: with at least equal amazement, the little value which French tribunals, even of the last resort, attached to judicial precedent. A French lawyer deposed, as a witness, to the comparatively insignificant effect of mere judicial precedents upon subsequent cases, and on being asked by the perplexed English lawyer "What are your judicial decisions then good for?" received the concise. and remarkable answer, "They are good for those who "get them." Never were the opposite characteristics of the legal mind of the two countries more clearly shown, and perhaps, it might be added, the defects of both the obstacle to the melioration of law presented by the inflexible adherence to a judicial precedent on the one hand; and on the other, the great uncertainty of law arising from the disregard of judicial precedent, and the habit of applying an independent consideration of law, as well as fact, to every case which is brought into a court of justice. I have thought it expedient to leave the mention of Collier v. Rivaz, and Bremer v. Freeman, as they were in the former edition of this volume. But to the English lawyer these cases have now ceased to have any practical interest: because the decision in Bremer v. Freeman having manifestly led to the defeat of a testator's intentions, Lord Kingsdown was induced to bring into Parliament a Bill, which became the 24 & 25 Vic. c. 114, the provisions of which, it will be seen, are most important (e). CCCXLIX. It was, perhaps, rather taken for granted in Bremer v. Freeman, that an individual who has complied with the forms prescribed by the Law of a foreign State for the attainment of domicil, becomes, unquestionably, domiciled in that State. But Rocco (f), no mean (e) Cf. chapter xliii. §§ dccclxiv., dccclxiv. a, where this statute is set out. (ƒ) “E può in fine accadere che il forestiero, come che ammesso a stabilir nel regno il domicilio, non abbia per tanto inteso di abbandonare l'antico; abbia mai sempre serbato la intenzione di far ritorno nella sua patria.”—p. 148. authority, says that this is not necessarily true; that an individual may have complied with this prescribed form, and have enjoyed all civil privileges appertaining thereto, and yet have retained his ancient domicil: the animus revertendi to which may never have deserted him. The foreign jurist has always ascribed more weight than the English jurist to intention, as the principal ingredient of Domicil; and the instance just cited affords, perhaps, as strong an illustration as could be furnished, of the preponderating influence of this element in continental jurisprudence. [CCCXLIX.A. In Hamilton v. Dallas (g), a case decided by Vice-Chancellor Bacon in 1875, it was held that an Englishman might acquire in France a domicil determining the succession to personalty as to which he died intestate, although he had never been admitted by the authorisation of the President of the French Republic to the privileges of a French domicil in accordance with the Code Civil, tit. i. art. 13.] CCCL. We cannot close these observations on the operation of the French Code upon the general Law of Domicil, without adverting to a remarkable passage in the last edition (1828) of Merlin's Répertoire de Jurisprudence. After observing that the question no longer presented itself under the Code Civil, at least upon the wills of Frenchmen, he says: "But the question remains open (entière), in respect to holograph wills made in France, by foreigners domiciled "in countries where the laws do not admit that mode "of making a will, and by which they dispose of property "situate in those countries: ought the tribunals of those "A dir brieve, egli userà nel regno di tutti que' diritti, i quali non tengono allo stato della persona; e fra quelli e che il riguardano, il godimento o la privazione ne verrà regolata secondo le norme del vero suo domicilio."-p. 155. [(g) L. R. 1 Ch. D. p. 257.] "countries to declare them valid according to French "Law, or to annul them according to the Domiciliary "Laws of the testator?" (gg) Here the question on Merlin's mind was, not whether the foreign court would recognize as valid the will of a foreigner made according to the forms of his Personal Statute, which follows him wherever he goes, but whether the foreign Court would recognize as valid the will of a foreigner made in the holograph form, where his own Laws do not admit it. CCCLI. Another question of difficulty might arise from the regulation of the Law of domicil by the State. Suppose that the Government of a country, Russia for instance, forbade its subjects to establish