Rebecca Hog, Otherwise Lashley, Spouse of Thomas Lashley, Esq., of
London, and the said Thomas Lashley, for his Interest, Appellants; Thomas Hog,
of Newliston, in Scotland, Esq., Respondent.
IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURT OF SESSION.
Original Citation: (1804) 2 Coop T Cott 449
English Reports Citation: 47 E.R. 1243
Original Eng. Rep. version,
PDF
July 1804.
[449] Miscellaneous cases and
dicta, ancient and modern. in the House of Lords.
Rebecca Hog, otherwise Lashley, spouse of Thomas Lashley, esq., of London,
and the said Thomas Lashley, for his
interest,
appellants; Thomas
HOG, OF NEWLISTON, IN SCOTLAND, ESQ., RESPONDENT. Ill the House
of
Lords, upon appeal from the Court of Session. July 1804.(1)
Prom an abstract made by the author in the year 1823 from the printed
case of the Appellants and of the Respondent. (2)
A native of Scotland, settled in London as a merchant, intermarried with
a native of England. There was a marriage contract. At the dissolution of the
marriage, by the death of the wife, the domicile of the husband was in
Scotland.
Held by the House of Lords, reversing the decision of the Court of
Session-the marriage contract not being so conceived as to bar a claim to legal
provisions- that the pursuer, a daughter of the marriage, had therefore a claim
in the right of the wife, her mother, to a share of the moveable estate of her
father, the husband, at the time of her mother, the wife's death. (3)
Roger Hog, a native of Scotland, having settled in London as a merchant,
married there, in 1737, Miss Rachel Missing, [450] of Shebbington in the county
of Southampton.-A marriage contract made on that occasion, to which Mr. Hog of
the first part, his intended wife on the second, and William Rickman and Thomas
Missing of the third, were parties, after reciting that the lady possessed a
personal estate of 3500, contains the following covenants :-" The said
Roger Hog, his heirs, executors or administrators, shall and will, with all
convenient speed, after the intended marriage shall be solemnized, and as soon
as a purchase can and reasonably may be had, expend, lay out, and dispose of
the sum of 2500, part of the said sum of 3500 or any farther sum, if the same
shall be wanting, as will purchase some good estate or estates of inheritance,
in messuage, lands, tenements, or other hereditaments, in fee simple, of the
clear yearly value of 100, in any county within that part of Great Britain
called England ; and immediately after such purchase made, shall convey, settle,
and assure the same unto or upon the same William Rickman and Thomas Missing,
for the use and behoof of the said Roger Hog, for and during the term of his
natural life; and from and after the determination of that estate, to the use
of the trustees, to be for that purpose named,
1244 LASHLEY V. HOG 2COOP. T. COTT. 481.
and their heirs, for and during the life of the said Roger Hog, in trust
to preserve the contingent uses thereof from being destroyed, and not that they
shall receive the profits thereof to their own use; and from and after the
decease of the said Roger Hog, to the use and behoof of the said Rachel
Missing, his intended wife, for and during the course of her natural life ; and
from and after the several deceases of the said Roger Hog and Rachael Missing,
his intended wife, then to the use and behoof of such child or children of the
body of the said Rachael Missing by the said Roger Hog lawfully to be begotten,
and for such uses, intent, and purposes only, and for such estate or estates
either in fee simple, fee tail, general life, lives for years, or other estate
whatsoever, either absolute or conditional, and charged with such yearly, or
other sum or sums of money, annuities, and rents charge, as the said Rachael
Missing, the intended wife of the said Roger Hog, during her coverture with the
said Roger Hog, and notwithstanding her coverture, or whether she be sole or
married, by any deed or deeds, writing or writings, under her hand and seal,
testified by three or more credible witnesses, or by her last will and
testament in writing, so attested as aforesaid, shall from time to time direct,
limit, nominate, and appoint; and in default of such [451] direction,
limitation, nomination, or appointment, then to the use and behoof of all and
every of the children, if more than one, of the body of the said Rachael
Missing by the said Roger Hog, her intended husband, lawfully to be begotten,
or be equally divided between them, share and share alike; and for default of
such issue, to the use and behoof of the heirs and assigns of the said Rachael
Missing, the intended wife of the said Roger Hog, for ever."
By the same deed it was covenanted, "That it shall and may be
lawful to and for the said Rachael Missing, from time to time, and at any time
or times hereafter, notwithstanding her coverture, by.any such deed or deeds,
writing or writings, or will, as aforesaid, to make such disposals,
appointments, and limitations as aforesaid, of the said premises, or any part
thereof."
Lands were purchased and conveyed in pursuance of this covenant, and
Mrs. Hog exerciser! her power to appoint such lands.
In 17GO, Mrs. Hog died. The Appellant Rebecca, and the Respondent, were
two of the children of the marriage.
Previously to Mrs. Hog's death, Roger Hog had purchased an estate in
Scotland, and he frequently resided there.
The Appellants contended, that at the period of Mrs. Hog's death, Roger
Hog was domiciled in Scotland.
The Respondent on the other hand contended, that at the period of Mrs.
Hog's death, Roger Hog was domiciled in London.
Soon after the marriage of the Appellants Roger Hog advanced Dr. Lashley
(the Appellant Thomas) 700 on his bond, and settled a sum of 1300 on Mrs.
Lashley and her children. This he did in the form of a bond of provision,
declaring this sum, with the 700 formerly advanced, to be "in full
contentation and satisfaction to the said Rebecca Hog, my daughter, of all
portion natural, legitim, bairns' part of gear, or other claim or demand from
me, or from my heirs and executors, in and through my decease, or through the
death of Mrs. Rachael Missing deceased, my spouse, excepting goodwill
allenarly." ( [" Allenarly "-only-merely-a term in Scotch
conveyancing.] ) In 1779, Mr. Hog advanced the Appellants a further sum. of 300
; and in 1785 he executed a bond giving to the Appellant Rebecca 200, which
with 300 advanced by him in October 1779, he declared was to make up to Mrs.
Lashley an additional portion of 500. This bond also excluded Dr. Lashley's/us
niariti, and declared [452] that this additional provision should be in full of
all legitim, or whatever else she could claim, his goodwill only excepted.
([Attention to the details of this paragraph as to sums and dates is not
requisite.])
The other children of Mr. Hog received from him certain provisions,
which they severally accepted of in full satisfaction of all they could demand
by and through his decease, or the decease of their mother, in name of legitim
or otherwise.
Roger Hog died on the 19th March 1789, having previously executed
certain deeds of settlement, one of which was a general disposition, elated 5th
February 1787, in favour of the Respondent, of all his property, burdened with
the payment of debts, legacies, &c.
The Appellant Mrs. Lashley, and her husband, upon her father's death,
refused to
2COOP.T.COTT.4B3. LASHLEY
V. HOG 1245
accept the voluntary provisions he had settled on her; and commenced
against the Eespondent an action before the Court of Session, insisting, first,
that they were entitled to one half of the whole personal estate belonging to
Mrs. Lashley's father at his decease in name of legitim; her brother and
sisters having accepted of the provisions made by their father, and discharged
their several claims of le-ffitim: secondly, they contended that she was by the
law of Scotland at her mother's death, and as one of her next of kin, entitled
to her proportion of one-third part of the goods in communion betwixt her
father and mother.
By interlocutors of the Court of Session, affirmed in the House of
Lords, Mrs. Lashley succeeded in her claim of le.gitim; and the same was found
to extend to her father's personal property wherever situated. ([See post, the
cases of Hog v. Hoy, and Bmce v. rufie.] )
Against Mrs. Lashley's claim to a share of the goods in communion at
their mother's decease, the Respondent before the Court of Session pleaded
three defences:-
Imo. That the claim was excluded by the conventional provisions in the
marriage articles, even supposing the legal right of Mrs. Hog, or her
executors, to be regulated by the law of Scotland.
2do. That this right, however, must be regulated by the law of England,
where the Respondent maintained Mr. Hog was domiciled, not merely at the time
of his marriage, but at Mrs. Hog's death ; and that by the law of England there
is no com-[453]-munion of goods, nor have the executors of a wife predeceasing
a husband any right to a share of his moveable property.
3tio. That supposing Mr. Hog to have been domiciled in Scotland at Mrs.
Hog's death, yet as they were confessedly domiciled in England when the
matrimonial contract was entered into, the lights of the married parties must
be regulated by the law of that country.
the lordordinary [Lord Dreghorn], before whom the cause came, having
ordered memorials and additional memorials, pronounced [2d July 1793 the
following interlocutor :j-"The Lord Ordinary having considered the
memorials for Mrs. Lashley and her husband, with that for Thomas Hog,
additional memorial for Mrs. Lashley and husband, and answers thereto, finds,
that the contract of marriage betwixt the late Mr. Hog and his wife is not so
conceived as to bar either in England or Scotland a claim to legal provisions;
finds, that Mr. Hog at the time of his wife's death had two domiciles, one in
London and another in Scotland, and that the last was the principal; finds,
that by the law of England, in which country Mr. Hog and his wife married, and
in which they were both domiciled at the time, a communion of goods does not
take place upon marriage in that country as it does in this ; and that a claim
is not competent there, as it is here, to the executors of the wife for a
certain share of the moveable estate belonging to the husband at the time of
her death ; finds, that the transference of Mr. Hog's principal domicile to
Scotland did not operate any alteration of the right of him and his wife, as
married persons, pre-established by the law of the country in which they had
contracted ; therefore, finds the pursuer has no claim, in right of her mother,
to any share of the moveable estate belonging to her father at the time of her
mother's death, and so far assoilzies the defender from the action ; and
decerns." ( [" Assoilzies." See a subsequent page of the present
work.] )
The Respondent gave in a representation against this interlocutor, in so
far as it is found, prime, that the marriage contract did not bar a claim to
legal provisions ; and secundo, that Mr. Hog's principal domicile, at the time
of Mrs. Hog's death, was in Scotland.
The Appellants also put in a representation against that part of the
interlocutor, which found that the transference of Mr. Hog's principal domicile
to Scotland did not operate any alteration of the rights of him and hia wife,
as married persons, pre-established by the law of the country in which they had
contracted. This [454] representation was also declared to be an answer to Mr.
Hog's representation.
Upon advising these representations the Lord Ordinary pronounced [5th
March 1794] the following interlocutor:-"Having considered the
representation for Mrs. Lashley, and her husband, with the representation for
Thomas Hog, Esq., and answers for Mrs. Lashley and husband, in which she refers
to her representation as an answer to Mr. Hog's; as also the contract of
marriage, entered into between the late Roger
1246 LASHLEY V. HOG 2COOP.T. COTT. 1/2B.
Hog, of Newliston, and his wife, by which she was provided only to an
annuity out of tenements, to be purchased with a part of her own fortune, but
had no provision made to her out of her husband's estate, refuses the second
prayer of Mr. Hog's representation; and of new finds that the claim of Mrs.
Hog's representative is not excluded by her contract of marriage with her
husband; and of new finds that Mr. Hog, at the time of his wife's death, had
two domiciles, one in London and another in Scotland, and that the last was the
principal; and therefore refuses also the first prayer of Mr. Hog's
representation; but finds, that when parties marry in one country, and
afterwards remove to another, in which the legal rights of married persons are
different, the change of domicile ought not to operate any change on any of the
rights pre-established in them, in the country in which they married; and that
all these rights ought to be preserved, and enforced by the law of the country
to which they have removed, unless they be incompatible with the morality or
religion of that country : on that ground refuses the representation for Mrs.
Lashley, and adheres to the former interlocutor," &c.
Against the different parts of this interlocutor both parties petitioned
the Court,
The petition for the Appellants prayed the Court to find, primo, that
Mr. Hog had his only domicile in Scotland at the time of his wife's death ;
and, secundo, that Mrs. Hog's executors (nearest in kin) had a right to a third
of the goods in communion at the dissolution of the marriage, and that Mrs.
Lashley is entitled to her proportion thereof with interest.
The petition for the Respondent prayed the Court to find, primo, that
Mr. Hog had his sole, or at least his principal, domicile in England at the
time of his wife's death ; secundo, that were there room under a marriage
contract, executed in England, for any claim to a proportion of moveables by
the representatives of the wife, such claim would be excluded by the terms of
the contract of marriage.
[455] The Court having advised these petitions with answers, pronounced
the following interlocutor :-"The Lords having advised this petition [of
Mrs. Lashley], with answers for Thomas Hog, Esq. ; petition for Thomas Hog,
Esq. ; with answers for Mrs. Lashley; minute for Mr. Hog; and answers for Mrs.
Lashley; find [25th Nov. 1794] that the deceased Mr. Hog, at the dissolution of
his marriage, had his domicile in Scotland; and before answer as to the
question, How far Mrs. Hog's executors, at the dissolution of the said
marriage, had a right to a third of the goods in communion, and the
Petitioner's title to a proportion thereof with interest 1 appoint
counsel for the parties to be heard thereon in their own presence, upon
the day
of .
