No. 3.- Somerville v. Somerville, 5 Ves. 762, 763.

general principle of all the laws of Europe is, that a permanent public duty changes the domicil; that a temporary public duty does not. The word legatus, as used by the foreign lawyers upon that subject, was applied chiefly to the deputies of the towns and provinces of the Empire coming to present petitions. Huber applies this doctrine of the Roman law to the deputies of the Dutch provinces attending their duty at the Hague; concluding, that residence for that purpose does not take away the original domicil; and the same was decided by a court of very considerable authority, the Rota of Rome, Farnese Decis. Rom., and is adopted by Denisart, in his collection with regard to the law of France.

This circumstance is not to be found in any of the [763] other cases. Another circumstance is the nature of the establishments, where the residence is pretty nearly equally divided between the Capital and the country-seat. With respect

to that, in the case of a nobleman or a gentleman of landed property, all other circumstances being equal, the circumstance of the country-house being upon his landed estate ought always to preponderate; and the other residence is to be considered secondary only. In this instance all the causes of preference from birth, rank, and also the rerum fortunarumque summa, apply to Scotland. Huber quotes a decision of the Supreme Court of Friesland, upon the 2d of July, 1680, precisely upon that point, by which the domicil was held to be at the country-house; and his observation upon that is, that where the principal concerns are in town, that is the domicil; where in the country, the country residence.

In Denisart, Article Domicil, are three cases, decided by the Parliament of Paris; one is the case of Mademoiselle De Clermont Santoignon; another is that of the Count De Choiseul, in 1656, who was held to be domiciled in Burgundy, though he went there only in the shooting season; and an opposite case is mentioned of a Bourgeois in Paris, who paid the Capitation tax in the country; but that was held to be only his secondary residence, his principal concerns being in Paris. In Denisart Dictionnaire 2, letter D., p. 165, it is laid down, that the original domicil is constituted the first domicil; and that is preserved till another is chosen. With respect to the particular question, the distribution of the personal estate, it is laid down that the domicil continues

Several cases are stated, all
From those cases it appears,

until changed; and the reason is the presumption of attachment to the place of birth and connections. tending to establish the same point. a minor could not do any act to change his domicil; that a military man shall be presumed to have his domicilium originis, unless it is quite clear he meant to establish another; and unless that appears, in the case of a military man they always have recourse to the original domicil. In D'Aguesseau's Collection, Vol. v. 115, the case of the Duke of Guise is stated; a case, not strictly relative to the distribution of personal estate, but applying to this subject. The question was, whether it could be said, he had no domicil; or, that his domicil was not at Brussels; and the conclusion is, that the former is absurd; the latter more so; for all

persons serving the King of Spain in Flanders cannot be [* 764] considered* to have their domicils elsewhere than in the Capital of the Low Countries. Every great lord is considered as having his domicil in the Capital, unless he has another in point of fact; but the Capital is resorted to only, in case there is in point of fact no other.

Apply that doctrine to this case, in which there is a domicil in point of fact.

Other cases are to be found in the same author. The case of a bastard is stated (Vol. vii. 373); and upon the question, what destroys the domicil of birth, it is laid down that nothing has that effect but clear facts tending to establish this principle, -a relinquishment of the native country, and a clear purpose of establishment elsewhere; and the number of years is limited. Cochin states the case of the Princes of Germany. He also states (Vol. v. 1), the case of the Marquis De St. Paterre, who was born in Mayenne, became a page, and afterwards entered the army. He lived sometimes at Paris in hired lodgings; sometimes at the house of a friend; called in some acts of his hotel. He returned to the place of his birth, and died there. The question was, whether the domicilium originis was destroyed; and it was held, not; and the reason is, that his residence at Paris was not more than was necessary in his way of life as a military man; that he kept his country-house; had there all his instrumentum domesti· cum; and notwithstanding some acts done at Paris, the original domicil remained.

This is a precedent in all points applicable to the case now

before the Court. Upon the doctrine of these cases it is clear, that where the domicilium originis is connected with birth, ancestors' property, muniments necessary to the support of that property, and acts done in respect of it, to get rid of that domicil there must be clear, distinct, positive facts, combined with intention. Death is nothing without intention and volition; but where there is a previous intention of residence, confirmed by the fact of residence, the fact of death is a circumstance that will be taken into consideration to fix the domicil; but in this case the fact is quite the other way, and the death merely accidental in London.

In Bruce v. Bruce, the interlocutor was affirmed, and the only reason of Lord THURLOW's delivering any opinion was, that the ground he took was different from that of the Court of Session. * Mr. Bruce was a younger son. The whole of [* 765] his personal estate was situated either actually in England or in India. The Court of Session determined upon the Lex loci rei sita. Lord THURLOW, thinking that erroneous, entered into the question of domicil; and according to a very authentic note, he was very unwilling to go into the question. Mr. Bruce, originally a younger son without fortune, was only once in Scotland. He returned from London to India, and never showed any intention of returning to his native country: nothing appeared but some expression a little before his death, that he wished to be considered a Scotchman. That is not like this original, continued connection with Scotland, attended with rank, property, &c. Mr. Bruce resided in India his whole life, except about one year in London.

