farther. Lord Annandale's case is not near so strong. The habits of Sir Charles Douglas were military. He had no settled property. His life had been passed in different parts of the world. If the consideration of his original domicil could have had the weight that is attempted in this case, it would have had much more there; for there was less of positive fixed residence there, than in this case. At one time he was in Russia; at another in Holland; and in a fixed situation, as commander of a ship in the Russian and Dutch service. His activity rendered him not much settled anywhere. It was necessary to take him where he was found. The cause had this additional circumstance, that he happened to die in Scotland, the place of his birth; but undoubtedly he went there for a very temporary purpose, a mere visit to his family when going to take a command upon the American station. That is so strong a case that it makes it rather improper in me to have said so much. Dismiss the bill of Lady Graham; tax all the parties their costs; and let the distribution be according to the prayer of the other bill." (h)

It is to be remarked in this judgment, that something is said as if his Lordship had had a leaning to the doctrine of the lex loci rei sitæ, if the law had not been settled otherwise. In another case he delivered himself in strong terms against that doctrine. (¿).

(h) It is stated in the report, that the arguments "went very much at large into the learning of the civil law;" yet none of the foreign jurists are specially quoted in the report of the case.

(i) In the noted case of Sill v. Worswick (a case of bankruptcy), 1 Henry Blackstone, 665., Lord Loughborough says, "It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality, but that it is subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it, by succession, or the act of the party, it follows the law of the person. The owner in any country may dispose of his per

In the case of Colville v. Lauder (15th January 1800, in the Court of Session) (k), the succession of a Scotsman dying abroad was regulated by the law of Scotland, when he had not a fixed domicil elsewhere.

In 1793, David Lauder, a native of Scotland, went to the island of St. Vincent's in the West Indies, to follow his trade of a carpenter, leaving his wife Jean Colville with her relations at Leith. On 21st July 1797 he wrote thus to his father in Scotland, from St. Vincent's; "As I never loved the West Indies, and as my health is very much hurt by a long continuance in it, I have determined to go off to America, in a ship that sails from this in a few days, hoping my health may be re-established by a change of climate. I have, during my stay in this part, made shift to lay up some money, 2007. of which I have converted into a bill of exchange, which is sent you indorsed, reserving to myself no more than will defray my necessary expenses to New York, where, if it please God that I arrive, you shall hear from me. But as a considerable time will be necessary before I can fix upon any plan of life, I will then be more explicit; for if I do not succeed in America, I will return to my native country. I have wrote three different times to our friends at Leith, but have never been favoured with an answer. There must be some very grave and important reasons for so very extraordinary omission, but what they are I can't conceive. However, be pleased to let them know that I have no

sonal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession, For instance, if a foreigner, having property in the funds here, dies, that property is claimed according to the right of representation given by the law of his own country."

Nothing can be more clear and explicit upon this point. (k) Fac. Coll. Morrison, Succession, Appendix, No. 1.

desire to give them a fourth trouble. It may so happen, from the common incidents of life, that you may never hear from me again; the money is either at your or my dear mother's disposal."

He sailed to New York soon after, and remained there till spring 1798, when he went to Canada, where he was drowned in the September of that year. It appeared, from some memorandums found in his possession after his death, that he meant to have returned to Scotland in a few months.

His widow, in an action against the father, claimed one half of his funds, as jus relictæ. The father pleaded the above letter as excluding her right to any share of the 2001. bill. The Lord Ordinary repelled the defences.

In a reclaiming petition the defender pleaded-" When a Scotsman lives for years abroad, in prosecution of his employment, he acquires a domicil there, which must regulate his succession, though he may intend to return to Scotland at some future period. In this case, therefore, the law of England must prevail, according to which the letter in question would be held as a testament effectually excluding the claim of the widow. Blackstone, vol. ii.

pp. 402. 434."

The widow answered-" In the whole circumstances of this case, the deceased cannot be considered abroad animo remanendi, or to have formed a domicil elsewhere, and therefore the law of his nativity must govern, Ersk. b. 3. t. 9. s. 4.; so that it is unnecessary to investigate the effect of the letter in question by the law of England."

The Court adhered. "Observed on the bench, when the deceased was in St. Vincent, his succession must have been regulated by the law of England; but, after leaving that island, he must, in the whole circumstances, be considered as in transitu to Scotland."

Nothing further was done in this case: it was not of much importance in regard to the amount of the property;

but there appears to be reasonable ground to doubt whether the deceased had not acquired a domicil at St. Vincent, and died before acquiring another domicil. The reference to Blackstone appears to have no relation to either branch of this subject, but to the husband's interest in choses in action belonging to the wife. It seems not to have been made matter of dispute, on either side, that the letter was of a testamentary nature.

The next ease of domicil in point of time was the wellknown case of Somerville v. Lord Somerville, in Chancery, before the Master of the Rolls (January and February 1801). (2) The question there was in regard to the distribution of the personal estate of James Lord Somerville, then lately deceased, who died at his house in London, in April 1796, a bachelor, and intestate, possessed of real estates in Scotland and in Gloucestershire, and of personal property in the funds to the amount of 50,000l. or 60,000l. He was described, in the books of the Bank, as of Henrietta Street, Cavendish Square. A question arose, whether this funded property should be distributed by the law of Scotland, or by the law of England. The claimants by the law of Scotland were his nephews and nieces of the whole blood, being the children of his brother, Colonel Somerville, and of his sister, Ann Whichnore Burgess (exclusive of his nephew, Lord Somerville, the heir at law of the real estates). Sir Edward Bayntun, brother uterine to the intestate (being the son of his mother by a former marriage), and certain nephews and nieces of the half blood (being the children of a deceased brother and sister of the intestate by another marriage of his father), claimed to participate in the distribution under the law of England. Lord Somerville, his nephew, and successor in the title,

(1) 5 Vesey, 750.

obtained letters of administration to his estate and effects, in the Prerogative Court of Canterbury.

The question came to be, what was the domicil of the intestate at the time of his death? For, having this decided, bills were filed in the Court of Chancery by the parties, respectively claiming that his succession should be regulated by the law of Scotland, and by the law of England. In the course of the proceedings the facts of the case were stated in evidence. Some of these related to the domicil of his father; but there appears to have been no doubt that the father, who died at his family estate and mansion in Scotland, in 1765, had his domicil in that country at the time of his death.

James Lord Somerville, the intestate, was born in Scotland, on the 22d of June, 1727, either at the family house of The Drum, or at Good Trees, a house in the neighbourhood, which his father rented while Drum was rebuilding. He remained there till he went to school, first at Dalkeith, and afterwards at Edinburgh. At the age of nine or ten he went to England, to his relation Mr. Somerville, in Gloucestershire. In June 1742 he went to Westminster School, which he quitted at Christmas 1743. He then went to Caen in Normandy, for the purpose of education, where he remained till the age of eighteen.

In 1745 he was sent for by his father, on account of the then rebellion in Scotland. He entered the royal army as a volunteer, and he was present at the battles of Preston Pans and Culloden, at which he served as an aid-decamp to Generals Cope and Hawley. He continued in the army till the peace of 1763, going with his regiment wherever it happened to be on service, in England, in Scotland, or in Germany. After quitting the army, in 1763, he went to Scotland, to Somerville House, where his father settled an annuity upon him. He then went abroad. In September 1765, on account of his father's illness, he