Against this interlocutor the Respondent presented a petition, craving
an alteration, in so far as it finds that at Mrs. Hog's death the domicile of
Mr. Hog was in Scotland ; or at least so far to amend the order for a hearing
in presence, as to extend it to the point, Whether Mr. Hog, at his wife's
death, had his domicile in Scotland or in England 1
The Court [9th Dec. 1794] gave the following deliverance on this petition
: " Before answer, appoint parties to give in mutual memorials
[informations] upon this point, viz., Where the deceased Mr. Hog had his
domicile at the time of the dissolution of his marriage ]"
The Court having advised these memorials [informations], pronounced [2d
June 1795], the following interlocutor:-"The Lords having resumed
consideration of this petition, and advised the same with the mutual
informations given in by the parties, agreeable to their interlocutor, of date
9th December 1794, they adhere to their interlocutor of date 25th November
1794, finding that the deceased Mr. Hog, at the dissolution of his marriage,
had his domicile in Scotland ; and remit to the Lord Ordinary to proceed
accordingly, and to do further as he shall see just." ([See the note,
post, page 491.])
Thereafter counsel for the parties having been heard in presence of the
Court, upon Mrs. Lashley's claim, in right of her mother, to a share of the
goods in communion, the following interlocutor was pronounced [16th June 1795]:-"Having
resumed consideration of this petition for the pursuer, with the answers for
Thomas Hog, Esq., defender; petition for said defender; answers for the
pursuer; minute for the defender; answers for the pursuer; and having heard
counsel in their own presence ; agreeably to their interlocutor [456] dated
25th November 1794, find that
È COOP. T.COTP. 457. LASHLEY
V. HOG 1247
the pursuer, in right of her mother, has no claim to any share of the
moveable estate, belonging to her father at the time of her mother's death; and
therefore repel the said claim; aasoilzie the defender from that conclusion of
the libel, and discern." ([See the note, post, page 491.1)
Against this interlocutor Mrs. Lashley presented a petition, craving the
Court to alter the same, and to find, that upon the death of Mr. Hog, in 1760,
a third of Mr. Hog's moveable estate, or of the goods in communion, belonged of
right to Mrs. Hog's executors, and that Mrs. Lashley is entitled to her share
thereof.
The Court [7th July 1795] unanimously refused the petition.
Mrs. Lashley and her husband brought an appeal to the House of Lords,
complaining of the above-recited interlocutors of 2d July 1793 ; 5th March and
25th November 1794; 16th June 1795; and 7th July 1795; by which interlocutors Mrs.
Lashley's claim for a share in right of her mother to the goods in communion
was rejected.
argument for the appellants.-In the course of the pleadings it was
admitted on both sides to be law, that notwithstanding a person may be held to have
more domiciles than one, to the effect of determining questions of jurisdiction
; the same thing cannot take place with regard to questions of succession.
The Respondent maintains that Mr. Hog being confessedly domiciled in
England when his marriage was contracted, the patrimonial rights of the
contracting parties and their heirs, at its dissolution, must be regulated by
the law of that country. In support of this proposition, it was said that in
default of express covenants, the law of the husband's domicile begins to
operate on the respective interests of parties from the period of marriage ;
and, since the effects, which it produces, may not be done away by a subsequent
change of domicile, to apply the rules of any other law, at the dissolution of the
marriage, would often be productive of inconsistency and injustice. Besides, in
default of express covenant, a presumption obtains that parties tacitly consent
to adopt the provisions of that law, in room of conventional provisions ; and
their implied will must be carried into effect in a foreign country, no less
than if it had been expressed. Lastly, this rule is expedient, for since a
wife's domicile follows that of her husband, her rights would otherwise be left
entirely at his mercy.
[457] The Appellants reply that the status or condition of parties
during the subsistence of marriage, depends indisputably on the law of the
place where they permanently reside. The privileges, which a wife enjoys during
her coverture, and the restraints to which she is subjected, are different in
different countries; and when she removes from one to another they are
necessarily altered ; for if every woman were to import, wherever she went, the
regulations of her marriage domicile, no jurisdiction could explicate the complication,
which would ensue. rJut her status during coverture influences the rules of law
in every country, by which her patrimonial interest is settled at the
dissolution of marriage; it is therefore natural and equitable, that a change
in the one should infer a corresponding change in the other.
It must be admitted also, that in many instances the husband's powers of
administration and disposal over the property of his wife, and the consequent
obligations incumbent on him, will vary by a change of domicile, and to those
powers and obligations the provisions of both parties, when the connection
ends, ought to bear a reference. For example, if a husband in England be sued
for a debt contracted by his wife before marriage, and judgment be obtained
against him, and if he afterwards come to Scotland with his wife, and she die
there before his goods are attached by diligence, he will not be liable in
payment, as he would if he had remained in his former domicile. ( [Judgment
must have been obtained against the husband.-Si'uii feme soit endett al auter,
et prist baron, et morust, le baron ne serra charge en dett pur ceo apres
mortdel feme, pur ceo que ceo fuit forsque en action.-Rolle, Ab.]) In the same
manner, if a married pair remove from that country into Scotland, the husband
will thereby acquire rights of administration and disposal over all the wife's
personal estate, though not in her possession, but due on bond or bill, even
though it be not recovered or recoverable during the subsistence of the
marriage. While the wife and her heirs are subjected to these and other
disadvantages by her passing into
1248 LASHLEY V. HOG 2COOP. T. COTT. 488.
this jurisdiction, shall they be refused at the same time the
compensation which it allows them in her provision of jus relidiv ?
The idea that the parties are bound by a tacit contract, where no
express one has been entered into, appears to be ill-founded. It is reasoning
in a circle to say, that law makes a certain distribution of property at the
dissolution of marriage, because parties are presumed to have entered into an
agreement to that effect, and at the same time to say, that they are presumed
to have [458] entered into that agreement, because such is the distribution,
which is made by the law. It is surely a more simple and obvious view of the
case, to suppose that the arrangement, which takes place at the dissolution of
marriage, in default of written covenants, results from the mere act of law
proceeding, not on the implied will of parties, but on the principles of
equity, as applicable to the nature of their connection, and the circumstances
in which they were placed during its subsistence.
But even should the principle of a tacit contract be admitted, it will
not lead to a different conclusion. Since the husband's power of changing his
domicile is known to both parties previous to marriage, why should it be
presumed that they have chosen the law of the country where they then happened
to reside, for the regulation of their future interests, in preference to the law
of the country whither they may afterwards remove 1 As the latter must always
apply more strictly, not only to their own situation, but to the situation of
the property, which will be under distribution.
When Mr. Hog, at the age of twenty-two, and in prosperous circumstances,
married the Appellant, Eebecca's mother, it was at least equally probable that
he should return to Scotland, his native country, before the dissolution of the
marriage, as that the reverse should take place; on what ground theii is it to
be presumed that Mrs. Hog relinquished by her silence alone all the benefits
which would accrue to herself and her heirs if an event, which she must then
have had in contemplation, occurred? Is it not more natural to hold, that when
her husband and she actually removed to Scotland, and determined to reside
there during the remainder of their days, the omission of a contrary
declaration oil their part implied that they made choice of the law of Scotland
to regulate their interests at the dissolution of the marriage 1
If a husband attempts fraudulently to evacuate the rights of his wife by
change of domicile, the law of every civilised country will interpose to give
her redress. It may be observed, however, that if she marries without an
express contract, she cannot expect the same security under any jurisdiction,
which she could have obtained by that precaution. She has reposed unlimited
confidence in her husband's honour and integrity, and on these must her
patrimonial rights in a great measure depend, wherever she may happen to dwell.
As her status during the subsistence of marriage is placed so much in his
power, it is not surprising that [459] the lesser interests, arising when it
dissolves, should be left in a similar situation.
At anyrate this argument, deduced from the favour due to a wife, comes
from the Respondent with a peculiarly bad grace. He is maintaining that Mrs.
Hog, who left her native country, her friends, and the protection of the law
under which she lived, in obedience to the commands of a husband, and to
gratify his inclination, should be deprived of the advantages common to the
whole inhabitants of the domicile, which he chose himself for her residence.
If no authorities can be pointed out in favour of the Appellants'
argument, it derives a strong negative support from the same deficiency on the
part of the Respondent. Instances daily occur of persons fixing their residence
in Scotland, who have previously married in a different country ; and yet the
records of the Court of Session furnish no example in which the law of the
marriage domicile was resorted to for ascertaining the rights of parties in
default of a written contract, either during the subsistence, or at the
dissolution, of their marriage. In the same manner it is believed that when
persons, who have married in Scotland, afterwards remove to England, the Courts
of that country do not recognise either the widow's jus reliefÇ, or children's
right of legitirn, as established by the law of the country, which they had
left.
In truth, the principle on which this question must be decided, seems to
have been already fixed in a previous stage of this cause. Although Mr. Hog
married in
icoop. t.corn 1/2o. lashley v. hog 1249
England, and although the Appellant Mrs. Lashley was born there, the
Court of Session found her entitled to a legitim by a judgment, which the House
of Lords affirmed on appeal. ([See post, the case of Hog v. Hog, p. 497.]) But
since the provision! of children, in default of express contract, are not
regulated by the law of the marriage domicile, neither ought those of a wife.
The Eeapondent, with a view to distinguish the jus relictte from the
right of legitim, contends that the first arises ex contractu, and that the
second is a right of succession-that the first is vested from the period of the
marriage, and that the second has no existence till the father's death. This
distinction seems to be without foundation. Both rights are of a nature
somewhat anomalous : but, in as far as the present question is concerned, they
are precisely alike.
[460] The jus relictce is a wife's right to one-third, or one-half of
her husband's personal estate at the dissolution of her marriage, according as
her husband has, or haa not, issue surviving at that period ; which right, in
the event of her predecease, she transmits to her executors, or nearest in
kin.(4) The right of legitim is the children's right to one-third, or the
one-half of their father's personal estate at his death, according as he does,
or does not, leave a widow. In neither ease does a right antecedent to the
period of distribution seem to subsist, either in the wife, or the children;
because the husband, or father, may dispose of his whole personal estate
previous to that period, either by alienation or gift, or it may be carried off
by his creditors for debts previously contracted.
If in any respect the jus relictce participates of the nature of a jus
crediti, or right arising esc coniractu, it is in the following circumstances :
it cannot be evacuated by a testamentary or revocable deed, or a deed the
effect of which is suspended till the period of distribution ; and it vests in
the wife without the judicial act of confirmation, by which a title to personal
property transmitted by succession is conferred. But since it is not
contradistinguished from the legitim in either of these particulars, they can
have no effect in support of the Respondent's argument. If the jus relictce be
supposed to rest on a tacit [461] agreement of parties marrying in Scotland to
adopt the law of the domicile in the room of conventional provisions, the
legitim may be held with equal propriety to have the same foundation; for it is
not less natural that parties should have in contemplation, at the period of
marriage, an arrangement in favour of their mutual offspring, than in favour of
themselves.
The Eespondent maintained, that Mr. Hog's marriage settlement excluded
hia wife's jus relictce, virtually, or by implication.
A clause in that settlement has been already referred to, from which it
appears-that Mrs. Hog had a fortune of 3500, out of which she was secured in a
jointure of 100 a year, with certain powers of disposal over the jointure
estate to take effect after her husband's decease.
According to the Respondent, Mrs. Hog must be held by a legal
presumption to have accepted this provision in place of every claim, which
might otherwise have been competent to her, agreeable to the maxim, "
Provisio hominis tollit provisionem legis ;" and on that principle the
following cases were said to have been adjudged, in whicb a virtual
renunciation of the jus relictce was recognised-24th February 1763, M'Kinnm
against M'Dmalds;(5) [462] 28th November 1781, Riddell against Daltcm.(Q). A
similar decision, it was contended, must have been given in this case, [463]
even-if the marriage had been contracted in Scotland, and the articles entered
into there. But as the parties were then domiciled in England, her acceptance
of this settlement still more clearly imported a renunciation of every other
claim on Mr. Hog's personal estate.
The Appellants replied, that a wife in Scotland having accepted any
conventional provision is excluded, by special statute ([see the note (7)]),
from her claim of tercer or lifeient interest in her husband's real estate.
But, according to every authority, her jus relictce subsists notwithstanding,
unless a renunciation of it be expressly stipulated; the maxim, therefore, of
the Roman law on this subject is entirely disregarded by us. ([See the Appendix
to the present volume.])
