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No. 3. — Somerville v. Somerville, 5 Ves. 756, 757.

the servants he brought to town were part of his Scotch establishment, which was a regular establishment. How could it be said, when he was leaving town, going to his castle in Scotland, that he was going from home, as a sojourner, a stranger, a visitor; and that returning to London he was going, ubi Larem rerumque

ac fortunarum suarum summam constituit ? [757] The description of Lord Somerville in the banks books

is merely that of the broker; and can afford no inference. Some of the witnesses speak to little expressions, denoting that he wished to be considered an Englishman, and liked better to live in England than Scotland. That, which, it is to be observed, rests principally upon the suspicious evidence of a discarded servant, determines nothing. This is a question of fact. Dean Swift was very anxious to be considered as an Englishman; but he must have been considered domiciled in Ireland. It is idle to enter into little circumstances of that kind against such a weight of evidence. In Balfour v. Scott (H. L. 11 April, 1793, 6 Bro. P. C. 550), we were obliged to make use of such circumstances; which are only incidents in this case. Mr. Scott had the intention of completely abandoning his domicil in Scotland about twelve years before his death. His known purpose was that of watching the funds; in which he had invested his property. In the prosecution of that known purpose he broke up his establishment, leaving only a gardener: he only went two or three times to Scotland; and upon those occasions never resided at his own house, but was a visitor with his friends; and for the latter part of his life he never went to Scotland. He had clearly chosen a different domicil ; which completely did away the domicilium originis.

In the case of Sir Charles Douglas. (Ommaney V. Bingham before the House of Lords, 18th March, 1796), the circumstances were these : He left Scotland in 1741, at the age of twelve, with a view to enter into the navy. From that time to his death he was in Scotland only four times. 1st, as captain of a frigate: 2dly, to introduce his wife to his friends; on which occasion he staid about a year: 3dly, upon a visit: 4thly, when, being appointed to a command upon the Halifax station, he went in the mail coach to Scotland, and died there, in 1789. He was not for a day resident there in any house of his own; nor as a resident. Under those circumstances it was strong to contend

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that he retained the domicil * during all that time [*758] in a country, with which he had so little connection. He had no estate there, no mansion-house. He was not a Peer of that country. There was nothing but the circumstances of his birth and his death; and upon those circumstances, and because he had an occasional domicil there, the Court of Session deterinined that he was domiciled in Scotland. He married in Holland ; and had a sort of establishment there. He commanded in the Russian navy for about a year; and was afterwards in the Dutch service. He had no fixed residence in England till 1776, when he took a house at Gosport; where he lived as his home, when on shore. That was the only residence he had in the British dominions. Whenever he went on service, he left his wife and family there; and he always returned to that place. His third wife was a native of Gosport. In his will he spoke of his dwelling-house at Gosport. Under these circumstances the cause came before the House of Lords. The Lords considered the circumstance of his death in Scotland, going there only for a few days, as nothing. The LORD CHANCELLOR expressed himself to the following effect:

“ The reasons assigned in support of the decision of the Court of Session are by no means satisfactory. His dying in Scotland is nothing ; for it is quite clear, the purpose of going there was temporary and limited, nothing like an intention of having a settled habitation there. The question never depends upon occasional domicil : the question is, what was the general habit of his life? It is difficult to suppose a case of exact balance. Birth affords some argument; and might turn the scale ; if all the other circumstances were in æquilibrio : but it is clear in this case, his circumstances, his hopes, and sometimes his necessities, fixed him in England. His taste might fix him at Gosport in the neighbourhood of a Yard : a place also convenient to him in the pursuit of his profession. Upon his visit to Scotland, by a letter he guarded his sister against the hope of his settling there."

The LORD CHANCELLOR then takes notice of his making [759] a will; which would be totally subverted by considering him domiciled in Scotland. It became important to determine the domicil in that case; because by a codicil he had imposed a condition in restraint of marriage upon a legacy to his daughter,

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with a gift over to other children; and it was contended, that the condition was void by the law of Scotland, but good by the law of England on account of the gift over. (See Stackpole v. Beaumont, 3 Ves. 89, and the references.) If Sir Charles Douglas had died in the Russian or Dutch service, his property must have been distributed according to the law of Russia or Holland; for he had made himself a subject of those countries; and by his establishments there had lost his establishment in Scotland. His original domicil having been abandoned, when he afterwards entered into the service of this country he became domiciled here; as a Russian or Dutchman would on entering into our service.

