proving acts are those prescribed by the law of the place, where the acts are passed, and if those have been observed, the acts are, as to their form, deemed valid in all places.

The formalities which are attached to, and inherent in, the property which is the subject of the contract, are those prescribed by the law of the country in which the property is situated.

Quasi contracts, namely, those which arise out of the appointments of curator, tutor, guardian, sequestrator, and similar offices, are determined by the law of the country in which they have been made.

In enforcing any civil right by suit, the legal remedies, the forms of proceeding, the rules of evidence, and in short, whatever regards the institution, prosecution, or defence of a suit, abstracted from its merits, are prescribed by the law of the place in which the suit is instituted.

The proceedings by which the effect of a judgment is obtained, whether by execution or by a new suit, are governed by the law of the country in which that effect is sought to be obtained.

From the preceding definitions and principles, it will be collected, that the laws between which a conflict may arise, are those of the country in which the person, by, or through, or against whom, a claim is made, was domiciled at the time of his birth, or in which he afterwards acquired a domicile; or of the country in which the property, the subject matter of the claim, is situated ; or of that in which the contract, or quasi contract, out of which the claim arises, was entered into, or is to be performed; or of that in which the act, testament, or other instrument, the foundation of the claim, has been executed; or of the country in which the suit for establishing and enforcing the claim, is the subject of contestation; or of that in which a judgment is sought to be executed.

In order to ascertain which of these laws ought to

be selected, when such a conflict arises, it is proposed to treat-1st, Of the status, or capacity of persons. 2ndly, Of property, moveable and immoveable, as it is the subject of disposition, inter vivos, by contract and by operation of law, and of succession, by testament, and ab intestato. 3rdly, Of contracts, in relation to their construction, their inherent validity and obligatory effect, and of quasi contracts, or the offices of tutor, guardian, curator, &c.; in relation to their appointment, and their powers and duties. 4thly, Of acts, or instruments, by which contracts are expressed, and testaments, in respect of the forms and solemnities with which they are executed. 5thly, Of the contestation of suits, in relation to the process, pleadings, and proofs, by which they are prosecuted to judgment. 6thly, Of judgments, when they become the subject of execution, in any other country than that in which they were obtained.

It is believed that these several heads, with the divisions which they will necessarily suggest, embrace all, or, at least, the principal subjects on which a conflict of laws can arise; and will afford the means of ascertaining the appropriate law for the decision of those questions which are of the greatest importance, and most frequent occurrence.

On the subject of the conflict of laws, the reader is referred to the following works:-M. Ch. Dumoulin, C. de Summ. Trinit. conclus. de Stat. et Cons. 53.D'Argentré, sur Bretag. art. 218, 6.-Burgundus, ad Consuet. Flandriæ.-Hertius, de Collisione Legum.P. and J. Voet.-Rodenburgh, De Jure Conjugum.— M. Froland, Mémoires, &c.-L. Boullenois, Traité de la Personnalité, &c.-A. Huber, Prælect.-Van der Keessel, Thes. Sel.-D. P. Stockmans, Decis. Brabant. And especially to the treatise of M. Boullenois.

CHAPTER II.

DOMICILE.

The law of domicile.-Its influence.-Domicile of birth or origin.-By operation of law. As of the wife on her marriage. The domicile of children.-Persons born at sea, or on a journey -Domicile of choice.Presumptions in favour of domicile of origin.-Change of domicile.— Definitions of domicile.-How new domicile acquired.—Abandonment of acquired, but no new domicile fixed.-Domicile in respect of acceptance of office.-What offices necessarily affect a change.-Code Civil.

THE law of the place of the domicile prevails to so great an extent in determining, not only the status, capacities, and rights of persons, but the title to moveable, or personal property, that it is necessary to ascertain what constitutes the domicile, how it is acquired, and how it may be changed.

There is a domicile which has relation to the exercise of political rights, and is called the political domicile. There is a domicile, which may be the foundation of jurisdiction, in consequence of a temporary residence, and called the forensic domicile; or it may be part of an agreement, that a certain place shall be considered the domicile, for the purpose of enforcing its execution, by the institution of legal proceedings.