Mr. Erskine thus expresses himself : " A wife, who has accepted of
a conventional provision from her husband, is not understood by that acceptance
to have renounced her jus relictce, or her legal interest in the moveables
under communion. She is, indeed, in such a caae, excluded from her terce by
special statute; unless it be
C. xxvii.-40
1250 LASHLEY V. HOG J COOP. T; COTT. 1/24.
Expressly stipulated in the deed of provision she shall have right to
both-1681, c. 10.(7) But as that Act mentions nothing of the jus relictce, when
there was the faitest opportunity, if the Legislature had truly such intention
to exclude it, a presumption arises that it was omitted purposely, and that
consequently the widow is entitled both to the special provision and to the
jits relictce, unless she has accepted that provision in full, not of her terce
only, but of all her other legal rights." (Erskine, [Institute], book iii.
tit ix. sect. 16.)
So also Lord Bankton-" All the provisions of law may be renounced,
and conventional ones substituted in their place; but the inserting particular
provisions will not exclude the wife from her jus relictos; for these
provisions, as other debts, will be taken off the whole head, and the remainder
divided, in case any be; therefore the maxim, " Provisio hominis tollit
provisionem legis," holds not with us in this case; since, if it is not
otherwise declared [464] by the provision itself, both will subsist so far as
they are compatible: only, by special statute, the teree of lands takes no place
where the wife has a liferent provision out of them, as above observed, which
cannot be excluded beyond the case in the statute, i.e., the terce of lands,
before which the above rule took place, even as to it."(8)
The decisions, indeed, in the cases referred to, seem at first sight
hostile to the doctrine of these writers, but it will appear on examination
that they were adjudged, not upon the general principle of law pleaded by the
Respondent, but upon circumstances peculiar to themselves. The case of M'Donald
against M'Kinnon ([see the first part of the note, ante, page 461] ) is
imperfectly abridged in the [Folio] Dictionary. From the report in the Faculty
Collection, it appears that the wife was provided by her contract; "in the
first place, in an annuity of 100 Scots during her life, in the 1/2vent of
surviving her husband; further, in the sum of 2000 merks money, in case the
marriage should dissolve within year and day by the death of the husband. Then
followed provisions to the children of the marriage; after which the wife was
provided to half the conquest, all the sheep and goats, and the best horse, in
case of surviving her husband. The wife's tocher was 1000 merks (about
55)." A provision so far exceeding all her legal claims, at the same time
bearing so great a disproportion to the tocher, which she brought her husband,
was justly held a virtual renunciation of the jus relictce. But Mrs. Hog's
jointure consisted only of a part of her own fortune, and no addition whatever
was stipulated out of her husband's funds. In the case of Dalton ([see the
note(6), ante, page 462]), the wife accepted of the liferent use of the whole
of her husband's estate, both real and personal, which, according to the
principles of sound construction, was inconsistent with a reservation of
property in any part of it, and therefore necessarily excluded her jm1/2
relicta.
The cireumstance of the marriage articles being entered into in England,
does not seem to make the case better for the Respondent. If he could shew
that, in the event of parties remain-[465]-ing there, Mrs. Hog would have had
no claim against her husband's estate beyond this conventional provision, it
might perhaps give some colour to his plea. But the opinions of three eminent
English counsel have been produced to the Court of Session, as evidence of the
law of England on that point; two of whom say, that her claim of dower would
not have been barred by the articles; and they are unanimous that she would
have been entitled notwithstanding to a share of personal property under the
Statute of Distributions. If then she did not tacitly renounce even those
provisions which the law of England confers at the dissolution of marriage, a
fortiori she ought not to be held as renouncing provisions peculiar to the law
of Scotland, and which, according to the Respondent's favourite argument, could
not have been in the contemplation of the parties at the period of their
contract.
reasons for the appellant mrs. lashley's claim, in right of her mother, to
a share of the personal estate at the dissolution of the marriage.-first. The
patrimonial interests of husband and wife at the dissolution of marriage ought
to be regulated, in default of express covenant, by the law of the country
where they were domiciled at that period; because not only their patrimonial
interests, but their status during the subsistence of marriage may have been
affected by that law. Second. There is no foundation for the opinion that the
distribution of property, which takes place at the dissolution of marriage,
depends on an implied contract of parties when the connection was entered into.
On the contrary, that distribution seems to arise from the mere act of the law,
peculiar to the domicile at the time. Third. Admitting
*COOP.T.COTT.4È. LASHLEY V.
HOG 1251
the opinion of implied contract to be well founded, the removal of a
married pair from one domicile to another creates a presumption that they
thereby tacitly consent to alter the law by which the distribution ia to be
made, especially when a probable change of domicile was foreseen at the
marriage. Fourth. There is no reason to apprehend that a husband will
fraudulently evacuate a wife's rights by a change of domicile; because the law
of every civilized country would interfere to redress the injury. At any rate,
that case is the converse of the present, where a wife, changing her domicile
to gratify her husband, is excluded from the participation of advantages,
peculiar to the jurisdiction within which he has chosen that she should reside.
Fifth. Neither authority nor precedent is pointed [466] out to justify the
Courts of Scotland in regulating the interests of parties, domiciled there at
the dissolution of marriage, by a foreign law. Sixth. It has been decided in
this cause, that children of a marriage contracted in England, but dissolved in
Scotland, and who were themselves born in England, became entitled, by their
father's change of domicile, to the provisions of the Scottish law ([see post,
the case of Hog v. Hog, p. 497]); and there is no solid distinction ia this
respect between legal provisions in favour of a wife, and those in favour of
her children. Seventh. There is no express covenant in the marriage articles,
which would have excluded Mrs. Hog from her jus relidce, if they had been
entered into in Scotland, nor from receiving a share of her husband's personal
property, if the marriage had dissolved in England; of consequence these
articles ought not to be interpreted more to her prejudice, on account of her
change of domicile, than they would otherwise have been in either country.
arguments and reasons fob the respondent.-(In the printed case of the
Respondent the argument and reasons on his part are blended.)-Assuming that
Roger Hog was domiciled in Scotland, yet the Respondent apprehends that aa the
marriage of Roger Hog was contracted in England, and written marriage articles
ntered into, the Appellants' claim must be regulated by the law of England.
When a man and a woman enter into marriage without a written contract,
their rights must be regulated by the law of the country, where they were
domiciled at the time of the marriage.
This legal matrimonial contract is of force, first, m legis ; and,
secondly, by the implied consent of the parties, who must be held tacitly to
agree to all these conditions and consequences, which the law of the country
has made to follow upon their ˜consent to the marriage itself. If the law of
the domicile at the time of contracting the marriage makes the communion of
goods an implied part of this contract, then it takes place by tacit consent;
and on the other hand, if by the law under which they ˜entered into marriage
there is no communion of goods, but certain other rights of a different nature
are held to ariae upon the marriage, then they tacitly agree that there shall
be no communion, and that those other rights shall take place.
[467] By the law of Scotland, there arises upon marriage betwixt parties
domiciled there a communion of goods, by virtue of which the husband on the one
hand acquires right to the whole personal property of the wife, jure mariti;
and the ˜wife on the other hand acquires such an interest in the goods in
communion, though she should happen to have no personal property of her own,
and though the goods in communion should be composed entirely of her husband's
personal estate, that she or her executors have right at the dissolution of the
marriage to a third, or half, thereof, -according as the husband has children,
or none; and they have such right equally whether the marriage was dissolved by
the predecease of the husband, or the wife.
But, by the law of England, there is no communion of goods, and the wife
acquires ˜no interest in the personal property of the husband ; and accordingly
neither she nor her nearest of kin have a legal claim to any share of the
husband's personal property upon the dissolution of marriage. The jus mariti in
England is also very different from what it is in Scotland, being more
extensive in some respects and narrower in others. (Blackstone [Comment.], vol.
ii. page 434.) Thus, debts upon bonds, contracts, and the like, are vested by
the law of England so imperfectly in the husband, that unless he recovers
payment of them in his own lifetime they do not go to the executors, but remain
with the wife as her own property; whereas by the law of Scotland they are
vested absolutely in the husband by the marriage itself, and go to his
executors, whether he has recovered payment of them, or not.
The rights of the parties being thus settled by a legal, and also an
implied
1252 LASHLEY V. HOG 3 COOP.T. OOTT. 1/28,
voluntary, contract at the time of entering into the marriage, they
cannot be altered by any change of domicile during the subsistence of the
marriage; but the original legal and implied voluntary contract, under which
the marriage was entered into, must be of force to regulate the patrimonial
rights of parties in all times and places, in the same manner as a written
contract would do.
A change of domicile during the marriage cannot alter the patrimonial
rights of the married parties, for several obvious reasons. For first, the
legal matrimonial contract, arising from the law of the country where the
parties are domiciled at the-time of the marriage, has already taken its effect
in many par-[468]-ticulars; and as-it cannot be undone or altered in toto, so
it is impossible that it can be altered at all without manifest injustice. Upon
a marriage between parties domiciled in Scotland, the husband instantly
acquires right to the wife's whole personal property, and in particular all the
debts due to her, whether payment happens to be recovered during the marriage,
or not; and on the other hand she becomes creditor for a third of the free
gooda in communion, as they shall stand at the dissolution of the marriage. It
would be obviously unjust that the husband, by removing his domicile to
England, while he keeps his wife's estate he has acquired under the law of
Scotland, should defeat the wife's claim under the same law. And in like
manner, a removal of the domicile from England to Scotland, as it ought not to
have the effect of depriving the wife of outstanding debts originally due to
her, which by the law of England remain with her notwithstanding the marriage,
so neither ought it to give her a right to a third, or half, of the husband's
moveables, to which by the law of England (whereby the rights of the married
parties were settled at the time of contracting the marriage) she could have no
title.
The consideration of the tacit agreement of parties, that their rights
shall he-regulated by the laws of the country where they are domiciled at the
time of the marriage, leads to the same conclusion. Such an implied contract or
agreement of parties can no more be defeated by their afterwards changing their
residence than a written contract of marriage, or any other contract, can be
set aside merely by the parties thereto changing their place of abode; and as
the law of England, where both Mr. Hog and his wife were domiciled when they
entered into the matrimonial contract, does exclude the communion of goods, and
any claim by the representatives of the wife in the event of her predecease, it
must operate to that effect just as forcibly as a special covenant in a
marriage contract would do; and there can be no doubt that the communion of
goods may be excluded, and every claim, that might otherwise be competent to
the representatives of the wife, barred by a marriage contract, even where the
marriage is entered into by parties resident in Scotland. As the husband has
the absolute power of changing his domicile as often as and to what place he
pleases, if the legal rights of the married parties were to change with every
change of domicile, the rights of the wife, as being entirely at the mercy of
the husband, would be very precarious.
[469] Agreeably to these principles Voet (9) delivers the following
opinion:- " Plane, si initio nuptiarum secundum legem domicilii mariti,
universalis boiiorum omnium communio inter conjuges inducta fuerit, vel etiam
ex adverso exelusa; dein.-ceps autem post temporis interstitium mutata mente,
conjuges domicilium alio trans-ferant, veluti, ex Hollandia vel regione
ultrajectiria concedant in Frisiam, ubi contrarii effectus matrimonii ex
statuto vigent, ac sola inducitur acqusestuum communio, migratio ilia per se
sola nullam potest circa communionem semel inductam adferce mutationem, sed
durabit et in novo domicilio, qu;e inducta est, manebitque axclusa, qute ab
initio exclusa fuit. Ut euim migratio nullam pactis dotalibus aperte conceptis
mutationem adferre potest, ita iiec bonorum communioni per tacitam conjugum
pactionem secundum superius declarata introduct*: turn quia migratio nuspiam
numeratur inter modos dissolvenda; vel introducendie societatis, aut alterius
conven-tionis ; turn ne alioquin ab incerto migrationis eventu penderent pacta
antenuptialia ; neve esset in potestate mariti pacta dotalia mutare etiam
invita ac reluctante muliere, dum eadem invita potest domicilium ali6
transferre."
In like manner Lord Kames says (Prin. of Equity, book iii. chap. viii.
sect. 3), "Where two persons joining in marriage are satisfied with the
legal provisions, there is no occasion for a contract; and the parties may be
held as agreeing that the law of the land shall be the rule. It is in effect
the same as if the parties had subscribed
1 COOP. T.COTT. 470. LASHLEY
V. HOG 1253
A short minute, bearing that the jus relidm, and every other particular
between them, should be regulated by the law of their country, and such an
agreement expressed, ˜or implied, must be binding all the world over to support
the relict's claim against the testament of a deceased husband. It may,
however, happen that two persons carelessly join in marriage, having an object
in view very distant from a legal provision; law does not admit of a
presumption against rational conduct; but though it should be admitted it will
not avail; as every man is bound in conscience to obey the laws of his country,
the husband when disposed to think will find his wife entitled by the law to
the jus relictce, and will see that an attempt to disappoint her would be
against conscience. This must be evident to him when at home, and [470] it muat
tie equally evident that change of place cannot relieve him."
