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reason to think our spiritual courts inclined, as the courts of Scotland, to the lex loci rei site; and if the question had occurred in that court, and the authority of the House of Lords had not interfered, that would have been considered as the rule, and for this reason, that their jurisdiction is founded upon it: the distribution arising from the place where the property is situated, it is natural for the judge, who acquired his authority from the situation of the property, to suppose the rule should be that of the place where the property is; but that now certainly is not the

case.

"I shall conclude with a few observations upon a question that might arise, and which I often suggested to the bar: What would be the case upon two contemporary and equal domicils, if ever there can be such a case? I think such a case can hardly happen, but it is possible to suppose it. A man born no one knows where, or having had a domicil that he has completely abandoned, might acquire in the same or different countries two domicils at the same instant, and occupy both under exactly the same circumstances; both country houses, for instance, bought at the same time. It can hardly be said, that of which he took possession first is to prevail. Then, suppose he should die at one, shall the death have any effect? I think not, even in that case; and then, ex necessitate, the lex loci rei sitæ must prevail; for the country in which the property is, would not let it go out of that, until they know by what rule it is to be distributed. If it was in this country, they would not give it, until it was proved that he had a domicil somewhere.

"On these causes I am clearly of opinion, Lord Somerville was a Scotchman upon his birth, and continued so to the end of his days. He never ceased to be so; never having abandoned his Scotch domicil, or established another. The decree, therefore, must be, that the succession to his

personal estate ought to be regulated according to the law of Scotland."

This appears to be the case which has received the greatest discussion, upon the subject of domicil, in either country. The Master of the Rolls, in his clear, and luminous, judgment expressed his opinion, that the law ought to be assimilated in the two countries; but upwards of thirty years have since elapsed, without any change of the law. It is impossible to say, that many cases like this of Lord Somerville, or like that of Hog v. Lashley, may not now be coming to maturity.

It is worthy of remark, that very few cases have occurred on the customs of the province of York and city of London and that of Cholmley v. Cholmley (q) was the only case which, after a search made, had then been discovered. Indeed, the Master of the Rolls does not appear to have been aware that any such case had been discovered. The case of Onslow v. Onslow, in regard to the custom of London, as prevailing over the law of the domicil noticed above (p. 107.), is of very recent date. (r)

(4) Supra, p. 104.

(r) The following foreign authorities were referred to in this case :Farnese, Decis. Rom. (a case in the Rota on the domicil of a legatus); Denisart, article Domicile, cases of Mademoiselle de Clermont Saint Aignan and Comte de Choiseul; D'Aguessau, tom. v. f. 115., case of the Duc de Guise, tom. vii. f. 373.; Cochin, tom. ii. f. 1., Case of the Duchesse de Holstein; tom. iii. f. 702., Case of M. Courtagnon; tom. v. f. 1., Case of the Marquis de St. Paterre; Vattel, lib 1. c. 19. s. 218.; Houard's Dict. of Norman Law, art. Domicil; Domat, tom. ii. lib. 1. tit. 5. s. 7. par. 13.; tit. 16. s. 3. par. 5.; Pothier, Coutumes d'Orleans, passim.; Bynkershoek, Quest. Jur. Priv., lib. 1. c. 16.; Huber, (a case in the Supreme Court of Friesland, 2d July, 1680); Voet, ad pandectas, lib. 5. tit. 1. s. 98.

Henry, in his appendix to the Demerara case (p. 206. in notis), remarks it as singular, that the following law in the Digest was not founded on in this case:- "Senatores, licet in urbe domicilium habere ❝ videantur, tamen et ibi unde oriundi sunt, habere domicilium intelli"guntur, quia dignitas domicilii adjectionem potius dedisse, quam per

In 1811, a question occurred in a cause before Sir William Grant, at the Rolls, Margaret Chiene, widow, v. James Sykes and others (s), in regard to the domicil of Robert Chiene, the late husband of the plaintiff. Robert Chiene had made a will, dated in November 1801, and a codicil thereto, dated 29th January 1802, by which, among other things, he gave his wife the interest of certain sums of money for her life, and named Sykes and others his executors. Sykes proved the will and codicil in the Prerogative Court of Canterbury in 1802, soon after the testator's death. The bill was filed by the widow against the acting executor and legatees of her husband's will, and prayed for an account of the testator's personal property, and that a moiety thereof might be paid to her; but, if the Court should decree against such claim, that the will of her husband might be established.

