the contract of sale might be the most philosophically correct. Law, however, is a practical science; its object is to deal with each special case in as equitable a manner as the necessary adherence to general principles will permit. Keeping this in view, would it not be expedient to refrain from establishing any inflexible rule, but, guided by circumstances, to hold the contract to be complete where the amount of the subject sold, and consequently the cumulo price, is ascertainable, and to be void only where that is impossible? M. Duvergiér, a modern French jurist, rests the principle on its true ground when he says, that the risk of a specific mass of fungibles of unascertained amount, sold at a rate of price per weight, measure, or number, is with the seller if the goods be destroyed, "parce que la pesée, le mesurage ou le compte, n'etant plus possible, la quotité de choses vendues reste incertaine; par conséquent, il n'y a aucun moyen de déterminer le prix, et la vente est par cela même priveé d'existence."-(Droit Civil, i. 87.)

The rational criterion for determining the passing of the risk is the possibility of ascertaining the amount of the corpus destroyed, and thus fixing the price. No essential element of the contract of sale is awanting where a specific mass of fungibles is sold at a fixed rate per weight or measure, and means exist for ascertaining the quantity. Although the quantity be not expressly stated in the contract, it is, nevertheless, an existing fact, which, even although the subject be destroyed before its being ascertained by the purchaser, may be otherwise expiscated. Practically, little difficulty would be experienced in ordinary commercial transactions, where the goods have passed through several hands, in ascertaining their amount even after their destruction.

Although the undoubted principle of law is, that there is no sale without a price, still it is evident on consideration that it cannot be laid down as an inflexible rule, that the exact ascertainment of the price, previous to the destruction of the subject, is in all cases necessary to the completion of the contract and the transference of the risk.

An exception to this rule occurs where, in a sale of a specific subject at a rate per measure, delivery has taken place, and the subject has accidentally perished in the hands of the purchaser before the cumulo amount has been ascertained. The property would, in such a case, be at the risk of the purchaser, and the seller would have his claim for the price. The amount of the subject, and consequently the cumulo price due, would fall to be ascertained by the ordinary legal methods of proof.

Where also the rate of price has been referred to a standard, its non-ascertainment prior to the loss of the subject does not necessarily void the contract. An example offers in the sale of a specific heap of grain of known quantity at fiar's prices, where the destruction of the grain before the fiars have been struck, would not affect the completion of the contract, or the transference of the risk.

Several passages in the "Digest" support the opinion of the Lord Justice-Clerk, that the sale of a certain and known mass of fungibles by general description, but of unascertained amount, at a rate of price according to measure, weight, or number, is not such a complete personal contract as will operate a transfer of the risk to the buyer, until the mass have been measured, weighed, or counted, and the cumulo price so ascertained.

This doctrine is stated in the Pandects, as resting upon the opinion of Sabinus; it is, therefore, not improbable that Proculus and the rival sect of jurists bearing his name held a contrary view.

The question is one which has divided the later Roman jurists; the preponderance of authority, however, being in favour of the doctrine stated in the Pandects. In the law of Scotland, the point has previously received no express decision either from the Court or the institutional writers. Mr Bell's views upon it seem to have fluctuated to some extent. In his Commentaries he says: "While the sale is still incomplete, as where the quantity has not been separated from a common mass; or where the price is referred to weight or measurement, and the quantity has not been ascertained; or where the bargain is in reference to some test or criterion not yet applied, the risk is with the seller; and if the goods have perished, he will have no claim for the price." In his later work on the Contract of Sale, the following passages occur:-(p. 13), "The effect of the obligation by the seller to deliver the specific thing sold, is, according to the law of personal obligations in Scotland, to throw the risk of the thing perishing, without the seller's fault, on the buyer." And again (p. 19), "The price may be either a sum for the whole subject sold, or rateably at so much per ton, or pipe, or hogshead, or quarter of grain; and then the only question that can be raised will relate either to the denomination of wrong specified, or to the rate of exchange between one country and another, or to the measurement of the goods to which the stipulated rate of payment is applicable; but the degree of uncertainty depending on these circumstances does not unfix the price, or enable the party to withdraw from the con

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(Dig. xviii. 1, xxxv. 5, 6.)—“ Quod si vinum ita venierit, ut in singulas amphoras: item oleum, ut in singulas metretas: item frumentum, ut in singulos modios, item argentum, ut in singulas libras, certum pretium diceretur, quæritur, quando videatur emptio perfici? Quod similiter scilicet quæritur et de his, quæ numero constant, si pro numero corporum pretium fuerit statutum. Sabinus et Cassius tunc perfici emptionem existimant, quum annumerata, admensa appensa-ve sint, quia venditio quasi sub hac conditione videtur fieri, ut in singulas metretas, aut in singulos modios quos quasve admensus eris, aut in singulas libras quas appenderis, aut in singula corpora quæ annumeraveris. Ergo et si grex venierit, si quidem universaliter uno pretio, perfecta videtur, postquam de pretio convenerit; si vero in singula corpora certo pretio, eadem erunt quæ proxime tractavimus," i.e., tunc perfici emptionem cum annumerata sint. And (xviii. 6, viii.), " Necessario sciendum est, quando perfecta sit emptio ; tunc enim sciemus, cujus periculum sit; nam perfecta emptione periculum ad emptorem respiciet. Et si id, quod venierit, appareat quid, quale, quantum sit, et pretium, et pure venit, perfecta est emptio."

tract." The subject being specific, if the price is not unfixed by the uncertainty attaching to the amount, the contract is complete, and none of its essential elements are awanting.