In Balfour v. Scott (H. L. 1793), 6 Bro. P. C. 550; edit. 1803, I admit, Mr. Scott was the son of a gentleman of property; but during the latter part of his life he did clear acts of desertion of the domicilium originis; selling off his establishment, dismissing. his servants, &c. He was only once or twice in Scotland, and then in the house of a relation. His whole attention was applied to this country. He had no intention of returning to Scotland; on the contrary an intention of not returning was demonstrated by facts; and he had made it impossible to go to his own home in Scotland. It is impossible to apply that case to this: Lord Somerville's residence in London being a mere lodging house, all his muniments, furniture, &c., being in Scotland: though a man of economy, having great regard for the honor and dignity of

his family, living penuriously in England, in Scotland like a nobleman of his fortune at his family-seat; returning constantly to his home, which was always established as his home; a home consistent with his rank in life and the show belonging to it.

The case of Sir Charles Douglas has but one feature of similarity to this, the entry into the service at an early period of life. The distinction is, that Lord Somerville, upon the death of his father, returned to his residence in Scotland, and fixed himself there, having only a temporary residence in London. Sir Charles Douglas, after a long naval life, partly in different foreign services, established himself at Gosport; and there was no reason to suppose he ever meant to have a permanent establishment in Scot

stances.

land. In Lord Annandale's Case there were some cir[* 766] cumstances of similarity; others directly opposite; and all these cases, being mere clues for the direction of the judgment of the Court, must be considered with all their circumWilliam, Marquis of Annandale, lived in Scotland in the house of his first lady; which, after her death, passed into the Hopetoun family. He was one of the Sixteen Peers. After his second marriage he never returned to Scotland; he lived in England, and died at Bath. Marquis George was born and educated in England. His visits to Scotland during a period when there were great doubts of the sanity of his mind, were made as to a country where he had no home. The only evidence was, that he stamped with his foot upon the ground there, and said, * Here I build my house. Compare that case with this. The LORD CHANCELLOR in his judgment has very accurately summed up the points establishing the domicil of Lord Annandale, showing what would be his judgment upon this case. The principal

"

circumstances are reversed here. Lord Somerville was born in Scotland; his expectations of fortune, settlement and establishment were there; he always had a residence in Scotland, Lord Annandale never; the existence there of Lord Annandale purely a purpose of either visit or business, and wherever he had a place of residence that could not be referred to an occasional and temporary purpose, that was in England. In this case the residence was temporary in England. Upon comparison of the cases the same principles must determine in favour of the Scotch domicil, which was never changed. The reason stated by Lord HARDWICKE against the adoption of the Lex loci rei sitæ, that it would prevent

foreigners purchasing in our funds, is equally strong against changing the domicilium originis upon slight circumstances.

When did Lord Somerville begin to acquire a domicil in England? If not in the first six months, he never did. As to his actual residence, the time he was at Westminster School must be subtracted, according to all the Jurists; and as to the remain ing period, considering the particular reason of it, and the establishment kept up in Scotland, there is nothing like an equilibrium. The only positive evidence in favour of the English domicil is, that he expressed a dislike to Scotland, and said, his reason for going there was the dying injunctions of his father; but the wish of the party has no effect in constituting a domicil, though the intention certainly has. That evidence proves decisively his intention to keep up his Scotch residence.

In Bruce [*767] v. Bruce, there was only birth, and paternal residence and extraction, with an intention to return at some time uncertain. In Balfour v. Scott there was a complete abandonment, and change of establishment. In Sir Charles Douglas's Case there were birth, and paternal residence, and extraction, but neither property, nor estate; and there was positive intention never to settle in Scotland. In Lord Annandale's Case there was property and rank; but neither birth, nor public duty, nor any of the circumstances to be found in this case. All presumption is in favour of the Scotch domicil, and nothing in favour of the English but this particular residence of a few months in the year, accounted for in a great degree by public duty, and admitting he took the house antecedent to the commencement of that duty, answered by the establishment kept up in Scotland. The evidence of his intention to make a will upon his return to Scotland, alarmed at the possibility of a distribution that would take in the halfblood, proves, that he had not a person in this country whom he intrusted with the management of his affairs.

With respect to the supposed case put by the Court of a foreigner coming here, having a domicil abroad, or no known domicil, and then an equal residence, upon the question, whether the death shall not decide, the analogy to the rule in Godolphin, Part i. c. 20, fo. 58, as to the place where the will is to be proved, goes a great way to decide that. In the case stated from Cochin the death was connected with circumstances of intention and establishment; but in Sir Charles Douglas's Case it was considered of no