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 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 Sessions 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 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

domicile au lieu où il prend sa femme, et il peut même, depuis qu'il est marić, le transferer où bon lui semblera. 2, Un mineur peut transférer son domicile soit au lieu où il est pourvu d'un bénéfice où d'une charge, ou autre emploi non amovible qui démande résidence perpétuelle; soit au lieu où, du consentement de ceux sous la puissance desquels il est, il formeroit un établissement de commerce."-Pothier, Introduction aux Coutumes, p. 6.

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 England. The lady resides "in a certain parish for a specified time to enable her to be "married in the church of it, and an oath must be made that "such has been her residence and domicil otherwise she requires "a special licence 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, there"fore, 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 contract made before he was permitted to "accompany her, the Lord Ordinary could have no doubt that, "had he died in pupillarity, 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 "pupillarity. 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 prevented R. A. Wallace from living "in England; as if he placed him there, and was at the ex"pense 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 "education. Still, residence merely for education may be ques"tionable how far it constitutes a domicil to govern succession. "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 domicil. From the "admitted facts in the case the question 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").

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. (m)

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

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

CXXXI. According to the Roman Law(n), it devolved on the Prætor to settle the place of abode and education of the minor. CXXXII. The illegitimate minor, according to the doctrine of the Roman Law (0), obtained the domicil of his mother; and this doctrine seems to have been generally recognized in Europe.

CHAPTER X.

II. THE STUDENT.

CXXXIII. The maxim of the Roman Law upon this head has been generally adopted by European jurists; namely, that those who sojourn in a particular place for the purpose of prosecuting their studies, do not acquire a domicil in that place. Ten years are the period specified in the Roman Law, during which no domicil was created; and the inference seems to be, that if they continued to stay there after the lapse of that time, a domicil would be acquired. It was further provided by that law, that no father who frequented the scene of his son's studies should obtain a domicil there. This doctrine, therefore, was especially applied to minors: the principle of it would, however, appear to include majors (p).

(n) "Solet Prætor frequantissimè adiri, ut constituat, ubi filii, vel alantur vel morentur, non tantum in postumis, verum omnino in pueris." Dig. lib. xxvii. t. 2. Pr. ubi pupillus educari vel morari debet. “Si disceptetur ubi morari vel educari pupillum oportent, causâ cognitâ id Præsidem statuere oportebit."-Ibid.

(o) "Ejus qui justum patrem non habet prima origo a matre.”—Dig. 50, t. i. s. ix. ; Story's Conflict of Laws, ch. iii. s. 46.

(p) "Nec ipsi qui studiorum causâ aliquo loco morantur domicilium ibi habere creduntur, nisi decem annis transactis eo loco sedes sibi constituerint, secundum epistolam Divi Adriani nec pater qui propter filium studentem frequentiùs ad eum commeat."-C. x. t. xl. s. 2.

There has been a decision upon the point in America; The Inhabitants of Granby v. Inhabitants of Amherst. According to this case, a student of a college does not change his domicil by his occasional residence at college; (a settlement case), Massachusetts Reports, vol. vii. p. 1. Putnam v. Johnson and others decided that a student in the Theological

III-THE LUNATIC.

CXXXIV. The power of the guardian with respect to the domicil of the lunatic and the idiot, seems to fall under the principle already discussed of his power with respect to the domicil of the minor (q).

CXXXV. By the old law of France the lunatic either preserved the domicil of his origin, or that which he had last chosen before he had been placed under the care of a Curator. By the Code Civil the domicil of the Tutor (tuteur) determines that of the lunatic (r).

CXXXVI. That a similar rule obtains in (s) England seems a reasonable inference from the following case (t).

In

George Morrison was born and resided in England. July, 1742, he lent £2,100 to his nephew the Earl of Sutherland, then in London, who granted bond for it in the English form. On a commission of lunacy in England Mr. Morrison was afterwards found to be a lunatic, and two grants were

Institution at Andover, being of age and emancipated from his father's family, is entitled to a vote in that town for the election of senator, 10 Massachusetts Reports, p. 492, c. 488.

(q) M. de Desquiron observes, "Il tombe sous les sens que le majeur qui est frappé d'interdiction perd l'administration de ses biens, parcequ'il est reconnu dans un état de foiblesse qui l'assimile aux mineurs non émancipés: des lors il cesse à avoir un domicile parcequ'il a perdu la qualité necessaire pour manifester sa volonté. Traité du Domicile, p. 94, s. 94.

(r) “Le majeur interdit aura son domicile chez son tuteur." Code Civil, art. 108. In the first edition of the Code the word was curateur." See Duranton's Cours du Droit François, l. i t. iii. s. 371; Merlin's Rép. de Jurisp t. viii. tit. du Domicile, s. iv.

(8) Mr. Westlake remarks that this is the modern French rule, because the uniformity of the present law in France has deprived the domicil of its effect on the distribution of property after death; and this may be the reason. Westlake, p. 47-8.

(t) Mr. Westlake is of a different opinion. Ibid.