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express upon this point. It is said: "There never was a "case in which there could be less suspicion of fraud: " but it is not said, that if there were a suspicion of fraud, the Court would examine into it. In this case, it happened that the surviving mother was also guardian, but the decision has reference to her only as acting in the former capacity.

CXVII. With respect to the effect of the judgment in Pottinger v. Wightman, it should be mentioned that in a modern and very important case, adjudicated upon by the House of Lords, Lord Campbell said: "I think that the "case of Pottinger v. Wightman must be taken conclusively "to have settled the general doctrine, that if, after the "death of the father, an infant lives with its mother, and "the mother acquires a new domicil, it is communicated "to the infant" (b); and Lord Chancellor Lyndhurst made this observation: "The case of Pottinger v. Wightman appears to have been well argued and well considered, "and must be held conclusive as to the mother's power "to change the domicil,-which is a novel point in the law "of England-unless there is some opposite decision."

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CXVIII. According to the principles of the Scotch Law, it would seem that the power of choosing a domicil would vest in the minor on attaining puberty, at the same age as would formerly have been sufficient to render the marriage or the testament of a minor valid. Erskine says, "The persons of pupils are under the power either "of their tutors or of their nearest cognates; but the "minor after pupilarity has the disposal of his own person, and may reside where he pleases" (c). Where the law of the country permits a minor to dispose of personal property by testament, it would, of course, allow him, by changing his domicil, to vary the succession to him in the case of an intestacy.

(b) Johnstone v. Beattie, 10 Clark & Finnelly, p. 138.

(c) Erskine's Principles of the Law of Scotland, bk. i. t. vii. s. 8.

CXIX. The principle of the judgment in Pottinger v. Wightman has been adopted by the American tribunals (d), but I am not aware that any express decision has been delivered, in the Courts either of that country or of England, upon the question of the power of the guardian or tutor to change the domicil of the minor. The present laws of France, [Italy, and Holland] declare the domicil of the unemancipated minor to be that of his father, mother, or guardian (e).

Mr. Henry, in his commentary upon the case of Pottinger v. Wightman, observes, that although the transfer of domicil was holden to be valid in that particular case, nevertheless, inasmuch as, wheresoever the law of Holland is in force, the children have a vested interest, he conceives no change of property or of domicil by an executor or guardian would affect that (ƒ).

CXX. What might be considered emancipation of a minor under the English Law may be doubtful; but it seems clear at least that the marriage (g) of the minor would emancipate him, and give him the power of acquiring a new domicil (h).

CXXI. According to the old law of France (i), the minor preserved his paternal domicil, although his guardian was domiciled elsewhere; and, if the minor died during his

(d) Holyoke v. Hoskins, 5 Pickering's Reports, p. 90, note.

(e) "Le mineur non émancipé aura son domicile chez ses père et mère ou tuteur.”—Code Civil, liv. i. t. iii. art. 108.

["Il minore non emancipato ha il domicilio del padre o della madre o del tutore.”—Italian Civil Code, tit. ii. art. 18. "Minderjarigen volgen de woonplaats van hunne ouders of voogden."-Dutch Civil Code, tit. iv. art. 78.]

(f) Odwin v. Forbes, Henry's Report, App., p. 208, note.

(g) One of the cases allowed by the French Law; see thereon, Code Civil, liv. i. t. x. c. iii. art. 476-487.

(h) Whether a guardian validly appointed in any given country has an authority for the protection of the ward, and the administration of his personal estate everywhere ex comitate, has been a matter of some dispute with jurists. Vide post, chapter xxv.

(i) Denisart, Domicile II., s. 2. So the Roman Law: "Placet

minority, his effects were disposed of according to the law of his father's domicil. Yet the minor might acquire a capacity of choosing his own domicil by being emancipated by the law, or by the sentence of a judge. It should seem from the following case, that such a capacity was acquired by entering into the military service (j).

CXXII. The Sieur Délattre, who served as an officer in the French army, passed the winter of every year at Dunkirk. He died at the age of eighteen. A question arose whether his domicil could be fixed at Dunkirk, or whether he was not bound to the domicil of his guardian at St. Omer, where his mother had been domiciled at the time of her death, and where his guardian was then domiciled. The disposition of his personalty varied accordingly. The Court at Montreuil pronounced for the domicil of St. Omer; but the sentence was reversed by an "arrêt" (1769), which decreed in favour of the domicil of Dunkirk (k).

CXXIII. But Cochin was of opinion that the Marquis de St. Pater did not cease to have the domicil of his guardian by becoming the King's page, or by obtaining a company of infantry under the Dauphin (1).

