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1794; the 16th of June and 7th of July, 1795; the 23d of May, the 8th of June, the 26th of June, and the 11th of July, 1798; the 12th of November, 1799; and the 14th of May and the 26th of July, 1800; and also an application to your Lordships on the part of Mr. Hog, in the nature of a cross appeal against certain interlocutors in the course of the same proceeding. That cross appeal comprehends questions which I shall presently state, because, before it can be taken into consideration, your Lordships will have to decide whether it was presented consistently with the rules of your Lordships' House; and that question, though it will not much affect the principal matter in the cause, will certainly affect one part of it; that which relates to a claim with reference to the expenses of confirmation in Scotland, and probate of the testator's will in England.
This cause comprehends a great variety of questions, including many points deserving of very great attention, which have been very eloquently argued at your Lordships' bar. My purpose, if that shall meet with the pleasure of your Lordships, is to go through the statement of the case, and to exhaust the consideration of some of the points now, meaning to conclude the consideration of the whole in the course of to-morrow.
The case, with reference to the questions between these parties, has been long, upon some points or other, under discussion in your Lordships' House; so long, that I have had the honour frequently of appearing at your Lordships' bar as counsel for one of the parties in this cause. It has been, therefore, certainly with great reluctance that my attention, in a judicial character, has been called so imperiously to the consideration of the questions between these parties. But the circumstance of the absence of one noble and learned Lord (Thurlow), and the circumstance of the occasional absence of another noble and learned Lord (Rosslyn), whom I am happy to see this day present in this House, have compelled me to execute that duty as well as I can,
which I never feel any inclination, under such circumstances, to attempt to discharge, when it is not necessary that I should take the discharge of it upon myself. Thus I address myself to the decision of this cause, rather from matter of necessity, than atter of choice. In the opinion, however, which I have formed
upon this subject, I have reason to think that I have the concurrence of those who have had occasion, in different periods, to attend to the subject matter of this cause, and who, whether present or absent, have in that degree attended to the consideration of this case which enables me to collect (what is of very great value unquestionably) the judicial opinion of those who may possibly be not here to express it ; and I shall have the satisfaction in expressing my own opinion in the presence of a noble and learned Lord, who has frequently had occasion to give his attention to this subject, and who, if I fall into any mistake, will be able to set your Lordships right.
It appears that, previous to the year 1737, a gentleman of the name of Roger Hog, who married in that year a lady of the name of Rachel Missing, and who were the father and mother of the Appellant, Mrs. Rebecca Lashley, and the Respondent, Mr. Thomas Hog, lived in that part of this island which is called England. Mr. Hog carried on his trade in the city of London : he was a native of Scotland, but he had unquestionably lost his Scotch domicil: he was to all intents and purposes a domiciled Englishman when he contracted, in 1737, in England, a marriage with this lady. Upon that marriage a settlement was made, and it is necessary to state particularly to your Lordships the substance of that settlement, because it has been considered as affecting the questions in this case, both in the Courts below and in the argument here at the bar; and because it appears to me, upon the best consideration I can give the subject, that, attending to the legal effect of it, it does not in any degree affect the legal consideration of this case.
Mr. Hog received with the lady a portion of 35001., and, receiving that portion, he entered into an engagement that he would, as soon as a purchase could reasonably be had, dispose of the sum of 2500l., part of the 35001., in the purchase of a real estate in England, with an obligation to convey that estate to his own use for his life, and after his death to trustees to preserve contingent remainders ; with remainder to the use of his intended wife for her life, and, after the decease of himself and his wife, then to the children of the marriage, in such manner as she, notwithstanding her coverture, by deed or will, should direct and appoint; and, in default of such direction and appointment, to the use of the children of the marriage, to be equally divided between them share and share alike; and, in default of such issue, to the use of the lady fee,
In looking through this settlement, a copy of which is printed in the cause, I think I am authorised to state to your Lordships that its effect is no more than this, that this lady,
being entitled to the sum of 3500l.; 10001., part of the 35001., was advanced to the husband for his own use ; that with respect to the remaining 25001., it was to be laid out in land, which land was to be settled to the use of the husband for life; then to the use of the wife for life; with remainder to the children of the wife, whose property, your Lordships observe, purchased the estate, in such manner as she should appoint; that, in default of any appointment by her, the children were to take equally; and, if there were no children, this real estate, so purchased with 2500l. of her personal property, was to go to her in fee; but the settlement does not contain declaration whatever that this was to be in lieu of her dower; and, indeed, it would have been singular if it had, for this was the purchase of her own estate with her own money. What is more to the present purpose, it does not contain any thing by way of declaration, covenant, or otherwise, that this was to be accepted in satisfaction of any right of any kind which she could acquire by her marriage or otherwise, in the personal estate of her husband. It is a pure dry settlement of that real estate which was to be purchased with the sum of 25001. ; and it appears to me, if I am right in collecting and stating the fact of this settlement, that in respect to any question as to what, under any circumstances, this lady would have in the personal estate of her husband, that question remains just as much open to discussion as if this settlement had never been made ; this settlement has no relation whatever to that question.
