different purposes. In the case of Somerville v. Lord Somerville, the Master of the Rolls observed on the novelty of the question, as being "between two acknowledged Domicils" (e), and upon the question, "which of two "Domicils shall preponderate, or, rather, which is the "Domicil according to which the personal estate shall be "regulated ? " It cannot, therefore, be too carefully recollected, that Domicil is distinguished by the various situations to which it is applied (f); that is to say, the circumstances which will be of force to impress the character of a domicil in one instance, will fail to do so in another.

LIII. The European Law, and that of America require the characteristics of the principal (g) Domicil for cases of a testament, or distribution under intestacy.

tout ce qui regarde directement la personne domiciliée; l'autre un domicile de droit et de volonté, qui décideroit du sort de la succession. Le cas est sans doute fort extraordinaire, et peut-être même que dans les règles il ne devroit point être admis," &c. Cochin's argument in the case of the Marquis d'Hautefort, Euvres, tome I. p. 401.

(e) 5 Vesey's Rep. p. 750.

(f) Kent's Commentaries on American Law, Lecture 37, s. 4, note— "There is a political, a civil, and a forensic domicil."

(g) "Le domicile de tout Français, quant à l'exercice de ses droits civils, est au lieu où il a son principal établissement.”—Code Civil, t. iii. Du Domicil, art. 102. ["Il domicilio civile di una persona è nel luogo in cui essa ha la sede principale dei propri affari ed interessi. La residenza è nel luogo in cui la persona ha dimora abituale.' - Codice Civile del Regno d'Italia, tit. ii. art. 16.] "A man can have but one domicil for the purpose of succession."-Kent's Comment. Lect. 37, s. 4, note.

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So Grotius (in his opinion cited by Henry) says, "To the solution of this question, if we follow the written or Roman law and the com'mentators thereon, originis domicilium est immutabile, et ideo qui "alibi habitat censetur habere duo domicilia.'-Code, lib. x. t. xxxviii. "De Municipibus et Originariis, 4 (Origine. . .). Assumptio. ff. ad Municip. et ibi Bart. But this difficulty ceases if we consider the general custom of the Netherlands, nay even of the whole world, at "this time: "Secundum quam consuetudinem domicilium originis solâ "voluntate mutatur ita ut originarius nullo modo maneat subjectus "jurisdictioni originis: cui consuetudini testimonium etiam perhibet "Gail, lib. ii. obs. 36, dicens eam et in Germaniâ et ubique obtinere.""

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LIV. The facts and circumstances which might be deemed sufficient to establish a commercial domicil in time of war, and a matrimonial, or forensic, or political domicil, in time of peace, might be such as, according to English Law, would fail to establish a testamentary or Principal Domicil. "There is a wide difference," it was observed in a judgment delivered in a recent case before the Judicial Committee of the Privy Council, “in apply"ing the Law of Domicil to contracts and to wills " (h).

LV. It might, perhaps, have been more correct to have limited the use of the term Domicil to that which was the principal domicil, and to have designated simply as residences the other kinds of domicil; but a contrary practice has prevailed, and the neglect (i) to distinguish

This, says Henry, does not extend to cases of allegiance: Odwin v. Forbes, Appendix, p. 197 ; and in an opinion from a Dutch jurist, cited by the same author, occurs this passage: "Sed ista omnia ita non procedunt (cum locus originis det domicilii præsumptionem secundum ante dicta, pluribus tamen, puta tribus locis, quis domicilium habere possit) quin considerandum veniat an non et plurium domiciliorum jure frui quis possit. Distinguenda vero hic sunt onera, munera, a successionis jure, de hoc modo quæritur hic."

So, too, Voet: "Considerandum tamen eos qui quantum ad successionem aliosque effectus domicilium per negotiationem, tabernam, nudam habitationem, non constituisse intelliguntur, nihilominus, quantum ad forum competens attinet, illis in locis dum illic degunt rectè conveniri ; " &c. (lib. v. t. i. s. 98, De Judiciis, &c.). See too Ferguson's Report of Consistorial Decisions in Scotland, p. 283: "We indeed all know that, besides this permanent domicil, a man may have many domicils of action at the same time, &c. So the decisions known to the French law of the "Domicile du Secours," or pauper's domicil, "Domicile élu," a domicil chosen for the purposes of the execution of a particular act, and of the "domicile politique." See, too, the case of the Churchwarden-Stephenson v. Langston, 1 Haggard's Consistory Reports, p. 379.

(h) Croker v. Marquis of Hertford, 4 Moore's P. C. Rep. p. 339. (i) See the Discours pronounced by M. Malherbe on the introduction of the Law of Domicil into the Code Civil: "Chaque individu ne peut avoir qu'un domicile, quoiqu'il puisse avoir plusieurs résidences." -Locré, Législation de la France, t. iii. p. 452.

“The gradation from residence to domicil consists both of circum

between the different subjects to which the Law of Domicil is applicable, has been the chief source of the errors which have occasionally prevailed on this subject.