It is not proposed, at present, to consider domicile in either of these acceptations, but the subject of this chapter is that domicile acquired by a residence in a place, under such circumstances, as to its origin or continuance, that the numerous civil rights of the person are determined by the law of that place. This is called the civil domicile.

It is acquired at the time of birth, and is called the natural, or paternal, but more frequently, and more appropriately, the domicile of origin. It is that which a child receives from his parents, and which he retains after their death, until he has made choice of another domicile.

It is also acquired by operation of law, as the necessary consequence of some act. Of this description is the domicile which a woman acquires on her marriage, because she then passes to that of her husband.

It is acquired by the voluntary act of the party, as when he abandons a former, and selects another domicile.

The place of birth constitutes that which is termed the domicile ratione originis. This may not be the place in which the birth actually happened, as where the mother was delivered of the child on a journey. (a) The domicile of origin of a child born on the high seas, is the domicile of his parents. (b)

The civil law regarded those born in any of the islands, as natives of the state to which the island belonged. A child born in wedlock acquires the domicile of his father, “Patris originem unusquisque sequitur.” illegitimate child acquires that of his mother, Ejus, qui justum patrem non habet, prima origo a matre." (c)

Although this species of domicile is unchangeably fixed by the place of birth, yet cases arose under the civil law, where the place of birth did not constitute that domicile. Thus, the manumitted person was deemed to have acquired the domicile of him who had granted the act of manumission. (d)

(a) Maschard. De Prob. Conclus. 1147, n. 5. Christinæus, tom. 5. Decis. 33 Somerville v. Somerville, 5 Ves. 787. Voet, lib. 5, tit. 1, De Jud. 91, tom. 2, (b) Vattel, lib. 1, § 216.

p. 40.

(c) Cod. lib. 10, tit. 31, 1. 36. Cochin, Œuvres, tom. 6, p. 5.

Scrim

shire v. Scrimshire, 2 Hagg. Cons. Rep. 405. 1 Boullenois, Obs. 4, p. 53. Voet, ad Pand. lib. 5, tit. 1, n. 96.

(d) Dig. lib. 50, tit. 1, 1. 27.

Ꭰ

The presumption of law is, that the domicile of origin is retained, unless the change is proved. The burthen of proving the change is cast on him who alleges it. (a)

The domicile of origin prevails, until the party has not only acquired another, but has manifested, and carried into execution, an intention of abandoning his former domicile, and acquiring another as his sole domicile. (b)

It has been said, "si quis domicilio relicto navigat, vel iter faciat quærens, quo se conferat, atque ubi constituat: hunc puto sine domicilio esse." (c) It is, however, more consistent with established principles, to consider that the domicile of origin would, in such case, be retained. Thus, when the domicile of origin having been actually quitted, and a new domicile acquired, but the latter also abandoned, with an intention of settling in another place, if the person found it suited his health, and if it did not, of returning to his domicile of origin, and the person died before he had decided on that place, his domicile was held to be that of his origin. (d)

In 1793, David Lauder, a native of Scotland, went to the island of St. Vincent, under indenture, to follow his trade as a carpenter, leaving his wife, Jane Colville, with her relations at Leith. He remained at St. Vincent till July 21st, 1797, where he thus wrote to his father, William Lauder:-" As I never loved the West Indies, and as my health is very much hurt by a long continuance in it, I have determined to go off to America, in a ship that sails from this in a few days, hoping my health may be re-established by a change of climate.

(a) Carpz. Respons. lib. 2, tit. 2. Resp. 21, n. 14, p. 234. Voet, ad Pand. lib. 5, tit. 1, n. 99.

v.

(b) Som. v. Som. Ves. 787, and the authorities in the preceding note. (c) Dig. lib. 50, tit. 1, 1. 27, §. 2. Domat. Public Law, b. 1, tit. 16, art. 9. (d) Carpz. Respons. lib. 6, tit. 4. Res. 40, n. 2 and 3, p. 98. Jennison

Hapgood, 10 Pick. Rep. 277. Cochin, Œuvres, tom. 5, pp. 5, 6. Morr. Dict. Decis. App. p. 1, tit. Succession.