66 66 "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 ex66 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." 66 66 66 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. Such (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. 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 Bouhier, 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." Lord Mackenzie, in the same case, said:-"But the "inclination of my opinion is to hold that she is not 66 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 () Merlin, Rép. Autorisation Maritale X. § iv. (p. 243, ed. 1825). Burge, ubi sup. (e) Macdonald v. Macdonald, 8 Court of Session Cases, p. 830. 66 "ment, where an English mother was sought to be made "liable to a child in aliment, according to the Law of Scotland, the point was not argued. On the whole, I "think we ought to know what is the English Law as "to the liability of children and parents in regard to "aliment." 66 Lord Fullerton said:" It has been, indeed, contended "that the claim originated at the child's birth, when the "mother was subject to the Scotch Law, and that it remained “in abeyance till the circumstances of the child sanctioned a "claim for aliment. But the obligation to aliment is not a "contingent debt of this sort. There was no debt contracted "at birth. The foundation of the claim is, that, after the birth, circumstances arose which warrant a demand for "aliment; but the obligation only comes into existence at "the time when the necessity or poverty of the child re"quires the relief. Therefore, it is the Law of England, "the Law of her domicil now, which must declare the extent "and measure of her liability; and if the case is to be "further proceeded with, we must take the opinion of English lawyers as to the Law of England" (ƒ). 66 Lord Jeffrey said :-" The whole duties and liabilities of Personal Status are undeniably changed according to the Law "of every new domicil. With regard to the subsisting "and current obligations arising from Status, the Law of "the country where the duties are to be fulfilled must be "clearly the Law to measure their extent; and, there"fore, if, by the Law of England, this claim cannot be "sustained, we must refuse to give it force" (g). It is important to observe that this judgment was mainly founded on the position that the obligation-on the part of the mother-to aliment, was not an obligation contracted at the time of the birth of the child, but arose (f) Macdonald v. Macdonald, 8 Court of Session Cases, p. 836. (g) Ibid. p. 837. |