Although some stress has been laid on this proposition, that succession
ab intestate is to be regulated by the law of the domicile, which the party
whose succession is to be disposed of, has at the time of his death, the
Eespondent does not see how it can have the smallest influence upon the question
under consideration. The legal rights of husband and wife are not rights of
succession, and in particular the claim, which the executors of the deceased
wife have, against the surviving husband is not, nor indeed can be, any right
of succeeding to the husband; but where it exists it is a claim ex contracts,
and a right inter vivos, originally vested in the wife and arising from the
communion of goods, which the law of Scotland implies as part of the marriage
contract or covenant, and which being so vested in the wife descends from her
to her representatives. The domicile of the married parties at the time of the
dissolution of the marriage, is of no sort of consequence with respect to their
legal rights, which must depend upon, and be regulated by, an antecedent
contract, viz., the implied contract, which took place betwixt them at the time
of the marriage, or the law, which then made a contract between them.
The claim, which the nearest of kin of the wife have by the law of
Scotland, for a third, or half, share of the goods in communion, necessarily
supposes that there are goods in communion, or that there has been a communion
introduced by the marriage. "A man and woman (says Mr. Erskine) (Erskine
[Institute], book i. tit. vi. sect. 12), by entering into marriage, are joined
in the strictest society, or co-partriery, which necessarily draws after it a
communication of their mutual civil interests (as far as necessary for
preserving the society), styled by our law the communion of goods."
The right of the wife in case of her survivance, or her executors in the
event of her predecease, arises from this communion of the goods, as is laid
down by all our authors. Wherever then a marriage establishes a communion of
goods, there may, and must be, a right to a share upon the dissolution of the
marriage : but where there has been no communion introduced by the marriage,
the wife's executors, by the nature of the thing, cannot have any claim upon
the dissolution.
Suppose that Mrs. Hog had had a large separate personal [471] estate,
which by the law of England, where she and her husband resided at the time of
the marriage, remained her own, and which continued to be her own exclusive
property for twenty year* after the marriage, but that in the twenty-first year
her husband thought proper to transfer his domicile into Scotland; the
Respondent will beg leave to ask, Could this have divested her of her property,
and transferred it to her husband without her consent 1 Surely not. To strip a
wife of her property in this manner, without her /consent, would be the most
palpable injustice. Conveyance of property by marriage iis known in our law,
and that of some other countries; but conveyance by change of ˜domicile it is
believed has never been heard of.
Again, suppose a man marries in Scotland, and his wife having a large
personal property, the whole falls under the communion of goods, and becomes
his own jure mariti; can it be supposed that he would be divested of it again,
and the whole tie transferred back to his wife merely by their changing their
residence, and going to live in a country where there was no communion of
goods, after the marriage had subsisted perhaps for thirty or forty years? This
will not be pretended; but if a change of domicile had any effect in this
matter, it must ˜operate equally both ways. If it introduces communion, it must
also put an end to communion, and all the rights arising from it. If a wife is
deprived of her property by coming from a country where there is no communion
of goods, into a .country where there is communion of goods, she must in like
manner be restored to
1254 LASHLBY V. HOG J COOP. T. OOTT. 473j
her property by coming from a country where there is communion, into a
country where there is no communion, of goods.
The Appellants have been pleased to figure a variety of cases, and to
make many fanciful and ingenious suppositions, with the view of creating some
appearance of difficulty in the question ; but the objections, which they make
to the doctrine maiiiT tained by the Respondent, and the cases and suppositions
which they state, are in general formed by the application of one idea, viz.,
by supposing the locus contraatus and the locus domicilu to be different at the
time of the marriage; and one short answer to all their oases is, that they
have no similarity to the present case, where/ the locus conhuctus and locus
domicilii of both parties were the same at the time of the marriage; at the
same time there is no difficulty in resolving all these cases, as it is plainly
the law of the locus dmnicilii mariti at the time of the marriage, [472] which
must be the rule ; that is, properly, the locus niatriinonii, though the
ceremony should be performed in another place.
It has been said, that as the children's right of legitim is regulated
not by the domicile at the time of the marriage, but by the domicile at the
time of the parent's death, so the right of the wife or her executors to a
third, or half, of moveables must be regulated by the law of the domicile at
the time of death, and not by the law of the domicile at the time of the
marriage.
But this argument, with submission, is built upon an obvious fallacy.
The legitim is indeed regulated by the domicile at the time of the father's
death, and not by the domicile at the time either of the constitution, or the
dissolution, of the marriage ; but is this the case with respect to the right
of the wife or her executors 1 By no means. By the Appellants' own doctrine, as
well as that of the Respondent, the rule is very different for the legitim, and
the wife's right. The Appellants deny, indeed, that the wife's right is
regulated by the law of the domicile at the constitution of the marriage; but
they maintain that it is regulated by the domicile at the dissolution of the
marriage; and the domicile at the father's death may be as different from the
domicile at the dissolution, as from the domicile at the constitution, of the
marriage; and that it is even possible that the domicile at the time of the
constitution of the marriage, and at the time of the father's death, may be the
same, while the domicile at the dissolution of the marriage by the mother's
death may be in a different place.
It depended, indeed on Mr. Hog's domicile at the time of his death,
whether his children should have legitim, or not; but it in no degree depended
upon the domicile at the time of his death, whether his wife's executors should
have a third of the moveablea, or not. The Respondent says that this last must
be regulated by the^ domicile at the time of the constitution of the marriage.
The Appellants argue that the law of the domicile at the dissolution of the
marriage is the rule, but they do not say that the wife's right depends upon
the husband's domicile at the time of his death, which is sufficient to shew
that the argument of the Appellants by analogy from the Itgitim, is without any
foundation.
Suppose a man domiciled in Scotland marries and has children, and when
the marriage has subsisted many years the wife dies, after which he removes his
domicile to England, and dies domiciled there; in such a case the wife's
executors would have a third by the law of Scotland, but the children would
have no [473] legitim. Again, suppose that a man marries in England, has
children, and his wife dies while he it) still domiciled there, after which he
fixes his domicile in Scotland and dies; in such case the wife's executors
would have no third, but the children would have legitim, Or let us take the
case of Mr. Hog, and suppose that he had clearly and indisputably changed his
domicile from England to Scotland before his wife's death, but that after her
death he had as clearly returned and fixed his domicile in England and died;
then the Respondent would have maintained that there was neither wife's third
nor legitim, because the first was regulated by the domicile at the time of
entering into the marriage, and the second by the domicile at the time of the
father's death. But the Appellants, upon this principle, while they must have
allowed that there was no legitim, would no doubt have contended that still
there was a claim for the wife's third, because the domicile was in Scotland at
the time of the dissolution of the marriage; from whence it is evident that the
Appellants' own principles, when strictly followed out, must have led them to
admit, nay, to maintain a distinction between the nature of the claim of
legitim and the claim for the wife's third.
È1/2HÈ.X.aOCT.1/2Tl LASHLEY
V. HOG 1255
And these rights are in fact in their nature essentially different, the first
being a right of succession and the last a right ex contraetu, affording a
claim of debt which may afibct the husband in his own lifetime. That the wife's
right to a third, or a half, is not a right of succession but a right ex
contracts, creating a claim of debt inter vims, is abundantly evident, and has
been already fully shewn; and that the right of legitimis a right of
succession, is laid down by some of the most respectable writers on our law,
and is indeed demonstrable from the nature of the thing to any person, who will
attend to it. It is not a right to a certain share of the goods in communion
betwixt the father and the mother, as has sometimes been erroneously supposed;
for though there should not be one penny of free goods at the dissolution of
the marriage, and consequently nothing at all in communion, the children may
still have an ample kgitim, if the father shall afterwards acquire, and die
possessed of, considerable moveable property.
It is therefore simply a right to a certain share of the father's
moveable succession ; and accordingly, as it never operates till his death, so
the children of all the marriages he may have contracted, are equally entitled
to it, without regard whether there [474] are any goods in communion, or what
were the goods in communion during the respective marriages.
The Respondent has hitherto argued this question upon the supposition of
a marriage having been made in England without a contract; but, in fact, not
only was the marriage entered into by parties domiciled in England at the.time,
but marriage articles were also executed there betwixt the parties. This
circumstance, in the Respondent's apprehension, greatly strengthens his
argument. Where parties marry in any country without a contract, as it must be
presumed they wish their rights ta be settled by the law of that country, so
where parties marry with a contract, it must be presumed they have the law of
the country in view, both for explaining the terms of the contract, and for
ascertaining those rights not expressed in the contract. If the provisions
settled in the contract by Mr. Hog or Mrs. Hog did, de jure, exclude her from
the legal provisions due to a wife by the law of England it must be presumed
that this was the meaning of the parties. If the reverse be the law of England
it must be presumed that the reverse was also their intention. In short, it
must be presumed that Mr. Hog, when he entered into the contract, meant that
his wife should have the provision thereby devised to her, over and above what else
she was by the law of England entitled to upon a contract conceived in such
terms.
This is all, however, that Mr. Hog meant his wife should have; he
certainly did not mean that she should have over and above, the legal
provisions due to a wife by the law of any other country.
When Mr. and Mrs. Hog were married, it does not appear that either of
theta intended to reside in Scotland at any future period. But supposing it
could be shewn that Mr. Hog had such intention, there is not the least reason
to believe that he had the law of Scotland in view, or that he intended the
interests of himself and his wife should in any respect be altered by a change
of residence to Scotland; as, upon the supposition that the parties were to-
reside in England, there is reason to believe that it was their intention to
have the contract regulated and explained by the law of England, so even upon
the supposition that an ultimate change of residence was in view, there is as
much reason to believe it was intended to have the contract still regulated by
the same law. If the legal and conventional provisions due upon this, contract
were thought adequate ou the supposition that the parties were to reside in
England, they must have been adequate wherever they were to reside. When a [475J
marriage contract is entered into, the provisions settled on the wife are
regulated, not from regard to the residence, which they are to have in this, or
that country, but from a regard to the rank and fortune of the parties. To say
that the rights of married parties are to change with their residence is, in
other words, to say that a change of residence breaks a marriage contract,
which is a perfect absurdity : marriage contracts, like every other contract,
must be good all the world over; and, in whatever country the parties come to
reside, they will be explained by the Judges of that country, agreeably to the
laws of the country, where the contract was entered into. In short, the
marriage contract in question must be interpreted in the same way as if there
had been an express clause in it declaring that, in case the parties should
afterwards reside in Scotland, the conventional provisions were to be in full
of all legal provisions which a wife could claim by the law of that country.
1256 LA.SHLEY V. HOG 2 COOP. T. COTT. 476.
Had Mr. and Mrs. Hog married in Scotland, can it be believed that Mr.
Hog would have meant his wife to receive not only the provisions which he
settled on her by the contract, but also the legal provisions due to a wife by
the law of Scotland ; viz., if the husband predeceased, a terce of his lands, a
half of his personal fortune, if there were no children, and a third if there
were; and, finally, if the wife predeceased, a certain share of the goods in
communion to the wife's executors 1 This cannot be supposed. In marriage
contracts executed in Scotland, where there are conventional provisions settled
on the wife, there is always introduced a clause declaring them to be in full
of legal provisions. According to the plea maintained by the Appellants, while
they demand that the contract of marriage shall be determined by the law of
Scotland, they, in fact, insist that Mrs. Hog's executors shall be put on a
better footing than if the marriage had taken place in Scotland and by a Scotch
contract; and, in like manner, if Mrs. Hog had survived her husband, it would
also have been insisted that her interests were greater. In a word, Mrs. Hog
would|-have been entitled had she survived her husband, and her executors are
entitled since she predeceased him, to all the provisions arising by the law of
England, in consequence of the contract in question: but neither would she have
been in the one case, nor her executors in the other, entitled to any of the
provisions due in such cases by the law of Scotland, and, as the present claim
is only due by the law of Scotland, it cannot be supported.
[476] Supposing that Mr. and Mrs. Hog had been domiciled in Scotland at
the time of their marriage, and that they had executed a contract there, the
same in substance with the one which they executed in England, still the
Respondent apprehends that the legal provisions due to a wife and her
executors, by the law of Scotland, would have been excluded. It is a general
principle of law, that prwisio hominis tollit provisionem legis; and agreeable
to this principle a special discharge, or renunciation, cannot be necessary to
evacuate the legal claim arising from marriage ; for no reason can be assigned
why any implied, or virtual, discharge should not take place in regard to
marriage provisions, as well as in other cases. Indeed, it is not only a legal
but a natural and just presumption, where conventional provisions have been
stipulated in marriage articles, that those provisions are stipulated to the
wife, and accepted of by her, in lieu of those claims, which she, or her
representatives, might have had by law on her husband's heritable estate, or of
the interest they would have had in his moveable. It cannot be supposed that it
was the meaning of parties that the wife, or her representatives, should be
doubly provided.
