cerning nomina debitorum; that these are governed by the law of the domicil of the creditor, and not of the debtor. 4thly, That there are certain moveable subjects quæ habentur loco immobilium." And, in support of his argument on these points, the uncle referred to Voet, and the many authorities cited by him, Appendix to the Title, De constitutionibus principum, § 11., and de rerum divisione, 30.; stating, from these authorities, that it would be absurd to suppose that, where a man had money or effects in all the different parts of the world, his presumed will, upon which the succession ab intestato was founded, should be held to be as different as the peculiar laws or constitutions of the several parts of the world where his effects were, or his debtors lived.

The Court confirmed the decision of the Commissaries, and "remitted to the Lord Ordinary, to refuse the bill of advocation." And this, apparently, is precisely the decision which would be pronounced, in such a case, at the present day. It appears, however, to have been at that time admitted on both sides, that capital stock of the Bank of England, the South Sea Company, or any trading company, fixed by their charters in a certain country, would be accounted among mobilia quæ immobilium loco habenda sunt. (1)

In Machargs v. Blain, 22d July, 1760 (m), the will, made in Scotland, of a Scotsman born, who died domiciled in Antigua, was interpreted by the law of Scotland. John Blain resided for some years as a merchant in Antigua;

(1) The principles in this case appear to be so clear, that it is matter of surprise that they were not adopted in future cases; but we see (infra, p. 101.) that they were then generally rejected by the Scottish judges. Lord Kaimes, in his "Principles of Equity" (p. 359.), assents to this case of Brown, and to the principles contained in the decision.

he afterwards came to Glasgow, and, after a few years' residence there, returned again to Antigua, where he lived about twelve years, and died.

When residing at Glasgow, before his return to Antigua, he executed his last will, written with his own hand, by which he appointed his brother Gilbert Blain, his executor; he gave legacies of 100l. to his executor, 2007. to his sister, Margery Blain, and 100%. to Anthony and James Machargs, his nephews by his deceased sister Jean. The will contains this clause: "And all the rest, residue, and remainder of my estate and effects I leave and bequeath equally amongst my brethren and sisters, or other nearest of kin, that shall be alive at the time of my decease." When he left Scotland, he committed this will to the care of a friend.

The testator at his decease left a considerable personal estate, chiefly situated in Antigua. After his death Anthony and James Machargs, his nephews, brought an action in the Court of Session against Gilbert Blain, the executor nominate, claiming a share of the residuary bequest, under the description of the testatator's "other nearest of kin."

It was admitted, that if the deceased had died intestate, the law of England, which takes place in Antigua, would have regulated his succession ab intestato, and would have given a share jure representationis to his nephews. But it was contended, that the will, having been made in Scotland, was to be interpreted according to the sense of the country where it was executed, and that if the question had been tried in Antigua it must have received the same interpretation there. The Court found, that, after payment of the special legacies contained in the testament, the residue of the estate and effects of the defunct belonged to the defender and his sister Margery; and therefore assoilzied the defender."

This appears to be a very doubtful decision. The domicil of the testator had been in Antigua for twelve years

after the date of his will; the law presumes that he must have known the rules of succession in that country. The will was written by the testator himself. The expressions in the will, upon which the case was founded, are precisely such as might have been used in an English will. It must be presumed that the testator recollected the words of his will. What meaning could he, domiciled in Antigua, and familiar with the law of succession there established, have given to these expressions? (n)

The next case, in point of date, is that of Mortimer v Lorimer, February 1770. (o) "In a question about the succession of William Lorimer, a Scotsman, who had passed the greatest part of his life in Scotland, but for some years before his death had resided chiefly in England, though sometimes in Scotland, and died at sea in a voyage to Italy, whither he was going for his health, the Lords found that his succession must be regulated by the law of Scotland."

Nothing appears here as to the situs of his property, nor any thing very distinctly as to his domicil; and the case is mentioned, less for any importance belonging to itself, than as having been referred to in other cases, as one of the series of this class of decisions.

In Davidson v. Elcherson, 13th January 1778, the lex loci rei sita was applied to the effects of a Scotsman dying at Hamburgh. (p) William Murray, a Scotsman, having, "in the course of business, left Scotland in 1768, and

(n) See the case of Anstruther v. Chalmer, infra, where a different decision was given by the Master of the Rolls in a case strongly resembling the present.

(0) Not reported, but briefly noticed in a note to Erskine (ed. 1773), p. 601.

(p) Fac. Coll. Morrison, 4613.

H

gone to Hamburgh, died there soon after, without making any settlement." (q) Mr. Parish, a Hamburgh merchant, took the custody of his chest, in which effects were found to the value of 300l., consisting in part of bank-notes.

The uncles and aunts of Murray took out a confirmation to him before the commissaries of Edinburgh, and transferred to Davidson, an assignee, their right to the effects of the deceased. Marian Elcherson, the mother of the deceased, claimed the property in the court at Hamburgh, as belonging to her by the law of that country.

To settle this question, Parish brought a multiplepoinding in the Court of Session, in which the parties appeared for their interests. It appears to have been admitted, that the deceased was not at Hamburgh animo remanendi, and that his domicil still continued in Scotland; but the discussion turned upon the question, whether or not the property should go according to the lex loci rei sitæ. The Court decided, "that the distribution of the moveables in this case must be regulated by the laws of Hamburgh, where those moveables are and were situated at the death of William Murray; that no action for such distribution lies, or is competent before this Court; therefore dismisses the foresaid process of multiplepoinding and competition relative thereto." On a reclaiming petition, which was answered on the point of the situs of the bank-notes, the

(q) Settlement in Scotland is an expression in universal use, meaning an instrument in the nature of a will, or mortis causa deed, settling the affairs of a person deceased. It has thus obtained a species of technical meaning, but very different from what is known by the name of a settlement in England. This last is a deed inter vivos (e. g. a settlement in contemplation of marriage), by which any property, real or personal, is settled for certain specified purposes. As real estate cannot be disposed of by a last will in Scotland, the settlement, in which both real and personal estate may be joined, appears to have nearly superseded the last will altogether in modern times.

Court adhered. Thus the mother took the property by the lex loci rei sitæ.

So far as this decision went upon the situs of the moveables, it appears to have been contrary to those principles which are now clearly established. (r)

In Henderson v. Maclean and others (13th January 1778), a will made by a person born in Scotland, who died in India, in the military service of the East India Company, was effectual against a claim of jus relicta of his widow. (s) The facts were these:-John Maclean, a captain of artillery, in the service of the East India Company, having been mortally wounded in an engagement in the Mogul country, immediately before his death executed a will, by which he bequeathed his whole estate and effects to his father and a brother and sister in certain proportions, and named executors in India. The will was proved by the executors in common form in the Mayor's Court of Madras. The executors recovered the funds, which were all in India, and remitted them to the legatees in Scotland. Afterwards Helen Henderson, the widow (t) of the deceased, brought an action against the legatees in the Court of Session, claiming her share of the moveables of the deceased as her jus relictæ.

The same point was argued here as in the last case, namely, whether the law of the domicil, or of the place where the effects were situated, regulated the succession. The point of domicil is not much discussed in the report. The widow contended, that having died in the Mogul's

(r) Apparently there is scarcely any country in Europe where the successio tristis of the mother is not received, except Scotland.

($) Fac. Coll. Morrison, 4615.

(t) In England, from the name, a conclusion would be drawn that the widow had married again; but in Scotland the maiden name is not changed at marriage for legal purposes.