of his father, is of itself a question I am not called upon to decide; and I am by no means prepared to adopt the proposition, that his father should be considered as having had a domicil in Scotland.

In the latter

part of his life his domicil de facto was unquestionably in England. During the latter part of it, and from an epoch remarkable enough, when contracting a second marriage and forming a new family, all the circumstances of his family, at that period, point much more to England than to Scotland. The question of domicil, primâ facie, is much more a question of fact than of law. The actual place where he is, is, primâ facie, to a great many given purposes his domicil. You encounter that, if you show it is either constrained, or from the necessity of his affairs, or transitory, that he is a sojourner; and you take from it all character of permanency. If, on the contrary, you show that the place of his residence is the seat of his fortune; if the place of his birth, upon which I lay the least stress;

but if the place of his education, where he acquired all his early habits, friends, and connections, and all the links that attach him to society are found there; if you add to that, that he had no other fixed residence upon an establishment of his own, you answer the question, which would be, where does he reside? In London. Is that his domicil? It is; unless you show that is not the place where he would be, if there were no particular circumstance to determine his position in some other place at that period. In this case, every thing leads one to conclude, that the place where Lord Annandale is found, is the place where he would be, no occasion taking him to any other place. When that is fixed, and you have found all the circumstances that give a character of permanency to that place where he really is, it is in vain to inquire where was his father's domicil. The case last determined in the House of Lords is the case of Sir Charles Douglas. I particularly had the benefit of hearing all the arguments so well pressed in this cause, and also at the bar of the House in that. It fell to my share to pronounce the judgment; but it was much more formed by Lord Thurlow, and settled in concert with him: the general course of the reasoning he approved. It was one of the strongest cases; for there was first a determination of the Court of Session upon the point. Great respect was due to that. They had determined the point. The judgment was reversed. It came before the House with all the respect due to the Court of Session upon the very point, and under circumstances that affected the feelings of every one; for the consequences of the judgment the House of Lords found themselves obliged to give, were harsh and cruel. If the particular circumstances, raising very just sentiments in every mind, could prevail against the uniformity of rule it is so much the duty of courts of justice to establish, there could be no case in which the feelings would have led one