interest; and that the husband jure mariti had the administration and disposal of them while the marriage subsisted, but upon the dissolution thereof a division took place, and the wife (if she was the survivor) took one third, and the children another third as their legitim in case a widow existed, and one half if no widow; and that the remaining share alone the husband could dispose of by testament, for that he could not by any testamentary deed exclude the children's legitim or the wife's jus relictæ ; and that the jus relictæ might, however, be excluded by settlement, or provisions made upon the wife, with her own consent, before or after marriage; and that in Scotland there was no distinction between choses in action and effects actually recovered."

The Master therefore reported, "that the petitioner, Ann Fleming, the widow of the said defendant, Archibald Fleming, not having any settlement or provision made upon her by her husband, and he having died without issue, she was entitled to one moiety of the legacy in question and the interest thereof." This report was confirmed by the decree of the Master of the Rolls, who directed one moiety of the legacy and interest to be paid to the widow, and the other moiety to Archibald Farquharson, the executor of Archibald Fleming. (m)

(m) Appellant's case, Bruce v. Bruce, 15th April, 1790, p.4. Respondent's case, Hog v. Lashley, 17th May, 1792, p. 7. The decree was printed at large in this last cause, from which the above abstract of it is taken.

OF THE

CHAP. VIII.

DECISION GIVEN IN THE CASE OF BRUCE V. BRUCE, BY WHICH THE LAW OF PERSONAL SUCCESSION WAS FIXED UPON THE LAW OF THE DOMICIL; AND OF THE SUBSEQUENT CASES UPON INTERNATIONAL SUCCESSION, IN ENGLAND AND IN SCOTLAND.

We have now brought down our deduction of the subject to the case of Bruce v. Bruce, which has attracted equal notice in both countries, and which, according to universal assent, has established this branch of the law upon its proper basis, as part of the law of nations. In the further progress of our inquiries, the cases decided belong equally to both countries. They may be divided into two branches; one regarding the succession in personal estate alone; the other of a mixed nature, where questions in relation to the succession of real and personal estate were involved in the same decision.

SECT. I.

Cases regarding Personal Estate alone.

THE case of Bruce v. Bruce belongs to the first of these branches. (a) David Bruce of Kinnaird left issue, by his first wife, James Bruce (b); and, by his second wife, three sons, William, Robert, and Thomas, and two daughters, Elizabeth and Margaret.

(a) Fac. Coll, 25th June, 1788, Morrison, 4617. House of Lords, 15th April, 1790.

(b) This was Bruce the Abyssinian traveller.

William Bruce, the eldest son of the second marriage, went out to India, at first in the sea service; but afterwards, about 1767, he entered into the military service of the East India Company, on their Bengal establishment, in which he gradually rose to the rank of major. In his letters written home to his relations, from time to time, and particularly so late as the 18th of December 1782, he constantly expressed an anxious desire to return to his native country, to spend his last days there, as soon as his circumstances would permit.

Having acquired about 9000l., he remitted 500l. to a friend in London; and his attorney at Calcutta, in January and February 1783, remitted to Messrs. Alexander Barclay and Son of Glasgow, bills on the East India Company for 57081. 2s. 3d., with a power of attorney from Mr. Bruce, and instructions to lay out the proceeds in securities on his behalf.

On the 30th of April 1783, Major Bruce died at Calcutta, a bachelor, and intestate; part of his property was then in London, part was invested in the Indian bills before mentioned, and on its way to Europe; and the remainder was in India. Disputes arose in the family in regard to this succession. James Bruce, the brother consanguinean, contended, that the succession was to be regulated by the law of England, which made no distinction between the full and half blood; and the children of the second marriage contended, that, as the deceased was a Scotsman by birth, as his residence in India was merely occasional, and as he had expressed his intention of returning home as soon as he had acquired a competent fortune, the law of Scotland ought to be the rule; and more particularly in regard to that part of his fortune which, at the time of Major Bruce's death, was on its passage home, and which could not be said to be in England more than in Scotland.

An action was accordingly brought in the Court of Session by James Bruce of Kinnaird, against his brothers and sisters of the second marriage; and against the agents to whom parts of the property had been remitted, Messrs. Alexander Barclay and Son of Glasgow, and Mr. David Erskine of Edinburgh, writer to the signet; concluding that the defenders should be ordained to pay to the pursuer 2000l., as his share of the estate and effects of the deceased, or to render a just account thereof, and pay to him his rateable share.

In the Court of Session, this case does not appear to have excited much interest: it is reported very briefly in the Faculty Collection; almost without any statement of the argument. The Lord Monboddo, Ordinary, pronounced this judgment:-"Finds, 1st, that, as "Finds, 1st, that, as Major Bruce was in the service of the East India Company, and not in a regiment on the British establishment, which might have been in India only occasionally, and as he was not upon his way to Scotland, nor had declared any fixed and settled intention to return thither at any particular time, India must be considered as the place of his domicil (c); 2dly, that, as all his effects were either in India, or in the hands of the East India Company, or of others his debtors in England, though he had granted letters of attorney to some of his friends in Scotland, empowering them to uplift those debts, his RES SITE must be considered to be in England: Therefore finds, that the English law must be the rule in this case for determining the succession to Major

(c) In the case of Marsh v. Hutchinson (2 Bos. and Pull. 231.), Lord Eldon, speaking of this cause, says, " Lord Thurlow in his judg

ment adopted this distinction, that if he had gone out in a King's "regiment, and died in the King's service, his domicil would not have "been changed; but that, having died in the service of the Company, "it was changed." It appears that this view originated with Lord Monboddo.

Bruce, and consequently that James Bruce of Kinnaird is entitled to succeed with the defenders, his brothers and sisters consanguinean, and decerns and declares accordingly." And, upon a reclaiming petition, the Court adhered.

Pending this cause, some of the parties had died; but the two sisters, and James Hamilton of Bangour, the husband of Margaret, brought their appeal against this judgment to the House of Lords. Then its great and leading importance as a question of international law came to be perceived; and the case for the appellants (d) entered into a statement, not only of all the cases which had been decided in Scotland upon this subject, but also of the dicta of the foreign jurists, and of the decisions which had been given in England upon similar questions.

The cause was argued at the bar by advocates of great celebrity (e), and the opinions delivered by Lord Thurlow, then Lord Chancellor, with the judgment pronounced in this cause, have ever since been held to have fixed the law of Scotland upon this subject, on the basis of the law of nations. Lord Thurlow, at the time of giving judgment in the appeal, spoke to the following effect: :

"As he had no doubt that the decree ought to be affirmed, he would not have troubled their Lordships by delivering his reasons, had it not been pressed, with some anxiety, from the bar, that, if there was to be an affirm

(d) Prepared or revised by Mr. Alexander, afterwards Sir William Alexander and Lord Chief Baron. (This information was received from the late Mr. Chalmer, the agent in London for the appellants, a gentleman, during a very long life, distinguished for legal acuteness, for integrity, and for every good quality that belongs to the professional character.)

(e) For the appellants, by Sir John Scott and Mr. Alexander; for the respondent, by Sir Ilay Campbell and Charles Hope, both afterwards Presidents of the Court of Session.