a domicil out of their native land, and a subject nevertheless de facto established a domicil in a foreign country, and died there, what law would the country in which he died apply to the distribution of his personal property-that of the country of his domicil de jure, or of his domicil de facto? It should seem the Law of the domicil de facto (h), but the case would be open to some argument on the other side (i). (gg) Vol. xxxiv. p. 118. Testament, Sect. II. § iv. Art. 2. (h) Vide antè, § xliii. and note (z), as to the peculiarity of the custom of London prevailing over the Law of the Domicil. (i) According to the Sardinian Code, no domicil in a foreign country, however long and permanently established, would, of itself, avail to prove that the person establishing it had abandoned the intention of returning to his native country, and so incurred the forfeiture of his civil rights. (Codice Civile, lib. i. tit. i. c. ii. Della privazione dei diritti civili, s. 34.) [Under the Italian Civil Code, Art. 11, "La cittadinanza si perde: "1. Da colui che vi rinunzia con dichiarazione davanti l'uffiziale dello stato civile del proprio domicilio, e trasferisce in paese estero la sua residenza ; "2. Da colui che abbia ottenuto la cittadinanza in paese estero; "3. Da colui che, senza permissione del governo, abbia accettato impiego da un governo estero, o sia entrato al servizio militare di potenza estera." See, too, Art. 17.] NOTES ON THE FOREGOING CHAPTER. I. The cases on Domicil have of late years been very numerous, both in the English, Irish, and Scotch Reports, and in those of the United States of America; but in many of them no new principle or new application of old principle is contained. The reader will find a great collection of American cases in Curtis' United States Digest, vol. ii. p. 102, and Putman's U. S. Digest, vol. v. p. 153; he may also refer to [Lamar v. Micon, Davis' U. S. A. Supreme Court Rep. vol. v. p. 452; vol. vii. p. 218, and to] the following English cases not expressly quoted in the preceding pages : Attorney-General v. Napier, 6 Exchequer Reports, p. 217. Laneuville v. Anderson, 17 Jurist, p. 511, 2 Spinks's Rep. p. 53, 9 Moore's P. C. Rep. p. 325. In re Wright's Trusts, 25 Law Journal (Chancery), p. 621; 2 Kay & Johnson's Rep. p. 575. Cockerell v. Cockerell, 2 Jurist, N. S. pp. 621, 727. Hoskins v. Matthews, ib. p. 216. Attorney-General v. Fitzgerald, 3 Drew's Reports, p. 610. Forbes v. Forbes, 1 Kay's Rep. p. 341. M'Cormick v. Garnett, 4 De Gex, M. & G.'s Rep. p. 278. Brown v. Smith, 15 Beavan's Rep. p. 448. Robins v. Paxton and Dolphin, 30 Law Times, p. 310. Enohin v. Wylie, 31 Law Times, p. 171. Whicker v. Hume, 7 H. L. Cases, p. 159, 4 Jurist, N.S. p. 933. Re Dons's Estate, before V.-C. Kindersley (1858). Re Muir, deceased (1859). Lord v. Colin (1859). Re Bernard Mette, deceased (1859). Campbell v. Beaufoy (1859). Hoskins v. Matthews, 8 De G., M. & G. p. Re Steer, 28 L. J. Exch. p. 22. Shaw v. Gould, L. R. 3 H. L. p. 55. 13. Bell v. Kennedy, L. R. 1 Scotch and Divorce App. p. 307. Udny v. Udny, L. R. 1 Scotch and Divorce App. p. 441. Haldane v. Eckford, L. R. 8 Eq. p. 631. Douglas v. Douglas, L. R. 12 Eq. p. 617. Stevenson v. Masson, L. R. 17 Eq. p. 78. Sharpe v. Crispin, 38 L. J. Prob. p. 17; L. R. 1 Prob. and Divorce, p. 611. [Brunel v. Brunel, L. R. 12 Eq. p. 298. King v. Foxwell, L. R. 3 Ch. D. p. 518. Platt v. Attorney-Gen. of N. S. Wales, L. R. 3 App. Ca. p. 336. Attorney-General v. Alexander, 23 Weekly Reports, p. 255. Abdallah v. Rickards, decided by Chitty J. June 6, 1888. II. In Bremer v. Freeman, the following authorities on Foreign and French Law were cited : WRITERS. Nicias Gaillard in Dalloz, Jurisprudence Générale (1851), Pt. I. p. 38. Coin de Lisle, Comment. Analyt. du Code Civil, p. 35. Duranton, Cours de Droit Français, tome i. pp. 95-291. Demolombe, Cours de Code Civil, liv. i. tit. i. c. i. §§ 140, 141. Demangeat, Condition Civile des Etrangers, p. 369. Zacharia, Cours de Droit Civil François, tome i. pp. 278–280. JUDICIAL DECISIONS. Lynch's case, Sirey's Reports (1851). Thornton v. Curling, Dalloz Reports (1827). Gazette des Tribunaux (1856). Baron de Mecklembourg's case Le Droit (1856). D'Abaunza's case, Sirey (1842). Princess Poniatowska v. Le Normand (1811), Dalloz, Recueil Alpha bétique, tome iii. p. 348. André v. André (1844), Recueil Périodique de Dalloz, 2 (1851). Verity v. Mackenzie, Dalloz Rep. (1847). Breul's case, Gazette des Trib. (1852). Appeal, ib. (1853). Lloyd v. Lloyd, Sirey (1849). Onslow v. Onslow, Dalloz (1836). De Veine v. Routledge, Sirey (1852). |