De Choiseul, and the distinction as to the acts of the former, describing herself as of the place in the country.

The next consideration is, whether with reference to the property or conduct of Lord Somerville there is anything showing he considered himself as an Englishman. It was said, for the purpose of introducing the definition of the domicil in the Civil Law, "Ubi quis Larem rerumque ac fortunarum suarum summam constituit," that the bulk of his fortune was in England; and the description in the bank-books was relied on. I lay no stress whatsoever on that description in those books or in any other instrument; for he was of either place, and was most likely to make use of that to which the transaction in question referred. It was totally immaterial which description he used. It is hardly possible to contend, that money in the funds, however large, shall preponderate against his residence in the country and his family seat. It is hardly possible that should be so annexed to his person as to draw along with it this consequence. Upon nice distinctions I think it might be proved, that his principal domicil must be considered as in Scotland. Great stress, and more than I think was necessary, was laid upon the manner in which he passed his time in each place. There is no doubt the establishment in Scotland was much greater than that in London. In my opinion Bynkershoek was very wise in not hazarding a definition. With respect to that to be found in the Civil Law, the words are very vague, and it is difficult to apply them. I am not under the necessity of making the application, for my opinion will not turn upon the point, which was the place where he kept the sum of his fortune. It is of no consequence whether more or less money was spent at the one place or the other, living alternately in [* 790] both. Some time before his death he talked of making his will in Scotland. That circumstance is decisive that his death in England was merely casual, not from intention. The case then comes to this. A Scotchman by birth and extraction, domiciled in Scotland, takes a house in London; lives there half the year, having an establishment at his family estate in Scotland, and money in the funds, and happens to die in England. I have no difficulty in pronouncing, that he never ceased to be a Scotchman; his original domicil continued. It is consistent with all the authorities and cases, that, where a man has two domicils, the domicil he originally had shall be considered his

domicil for the purpose of succession to his personal estate, until that is abandoned and another taken.

It is surprising that questions of this sort have not arisen in this country, when we consider, that till a very late period, and even now for some purposes, a different succession prevails in the Province of York. 4 Burn's Ec. Law, 364. The custom is very analogous to the law of Scotland. Till a very late period the inhabitants of York were restrained from disposing of their property by testament. The alteration may account for the very few cases occurring; for very few persons of fortune die intestate, though it has happened in this case. Before that power of disposing by testament such cases must have been frequent; and the question then would have been, whether during the time the custom and the restraint of disposing by testament were in full force, a gentleman of the county of York, coming to London for the winter and dying there intestate, the disposition of his personal estate should be according to the custom or the general law. One should suppose it hardly possible that some such case had not occurred. I directed a search to be made in the Spiritual Court and the Court of Chancery, where it was most likely that such a case would be found; but I do not find that any such case has occurred. Some observations may arise upon that custom. It may be thought there are some inaccuracies in the words of the Statute, 4 Will. & Mary, c. 2, upon it. The custom, 2 Burn's Ec. Law, 750, as it is stated to have existed, is thus expressed: that there is due to the widow and to the lawful children of every man being an inhabitant or householder within the said Province of York, and dying there or elsewhere intestate, being an inhabi

tant or householder within that province, a reasonable [*791] * part of his clear moveable goods; unless such child be heir to his father deceased, or were advanced by his father in his lifetime, by which advancement it is to be understood that the father in his lifetime bestowed upon his child a competent portion whereon to live. I observe, the statute giving the power of disposing by testament, after reciting the custom, directs, that it shall be lawful for any person inhabiting or residing, or who shall have any goods or chattels within the Province of York, to give, bequeath, and dispose of all their goods, chattels, debts, and other personal estate. One would suppose from this, that the Legislature had some reference to the lex loci rei sita; and

No. 3. Somerville v. Somerville, 5 Ves. 791, 792.

that it was supposed the custom would attach upon any property locally situated there, though the party was not resident; and though it is now too late to doubt the law upon that, I have some reason to think our Spiritual Courts inclined, as the courts of Scotland, to the lex loci rei sita: and if the question had occurred in the Court, and the authority of the House of Lords had not interfered, that would have been considered as the rule; and for this reason, that their jurisdiction is founded upon it, the distribution arising from the place where the property is situated; and it is natural for the Judge, who acquired his authority from the situation of the property, to suppose the rule should be that of the place where the property is. But that now certainly is not

the case.