LVI. Thus, in a case (j) brought before the Prerogative Court of Canterbury in 1823, Sir John Nicholl expressed a doubt whether a British subject was entitled so far exuere patriam, as to select a foreign, in complete derogation of his British, domicil, which it was necessary he should do in order to render his property liable to distribution according to any foreign law: he considered this proposition as resting on no authority (k), and doubtful even upon principle (1). In a subsequent case, the same Judge held that there was no precedent for pronouncing that the property of a British subject, dying intestate in a foreign country in which he was domiciled, was distributable according to the law of that foreign country, or for holding that if such British subject be domiciled in a foreign country, he had not a right to make his will according to the law of the country of his allegiance, and not of his domicil (m).

stances and intention; see Maltass v. Maltass, 1 Robertson's Eccles. Reports, p. 75.

In the case of Hogg v. Lashley, the Lord Ordinary at first decided, "that there were two domicils at the dissolution of the marriageone in London, the other in Scotland, but the last was the principal." The Court, however, altered the Interlocutor, and found that there was but one domicil in Scotland.—Morrison's Decisions, 4619; Robertson on Personal Succession, p. 142.

(j) Curling v. Thornton, 2 Addams' Reports, p. 19, and note to p. 15. (k) M. Felix remarks: "En général les anciens auteurs ne parlent que du changement de domicile, en gardant le silence sur le changement de nationalité : c'est qu'alors les différentes provinces du même État étaient régies par des lois ou coutumes non uniformes, de manière que le simple changement de domicile plaçait l'individu sous l'empire d'une autre loi."-Traité du Droit International Privé, liv. i. tit. i. 28, note 2.

(1) Stanley v. Bernes, 3 Haggard's Eccles. Rep. p. 373.

"for

(m) By 36 George III. cap. 52, sec. 2 [a section now repealed by the Statute Law Revision Act, 1872] a duty was payable every legacy, specific or pecuniary, given by any will of any person out of

LVII. These opinions of Sir John Nicholl, however, were overruled by the High Court of Delegates (n), and the distinction between the domicil of allegiance and the domicil for testamentary purposes was repeated and firmly established (o) in the case of Croker v. Marquis of Hertford.

LVIII. To these remarks may be added an extract from a judgment by Lord Stowell in the Admiralty Court, in which the true distinction is perspicuously taken.

It was a question as to the national character of the

his personal or moveable estate, or out of or charged upon his real or heritable estate. Upon this Act some most important decisions have been given it is only necessary to mention two:-1. In re Ewin, 1 Crompton and Jervis's Exchequer Reports, p. 151 (A.D. 1830), decided that American, Austrian, French, and Russian stock, the property of a testator domiciled in England, was liable to legacy duty.

2. Thompson v. The Advocate-General, 12 Clark & Finnelly's (House of Lords) Reports, p. 1, A.D. 1845, decided, overruling the Scotch Court of Exchequer, that legacy duty was not payable by the legatees named in the will of a British-born subject who had died domiciled in a British colony, though the personal property was locally situate in Scotland, to which the statute extended. In this case Lord Campbell said (p. 28), " My Lords, I believe that if the Chancellor of the Exchequer, who introduced this bill into Parliament, had been asked his opinion, he would have been a good deal surprised to hear that he was not to have his legacy duty on such a fund as this, where the testator was a British-born subject, and had been domiciled in Great Britain, and had merely acquired a foreign domicil, and had left property that actually was in England or in Scotland at the time of his decease. The truth is, my Lords, that the doctrine of Domicil has sprung up in this country very recently, and that neither the Legislature nor the judges thought much of it; but it is a very convenient doctrine it is now well understood; and I think that it solves the difficulty with which this case was surrounded."

:

(n) A further distinction, taken in Croker v. Marquis of Hertford, 4 Moore's P. C. Rep. p. 339, as to the law of Domicil not applying to personal property which was deposited in different countries, was overruled both by the Prerogative Court and the Judicial Committee of the Privy Council. See remarks of Lord Chancellor on this point in Bempde v. Johnstone, 3 Vesey's Reports, p. 198.

(0) It was never the custom of the Judges Delegate to give reasons in open court for their decision; but in Croker v. Marquis of Hertford, Mr. Baron Parke declared that they had intended to lay down the rule broadly in Stanley v. Bernes.

claimant of a vessel seized in the river Thames by the Marshal of the Admiralty. Lord Stowell said "The "question, therefore, comes to this, whether the claimant "is, quoad this property, to be considered as a British "subject. For some purposes he is undoubtedly so to be "considered; he is born in this country, and is subject to "all the obligations imposed upon him by his nativity. "He cannot shake off his allegiance to his native country, "or divest himself altogether of his British character, by "a voluntary transfer of himself to another country. "For the mere purposes of trade, he may, indeed, transfer "himself to another State, and may acquire a new national "character" (p).

This chapter should not be closed without mention of what has been considered, by high authority, the only possible case of two Principal Domicils, which would arise in modern times.

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LIX. At the end of his judgment in Somerville v. Lord Somerville, the Master of the Rolls observed: "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 rei, the lex loci rei sitæ must pre

(p) The Ann, Dodson's Admiralty Reports, p. 223; see also Wheaton's Elements of International Law, p. 159.