Lord Annandale's Case, Bempde v. Johnstone (1796), 3 Ves. 198, is still weaker. There was not even the circumstance of birth in Scotland; and, with respect to Marquis William, he did not return to Scotland after his Parliamentary duty was closed ; and there were other considerable circumstances, importing an intention to continue in England. The decision was properly founded upon this fact; that till a considerable period after the birth of Marquis George, there was nothing that could by possibility afford a ground for contending that he had a domicil in Scotland; and it was considered by the LORD CHANCELLOR, that it was necessary to show that he had abandoned the domicil in England; and gained one in Scotland; for which there was no pretence.

Can these cases be at all compared with this? Lord Somerville never for a year together abandoned his residence in Scotland. In point of duration he had full as much residence there as in this country; abstracted from the circumstances that make that quite a different residence from this. In this case there was a mansion-house actually resided upon. Suppose he had lived several years entirely in England, going only occasionally to his mansion in Scotland; still that must have been considered his residence. His death in London happened in April, before the

period of his usual annual return to Scotland. No inten[* 760] tion is to be inferred * from that; on the contrary there is

direct evidence of his intention to get back to Scotland, when attacked by illness, and an intention, when he should get there, to make an arrangement of his affairs looking to the law of that country. But it is sufficient to say he died in the course of that temporary residence every year in England; and there is

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nothing to show, he had abandoned the intention of returning, as usual.


Have there not been any cases in the Spiritual Court with reference to this point upon the Custom of the Province of York (2 Burn's Ecc. Law, 746) ? There must have been many instances of two residences : one within the Province; the other without it. Then would the place of the death make a difference? The Custom, as expressed, affects the goods of every inhabitant dying there, or elsewhere.

I cannot form to myself any other argument for those who claim by the law of England, except that his death makes a difference, considering the residence equal. Therefore what do you say to this case ? Suppose a man, having a forum originis in some other part of the world, comes to live and to have a residence here and in Scotland, dividing his time equally between them. For the plaintiffs.

[761] To make that case bear upon this, the question must be put as between the forum originis and the place of his death. Supposing a fixed, clear domicil in Scotland, and then a degree of residence in England from thenceforth quite equal to that in Scotland, the circumstance of his death is not of the least weight; for if the domicil is once fixed, you must show a change of domicil. The death is accidental; and in Sir Charles Douglas's Case was laid entirely out of the question. The case of a man without a domicil cannot exist. If a child being illegitimate cannot have the domicil of his father, it must be the place of his birth; if he is born on board ship, the place to which the ship belonged; if no other domicil can be found, the place where he was at his death. Every person must have a habitation of some description.

But this is not a case of equilibrium ; which, if such a case can be supposed, must arise either from the habits of a vagrant life or an equally divided residence, with the absence of all evidence of birth or extraction. The question of domicil depends upon facts and circumstances of residence, proof and presumption of intention of residence. The desire of the Roman Jurists to systematise and subtleize has occasioned their giving much greater weight to the circumstances of birth and extraction than they really deserve.

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The late decisions, agreeing with Bynkershoek, one of the greatest of them, in bringing it back to the true consideration, have held that those are only some of the circumstances. In Bruce v. Bruce, 7 Br. P. C. 566, Major Bruce, born in Scotland, but settled in India many years, professed an intention to return to Scotland; but not till he had acquired a competent fortune; and he died in India. He was held domiciled in England. That decision weakened the force given by the Jurists to the circumstances of birth and extraction; and determined, that a mere intention, depending upon a very doubtful event, would not do;

that it must be a residence with a view to make it per[* 762] petual. But though birth and extraction * were there de

cided not to be everything, yet it was not held that they are not circumstances of great importance.

Lashley v. Hogg only confirmed the principle, that the Lex domicilii is always to rule, and not the Lex loci rei sitæ ; more strongly confirmed in Balfour v. Scott. In Sir Charles Douglas's Case there was nothing in favour of the Scotch domicil but the doctrine of the Civilians, and the extravagant weight given to the circumstances of birth and extraction. The English domicil prevailed rather by the weakness of the Scotch domicil than by its own strength. The same observation applies to Lord Annandale's Case, the Scotch domicil resting upon mere extraction, aided by property and rank; for even birth was wanting. That certainly, as the LORD CHANCELLOR observes in that case, is a very small circumstance, being accidental; and the mere place of death is much more insignificant; for all other circumstances being equal, the circumstance of birth, slight as it is, might turn the scale, affording some presumption of affection; but that presumption, which alone can give any weight to the accident of birth, cannot be raised in the other case, of the death, which is liable to the same objection as the Lex loci rei sitæ, making the rule depend on accident, quite independent of the intention.

The next circumstance, rerum fortunarumque summa, was wanting in Bruce v. Bruce, and other cases. The next, the rank and dignity of Lord Somerville, of itself furnishes a link of connection; but the most important circumstance is, that the connection created by rank is strengthened by duty, as one of the Sixteen Peers. That is strong, as a link of connection with Scotland, and a reason for a temporary residence in England. The

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