other domicil than he had before. Upon his father's death and his return to Scotland, a material fact occurs, upon which great stress was laid on both sides. It is said his father's dying injunctions were, that he should not dissolve his connection with Scotland. In the subsequent part of his life, he most religiously adhered to those injunctions. But it is said, that in conversation he manifested his preference of England; and that if it had not been for those injunctions of his father he would have quitted Scotland. Admit it. That, in my opinion, is the strongest argument in favour of Scotland; for, whether willingly or reluctantly, whether from piety or from choice, it is enough to say, he determined to keep up his connection with that country; and this makes not the least difference.

"Then see how, after his father's death, he proceeded to establish himself in the world. From that time, undoubtedly, he was capable of establishing another domicil. Until that time, there could be no doubt that the surplus of his personal estate must, if he had died, have been distributed according to the law of Scotland. Then, to trace him from that time; it appears, he had determined not to abandon his mansion-house; so far from it, he made overtures with a view to get apartments in Holyrood House; from which I conjecture, that if that application had been granted he might have been induced to spend more time than he did in Scotland. He came to London. I will not inquire how soon he took a permanent habitation there; but I admit, from that time he manifested an intention to reside a considerable part of the year in London, but also to keep up his establishment in Scotland, and to spend, as nearly as possible, half of the year in each. He took the lease of a house, evidently with the intention to have a house in London as long as he lived, with a manifest intention to divide his time between them. It is then said,

there are clearly two domicils alternately in each country. Admit it; then the question will arise, whether, in case of his death at either, that makes any difference? It was contended, in favour of the English domicil, that in such a case as that of two domicils, and to neither any preference, for it cannot be contended that the domicil in Scotland was not at least equal to that in England, except the lex loci rei sita is to have effect, the death should decide. There is not a single dictum from which it can be supposed that the place of the death, in such a case as that, shall make any difference. Many cases are cited in Denisart to show that the death can have no effect, and not one that that circumstance decides between two domicils. The question in those cases was, which of the two domicils was to regulate the succession, and without any regard to the place where he died. These cases seem to prove, and, if necessary, I think it may be collected, that those rules have prevailed in countries which, being divided into different provinces, frequently afford these questions. The fair inference from them is, that, as a general proposition, where there are two contemporary domicils, this distinction takes place, that a person not under an obligation of duty to live in the capital in a permanent manner, as a nobleman or gentleman having a mansion-house his residence in the country, and resorting to the metropolis for any particular purpose, or for the general purpose of residing in the metropolis, shall be considered domiciled in the country; on the other hand, a merchant, whose business lies in the metropolis, shall be considered as having his domicil there, and not at his country residence. It is not necessary to enter into that distinction, though I shall be inclined to concur in it. I therefore forbear entering into observations upon the cases of Mademoiselle de Clermont de Sant Aignan and the Comte de Choiseul, and the distinction as to the acts

of the former, describing herself as of the place in the country. (n)

"The next consideration is, whether, with reference to the property or conduct of Lord Somerville, there is any thing showing he considered himself as an Englishman. It was said, for the purpose of introducing the definition of the domicil in the civil law," Ubi quis larem rerumque ac fortunarum suarum summam constituit," that the bulk of his fortune was in England: and the description in the Bank books was relied on. I lay no stress whatsoever on that description in those books, or in any other instrument; for he was of either place, and was most likely to make use of that to which the transaction in question referred. It was totally immaterial which description he used. It is hardly possible to contend, that money in the funds, however large, shall preponderate against his residence in the country and his family seat. It is hardly possible that that should be so annexed to his person, as to draw along with it this consequence. Upon nice distinctions, I think it might be proved, that his principal domicil must be considered as in Scotland. Great stress, and more than I think was necessary, was laid upon the manner in which he spent his time in each place. There is no doubt, the establishment

(n) The facts of the case of Mademoiselle de Clermont de Saint Aignan are not very clearly stated in Denisart. She had an estate in the province of Maine, to which she went every year during " le temps de la belle saison." During the rest of the year she resided in Paris, where she had an hotel, "un Suisse, tout son domestique, ses meubles, ses papiers; elle y fit ses Paques, y paya la capitation," &c. The Court of the Chatelet found that she had her domicil in Paris; but this was reversed in the Grand Chamber, and her domicil established in the province of Maine.

The case of the Comte de Choiseul had been referred to, in the above of Mademoiselle de Clermont de Saint Aignan; he had died at Paris, but he was declared to have been domiciled in Burgundy: no other circumstances are mentioned.

N

in Scotland was much greater than that in London. In my opinion, Bynkershoek was very wise in not hazarding a definition. With respect to that to be found in the civil law, the words are very vague, and it is difficult to apply them. I am not under the necessity of making the application; for my opinion will not turn upon the point, which was the place where he kept the sum of his fortune. It is of no consequence, whether more or less money was spent at the one place or the other, living alternately at both. Some time before his death, he talked of making his will in Scotland. That circumstance is decisive that his death in England was merely casual, not from intention. The case then comes to this: a Scotchman by birth and extraction, domiciled in Scotland, takes a house in London; lives there half the year, having an establishment at his family estate in Scotland, and money in the funds, and happens to die in England. I have no difficulty in pronouncing, that he never ceased to be a Scotchman; his original domicil continued. It is consistent with all the authorities and cases, that, where a man has two domicils, the domicil he originally had shall be considered his domicil for the purpose of succession to his personal estate, until that is abandoned, and another taken.

"It is surprising that questions of this sort have not arisen in this country, when we consider, that till a very late period, and even now for some purposes, a different succession prevails in the province of York. The custom is very analogous to the law of Scotland. Till a very late period, the inhabitants of York were restrained from disposing of their property by testament. The alteration may account for the very few cases occurring, for very few persons of fortune die intestate, though it has happened in this case. Before that power of disposing by testament, such cases must have been frequent; and the question then would have been, whether, during the time the custom and

the restraint of disposing by testament were in full force, a gentleman of the county of York, coming to London for the winter, and dying there intestate, the disposition of his personal estate should be according to the custom or the general law. One should suppose it hardly possible that some such case had not occurred. I directed a search to be made in the spiritual court and the Court of Chancery, where it was most likely that such a case would be found; but I do not find that any such case has occurred. Some observations may arise upon that custom. It It may be thought, there are some inaccuracies in the words of the statute (o) upon it. The custom (p), as it is stated to have existed, is thus expressed: that there is due to the widow and to the lawful children of every man, being an inhabitant or householder within the said province of York, and dying there or elsewhere intestate, being an inhabitant or householder within that province, a reasonable part of his clear moveable goods, unless such child be heir to his father deceased, or were advanced by his father in his lifetime, by which advancement it is to be understood, that the father, in his lifetime, bestowed upon his child a competent portion whereon to live. I observe, the statute giving the power of disposing by testament, after reciting the custom, directs, that it shall be lawful for any person inhabiting or residing, or who shall have any goods or chattels within the province of York, to give, bequeath, and dispose of all their goods, chattels, debts, and other personal estate. One would suppose from this, that the legislature had some reference to the lex loci rei sita, and that it was supposed the custom would attach upon any property locally situated there, though the party was not resident; and though it is now too late to doubt the law upon that, I have some

(0) 4 William 3. c. 2.

(p) 4 Burns's Ecc. Law, 457.