It appears that, after this, Mr. Roger Hog purchased lands at Kingston upon the terms of this covenant, and those lands were conveyed to the trustees mentioned in this deed, to the uses of the deed; and it should seem that afterwards the lady made her appointment, by which she gave, subject to her husband's estate for life, as she had a power of doing, the right of the land to the present Respondent, Mr. Thomas Hog. It appears, afterwards, that when he became of age (at least, it is so suggested, and seems to have been so taken for granted throughout the whole of the proceedings in the cause), this estate was sold, and, the estate being sold, the father received the money, the price of the estate; and, the father receiving the
money, the price of the estate, of course he would be debtor to the son, whose estate it was, for the price of the estate, to be paid to the son at the time his right to the possession of the estate so sold should have commenced ; and
that the son would, therefore, be a creditor upon the assets of his father for that sum, calculated as a sum to be paid at that time; unless it can be shown either that, by virtue of some agreement which had been entered into between the parties, this relation of debtor and creditor so entered into was cancelled, or that, by some circumstances which had taken place between them, this debt was paid ; or that, from the effect of some transaction which has taken place upon the death of Mr. Roger Hog, or otherwise, this demand has been satisfied.
Mr. Hog continued to carry on trade for a considerable time; and, carrying on that trade, it appears that he purchased an estate at Newliston, in Scotland, in 1752; and it is alleged on the part of the present Appellants (the original Appellants) that he had his residence in Scotland from about the year 1752. Mr. Hog, the son, on the other hand, contends that he was after that time domiciled in England; and that question will be material for your Lordships' consideration, at what time he ceased to be, in the contemplation of law, domiciled in England, and at what time he began to be capable of being considered, and necessarily to be considered, as domiciled in Scotland, with reference more particularly to the period of February, 1760; because in February, 1760, Mrs. Hog, formerly Miss Missing, died.
The question upon the place of domicil at that period comes to be material, because upon the fact whether he was domiciled in Scotland, or domiciled in England, at that time, arises a very material question between the parties in this cause ; whether she is to be considered the wife of a Scotchman, or whether she is to be considered the wife of an Englishman; it being contended, on the part of Mrs. Lashley, that her mother was to be considered, in 1760, as the wife of a Scotchman, - of a domiciled Scotchman. The consequence of that is, that, if she was the wife of a domiciled Scotchman, she was entitled, predeceasing her husband, to what they call jus relictæ *; that the husband could not deprive her of it, but that she had that claim, and transmitted it to her next of kin. The appellants in this case say that she was associated with her husband, and entitled to a share under the communion of goods with him, because he was a domiciled Scotchman, because the law of
* In the course of the appeal this was often called the jus relictæ ; more strictly it was, in this case, Mrs. Hog's share of the goods in communion at the dissolution of the marriage by her death.
Scotland creates such an interest in the case of a domiciled Scotchman, his wife predeceasing him; and therefore Mrs. Lashley, as one of the children, claims to be entitled, according to her interest, in that which, according to the law at the dissolution of that connection, goes to the children of the deceased wife.
On the other hand, it is said in the cross appeal (if it can be considered as such) that there is no fact which bears them out in the assertion that Mr. Hog was domiciled in Scotland in 1760, and, if they are not supported in the fact that he was domiciled in Scotland in 1760, that there is no occasion to enquire further about the law.
But they add, if he was domiciled, in the year 1760, in Scotland, yet they contend, — first, that, because the marriage was had in England, the Scotch law, which would obtain between Scotch
persons domiciled, at the death of the wife, in Scotland, when the marriage has de facto taken place in Scotland, will not apply to persons, though they are proved to have been domiciled in Scotland at the dissolution of the marriage, when the locus contractus matrimonii was actually in England; and that by the law of Scotland you are not driven to enquire what the rights of a Scotch wife would be, if she had been clothed with the character of a Scotch wife under the effect of a marriage contracted in Scotland ; but if, upon the husband's death, he is to be considered as a domiciled Scotch husband, and she is to be considered as a domiciled Scotch wife; or if, upon the wife's death, she is to be considered as a domiciled Scotch wife, and her husband as a domiciled Scotch husband, you are to apply as between the estates of such a husband and wife the law of England, if those parties were married in England.
And beyond that, they contend that, in this particular case, if that is not the just view of the law, a marriage settlement having been made in England, that is to be regarded as a conventional provision, which would shut out the right to any legal provision.
It is necessary also to state to your Lordships, that the Appellant, Mrs. Rebecca Hog, in the year 1776, intermarried with the other Appellant, a gentleman of the name of Thomas Lashley, whose father was a physician in the island of Barbadoes, and that
upon that occasion no contract of marriage was entered into between them. Mrs. Lashley's father made a proposal, which did not take effect, and the Appellants received from him