The ground of the widow's claim was, that by the law of Scotland her late husband had not the power to make a will to her prejudice, and that she was therefore entitled to a moiety of the goods in communion. The Court, by decree dated 27th April 1787, referred it to the Master to inquire, among other things, where the testator Robert Chiene was domiciled at the time of his death. The Master, by his report, dated 11th February 1808, certified, "that by the deposition of William Brown, postmaster of the royal burgh of Crail in Scotland, the said William Brown made oath, that he knew Robert Chiene, the testator, from his infancy; that the said Robert Chiene was born in the town

"mutasse videtur." (D. lib. 1. tit. 9. 1. 11. de Senator.) This law appears to have been founded on, in an opinion given by Voet (noticed by Henry); he considers it as decisive of the question in a case like the present.

(s) This case is stated in a note to the case of Munroe v. Douglas, 5 Maddock's Reports, 394.

of Crail, and, as the deponent believed, in the house of his maternal grandfather, with whom his mother resided at that time; that the said Robert Chiene was a natural child of John Chiene, shipmaster in Crail, and Anne Brown, residing there; that the said Robert Chiene received his education at the school of Crail, during which time he resided with his mother, and when seventeen or eighteen years of age he entered into the seafaring line, and went abroad as a sailor; that he the said William Brown had particular occasion to know that the said Robert Chiene returned to Crail again in the year 1784, from the circumstance of his the said William Brown's being postmaster at that time; and having inspected the quarterly bills of the office, he found entries of letters to a Robert Chiene in that year; that he the said William Brown could not with precision say how long the said Robert Chiene remained at Crail at this time, but that he was certain he went again abroad in less than twelve months, and resumed his occupation as a seaman, he the said William Brown having reason to believe, from seeing letters addressed to him, that he was appointed master of the Experiment frigate; that the said Robert Chiene returned to Crail again in the year 1802, and resided there till his death, which happened in November in that year; that some years before his return he the said William Brown understood that a dwellinghouse and garden, and some other subjects, in the burgh of Crail, were purchased for him and his brother jointly; that on his return to Crail last mentioned he rented a house, in which he resided for some months, till he got one, purchased for himself, repaired, when he went to reside in it, and continued to do so till his death; that the said William Brown was informed, in the year 1780, by Elizabeth Wilkinson, his brother's wife, that the said Robert Chiene was sometime previous married to Margaret Wilkinson at Philadelphia, where she, Elizabeth Wilkinson, was present

at the time; and he received the same information from her husband, Patrick Brown, and the brother of him the said William Brown; that he had heard that it was the said Robert Chiene's intention to buy some land in the neighbourhood after his last return, and from which he, the said William Brown, inferred, that it was his the said Robert Chiene's intention to reside at Crail in future. And by the deposition of Andrew Whyte, town clerk of the royal burgh of Crail, the said Andrew Whyte made oath, that he knew the said testator, Robert Chiene, for about eighteen years previous to his death; that he understood the said Robert Chiene to have been a native of the burgh of Crail before named, but that he had left that place and gone abroad before he, the said Andrew Whyte, became acquainted with him, which happened in the year 1784, on his return from abroad to his native place; that on his aforesaid return he became tacksman of a rabbit warren in the neighbourhood of the burgh of Crail, which he held for one season under him the said Andrew Whyte, and again went abroad in the course of the following year; that he again entered into the seafaring line, to which he was originally bred, and did not return to his native place at Crail till the year 1802; that some years previous to his return last mentioned, he caused to be purchased, jointly with John Chiene his brother, a dwelling-house, granary, and two gardens, in the burgh of Crail, all which had previously belonged to their father, and were sold for behoof of his creditors; that on the said Robert Chiene's return to Crail last mentioned, he at first rented a house, in which he lived for some months, and thereafter removed to the one purchased by him and his brother, after the last had undergone some repairs, and lived in it till his death, which happened in the month of November following; that on his said last-mentioned return to Crail he informed him, the said Andrew Whyte, that he was married to a lady who

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