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 "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

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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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"to be married." (The Lord Ordinary here further illustrated this position by an anecdote respecting his own marriage.) "Captain Wallace, having been a Scotchman "in the army, did not acquire any domicil by marrying "there, but returned to Edinburgh, where he sold out of the "army, lived there for some time, and died here. There can, therefore, be no doubt that he died here domiciled "as a Scotchman. As to his son, R. A. Wallace, it is "admitted that he was born in Edinburgh, and went to England with his mother. Even had there been no con"tract made before he was permitted to accompany her, the "Lord Ordinary could have no doubt that, had he died in 'pupilarity, his legal domicil of Scotland would not have "been changed by his residence in England: a pupil has no persona standi, has no will in law, and he cannot act for "himself-could not fix his domicil-cannot make a will. "But the matter is quite changed when he passes the years of "pupilarity. As a domiciled Scotchman he is entitled to "act for himself with the consent of his curators: he is "entitled to live where he pleases: for curators have no "control over his person." (In support of this position the passage in Erskine already referred to was cited.) "The "defenders seem totally to have lost sight of this principle. "They state their case as if Mr. Hathorn could have pre"vented R. A. Wallace from living in England; as if he placed him there, and was at the expense of his education "there when it is quite plain that it was Mr. Hathorn's "indispensable duty to advance the minor's own funds to "him for a suitable and reasonable maintenance and educa"tion. Still, residence merely for education may be ques❝tionable how far it constitutes a domicil to govern succes❝sion. But when education is over, when a man attains majority, and still resides in England, making only short "visits to Scotland, having no house of his own in which he "lives in Scotland, and dies in a house in England of his own-the Lord Ordinary confesses that he thinks there "is little room for doubting what must be held to be his

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"domicil. From the admitted facts in the case the ques"tion appears to have been fairly tried in a competent "Court in England; and a question may arise how far it "is proper or competent to try it again here; and whether "an appeal from the English judgment would not be the "mode to obtain redress " (p).

The matter was subsequently settled by compromise, and the proceedings in the Court of Scotland withdrawn.

CXXX. The proceedings in England, to which the Lord Ordinary referred, took place in 1825, before the Prerogative Court of Canterbury, where the same parties, viz. the paternal uncle and aunt on the one side, and the maternal grandfather on the other, respectively claimed administration. Sir John Nicholl decided in favour of the latter, finding the domicil of the deceased to be English, and founding this opinion entirely on the evidence that the deceased had chosen a domicil for himself after the attainment of his majority. The point as to whether or no a domicil could be changed during infancy was not alluded to by the judge (q).

CXXXI. According to the Roman Law (r), it devolved on the Prætor to settle the place of abode and education of the minor.

CXXXII. The illegitimate (s) minor, according to the doctrine of the Roman Law (t), obtained the domicil of his

(p) Robertson on Personal Succession, p. 201, note.

(4) There is no report of this important case, but a summary of it is given in Robertson on Personal Succession, p. 275, note.

(r) "Solet Prætor frequentissimè adiri, ut constituat, ubi filii vel alantur vel morentur; non tantum in postumis, verum omnino in pueris."-Dig. lib. xxvii. t. ii. 1. "Si disceptetur ubi morari vel educari pupillum oporteat, causâ cognitâ id Præsidem statuere oportebit."Ibid. 5.

(s) As to the policy of different States with respect to illegitimate children, vide post, ch. xxiv.

(t)" Ejus qui justum patrem non habet prima origo a matre, eoque die, quo ex eâ editus est, numerari debet.”—Dig. lib. 1. t. i. 9. Story's Conflict of Laws, ch. iii. s. 46.

mother; and this doctrine seems to have been generally recognized in Europe; but in Germany the illegitimate child does not follow the mother in territorial relations which she may acquire through marriage. The tendency in that country appears to be in favour of regarding the father who recognizes, as well as the father who adopts, the child, as imparting his domicil to the child (u). The Foundling takes his domicil from the place of his finding, but removal to a place for education or adoption may confer a new domicil (x).

(u) Bluntschli, Das moderne Völkerrecht, s. 366, cited by Wharton, s. 37.

(x) Wharton, s. 39; Savigny, R. R. viii. s. 389; Fælix, tome i. pp. 53, 54, & 54 note, (livre i. tit. i. parag. 28).