In discussing the question as a point of principle, it is advisable to keep wholly out of view the English authorities; the unbending rule of the law of England being that risk follows property, resperit domino.

Practically, however, the fiction of English law, that by simple consent, without delivery, the property is transferred to the buyer, is productive of exactly the same effect in a question of risk in sale, as the jus ad rem specificam conferred by the personal contract in Scotland.

THE LAW OF DOMICILE.

LORD v. COLVIN.

THIS famous litigation which has been in the Court of Chancery for many years, relates to the succession of the late Dr Cochrane of Clippens, in Renfrewshire. There are in all seven suits, the above title designating a suit between the third husband of the widow of the eldest son of Dr Peter Cochrane, the testator in the cause, and the representative of his will. The other suits are Moorhouse v. Colvin, by a lady claiming as legitimate only child of Dr Cochrane under an alleged Indian marriage; the original suit of Cochrane v. Cochrane, for the administration of the testator's estate; Colvin v. Lord, in which the parties to the present suit stand reversed; Barton v. Colvin, by the second husband of the lady who was afterwards wife of the plaintiff; and Gruggen v. Cochrane and Gruggen v. Barton, by the creditors of Peter Cochrane, the eldest son of the testator. One of the principal questions for decision was as to the domicle of the testator Dr Cochrane at the time of his death. the subject-matter of the litigation is Scotch, and the judgment of the Vice-Chancellor Kinderley a most luminous exposition of the law of domicile, it is here reprinted from the report in the Law Times, vol. xxxii., p. 377.

As

The following authorities were referred to:- -Whitelock v. Baker, 13 Ves. 511; Story's Conflict of Laws, ss. 43-44; Whicker v. Hume, 31 L. T. Rep.

319.

The VICE-CHANCELLOR.-In the spring of the year 1819 Dr Cochrane, with his family, arrived in England on his return from India, having amassed a large fortune in that country. His family consisted of himself, his wife, and two sons; Peter the eldest, born the 18th December 1811, and John the youngest, born the 12th September 1813. His domicile of origin was Scotch. He was the proprietor of a small estate in Renfrewshire, in Scotland, called Clippens, consisting of about 60 Scotch acres, namely, 20 of ploughable land, and 40 of wood and unclaimed moss, with an old house of small size. This estate had been the property of his ancestors for about 200 years, and was his own birthplace. He had bought it about the year 1789, when in India, from the trustees for his father's creditors, and had, before his return from India, caused a new house to

be built upon it, larger than the old one, but still of moderate dimensions. The old house was left standing. At the time of his return from India, Clippens was occupied by his sister Mrs M'Farlane, then a widow, who died in 1820. In the course of the year 1819 Dr Cochrane visited Clippens, and passed that summer in a tour in the north of Scotland, and the winter in Edinburgh. In June 1820 he took up his abode at Clippens, where he continued to reside till May 1825, with occasional absences at Edinburgh. From very nearly the commencement of this period till the end of it the boys Peter and John had a tutor residing in the family, the Rev. John Birkmyr, afterwards doctor of divinity and minister of the Dean Church of Edinburgh. In each of the five years of the period above mentioned the family made a visit to Edinburgh, and on one or two of those occasions remained there some months. But those occasional absences did not prevent Clippens from being their home; and there can be no doubt that from the time Dr Cochrane arrived in Scotland from India up to May 1825 the domicile of Dr Cochrane was Scotch, which was his domicle of origin, and which, assuming it to have been previously changed to an AngloIndian domicile, by reason of his long residence in India in the Company's service, reverted upon his taking up his abode at Clippens in June 1820. In May 1825 Dr Cochrane with his family left Clippens and proceeded to the continent. From that time neither he nor any of his family ever during the remainder of his life returned to reside at Clippens, nor even to sleep there for a single night, nor did they during that period ever return to Scotland except for a short visit in the year 1829. The question is, whether in or subsequently to the month of May 1825 Dr Cochrane abandoned his Scotch domicile, and acquired a domicile in France, in which country he resided for the five years preceding his death. He left Clippens on the 18th May 1825, on his way to Switzerland, and arrived at Berne in Switzerland on the 30th September following, having in the interval stayed about three months in London and about three weeks in Paris. His object in going to Berne was to place his two boys at the school of the celebrated M. Fellenberg, at Hofwyl, in the vicinity of Berne. Accordingly, immediately after their arrival at Berne, the boys were placed at M. Fellenberg's, the doctor and Mrs Cochrane remaining at Berne except perhaps for some short excursions. Scarcely six months, however, had elapsed ere Dr Cochrane, having found, as he says in a letter to Crow of the 4th July 1826, very substantial reasons for disapproving both of the personal conduct and the system of education of M. Fellengberg, resolved to remove the boys altogether from his institution, which he accordingly did on the 2d April 1826; and on the 6th May following Dr Cochrane, with his family, quitted Berne for Paris, where they arrived on the 17th May 1826; and from that day till the day of Dr Cochrane's death, which happened on the 18th June 1831, a period rather exceeding five years, they continued to reside at Paris, with only such occasional absences as I shall mention. In each of the five years of the residence at Paris, Dr Cochrane and his family made an excursion to some bathing place on the French coast, Dieppe or Boulogne, returning on each occasion to their abode at Paris. Early in July 1829 Dr Cochrane and his wife and two sons left Paris for Scotland by way of Boulogne. They arrived in London on the 21st July. They remained there a month. On the 21st August they left London for Glasgow. At that time it must have taken them some days, probably a week at least, to get to Glasgow, as they travelled by posting, so that I think they could not have arrived at Glasgow till towards the end of August. They stayed at Glasgow at an hotel three or four weeks, in which time Dr Cochrane, and no doubt Mrs Cochrane and the boys, or some of them, went over two or three times a week to Clippens, but none of them stayed a single night there. About the 20th September Dr Cochrane and the family left Glasgow on their way back to Paris; they stayed some weeks at Edinburgh, and arrived at Paris on the 6th November. In April 1830 Mr and Mrs Moorhouse came to Paris on a visit to Doctor and Mrs Cochrane, and stayed with them till near the end of July, a period of about three months, when

