settlement declared invalid, and the property handed over to him as entitled thereto by the Law of France. The bill was dismissed.

CCCCLXXVI. The foregoing cases belong to the category of marriages accompanied by an express contract as to property. There can be no reasonable doubt that the same principle is applicable to property accruing to married persons which has not been the subject of express contract-the principle, namely, that the Law of the Matrimonial domicil will govern the rights of the husband and wife, as to their property (ii).

CCCCLXXVII. That such is the English Law seems. to have been assumed by the analogy adopted in the following case, which related immediately to the ex-territorial effect of a foreign sentence in a matter of commission of bankruptcy (k). In this case, Lord Meadowbank observed, "I remember the judgment in Struther's case being pro"nounced. I can tell your Lordships that it was a most "important case, though I thought it went a step beyond "the rules of International Law. For it was formerly a "principle that a judicial transfer only operated intra “territorium, and had no binding influence beyond it. So "much had this been the known understanding of the Law "of Scotland, that I remember struggling with difficulty "at the bar, in a case where the English assignees had "obtained a decree against their debtor, to enable them to prevail over a subsequent arrestment. The question was, "whether the commission was a proper mode of transfer"ring the dominion in Scotland. I succeeded in the case. "The Court held that there was a title to pursue, but that "it required the interposition of the Scotch magistrate to "give it effect; that, in short, I had a good title, if I chose

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[(ii) See Collis v. Hector, L. R. 19 Equity, p. 334; De Greuchy v. Wills, L. R. 4 C. P. D. p. 362.]

(k) The Royal Bank of Scotland v. Cuthbert, Rose's (Bankruptcy) Rep. vol. i. p. 481, Appendix (A.D. 1813).

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"to render it effectual. I remember, I thought that it was a difficult thing to deviate so far from principle as "to transfer property in Scotland without regard to our 66 own forms and rules, and without an intimation of the "assignment or anything done to attach the property "according to our own Law. But, what I yielded to, was "the consideration that it had been recognized as Law by judgments of the Chancellor for so long a period that it "might be considered as a principle of the Law of Nations. "Equiparating this case to the ordinary case of transference "by contract of Marriage, when a lady of fortune, having a "great deal of money in Scotland, or stock in the banks, or public companies there, marries in London, the whole property is, ipso jure, her husband's. It is assigned to him. "The legal assignment of a marriage operates without regard "to territory, all the world over. Feeling this, and seeing "the predominant, the irresistible necessity, in point of ex"pediency, of adopting the rule that Lord Hardwicke "adopted in one of the cases mentioned in the papers, I, "for one, am bent to the necessity of giving effect to the principle, where a departure from it would be attended "with such inextricable confusion."

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CCCCLXXVIII. The same principle seems to have been the foundation of the recent case of M'Cormick v. Garnett (1), in which it was decided that where a husband and wife are domiciled in Scotland, in which country a wife has no equity to a settlement, the English Court will order payment of the wife's legacy to an assignee of the husband.

CCCCLXXIX. There does not appear to have been any English decision upon the point, whether in the absence of an express contract (m), and in the event of a change of domicil, the Law of the actual domicil, or of the matrimonial domicil, should govern the property of married per

(1) 5 De Gex, M. & G. p. 278 (1854).

(m) In the case of Watts v. Shrimpton, mentioned above, there had been an express contract, vide suprà, § cccclxxiv.

sons, nor whether a distinction is to be made between property accruing before and after the change of domicil.

It seems to the writer of these pages, that, as to property accruing before the marriage, it must obviously be considered that the wife's rights have vested, and cannot be affected by any subsequent conduct or acts of the husband; and that the same principles will, on examination, be found applicable to property accruing after the marriage: in other words, that the reasoning of Savigny, and of the jurists who agree with him, is both superior to that of Story, and more in harmony with the English decisions which have been just mentioned (n).

[(n) In support of this opinion, see Westlake, s. 32 (p. 64 of edition 1880) and cases there cited.]

CHAPTER XX.

MISCELLANEOUS INCIDENTS TO MARRIAGE.

CCCCLXXX. In the last chapter, the effect of Marriage upon the property of married persons was considered: in this it is proposed to notice some miscellaneous incidents to the contract.

CCCCLXXXI. (1) Does a Change of Domicil affect the Status of the married parties?

"Whatever contrariety of opinion," Mr. Burge (a) observes, "may exist, respecting the effect of a change of "domicil on rights of property acquired under the Law of "the matrimonial domicil, there is a general concurrence "amongst jurists (b) in holding that, although the Law "which confers those rights, powers, and capacities, is "strictly a Personal Law, yet its influence exists so long "as the parties remain subject to it by retaining their "matrimonial domicil. When they quit that domicil, "and establish another, their Status is governed by the "Law of the latter, and their capacities and powers are "those which that Law confers."

CCCCLXXXII. President Bouhier (c) maintains an opposite opinion, on the ground that the Status of the wife ought not to depend on the caprice of the husband.

(a) Comm. vol. i. p. 253.

(b) Rodenburg, De Jure, tit. ii. pars alt. c. i. p. 105.

J. Voet, De Judiciis, lib. v. t. i. n. 101.

Boullenois, Traité &c., tome i. tit. i. c. ii. Obs. iv. p. 61.

Such

Pothier, Euvres, tome x. p. 3. (Introd. Gén. chap. i. ss. 10, 13.) (c) Les Coutumes du Duché de Bourgogne, avec les observations du Président Rouhier, c. xxiii. n. 3, cited in Burge.

Comm. vol. i. p. 257.

a doctrine, he contends, flies in the face of the rule of Law which does not allow a right once duly acquired to be taken away without the consent of the person possessed of it. It cannot be said that a wife submits herself even tacitly to the Law of the new domicil; she only obeys.

Merlin, in his first edition, adopted this opinion; and in his second (not a solitary instance), rejected it, and admitted that the Status must be governed by the Law of the actual domicil (d).

CCCCLXXXIII. An important case, upon the principle now under discussion, was decided in the Court of Session in Scotland, in 1846 (e). In this case it was sought to compel an English mother to aliment a child born in Scotland. The following remarks were made by the Judges as to the effect of domicil upon Status, and the recognition of that effect by the country in which a person, domiciled elsewhere, happened to be. The Lord President said: "I have great difficulty, moreover, in holding that her liability is to be determined by the Law "of Scotland; and I am rather inclined to the opinion that "she has the Status of an Englishwoman, and that it is the "Law of the country of her domicil that must determine her "obligations now."

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Lord Mackenzie, in the same case, said:"But the "inclination of my opinion is to hold that she is not "subject to the Law of this country. The child was "certainly born in Scotland; but the mother long since " removed to England and acquired an English Status. "If an English couple were to come here and acquire a "Scotch domicil, they would not import the English law "of Status with them, with the view of excepting them "from the obligation to aliment children, imposed upon parents by the Law of Scotland. In the case of Maid

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(d) Merlin, Rép. Autorisation Maritale X. § iv. (p. 243, ed. 1825). Burge, ubi sup.

(e) Macdonald v. Macdonald, 8 Court of Session Cases, p. 830.