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.

I

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? "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.

"vail; for the country in which the property is would not "let it go out of that, until they knew under what rule it "is to be distributed. If it was in this country, they “would not give it up until it was found that he had a "domicil somewhere."

LX. It appears that the case suggested by the Master of the Rolls had occurred in France. In 1680, a question arose as to the succession to the Prince de Guémené. The Prince appears to have left an equal amount of moveables at his residence in Paris, and at his residence on his estate, at Verger, in Anjou. It must be presumed (for the statement in Merlin is meagre) that, in other respects, an equal attachment to both places was manifested. It was decided that the custom of each place should regulate the succession to the goods found therein; in other words, that the lex loci rei sita should prevail (q).

(q) Merlin, Rép. de Jurisp. tome viii. Domicile, s. 8.

CHAPTER VI.

CAN A MAN BE WITHOUT A DOMICIL?

LXI. THE Roman law (a) answered this question by saying that it is difficult for anyone to be without a domicil. But even this might happen; if a person having abandoned his domicil, should make a journey by sea or land, seeking a place wherein to establish himself, he might be without a domicil. And Domat adopts this view of the case.

LXII. But a different view has been taken by other jurists (b), and especially by those of Great Britain and America. They hold that the former domicil is not abandoned until a new one has been intentionally and actually (animo et facto) acquired.

"A third rule I shall extract" (said the Master of the Rolls, in the case of Somerville v. Lord Somerville) "is, "that the Domicil of Origin is to prevail, until the party "has not only acquired another, but has manifested and "carried into execution an intention of abandoning his "former domicil, and taking another as his sole domi"cil" (c).

A British-born subject had been employed as American

(a) "Et verum est habere, licet difficile est ; quemadmodum difficile est, sine domicilio esse quemquam. Puto autem et hoc procedere posse, si quis domicilio relicto naviget vel iter faciat, quærens quo se conferat atque ubi constituat; nam hunc puto sine domicilio esse. [Domicilium autem habere potest et relegatus eo loci unde arcetur, ut Marcellus scribit.]"-Dig. lib. 1. t. i. 27, §§ 2, 3.

(b) Duranton, liv. i. t. cxi. s. 360; Story's Conflict of Laws, ch. iii. ; National Domicil, s. 47.

(e) 5 Vesey's Rep. p. 787.

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consul at the Cape of Good Hope (d), and was engaged in a house of trade there. A ship belonging to him was taken by a British cruiser, on her voyage from the Cape to Europe. It was contended that he was not a Dutch merchant, as he had intended to remove to America; but Lord Stowell said-"A mere intention to remove has "never been held sufficient without some overt act; being merely an intention, residing secretly and undistinguishably in the breast of the party, and liable to be revoked "every hour. The expressions of the letter in which this "intention is said to be found are, I observe, very weak "and general, of an intention merely in futuro. Were they even much stronger than they are, they would not "be sufficient; something more than mere verbal decla"tion, some solid fact, showing that the party is in the "act of withdrawing, has always been held necessary in "such cases "" (dd).

LXIII. The Original Domicil and the native character easily revert (e); and, therefore, it has been laid down by the American (f) Judges, that a person resumes his native character as soon as he puts himself in itinere to return to his native country; or, as Lord Stowell said of a belligerent, lurking under the disguise of a neutral, "the "sin of his old character is revived "(g).

And so in Munroe v. Douglas (h), it was said by the

(d) [The Cape of Good Hope was at that time in the hands of the Dutch.]

(dd) The President, 5 C. Rob. Adm. Rep. p. 279. See, also, the Falcon, 6 ib. p. 198.

(e) La Virginie, 5 ib. p. 99.

(f) This national character, which a man acquires by residence, may be thrown off at pleasure by a return to his native country, or even by turning his back on the country in which he has resided, on his way to another. It is an adventitious character gained by residence, and which ceases by non-residence; it no longer adheres to the party from the moment he puts himself in motion bonâ fide to quit the country, sine animo revertendi.--The Venus, 8 Cranch's (Amer.) Rep. p. 280. See, also, the St. Lawrence, 1 Gallison's (Amer.) Rep. p. 467.

(g) The Phoenix, 3 C. Rob. Adm. Rep. p. 191.

(h) 5 Maddock's Chancery Reports, p. 405.