they returned to England. On the 2d November 1830 Peter, the eldest son, being then under the age of nineteen, married, clandestinely, Eleanor Fuller, who was lady's maid to his aunt, Mrs Baker. On the 8th June 1831 Dr Cochrane and his wife and two sons left Paris for Boulogne: being in a declining state of health, he was accompanied by a medical gentleman named Young. On the first evening they arrived at Beauvais, and that same night Dr Cochrane died. I have said that on that occasion he was then on his way to Boulogne. Whether he intended to stop there or to cross over to England is a subject of some difference in the evidence; but it appears to me not very important with reference to the question of domicile. There is not the smallest doubt whatever that Dr Cochrane was intending to return to Paris on that occasion. His establishment remained just as it was; except as to what he took with him everything remained, which seemed to show he was going away intending to come back. No doubt there is contradictory evidence on that subject; but that is the conclusion I unhesitatingly arrive at. An impression prevailed with some that he was coming over for the purpose of altering his will to the prejudice of his eldest son Peter, with whom he was of course much displeased, on account of his marriage; and that was certainly Peter's own belief, but I do not think it very important. These are the events, so far as they may be considered material, which occurred between the 18th May 1825, when Dr Cochrane and his family left Clippens, and the 18th June 1831, the day of his death. The question then is, whether Dr Cochrane had lost his Scotch and acquired a French domicile? It is not my intention to enter upon an elaborate discussion of the various definitions which have been given, or attempted to be given, of the term "domicile ;" at the same time it is impossible to avoid some reference to them. I concur in the observation of Lord Cranworth in Whickler v. Hume, that many of them are rather illustrations than definitions. Some of them also appear to me objectional, because they are expressed in language more or less figurative, which ought never to be the case with what professes to be a definition. Some of the Roman definitions are utterly inapplicable to the present condition and habits of mankind. The Roman definition most frequently cited (that is, the definition from the Roman law), is this Cod. Lib. 10, tit, 39, b. 7, "In eodem loco singulos habere domicilium non ambigitur ubi quis larem rerumque ac fortunarum summam constituit, unde rursus non sit discessurus si nihil avocet; unde cum profectus est peregrinari videtur; quod si rediit, peregrinari jam destitit." I confess it has always appeared to me that this sentence is more to be admired for the neatness of its latinity than for its merits as a legal definition. It seems to me to be open to the objection of being (at least in the first branch of the sentence) expressed in figurative language. Moreover, it depends upon the manner in which it is translated, whether it accords with the decisions of our courts; and I know no Latin sentence more difficult to translate. Almost every important word in the sentence presents some difficulty. The word "larem," which even to a Roman was to a certain extent a figurative expression, may perhaps be properly translated "household," meaning by that term the united body, consisting of a man and his wife and children and domestics dwelling together in one abode. "Larem," as I understand it, does not signify the place of abode. The words of the definition are," In eodem loco" in that place, "ubi quis larem constituit ;" that is, a man has his domicile in that place where he has established his "larem ;" and whether the word be "larem" or "lares," it must mean, as I understand it, not the place of residence, but the body which resides there; or perhaps more correctly, the fact of co-residence as members of the same family. That is my understanding of the word "larem;" but I should suggest the meaning of the word "household," to be where a man has established his residence. It is not easy to suggest a translation of the words which follow, rerum ac fortunarum summam," which shall be faithful to the original, and at the same time convey to the mind a precise and definite idea. The word "res" probably here signifies "business;" "fortunæ," no doubt means pos

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