I shall conclude with a few observations upon a question that might arise, and which I often suggested to the Bar. What would

be the case upon two contemporary and equal domicils? if ever there can be such a case, I think such a case can hardly happen, but it is possible to suppose it. A man born, no one knows where, or having had a domicil that he has completely abandoned, might acquire in the same or different countries two domicils at the same instant, and occupy both under exactly the same circumstances, both country houses, for instance, bought at the same time. It can hardly be said that, of which he took possession first, is to prevail. Then, suppose he should die at one; shall the death have any effect? I think not, even in that case; and then ex necessitate the lex loci rei site must prevail, for the country in which the property is would not let it go out of that until they know by what rule it is to be distributed. If it was in this coun try, they would not give it until it was proved that he had a domicil somewhere.

In these causes I am clearly of opinion Lord Somerville [792] was a Scotchman upon his birth, and continued so to the end of his days. He never ceased to be so, never having abandoned his Scotch domicil, or established another. The decree therefore must be, that the succession to his personal estate ought to be regulated according to the law of Scotland.

Per Lord CHANCELLOR: The law is, beyond all doubt, clear with regard to the domicil of birth, that the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicil is acquired.

Per Lord WESTBURY: The domicil of origin adheres until a new domicil is acquired.

Per Lord CHELMSFORD: The onus of proving a change of domicil is on the party who alleges it.

Mrs. Kennedy and her husband claimed from her father (Mr. Bell, the above appellant) her share of the parental "goods in communion," on the allegation that Mr. Bell, when his wife (Mrs. Kennedy's mother) died on the 28th of September, 1838, had acquired a Scotch domicil, and so had become subject to the Scotch law as to communio bonorum inter conjuges.2

Mr. Bell's defence was, that on the 28th of September, 1838, when his wife died, he had not acquired a Scotch domicil; for that he had then retained unchanged his domicil of origin in Jamaica, where he was born, where he married, and where communion of goods between husband and wife was unknown.

The second division of the Court of Session, affirming the interlocutor of Lord KINLOCH, decided that Mr. Bell, when his wife died, had become domiciled in Scotland, and, consequently, was liable to his daughter for her proportion of the "goods in communion."

The House of Lords disagreed with this ruling, and determined that on the day in question Mr. Bell's legal domicil was still in Jamaica, so that the question as to communio bonorum did not require examination.

[* 308] * Sir Roundell Palmer, Q. C., and Mr. Cotton, Q. C., were of counsel for the appellant.

Mr. Anderson, Q. C., and Mr. Mellish, Q. C., for the respond

ents.

1 Reported 22 Dunlop, 269, and 3rd Series, Vol. i. p. 1127.

2 A rule relating to the division of property (since repealed by statute 18

& 19 Vict. c. 23, s. 6) which at the time of the death in question would have applied to the property of the spouses, if the domicile had been Scotch.

No. 4. - Bell v. Kennedy, 1 H. L. Sc. 308, 309.

The LORD CHANCELLOR (Lord CAIRNS):

My Lords, this appeal arises in an action commenced in the Court of Session, I regret to say so long ago as the year 1858, in the course of which action no less than sixteen interlocutors have been pronounced by the Court, all, or the greater part of which, become inoperative or immaterial if your Lordships should be unable to concur in the view taken by the Court below of the question of domicil.

The action is raised by Captain Kennedy, and his wife, the daughter of the late Mrs. Bell; and the defender is Mrs. Kennedy's father, the husband of Mrs. Bell. The claim is for the share, said to belong to Mrs. Kennedy, of the goods held in communion between Mr. and Mrs. Bell. This claim proceeds on the allegation that the domicil of Mrs. Bell, at the time of her death on the 28th of September, 1838, was in Scotland. And the question itself of her domicil at that time depends upon the further question, what was the domicil of her husband? Her husband, the appellant, is still living, and your Lordships have therefore to consider a case which seldom arises, the question, namely, of the domicil at a particular time of a person who is still living.

Mr. Bell was born in the island of Jamaica. His parents had come there from Scotland and had settled in the island. There appears to be no reason to doubt but that they were domiciled in Jamaica. His father owned and cultivated there an estate called the Woodstock estate. His mother died when the appellant was about the age of two years, and immediately after his mother's death he was sent to Scotland for the purpose [309] of nurture and education. By his father's relatives he was educated in Scotland at school, and he afterwards proceeded to college. His father appears to have died when he was about the age of ten years, dying, in fact, as he was coming over to Great Britain for his health, but with the intention of returning to Jamaica.

The appellant, after passing through college in Scotland, travelled upon the Continent; and soon after he attained the age of twenty-one years, he went out again to Jamaica, in the year 1823, with the intention of carrying on the cultivation of the Woodstock estate, which, in fact, was the only property he possessed. He cultivated this estate and made money to a considerable amount. He arrived at a position of some distinction in the island. He