CXXIV. So by accepting a benefice, or other office from which he is not removeable, or by entering into a house of commerce, with the consent of those under whose con

etiam filiosfamilias domicilium habere posse." "Non utique ibi ubi pater habuit, sed ubicunque ipse domicilium constituerit."-Dig. lib. 1. t. i. 3, 4.

(j) Vide antè, § xciii.

(k) In the edition of Denisart, of 1787, tome vi. Domicile II. s. 2, it is said that it is difficult to see the "motif" of this "arrêt," and that it is only reprinted because it is in the former edition. Surely, however, the ground of the decree must have been that the Sicur's employment as an officer capacitated him to choose a domicil; and such, I find, is the opinion expressed in the last edition of Merlin, where this “arrêt is characterised as one 66 qui a nettement jugé que le mineur émancipé pouvoit se choisir un domicile.”—Merlin, Rép. Domicile V. s. 3. (1) Cochin, Œuvres, tome i. p. 2.

trol he is, the minor becomes emancipated, and capable of acquiring a domicil of his own.

CXXV. By marriage, also, the minor may acquire either the domicil of his wife, or, after marriage (m), any domicil he may choose.

CXXVI. According to Pothier, the marriage must have been contracted with the consent of one of his parents or guardian; but it can scarcely be doubted, as has been observed, that in Great Britain a minor once married, whether with or without the proper consent, would be holden capable of choosing his domicil (n).

CXXVII. It would appear from the following case that the Scotch Law would refuse equally to mother and guardian the power of changing the minor's domicil; for though the case of Pottinger v. Wightman (o) is the only express decision in an English Court relative to a change of domicil during infancy, yet some very strong judicial dicta have been applied to this question in Scotland, though the case which gave rise to them was not decided upon this, but upon another point.

CXXVIII. It was brought in 1829 before the Court of Session in Scotland. Robert Alexander Paterson Wallace was born in Scotland; his father, Captain Wallace, was also by birth a Scotchman, and an officer in the army, who had married Miss Oliver, an English lady, in England. The

(m) "Il paraît en effet que le domicile occasionné par le mariage doit l'emporter sur celui de la naissance."-Merlin, Rép. Domicile V. s. 3.

(n) "Un mineur ne peut pas transférer à son gré son domicile: il le peut néanmoins en certains cas : 1. Il peut, en contractant mariage du consentement de ceux sous la puissance desquels il est, transférer son domicile au lieu où il prend sa femme, et il peut même, depuis qu'il est marié, le transférer où bon lui semblera. 2. Un mineur peut transférer son domicile soit au lieu où il est pourvu d'un bénéfice ou d'une charge, ou autre emploi non amovible qui demande résidence perpétuelle ; soit au lieu où, du consentement de ceux sous la puissance desquels il est, il formeroit un établissement de commerce."-Pothier, Introduction générale aux Coutumes, p. 4, (chap. i. s. 16).

(0) 3 Merivale's Rep. p. 67.

father named guardians to his child, one of whom, the maternal grandfather, Mr. Oliver, resided in England; another, Mr. Hathorn, resided in Scotland. The father died when the infant was of tender years, and the child was conveyed by his mother into England. She also died during the infancy of the child, who continued in England, under the charge of his maternal grandfather, one of his guardians, and was sent to English schools and to an English university. The bulk of the property consisted in stock of the Bank of Scotland. He occasionally visited that country, as well before as after he came of age. He purchased a small landed estate in Scotland after he had attained majority. He died at Hastings, in England, in 1824, aged twenty-two years and seven months, a bachelor and intestate.

His personal property was claimed, in the Courts both of England and Scotland, by his maternal grandfather as next of kin, according to the law of England; and by his paternal uncle and aunt, as his next of kin according to the law of Scotland.

CXXIX. The Lord Ordinary (Cringletie) gave the following note on the cause when he pronounced his Interlocutor.

"3rd December, 1829.-The Lord Ordinary regrets that "the parties have thought it necessary to detail the circum"stances of Captain Wallace's marriage with Miss Oliver in

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England and the terms of his contract of marriage with "that lady, as to the Lord Ordinary they appear not to "have the least bearing on the cause. A man by marrying "in England an Englishwoman does not thereby become "domiciled there: nor is it necessary that he should reside "a day there for that purpose: far less does he make his "children domiciled there by the mere act of marrying in "England. The lady resides in a certain parish for a spe"cified time to enable her to be married in the church of it, "and an oath must be made that such has been her resi"dence and domicil, otherwise she requires a special license

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