Sir George Mackenzie, in his Observations, says,(10) "By the laws
of other nations it is clear, that where a wife is secured by a conventional
provision, she can have no right to any legal provision ; this the French
expressly determine, when they say that a wife having dotarium proefixum cannot
claim dotarium ex hge et consuetu-dinarium."
In a case decided in 1763, a claim of the representatives of a
predeceasing wife was found to be excluded by conventional provisions in favour
of the wife alone; although nothing whatever was stipulated in favour of her
representative in the event of her predecease. The case is collected in the 3d
Vol. of the Faculty Collection, and abridged, as follows, in the [Folio]
Dictionary: [477] "Penelope M'Donald, in her marriage contract with
Laehlan M'Kinnon, was provided in a certain annuity during her life, in the
event of her surviving her husband, and likewise to a third of the moveables;
but there was no clause discharging the legal provisions. The brothers of the
wife granted bill for the tocher of 1000 merks, which she assigned to her
husband. The wife, after some years, having died without children, the husband
pursued the brothers for payment of the tocher; who pleaded in defence that all
the clauses in the contract proceeded on the supposition of the husband's
predecease; but that no provision had been made on the supposition of the
wife's predecease, which being the event that had happened, her share of the moveables,
which could not be taken away but by express renunciation, devolved on them as
her nearest of kin; and this share, which was in the Pursuer's hands, more than
compensated the claim for tocher. The Lords found, that the provisions in the
contract of marriage were in full of all the legal provisions; and that
therefore the Defenders had no claim upon any part of the Pursuer's moveables.
February 24, 1763. M'Kinnon contra M'Donalds." [See the first part of the
note, ante, page 461.]
2COOP.T.COTT.478. LASH LEY
V. HOG 1257
And a still later case is collected, as follows :-"Dalton, in a
post-nuptial contract of marriage, bestowed on Riddell his wife, in the event
of her surviving him, a liferent of his whole effects heritable and moveable.
On her part, she, in the event of her predecease, assigned to him her share of
the goods in communion, her paraphernalia, and the liferent of a house
belonging to her; stipulating, at the same time, an annuity and a small sum of
money to her next of kin. Dalton died before hia wife, and her executors after
her death laid claim to the half of the moveable effects in name of widow's
part, which was nowhere expressly discharged in the contract of marriage. The
Lords found that the wife's acceptance of the provisions in the marriage
contract virtually implied a renunciation of the jus relidce. November 28th,
1781. Riddell contra Dalton." [See the note,(6) ante, page 462.]
The ensuing is so much of the order of the House of Lords as relates to
the claim of Mrs. Lashley in right of her mother, to a share of her father's
moveable estate at the time of her mother's death :-
[478] house OF lords, 16 July 1804.-It is declared, by the Lords
Spiritual and Temporal in Parliament assembled, that the contract of marriage
between the late Mr. Roger Hog and his wife, is not so conceived as to bar a
claim to legal provisions ; and that Roger Hog is to be considered as having
his domicile in Scotland at the time of his wife's death; and that the pursuer
has therefore a claim in right of her mother, the wife of the said Mr. Roger
Hog, who at the time of her death had his domicile in Scotland, to a share of
the moveable estate of her father at the time of her mother's death.-Lords'
Journals, vol. xliv. page 671.
Lord Eldon, in moving the judgment of the House, is said to have spoken
at great length. But, except some remarks upon the case of Feaubert v. Tnst,
Prec. Chan. 207, S. C. 1 Bro. P. C. 129 (in which it was determined that a
contract made in France on the marriage of two people of that nation, who
afterwards took refuge and lived in England, should be carried into a specific
execution here, although the terms of it referred to the custom of Paris), and
two or three dicta upon collateral points (11) taken from some loose papers
connected with the case once in the author's possession-it is believed that no
part of his Lordship's speech has been preserved.
The foregoing passage was written in 1823. The author's belief that,
with the exception there mentioned, no part of Lord Eldon's speech had been
preserved, was founded upon an inquiry [479] made of the late Chief Baron
Alexander (at the time of the inquiry one of the Masters in Chancery), who had
signed the case of the Appellant. It has turned out, however, that the
shorthand writer's notes of the entire speech of Lord Eldon, and also of the
entire speech of Lord Rosslyn, were in existence, and they have been printed in
the Appendix to a treatise which well deserves a place in every law library
:-Robertson on the Rules of the Law of Personal Succession in the Different
Parts of the Realm; and on the Cases regarding Foreign and International
Succession, which have been decided in the British Courts. Edinburgh : 1836,
8vo. Mr. Robertson is the author of the volume of Reports of Cases on Appeal from
Scotland, published in 1807. [At page 4 of that work, Mr. Robertson mentions
this case of Lashley v. Hog. See post, page 496.] The following is a copy of so
much of Lord Eldon's speech as relates to the question whether Mrs. Lashley had
any claim, in right of her mother, to a share of the personal estate of her
father at the dissolution of the marriage. In its language the speech is no
model either of conciseness or accuracy.(12)
house of lords, 9th July 1804.-lord eldon-The question whether Mrs.
Lashley has under the circumstances [480] any claim under her mother, certainly
is an extremely important question, which, it appears to me, has been hitherto
unprejudiced by any direct decision, but, as it seems to me, by no means
unaffected by the establishment of principles, which have application to it. It
is this, whether, when a person marries in one country, and on that marriage a
contract is entered into, but which contract, in the terms of it, has no
relation whatever to the personal property of the husband, such as it is at the
time of the marriage, such as it shall be subsequent to the time of the
marriage, or such as it may be at the death of the husband; whether, because,
in fact, the marriage took place in England, whatever
C. xxvn.-40*
1258 LASHLEY V. HOG 1 COOP.T.COTT.481.
may be the change of domicil of the husband subsequent to the marriage,
and whatever shall be said to be in law the place of his domicil at the time of
his death; the administration of his estate in that place, where he dies domiciled,
