returned to Scotland. He was present at the funeral in December in that year, and continued in Scotland about six months afterwards. He then went to London, and till 1778 or 1779 passed the winter in London, and the summer at Somerville House in Scotland. In 1779 he took the lease of a house in Henrietta Street, Cavendish Square, for twenty-one years, determinable at the end of the first seven or fourteen years, at a rent of 847. a year. He continued to occupy this house as a winter residence till his death, going to The Drum in summer, and dividing the year nearly between that and his London house. The landlord of the house having purchased the ground lease, of which thirty-six years were unexpired, Lord Somerville endeavoured to get him to relinquish this for a premium, but did not succeed, and expressed regret at his refusal.

Being rated to the assessed taxes at 90l. per annum, he appealed, and was reduced to 847. per annum. About ten years before his death he was elected one of the sixteen representative peers for Scotland, and attended his parliamentary duties every winter.

In Scotland Lord Somerville's establishment and style of living were suitable to his rank and fortune. In London he had only permanently two female servants; he brought two men servants with him when he came up from Scotland, taking them back with him, and using job horses occasionally. He kept his servants on board wages in London; he himself usually dined at a club, and saw no company. The house was out of repair, and furnished on a very limited scale. The furniture, on his death, (including coals and plate,) sold only for 66l. 7s. 1d.; the fixtures for 731. 10s.

To some of his friends he declared repeatedly, that he considered his residence in London only as a lodginghouse, and temporary residence, during the sitting of parliament; but he spoke of Scotland as his residence and

home, where he was born, and with the warmth of a native. About a month before his death, Colonel Reading urged him to make a will, for the sake of his natural children; upon which, he said he meant to take care of them, and also of his brother's younger children. Soon after this conversation, he told Colonel Reading that he had seen his nephew, Sir James Bland Burgess, who had alarmed him by telling him that, if he died without a will, his personal estate would be divided among the several branches of his family, which he would much deplore; and afterwards he said that he should soon go to Scotland, and would then make his will. He died in about a month after this conversation.

Elizabeth Dewar, who had been housekeeper at Somerville House, in her depositions stated, that she had heard the intestate say he was an Englishman; that though he was born in Scotland he was educated in England; his connections were English; he had no friends in Scotland, and every thing he did was after the English fashion. The deponent had heard him say, that his reason for going to Scotland was that he might be at his estate; that he did not like it, but he had promised his father when dying, that he would live one half of the year in Scotland, and the other half in England; that he considered himself an Englishman; that his estate in England was preferable to that in Scotland; that he preferred England, and would never visit Scotland, except on account of the promise to his father; and that he did not care though Somerville House was burnt and this he frequently said in conversation with the witness.

The cause was argued at the Rolls before Sir Richard Pepper Arden, Master of the Rolls, on the 24th, 26th, and 27th of January, and 23rd of February, 1801. (m)

(m) The Attorney General (Sir John Mitford), the Solicitor General (Mr. Perceval), Mr. Newbold, and Mr. M'Intosh, were counsel for the

When the arguments of counsel had finished, the Master of the Rolls spoke as follows:

"This case has been extremely well argued on all sides, and I have the satisfaction of thinking I have received every information that either industry or abilities could furnish. The question is, simply, as to the succession to the personal estate of the late Lord Somerville. It is in some respects new, so far as it is a question between two acknowledged domicils. In the late cases the question has been, whether the first domicil was abandoned; and where, at the time of the death, the sole domicil was? but here the question is, which of two acknowledged domicils shall preponderate? or rather, which is the domicil, according to which the succession to the personal estate shall be regulated. Questions upon the law of succession to personal estate have been very frequent of late in this country, and unless the Legislature interposes, which I sincerely hope they will, to assimilate the law of the whole island upon this subject, such questions may be expected very frequently to occur. In the course of a few years there have been four cases in the House of Lords, and one in this Court. I have been favoured with the opinions delivered by Lords Thurlow and Loughborough, the former in Bruce v. Bruce, the latter in Ommanney v. Bingham, the case of Sir Charles Douglas. I have very fully considered all the cases, and the opinions

plaintiffs in the first cause; Mr. Mansfield, Mr. Adam, and Mr. Lockhart, for the defendants in the same interest, claiming as next of kin of the whole blood by the law of Scotland: Mr. Piggott, Mr. Lloyd, Mr. Romilly, Mr. Manners Sutton, and Mr. Steele, for the defendants, claiming under the law of England. In the course of the argument the reported cases in both countries are referred to. Reference is also made to a case of Alexander v. M'Culloch, before Lord Thurlow, in which, upon the ground of the animus revertendi, and an establishment retained, a party was held to be a Scotchman, and his will was construed according to the law of Scotland, notwithstanding his residence in Virginia.

of those two learned Lords, and the authorities referred to in the printed cases, and also all the authorities referred to by the foreign jurists, which were very properly brought forward on this occasion. It is unnecessary to enter into a comment upon all these authorities. It will be sufficient to state the rules, which I am warranted to say result, with the reasons for adopting them in this case.

"The first rule is that laid down by those learned Lords, adopted in the House of Lords, and admitted in this argument, to be the law by which the succession to personal estate is now to be regulated, whatever might have been the opinions of the courts of Scotland, which certainly at one time took a different course. That rule is, that the succession to the personal estate of an intestate is to be regulated by the law of the country in which he was a domiciled inhabitant at the time of his death; without any regard whatsoever to the place either of the birth or the death, or the situation of the property at that time. That is the clear result of the opinion of the House of Lords in all the cases I have alluded to, which have occurred within the few last years. This, I think, is not controverted by the counsel on either side: but it was said, that that law could prevail and be applied only where such domicil can be ascertained; and that I admit.

"The next rule is, that though a man may have two domicils for some purposes, he can have only one for the purpose of succession. That is laid down expressly in Denisart under the title of Domicil, that only one domicil can be acknowledged for the purpose of regulating the succession to the personal estate. I have taken this as a maxim, and am warranted by the necessity of such a maxim; for the absurdity would be monstrous, if it were possible that there should be a competition between two domicils, as to the distribution of the personal estate. It could never possibly be determined by the casual death of the party at either. That would be most whimsical and

capricious. It might depend upon the accident whether he died in winter or summer, and many circumstances not in his choice; and that never would regulate so important a subject as the succession to his personal estate.

"The third rule I shall extract is, that the original domicil, or, as it is called, the forum originis or the domicil of origin, is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil. I speak of the domicil of origin rather than that of birth, for the mere accident of birth at any particular place cannot in any degree affect the domicil. I have found no authority or dictum, that gives, for the purpose of succession, any effect to the place of birth. If the son of an Englishman is born upon a journey in foreign parts, his domicil would follow that of his father. The domicil of origin is that arising from a man's birth and connections.

"To apply these rules to this case. It cannot be disputed, that Lord Somerville's father was a Scotchman. He married an English lady; returned to Scotland; repaired his family house, occupying another in the neighbourhood in the mean time; and he had apartments in Holyrood House. For the first part of his life after his marriage, he seems to have made Scotland almost his sole residence; nor was it contended that during that period he had acquired any other. The father being then without doubt a Scotchman, the son was born in Scotland, and at the age of nine or ten was sent into England for education, and from thence to Caen in Normandy. It cannot be contended, nor do I think it was, that during the state of pupillage he could acquire any domicil of his own. I have no difficulty in laying down, that no domicil can be acquired till the person is sui juris. During his continuance in the military profession, I have not heard it insisted that he acquired any