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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 relicta; 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

the sum of 7007., which was advanced to Mr. Lashley uponhis bond, in 1767; another sum of 300l. in 1779; and an annual payment of 65l., from the year 1772, during the remainder of Mr. Hog's life. I state these circumstances to your Lordships because the interlocutors have relation to these facts.

Mr. Hog's other children received from him certain provisions, which they are said severally to have accepted, in full satisfaction of all they could ask or demand, by or through his decease, or the decease of their mother, in the name of legitim or otherwise. And when I advert to this fact, in passing along, it seems to me not quite immaterial that, after Mr. Hog became unquestionably a person domiciled in Scotland, and was providing for his children as a person would do who was attending to the law of the country in which he was domiciled, his men of business, whom he consulted at the time he made these provisions, certainly felt that it was matter of doubt whether the children had not a claim under their mother, considering the circumstances under which the mother had died; for the deed which he expressly required, before he paid to them the portions which he intended for them, contained a renunciation, not only of whatever they could claim through his decease; but also of whatever they could claim through the decease of their mother, in name of legitim or otherwise.

Upon the 19th of March, 1789, Mr. Hog died at Newliston, leaving a real and personal estate of very considerable value, part of which was situated in Scotland, part in England, and a small part in France; and, before his death, he had executed certain deeds of settlement. There can be no doubt his intention was to vest, as amply as he could, his property in his eldest son; and of this he was unquestionably himself the proper judge: he was the father of all the children, and, as far as the law would allow it, he had a right to decide for himself to which of his children he would give most, and to which he would give least. It was quite clear that he meant to give all that he could give to the present Respondent, Mr. Thomas Hog.

The deeds of settlement which Mr. Hog had executed were lodged in the hands of Mr. John Robertson, writer in Edinburgh, his ordinary agent. One of these was a general disposition, containing a nomination of executors, dated the 5th of February, 1787, in favour of his eldest son, the Respondent: it conveyed to him certain lands therein mentioned, together with all Mr. Hog's personal property, burdened with

the payment of debts, legacies, and provisions to younger children; and it directed, and this is the part of the disposition to be attended to by your Lordships, "that the residue and growing interest should be employed in purchasing land to be entailed on the series of heirs specified in the entail of Newliston." I state this to your Lordships to be material, in deciding on the circumstances of this case, (and your Lordships will recollect, that, in a former stage of it, I represented it to be material,) because, if, in fact, this species of disposition was made by the settlement in 1787, that will deserve attention when your Lordships come to consider the effect of the evidence, as it bears upon the question in regard to certain shares of stock of the Bank of Scotland, to the number of eighty-one shares, which were to be disposed of, or were intended to be disposed of; which eighty-one shares, it is contended by the Respondent, Mr. Hog, had been absolutely conveyed to, and vested in him.

Two bonds were also entrusted to Mr. Robertson in favour of Mrs. Lashley, excluding her husband's jus mariti; one of these, for 1300l. sterling, contained a declaration that the same "shall be in full satisfaction to the said Rebecca Hog, my daughter, of all portion natural, legitim, bairns' part of gear, or other claim or demand from me, or from my heirs and executors, in and through my decease, or the death of Mrs. Rachel Missing, my spouse;" and here, also, it may be material for your Lordships to attend to it, that these bonds, which were executed at a period very long subsequent to that at which her mother had died, contained a declaration, that the same should be in satisfaction of all that she could claim through his decease, or the death of Mrs. Rachel Missing, his spouse. Those, therefore, who transacted this part of the testator's business, did not think it safe to make this proposition, as a proposition to a child to accept this provision in lieu of legitim, as it could be claimed through the decease of the father, who was unquestionably then a domiciled Scotchman; but they thought it right also to propose it, as a satisfaction for what could be claimed through the mother's decease, who, as I before stated, died in the year 1760. These provisions, which had been so tendered to Mr. Lashley and his wife, they were not contented with, and they raised a suit in the Court of Session against the present Mr. Hog, as representative of his father, (for he had acted as such in Scotland, and had taken probate, also, in England,) to account for one half

of his father's moveables, or personal estate, in name of legitim, and for Mrs. Lashley's proportion of one third of the goods in communion at the dissolution of the marriage, to which they alleged the children of the marriage were entitled, as the next of kin to their mother.

There were several defences to this action, and these defences were met by replies; and it will be within your Lordships' recollection, that there have been several interlocutors in favour of Mr. Lashley and his wife, which have been affirmed by your Lordships sitting in judgment here; more particularly an interlocutor of the 7th of June, 1791, that "the renunciation of legitim by the younger children of the deceased Mr. Hog operated in favour of the pursuer, Mrs. Rebecca Hog, and has the same effect as the natural death of the renouncers would have had, and as she is the only younger child who did not renounce, find her entitled to the whole legitim, being one half of the free personal estate belonging to her father at the time of his decease, whether situated in Scotland or elsewhere."

Another question which arose in that case, was with respect to some part of that personal property (of what value does not signify as to the principle which was under discussion), whether the lex loci rei sitæ, or the lex domicilii, of the testator was to determine in what manner the same should be disposed of. This question, which long agitated the Court of Session, and afterwards agitated your Lordships by a discussion at your bar, and which was finally decided here, was, taking Mr. Hog, as he was found to be, domiciled in Scotland at the time of his death, whether the personalty which he had in England and in France, particularly the personalty which he had in England, and attending to the nature of it, and the property in the funds; was personalty to be distributed according to the law of England, or to be distributed according to the law of Scotland?

There were other points, and those were points with which the present case more particularly connects itself. It was, first, denied, that Mrs. Lashley had any claim to her mother's right to a share of the personal estate of her father at the dissolution of the marriage. That question was remitted by the Court of Session to the Lord Ordinary for his reconsideration before the last appeal; and I shall have occasion to state to your Lordships his judgment, and that of the Court, upon it. Then there was another question, which becomes extremely

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