is to be an administration, as far as it respects his wife, with reference, not
to the law of the place where he died domiciled, but to the law of the place
where the marriage was had; and then stating that, whatever might have been her
claims if she had been married in the place where her husband died, let her
husband die domiciled where he may, she neither has, nor can have, any other
rights than those, which she would have had, if the husband had died domiciled
in the place where the marriage was entered into. This question comes to be
important, because your Lordships will observe that there is a great
difference, particularly in this case, which is the case of a predeceasing
wife, between the claims of her children, and what would be the claims of her
children, if the rights of the mother are to be determined upon by the law of
Scotland, or by the law of England. Under the law of England, I need not state
to your Lordships that, where the wife predeceases the husband, and there has
been no convention or provision upon her marriage; when she dies, instead of
anybody representing her having any claim as against the husband, her husband
has a title to be her universal representative against any children she had,
and all other persons in the world. The law of Scotland is not so, because that
law recognises what is called the communion of goods in the married state, and
by virtue of that law the wife has certain interests, if she predeceases the
husband ; she and her husband being considered as entitled, in communion and
society, in the personal estate, and the society and communion expiring by the
dissolution of the marriage : in consequence of her death, the property comes
to be [481] severed, and her children, as her children, have a right to a part
of the property of the husband, us representing her, against the husband
himself. (13) The proportion, in the case of the wife dying after her husband,
seems to be pretty much the same as in the law of England : if lie predeceases
her in England, dying intestate, leaving children, your Lordships know her
share is one-third, and the children have the other two-thirds; if there are no
children, her proportion is a moiety ; and the next of kin, not standing in the
condition of children, take the other moiety. So, in the law of Scotland, her
right is different, in respect to the proportion or extent of her claim, in
respect of her husband's dying with children, or without children. I think, if
he dies with children, she is entitled to a third, and to a moiety if he dies
without children. In order, therefore, to state this question to your
Lordships, we must consider, first, what would be the case supposing the wife
had died after the husband ; and see how far the principles we shall establish
to regulate that case, will apply to the case of the wife predeceasing her
husband. When it was stated, at the Bar here, that the locus cantractua
matrimonii must govern, one's attention was naturally called to the
consideration of all the difficulties that presented themselves, as
consequential upon that way of stating the proposition. I am ready to admit,
there are considerable difficulties upon any state of the proposition; and yet,
to a mind informed as that of an English lawyer is, as he is informed by his
habits, I own it appears to me one of the moat extraordinary propositions I
have ever heard, notwithstanding the passages that are found in text-writers
upon the subject,(14) that it could be maintained, as an universal proposition
[482] at least, that the locus contradu-s matrimonii was to govern. It is, no
doubt, one question, what is an universal proposition to be acted upon in
England, Scotland, or anywhere else, as a principle of sound law, to be adopted
everywhere. And another thing to say, what is to be considered as being the law
of England upon the point. When one recollects what has been the universal
practice in regard to the administration, in this country, of the effects of
intestates, under all the circumstances which have obtained, under all the
changes and mutations of instruments which parties make in their lifetimes, I
believe it never occurred to any persons who have sat in those Courts, in which
they administer the estates and effects of intestates, to think of the
question, Where was the party married? in order to decide what was the share a
wife was to take of her husband's personalty. This is very familiar to us in
this country, because your Lordships know very well that the distribution of
the personal estate of intestates is in different proportions in different
parts of England: where a person's estate, for instance, is to be distributed
as the personal estate of an individual living in that district in which
SCOOP.T.COTT.1/23. LASHLEYT
V. HOG 1259
the custom of the province of York obtains, the wife is there entitled
to five-ninths [see the Appendix to the present volume]; and if the locus
contractus matrimonii is to determine upon her rights, where there is no
domicile in the province, I believe I should state a doctrine that would
extremely surprise all those inhabitants of London, who have transplanted
themselves from the parts to which I am now alluding, if I were to tell them,
if they happened to die domiciled in the province of Canterbury, where the
wife's share is one-third, that it was not the circumstance of being themselves
domiciled within the province of Canterbury, which was to regulate this; but
that the circumstance that the marriage had been had in that part of this
kingdom on which the custom of the province of York attaches, was to decide
upon it; and that it was to decide upon it with no communication, and no
agreement between the parties at the time of the marriage. Upon this doctrine
the result would be, that if a man domiciled within the province of Canterbury,
should, in taking a journey northward, marry a lady within the province of
York, though they went immediately home, and resided during the rest of their
lives within the province of Canterbury, the wife would be entitled to
five-ninths of the personal estate. Taking it the other way, we know there are
persons who come from that part 483] of the world to which the custom of the
province of York extends: they-happen, perhaps, not to think much about these
things; in advanced life they are likely to go home again, and they take their
chance. They are husband arid wife in this respect as in all others, for better
and for worse; and I should conceive it to be quite clear law (though it seems
to have puzzled some very learned persons in the statement of these cases),
that a man might come from a particular part of the north of England and marry
in the north of England where, if he had died before he -accomplished his
purpose of taking his journey, his lady would unquestionably receive
five-ninths of the personal estate : if he came up to London to better his
fortune (as we north-country people are apt to do), and died in London, his
wife would take her one-third according to the custom of the province of
Canterbury ; and if in his old -age he had retired to the land of his nativity,
and died intestate, the lady there, who, in the first instance, would have been
entitled to five-ninths, who had by the course of events lost that right, and
become entitled in the second instance to only one-third, when her husband
returned again to the province of York, dying in the place in which he was born
and married, would be restored again to the five-ninths; her condition as a
wife and her right as a wife being altered from time to time exactly as her
person followed her husband's person from one place of domicil into another
place of domieil, till it was at last decided, by his death, where he left Ids
residence in this world. I take that to be quite clear law. I think it was as
long ago as 1704, unless I mistake the import of the case, that, as amongst
French people, the law of England had decided this; for, in the case of Foubert
v. Tur.it (1 Bro. P. C. 129 [Feaubert v. Turst, S. C. Prec. in Ch. 207]) this
case occurred :-A French lady and gentleman married at Paris; and, having
married there, there was a written agreement, by which certain sums of money
were disposed of; and, with respect to the other property which the parties had
or should acquire, that was by this agreement, according to the construction
put upon it in our Courts, to go according to the custom ˜of Paris. After the
marriage was had, the lady and gentleman thought London was a better place to
reside in than Paris, and came here. They lived here some years : .at length
the wife died, and the question arose upon her death, how the property was to
be distributed. It first came on in the Court of Chancery. The Lord Chancellor
was of opinion [the cause was heard by Lord Keeper Wright, in 1702], that it
was 484] not the intent of that agreement to attach, under all the
circumstances, the rule which the custom of Paris afforded as to the
distribution of the property; and he held that, the parties being domiciled in
this country, the law of this country must ˜decide the right to his share in
his wife's property. That was afterwards reversed in this House. But upon what
principle was it afterwards reversed in this House ? Why, upon a principle
which shewed what the conception of this House was as to the law, if there had
been no rule for the application of that principle; for it is distinctly
admitted, in the printed reasons by the counsel on both sides, but especially
in the printed reasons, by the gentleman who was of counsel for the husband,
that, though the parties married at Paris, the custom of Paris would not follow
them; and the ground upon which the Lord Chancellor's decree was taken to be
wrong was this
1260 LASHLEY V. HOG tCOOP.T. COTT.1/25.
(and an extremely clear ground it is), that there the parties had in
Paris come to a written agreement, the true conatruction of which written
agreement was, that, where-ever the parties died, the custom of Paris should
regulate the distribution; therefore, said this House, it is not the regard
which the law here administering property has to the custom of Paris, but the
rule is founded in the contract which the parties themselves had entered into;
and that contract, which they there entered into, will travel with them, though
the custom will not follow them. The contract will attach upon the property
after the death of the parties. The meaning of the parties was, that it should
so attach upon the property after death ; and there can be no reason in the
world why the parties should not say, by express contract, that the loots
contractus matrimonii should decide. They may do so if they please, in a
written agreement, which shall describe what shall be the share of the wife in
the property of her husband, when he is dead. It seems to me, also, that that
case was recognised to be very good law in a subsequent case, FreemmM v. Dedire
(1 P. Will. 429). The result of the case may be stated to shew this, that it
was the opinion of the Court, at that day, that, where the marriage had been
had in Holland, the distribution in this country, if the party died domiciled
in this country, would be certainly according to the law of Holland, if you
shewed there were articles, saying the distribution should be according to the
law of Holland. But they seem to have refused, in that case, to make the
distribution according to the law of [485] Holland, because it had not been
proved as a fact in the cause, what was the law of Holland, which those
articles had stipulated between the parties should furnish the rule of
distribution. Your Lordships have already gone the length of deciding, in the
former stages of this cause, that, with respect to the children's shares upon
the death of the father, it is the locus domicilii, at the death of the father,
that must decide what they are to take. ([See post, the case of Hog v. Hog, p.
497.] ) In this case, the marriage was had in England. Some of the children
were, I believe, born in England; and Mr. Hog having altered his domicil, arid
dying domiciled in Scotland, your Lordships held, that, because they were the
children of a father domiciled in Scotland, notwithstanding that was not the
locus contradus matrimonii, the law of Scotland must decide upon the rights of
those children. I believe it would be next to impossible to say, that there is
any distinction to be made between the legitim of the children, as taking by
such succession, and the jus relictce of the widow as taking by the same. It
would be absolutely impossible, if the wife survived the husband, that you
should say, that, though the marriage was in England, the children of that
marriage should take according to the law of Scotland, where the man was
domiciled; but that the wife should take according to the law of England, where
the man was married. Unless you could say, in the case of the wife surviving
the husband, that her interest was to be decided by the law of England, where
the marriage was had, although the right of the children, who, in a sort,
derived their title under that marriage, depended on the law of Scotland, that
is, that the surviving wife took according to the locus controxtus matrimonii,
and the children according to the locus domicilii, it would be difficult to
distinguish between what the wife takes in the character of wife, if she
happens to die in the lifetime of her husband, and what she takes in the same
character, and under the same title, if she happens to survive the husband. It
seems to me, therefore, when a distinction is taken between the legitim and the
just relictce, in the manner in which it has been taken in this case, that the
distinction is not substantial enough to be acted upon. A vast number of
ingenious difficulties have been stated upon this subject, which may deserve a
great deal of consideration ; but one may here lay out of consideration all
those cases upon which it has been asked-What are to be the consequences if a
[486] man marries in one place and goes immediately to dwell in another 1 If
any persons were to go into Scotland, get married at Gretna Green, or anywhere
else, and come back to England; or if they came from Scotland and were married
in England; in the one case, if the parties returned immediately, and became
domiciled in England ; or, in the other case, if the parties returned and
became domiciled in Scotland; in both these cases the place of marriage is a
mere incident in the form of contract, and would not alter the law, which says,
that the place where the parties bon&jide reside, and that I shall call the
bond fide residence of the husband, will decide upon the rights both of the
wife and children. But it is said, that, if there be no express
3COOF.T.COTT.48T. LASHLEY
V. HOG 1261
contract when the marriage is entered into, there must be an implied
contract, and it is assumed that that implied contract is this-that the
distribution which the law would make of the property of the husband, if he
were to die eo instanti that the marriage was celebrated, is the distribution
which must be made of the property of the husband dying intestate at any
distance of time from the period when the marriage was contracted, and under
all the circumstances of mutation and change, which might have taken place. It
appears to me, that those who say, that there is such an implied contract, beg
the whole question, because the question is, whether the implied contract is
not precisely the contrary. This being a contract attaching upon property in
consequence of its being personal estate, whether the true implied contract
must not be taken to be that the condition of the wife, in respect to her
expectations, should change as the condition of the husband changes, with
reference to the law of the country in which they are resident. Cases of great
hardship, may be put with respect to Scotch and English ladies. They tell you,
with reference to a marriage in England, the moment the husband contracts that
marriage, all the debts due to the wife, and property in the wife, attach to
him; but that in the ease of a marriage in Scotland, with respect to all debts
due to the wife, the husband must take the trouble of taking his hat off, to
request the payment of that money from those from whom it is due to her before
he vests a right to it in himself. But, really, the ˜difference is not very
considerable, because, although it be that the husband, if he happens to die,
without having done any act to stamp the character of his own peculiar
˜ownership upon the property of his wife, is taken to have chosen to let it go
to the wife, because he chooses to forbear to take that which previously [487]
to the connection was hers yet, on the other hand, there is nothing more clear,
than that the law supposes he may receive it when he pleases ; for a man
cannot, without evidence, be supposed to forego that which he takes in right of
his wife: he may assign it for valuable considerations, or he may make it his
own to all intents and purposes; and the moment he chooses so to make it his
own, he may assign it to persons in trust for the wife, who may have, in this
country, the special equity of claiming to have some provision made out of it
for herself. But the true question is, whether it is not of necessity that the
husband and wife, or the one of them, and if the one of them, which ˜of them is
to determine in what manner, and in what place, the husband is to struggle for
the means of provision for himself and his family whilst he lives, and for all
the means of provision for the family he shall leave behind him after he is
dead. And when you say that, both in England and in Scotland (about which there
can be no ˜doubt), it is competent for the husband to spend every shilling of
the property, to Alien bond fide every shilling of the property; what does that
amount to but this, that the husband, if he pleases, has it in his power to
make it of as little consequence to both his wife and children in what country
they resided at his death, as if they were in no country at all ? The true
point seems to be this-whether there is anything irrational in saying that as
the husband, during the whole of his life, has the absolute disposition over
the property; that as to him the policy of the law has given the ˜direction of
the family as to the place of residence; that as he haa therefore this species
of command over his own actions, and over the actions of the family, and
property which is his own and which is to remain his own, or to become that of
his family, according to his will; why should it be thought an unreasonable
thing that, where there is no express contract, the implied contract shall be
taken to be, that the wife is to look to the law of the country where the
husband dies, for the rights she is to enjoy, in case the husband thinks proper
to die intestate? This has been the principle, which, it seems to me, has been
adopted, as far as we can collect what has been the principle adopted, in cases
in those parts of the island with which we are best acquainted; and, not being
aware that there has been any decision which will countervail this-thinking
that it squares infinitely better with those principles upon which your
Lordships have already decided in this case-it does appear to me, attending to
the different sentiments to be found in the [488] text-writers upon the
subject, that it is more consonant to our own laws, and more consonant to the
general principle, to say that the implied contract is, that the rights of the
wife shall shift with the change of residence of the wife, that change of
residence being accomplished by the will of the husband, whom, by the marriage
contract in this instance, she is bound to obey. Is there any inconvenience in
this 1 None in the world ; because it
1262 LASHLEY V. HOG J COOP. T.COTT. 489.
is an equally acknowledged principle, that, though the custom of the
place may not follow the parties to this contract, which places them in the
relation of husband and wife and children, yet it is undeniable law, that they
may contract under hand and seal that the custom of the place shall follow
them. Whether it will be convenient, in ninety-nine cases out of a hundred,
that there should be such a convention and such a contract; or whether it will
not be mightily inconvenient to the affairs of families to form such a contract
or convention ; is a question which persons viewing it may think very
differently about; but if there be any inconvenience in the circumstance of
such a convention not being formed upon the marriage, it is an inconvenience
neither of a higher nor less nature than any other, which attaches upon that
relation, which is to be left to the providence of parties when they enter into
that relation ; but which can be met by the providence of parties when they
enter into that relation, and to which inconvenience they expose themselves if
they do not think proper at the time to provide against it. It may be said, in
this case, and truly may be said, in ninety-nine cases out of a hundred of a
similar sort, if they arise, that this is a surprise upon the parties. The true
answer to that is, that I believe the parties never thought of it; when they
entered into this marriage they entered into no contract by which this lady was
to take one penny of the husband's property ; but they entered into a contract
by which she was to have somewhat more than two-thirds of her own property
converted into land, with a power to her to give this to any of her children
that deserved best of her : they could not but have considered that Mr. Hog
must die somewhere; that he was likely to die in England : but there is no
stipulation that she shall have one shilling left to her : she takes her
chance, under the effect of the marriage, whether she shall, or shall not,
receive anything, even upon the casualty of the husband dying intestate. If he
had thought proper to lay out all his money upon land, and had taken the
caution to lay it out in the name of a trustee, instead of in his own name, she
E
489J would not have what the Scotch call terce, and we call dower; on the
other and, if Mr. Hog had that, which it appears he had for a great number of
years, a very strong inclination and a fixed purpose to reside in Scotland,
where he was born, and to die there, one should think, if he thought proper to
attend to this subject with caution, he would have asked what would be the
state of his wife if he did die there. But the truth is, that parties do not
think upon this subject when they enter into these contracts; they get a bit of
a settlement made, and very important interests remain unattended to. But I
think it appears that this claim could not be matter of much surprise, when
your Lordships come to see how this matter was regarded by men of business in
Scotland; because, though this lady died in 1760, and though Mr. Hog unquestionably
became afterwards a domiciled Scotchman, having realized property in land in
that country, whenever provisions were tendered to the other children, or to
the Appellant herself, your Lordships observe the persons who drew those
instruments thought there might be at least some colour of claim under their
mother's decease ; and that circumstance, that there might be that colour of
claim, whilst it contains an intimation, upon the point at law, that at least
it was doubted by the lawyers in Scotland whether this might not be supported,
is also a material circumstance, in another respect-that it contains a strong
intimation as to what they believed to be the fact, with respect to the
domicile of the father at the decease of the mother. Without entering,
therefore, into a great variety of very nice cases, which might be put, and
which might be all reasoned down, in my apprehension, to the single
question-Which is the principle that you are to imply from the contract of
marriage; whether is it to be considered that the rights of the wife must vary
with the rights which attach upon her residence in different places, and that
her right to succeed to her husband must depend upon the domicile which he had
at the time of her death, if she is dead, or the time of his death, if she
survived him: or, on the other hand, that the locus contractus matrimonii is to
regulate the distribution of the property, and through all the changes in
future life, her right is to remain unaltered in a case in which there is no express
contract at all'?-it does appear to me that the rule we have adopted in this
country is the better rule; and therefore I shall presume upon that part of the
case, in the application of that principle, to submit to your Lordships the
propriety of altering the interlocutors, so-far as they deny Mrs. Hog's right
to transmit to her next of kin, she pre-[490]-deceasing her husband, tho usual
share in the goods of that husband.(15)
1 COOP. T. COTT. 491. LASHLEY
V. HOG 12CS
July 10, 1804. eael of rosslyn.-I am sorry to observe that, in the
proceedings of the Court below, there have occurred, in my opinion, several
mistakes in point of law, particularly in that interlocutor which finds that
the circumstance of the marriage being celebrated in England can decide upon
the rights of succession that will arise to the wife and children of that
marriage, in opposition to that law which, by the future events ol the life of
the party, may be the law of the land, to operate upon his property 1/2t the
time of hia death. I think there are many errors that have misled the judgment
of the Court upon this point. In the first place, in this case there is:an
express contract-and I have no conception, in point of law, that a lawyer is in
such caae to entertain a metaphysical idea of an implied contract arising from
the situation in which the parties place themselves by a civil act. My general
idea of law is, that in all cases where the parties make an express contract,
that excludes all consideration of an implied contract: an idea of an implied
contract, in all cases where there is an express contract is to me a solecism.
But, supposing there had been no legal contract, and you were to determine upon
the situation of the parties upon the mere fact of a marriage celebrated in a
given place, they had no occasion to raise an implied contract: a man and a
woman are united together ; they take their chance of the future fortunes of
each other, and particularly with regard to the wife, who can have no domicile
separate from the domicile of her husband : she must follow the [491] fortunes
of her husband, wherever they happen to be placed, and must take her chance at
the time when his fortune falls under the disposition of a particular law;
therefore, in the general case, there is no foundation for that (and I am sure
my noble and learned friend will see the application of this observation in
almost every case where that occurs) that a metaphysical idea of an implied
contract is a fallacious idea, substituting an imaginary idea, not applicable
to the actual situation and relation of the parties. With respect to the claim
of the Appellant in right of the mother to that share of the estate which the
law of Scotland gives under the name, not very properly applied, of jus
relicice, I am of opinion, with the noble and learned Lord, that the
interlocutor ought to be reversed.
Digest of the Facts of the preceding case, and of the Proceedings in the
Court of Session, from the Faculty Collection.(16)-Court of Session, 16th June
1795.- Rebecca Hog against Thomas Hog. Eoger Hog, a native of Scotland, in
1737, when settled in London as a merchant, married there an English lady, with
whom he received a fortune of above 3500. By marriage articles, previously
executed in the English form, it was provided, that Mr. Hog should, from his
wife s fortune, lay out 2500, or such other sum as should be necessary for the
purchase of a real estate, yielding 100 a year; and that the estate so
purchased should be conveyed to trusteei, for behoof of Mr. Hog and his wife
during their lives, and of the children of the marriage after the death of the
survivor; the right of the children to be subject to the disposal of Mrs. Hog,
both during the subsistence, and after the dissolution of the marriage.
Mr. Hog accordingly purchased, and conveyed to the trustees, as directed
by the articles, an estate, which Mrs. Hog afterwards conveyed to Thomas Hog,
her eldest son.
[492] Mr. Hog continued to reside chiefly in England till 1752, when he
purchased the estate of Newliston, in Scotland, where he afterwards spent a
great part of his time.
Mra Hog died there in 1760.
After Mr. Hog's death in 1789, Eebecca Hog, one of his daughters,
brought an action against Thomas Hog, his general disponee, in which, inter
alia, she, as one -of the executors of her mother, claimed a share of the goods
falling under the jus relieta at the dissolution of the marriage.
The points at issue came to be, Imo. Where Mr. Hog had his domicile at
the dissolution of the marriage. 2do. Supposing he was domiciled in Scotland,
How far the change of domicile, which had taken place after the marriage, could
have any effect on the rights of the parties, particularly as marriage articles
had been previously entered into.
The Court (26th November 1794, and 2d June 1795) found, that Mr. Hog's
domicile, at the dissolution of the marriage, was in. Scotland.
1264 LASHLEY V. HOG 1 COOP. T. COTT. 1/23.
On the second point, the Pursuer
Pleadad ; With the exception of questions relating to landed property,
situated in a different country, arid those cases where the contrary is fixed
by positive agreement, every right which a person possesses in society is
regulated by the law of his domicile; and when he changes it from one country
to another, as he becomes amenable to the laws of the latter, so his rights are
regulated by the rules, which they establish. A person marrying in a foreign
country could not import the municipal customs there acknowledged into Britain;
and for the same reason, in so far as the rights of married persons differ in
Scotland and in England, they must be affected by a change of domicile from the
one to the other.
The claim of the wife's executors to a share of the husband's effects at
the dissolution of the marriage, takes effect vi legis, and not from any
presumed contract: The communion of goods which takes place during the marriage
being little better than a name, any right depending on it may easily be
disappointed by the husband in liege pousiie (17); and, consequently, by his
changing [493] his domicile to a country where the law does not acknowledge it.
It must often have happened that parties domiciled in Scotland at the
constitution of a marriage, should have been domiciled in England at its
dissolution. But in no case have the wife's executors, in such circumstances,
been known to claim the jus reliclw. Upon the very same grounds the present
claim should be supported. The decision of the question of legiti/n between the
same parties in reality determines the present. [See post, the case of Hog v. Hog,
p. 497.] By changing his domicile to Scotland Mr. Hog did not mean to give his
children a right of legitim which he could not disappoint. They acquired it
however by the act of the law. But if the right consequent on marriage had been
regulated by any contract supposed to have taken place at its commencement, it
must have regulated the rights of the children as well as of themselves.
Neither is the question affected by the marriage articles. If indeed the
provision there made, had been declared to be in satisfaction of all other
claims, full effect must have been given to it. But as it is confined solely to
a reservation out of her own fortune, it must be presumed that everything else
was left to contingency. The marriage articles can have no stronger effect than
if they had been framed in Scotland, where nothing, short of an express
exclusion, cuts off the jus relictx. (Erskiiie, [Institute] book iii. tit. ix.
sect. 16 ; Bankton, book i. tit. v. sect. v. 123.)
Answered ; The patrimonial rights of parties, at the constitution of a
marriage, are regulated either by express contract, or by the law of the
country where the husband is domiciled at the time. The latter takes effect
both vi legis, and by an implied contract, which is as little capable of being afterwards
defeated as a written one.
To hold that this implied contract can be affected by the husband's
change of domicile, would be attended with very unequal consequences. His
domicile, and consequently that of his wife, may be changed without her consent;
and even though she, foreseeing that the law of the country to which he means
to remove is unfavourable to her rights, should refuse to accompany him.
[494] Besides, the implied contract begins to have effect immediately
upon the constitution of the marriage, and complete mutual restitution is
afterwards impossible. By the law of Scotland, the husband becomes proprietor
of the wife's moveablea : she, on the other hand, acquires right to a certain
portion of the husband's effects at the dissolution of the marriage. By the law
of England, the husband does not acquire the same right over the personal
property of his wife, but she, on the other hand, has no jus reUdce. Now, it
would be unreasonable that a husband, who, by having his domicile in Scotland
at the constitution of the marriage, had got possession of a large personal
property belonging to his wife, should, by afterwards removing to England, have
it in his power to disappoint her of her jus relictce, the equivalent allowed
her by the law. On the other hand, it would be unfair, where the original
domicile was in England, and the new one in Scotland, that the husband's estate
should be subject to jus relictce, while no communion of goods had previously
taken place.
The right to legitim depends on principles entirely different from those
which regulate the jus relictte. The former has no reference to any contract,
either express or implied, but is entirely a question of succession, and
consequently regulated by the law of the father's domicile at his death.
JCOOP.T.COTT.ttB. LASHLEY
V. HOG 1265
The marriage articles are to be considered as a declaration by the
parties, how far they wished their rights to be different from those
constituted by the law of the place where they were then domiciled. They are
framed upon the supposition, that the wife would otherwise have had nothing.
Even if they had been entered into in Scotland, they would have cut off
the jus relictce, upon the general presumption, that conventional supersede
legal provisions; 24th February 1763, Mackinnon, against Macdoncdds ( [see the
first part of the note, ante, page 461]); 28th Nov. 1781, Ridddl against DaUan
([see the note,(6) ante, page 462] .
the lord ordinary [Lord Dreghorn] having considered the contract of
marriage, by which Mrs. Hog was " provided only to an annuity out of
tenements to be purchased with a part of her own fortune, but had no provision
made to her out of her husband's estate: found, That the claim of Mrs. Hog's
representatives is not excluded by her contract of marriage with her husband,
&c., but found, That when parties marry in one country, and
after-[495]-wards remove to another, in which the legal rights of married
persons are different, the change of domicile ought not to operate any change
on any of the rights pre-established in them in the country in which they
married ; and that all those rights ought to be preserved and enforced by the
law of the country to which they have removed, unless they be incompatible with
the religion and morality of that country," and therefore repelled the
claim.
Both parties reclaimed, and a hearing in presence was ordered. When the
cause was advised, a diversity of opinion took place; but a majority of the
Court thought, that there was no occasion to determine what might be the effect
of a change of domicile where there was no contract of marriage. The question
here is (it was observed), What was the understanding of the parties in framing
the marriage articles ? Both were domiciled in England, where the rights of
husband and wife are accurately defined; the marriage articles were meant to
fix the amount of the wife's claim on the personal estate of her husband, and
there could be no view to other claims which were not there provided for, and
which probably were unknown to the parties and their men of business. The
marriage articles indeed contain, what, in the circumstances of the parties at
the time, was a very rational provision for Mrs. Hog.
The Lords repelled the claim.
A reclaiming petition was (7th July) refused without answers.
Morison in his Dictionary, App. Part 1. Foreign, page 12, states-that
this case of Hog v. Hog [Lashley v. Hog] was affirmed on appeal. It is needless
to state that this is an error.
Mr. Burge, in his Commentaries, vol. i. pages 623-625, in considering the
conflict between the laws of the matrimonial and the actual domicile, has, from
Morison's Dictionary, stated this case of Lashley v. Hog (Bebecca Hog v. Thomas
Hog), which brought forward Mrs. Lashley's claim in right of the wife, her
mother, to a share of the goods in communion at the time of the dissolution of
the marriage by her mother, the wife's, death; assigning to it, however, the
place (Morison, 4619) and the [496] dates (7th June 1791, affirmed on appeal,
7th May 1792) of the case of Hog v. Hog also Rebecca Hog v. Thomas Hog), which
brought forward the claim of Mrs. Lashley to legitim. (See the next case.) The
page of Morison in which Lashley v. Hog is printed (4628), and also the date of
the hearing in the Court of Session (June 16th 1795), are correctly shewn
above. Mr. Burge states, as might be expected uuder these circumstances, that
the effect of the change of domicile was discussed in the case in question
before the Court of Session, but did not receive any decision. The inadvertence
in ascribing to the suit respecting the share of the goods in communion, the
place in Moriaori, and the dates) belonging to the suit respecting the
legitim-the circumstance that the decision in the suit respecting the legitim
was in fact affirmed upon appeal (see the next case-and the further
circumstance that Morison erroneously states that the decision in the suit
respecting the share of the goods in communion was affirmed upon appeal-left
little chance of a discovery by the learned commentator, that the effect of the
change of domicile did receive a decision, not indeed in the Court of Session,
but, what is more material, in the House of Lords-notwithstanding he quotes
(page 615), from Robertson's Appeal Cases (page 4), a, remark of
1266 LASHLEY V. HOG È COOT. T.COTT. 496.
Lord Eldon in the House of Lords, 16th July 1804, in a speech previous
to the decision in "'the important case of Lasfdey v. Hoy." It is
mentioned in the note, ante, page 478, that neither in Lord Eldon's speech, nor
in the printed cases, is there any trace of the point respecting the wife's
claim embracing only the goods in comtnunion, acquired since the alteration of
'domicile. The decision of the House of Lords, however, made no distinction
between the goods acquired before, and the goods acquired after, Roger Hog's
domicile had been changed from England to Scotland. The decision therefore is
not favourable to one of the conclusions in the Commentaries (page 626)-that if
the husband and wife remove from the matrimonial domicile [where there is no
communion of goods, and acquire a domicile where there is a communion of
goods], the law of the matrimonial domicile will continue to govern the
property [the goods which are the subject of communion] which belonged to them
before the removal.
(1) [It was in the month of
July 1804, that judgment
was given by the
House of Lords.
The case was argued in the sessions of 1802 and 1803. See a
subsequent page.]
(2) [The notes and parts of notes enclosed between crotchets, are additions
now
made to the author's MS. of 1823.]
(3) [The ensuing is an abridgment of this case, printed Vol. iii. page
224, of the
Folio Dictionary.]
[Folio Dictionary.-The decisions of the Court of Session, from
its first institution to the present time, abridged and digested under
proper heads, in
form of a dictionary.-The work known under the title of the "Folio
Dictionary,"
consists of three
different
dictionaries.
The Dictionary of Lord Kames (Henry
Home), 2 vols. Edinburgh, 1st edition, 1741. 2d edition, 1791. The Dictionary of
Lord Woodhouselee (Alexander Fraser Tytler), 2 vols. Edinburgh, 1797,
which is
a Supplement to the Dictionary of Lord Kames ; and the Dictionary of Mr.
M'Grugar,
1 vol. Edinburgh, 1804, which is a Supplement to the Dictionary of Lord
Wood
houselee.]
[Roger Hog having his domicile in Scotland, died possessed of large
personal property in England, which by deed of settlement he conveyed to his
son Thomas. Rebecca, on of his daughters, sued her brother Thomas, on the
ground of her being one of her mother's executors, for her share of the goods
falling under the jus relidce at the dissolution of the marriage. The marriage
between the pursuer's father and mother had been contracted in England, where
both parties then had their domicile, but was dissolved by the death of the
wife in Scotland. By the marriage contract, a certain provision was stipulated
to the wife, to be secured on lands which were to be purchased with a part of
her fortune, which stipulation was accordingly implemented. The Lords were of
opinion, that both parties at the time of the marriage being domiciled in
England, where the rights of the husband and wife are accurately defined, the
marriage contract was meant to fix the amount of the wife's claim on the
personal estate of her husband, and there could be no other view to other
claims not thereby provided for; and that the circumstance of the change of
domicile ought not to make any alteration. They therefore repelled the
Pursuer's claim.-June 16th, 1795, Hog contra Hoy.]
[The digest of the case contained in the Faculty Collection, is printed
in a subsequent page. It will be found to confirm the facts as stated in the
abstract, which, having been made a quarter of a century Ègo, might be thought
from the little experience then possessed by its author, to need some evidence
of its accuracy. The student may find it useful to read the Faculty Collection
Digest, before he commences the perusal of the author's abstract.]
(4) [The language of the argument in this, and some other places, is not
accurate.
The right of a wife predeceasing her husband, is different from the
right of a wife
surviving her husband.
If the wife predeceases
her husband, her executors, or
nearest of kin, are entitled to a share of the goods in communion at the
time of the
dissolution of the marriage by her death-that share being one-third if
the husband
has, and one-half if he has not, a child living at that period. If the wife survives her
husband, she is entitled to a share of the goods in communion at the
time of the
dissolution of the marriage by her husband's death-the amount of that
share being
in like manner regulated by the circumstance of the husband having, or
not having,
3COOP.T.COTT.1/26. LASHLEY
V. HOG 1267
a child living at that period. The terra jus relictte implies the case
of a wife surviving, and not the case of a wife predeceasing, her husband.]
[Since the foregoing part of this note was written, the author has
found, that Lord Rosslyn-in part of his speech, printed in a subsequent
page-noticed that the term jus relictce was not very properly applied.]
[See further the note, post, page 481].
(5) [Decisions of the Court of Session from 1760 to 1764.-Faculty
Collection, vol. iii. page 246, No. 105; S.C. Fol. Diet. vol. iii. p. 128, and
Morison, 2278, No. 33.]
[The volumes of the Faculty Collection, in folio, 1752 to 1824, are not,
upon the title pages, distinguished by numbers. The following statement,
shewing the contents of the first fourteen volumes of the Collection, and the
manner in which they ought to be bound, is taken from-Index to the Decisions of
the Court of Session contained iti all the original Collections, and in Mr.
Morison's Dictionary of Decisions, 1 vol. 4to, Edinburgh, 1823.-Vol. i. Decisions
from 4th Feb. 1752, to Dec. 14, 1756. Vol. ii. Decisions from 4th Jan. 1757, to
Dec. 23, 1760. Vol. iii. Decisions from 26th Nov. 1760, to Nov. 16, 1764. Vol.
iv. Decisions from 16th Jan. 1765, to Dec. 13, 1769. Vol. v. Decisions from
16th Nov. 1769, to Feb. 25, 1772. Vol. vi. Decisions from 16th Jan. 1772, to
Dec. 22, 1774. Vol. vii. Decisions from 17th Jan. 1775, to Dec. 2, 1777. Vol.
viii. Decisions from 13th Jan. 1778, to Aug. 10, 1781. Vol. ix. Decisions from
14th Nov. 1781, to Aug. 8, 1787. Vol. x. Decisions from 15th Nov. 1787, to July
6, 1792. Vol. xi. Decisions from 14th Nov. 1792, to July 7, 1796. Vol. xii.
Decisions from 12th Nov. 1796, to July 11, 1801. Vol. xiii. Decisions from 17th
Nov. 1801, to July 10, 1807. Vol. xiv. Decisions from 14th Nov. 1807, to July
9, 1808.]
[The ensuing information is also taken from the above-mentioned
Index.-There are two editions of vol. i., the first in 1760, the second in
1787. The paging of the edition of 1787 differs from that of the edition of
1760 by two pages. There are three editions of vol. ii.; the first in 1765, the
second in 1788, and the third in 1798. The paging of the second edition differs
from the paging of the first. The paging of the third edition corresponds with
that of the first. The second edition must be consulted by the number, or date,
of the decision, instead of the page. Vol. viii. has two series of pages, which
will sometimes make the references to them appear to be wrong, until the case
is found by means of the number. Vol. xiv., although very thin, is always bound
alone. It was concluded, before attaining the usual size, in order that the
decisions after the sitting of the Court in two Divisions might commence with a
new volume. The volumes are sometimes found, erroneously, numbered in a
different way. Several other volumes of the Collection have been reprinted, but
the paging of the first edition has been properly preserved, except in the
instances mentioned above. The number of each volume should be printed on the
back of it, agreeably to the list above.]
[Morison.-The Decisions of the Court of Session, from its first
institution to the present time, digested under proper heads in the form of a
Dictionary, in which all the Decisions in Manuscript, in the Library of the
Faculty of Advocates, are published for the first time, and those formerly
printed are corrected. 38 vols. (often bound in 19 vols.) 4to, Edinburgh,
1801-1807.]
[The first head is "Abbey of Holyrood House." The last head is
"Wrongous Imprisonment." The paging throughout the work is
continuous-1 to 17,074. The Dictionary contains the Decisions down to July
1808, when the Court of Session separated into two Divisions. The cases which
were published in the Faculty Collection during the progress of the work
through the press, were printed in a separate volume, called Appendix, Part I.
In several copies which the author has seen, this Appendix has, in binding,
been incorporated with the original work, under those heads to which the
different portions of the Appendix belong. Take, for instance, the head,
"Accessorium sequitur Principale." That head, in the original work,
ends at page 42. The Appendix, Part I., has a head of "Accessorium
sequitur Principale," consisting of eight pages. In the copies alluded to,
this part of the Appendix has been inserted between pages 42 and 43 of the
Dictionary. The student will find an account of two or three other volumes,
forming part of this work, in the note appended to the Index to the Decisions
of the Court of Session, already mentioned in this note.]
1268 LASHLEY V. HOG ÈCOOP. T. COTT.1/21/2.
(6) [Decisions of the Court of Session, from 1781 to 1787.-Faculty
Collection,
vol. ix. page 18, No. 19; Fol. Diet. vol. iii. page 302, and Morison,
6457, No. 51.]
(7) [Aet concerning Wives' Terces. Acts of Parliament of Scotland, A.D. 1861, cap.
12, Record Commission edit. vol. viii. page 247 ; and the Laws and Acts
of the third
Parliament of Charles II., holden at Edinburgh, 28th July 1681, cap.
10. Vol. ii.
page 542, of the Collection, 3 vols. 12mo. known under the title of the
Scots Acts.]
(8) Bankton,
book i. tit. v.
sect. v. 123. [McDouall (Lord Bankton).-An
Institute of the Laws of Scotland in Civil Rights, with Observations
upon th1/2 Agree
ment, or Diversity, between them and the Laws of England, in Four Books,
after the
General Method of the Viscount of Stair's Institutions-3 vols. folio,
Edinburgh,
1751-3.1
(9) voet. [Johannes,
Commentarius] ad Pand. [in quo prater
Romani Juris
Principia ac Coritroversias illustriores, jus etiam hodiernum et
pnecipuse Fori Qu;es-
tiones exeutiuntur] lib. xxiii. tit. ii. [De Ritu Nuptiarum], sect. 87.
(10) Page 460, Act 1681, c. 10. [Observations on the Acts
of Parliament
made by King James
the First, King James
the Second, King James
the
Third, King James the
Fourth, King James the
Fifth, Queen Mary, King
James the Sixth, King Charles the First, and King Charles the
Second.-Works of
that eminent and learned lawyer, Sir George Mackenzie, of Rosehaugh,
Advocate to
King Charles II. and King James VII., with many learned treatises of his
never
before printed.
Edinburgh, 2 vols. folio, 1716 and 1722.-The observations upon the
Act concerning Wives' Terces are at vol. i. page 438 of
the Law Treatises and
Pleadings.]
(11) Lashley v. Hog.
[A question was put upon a point, which some foreign jurists
would consider not collateral.] lord eldon-Is it not a question whether
the
pursuer, in right of the wife her mother, is entitled to any part of the
goods in
communion acquired before the change of the domicile 1 Lashley v. Hog, in the
House of Lords, May 1802.
[This question was put during the argument. The shorthand writer's notes
of Lord Eldon's speech, upon moving judgment, have no trace of the point to
which it relates. There is no allusion to the point in either of the printed
cases. Should it have been thought that the wife's claim embraced only the
goods in communion acquired since the alteration of domicile, an inquiry to
distinguish such goods would be an operation not more difficult than some
operations almost daily performed in the offices of the Masters in Chancery.]
(12) [Mr. Robertson states that the cause came on to be heard in the
House of
Lords on the llth May 1802, and that it was argued by the then
Attorney-General
(Mr. Perceval) and Mr. Clerk (afterwards Lords Eldon) for the
Appellants, and by
Mr. Romilly and Mr. Erskine (afterwards Sir Samuel Romilly and Lord
Erskine) for
the Respondent.
The hearing lasted for five days in that session, and two days in the
following session, and concluded on the 9th of August 1803. After the pleadings had
been finished, the judgment was adjourned till the next session of
Parliament 1804 ;
nothing was done till towards the close of that session. At length, after a speech
of
two days by Lord Eldon, Lord Chancellor, judgment was given on the 16th
day of
July 1804.]
[Mr. Robertson mentions that Sir William Grant, when consulted (as
counsel), at one time gave his opinion, that in so far as not regulated by the
marriage articles, the law of England, where the parties were domiciled at the
time (of the marriage), ought to regulate the rights of husband and wife during
the marriage, and at the dissolution thereof. It may be noticed, that Sir
William Grant signed the case of the Appellant, in Hog v. Hog, printed
postJ\'0A[The notes to Lord Eldon's speech, inclosed between brackets, are by
the author of the present publication.]
(13) This was the right which was the subject of the appeal, and not the
jus
relidce. See
the note, ante, page 460.]
[In the preceding part of his speech, in which the facts and the
questions arising thereon are stated, Lord Eldon said, that if Mrs. Hog was the
wife of a domiciled Scotchman, she was entitled, predeceasing her husband, to
what they call jus relicht: ; that the husband could not deprive her of it, but
that she had that claim, and transmitted it to her next of kin.]
JCOOP.T.COTT.4OT. HOG
V. HOG 1269
[Mr. Kobertson has appended to this passage a, note.-That this, which in
the course of the appeal was often called the jus relictce, more strictly was
in this case Mrs. Hog's share of the goods in communion at the dissolution of
the marriage by her deathj
(14) [The names of the
text-writers to whom reference was made during the
argument do not appear. The author's abstract shews the names of all the
text-
writers cited in the printed caaes.]
(15) [The principal questions (there were some minor questions)
considered by the
remainder of Lord Eldon'a speech were two: one of fact, whether Eoger
Hog was
domiciled in Scotland at the time of his wife's death (this point was
raised by a cross-
appeal ; of course if Eoger Hog was domiciled in England, Mrs. Lashley
would have
had no claim); the
order, an important question of law, the nature of which is
sufficiently shewn by the pladtum prefixed to the report of the decision
in the
Faculty Collection (vol. xii. p. 394, No. 173, May 14, 1800), upon the
subject of this
part of the appeal-the legitim may be disappointed by the gratuitous
deeds of the
father inter vinos-The decision was reversed. The class of cases upon which it will
be found, on reference to Lord Eldon's speech, that the reversal
proceeded, will
readily occur to the practitioner's mind. See a subsequent page of the present
work.]
(16) [Morison, 4628, No. 119, has reprinted the case verbatim, except
that he has
" Robert instead
of "Eoger."-See the note, ante, page 449. To the reasons there
mentioned for here inserting this Digest, may be added the extreme
rarity both of
the Faculty Collection, and
of Morison's Dictionary, amongst members of the
English Bar.]
[In Eobert Bell's folio volume, pages 183-185, and 215 (cases decided in
the Court of Session, 1794-5, collected by appointment of the Society of Clerks
to the Signet. Edinburgh, 1796), the opinions of the Judges on pronouncing the
interlocutors of the 25th November 1794, and 2d and 16th June 1795, are
printed.]
(17) [Liege poustie, "is that state of health which gives a person
full power to
dispose mortis causA or otherwise, of his heritable property. The term, according to
institutional writers, is derived from the words legitima pole.itas,
signifying the lawful
power of disposing of property at pleasure. It is used in contradistinction to death
bed ; a liege poustu conveyance being a conveyance not challengeable on
the head of
death-bed. The
tests of liege poustie opposed to the presumption of death-bed, are,
survivance during sixty days,
and going to kirk
or market unsupported."-
Bell's Diet.]