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.

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 banruptcy (k). In this case, Lord Meadowbank observed, "I remember the judgment in "Struther's case being pronounced. I can tell your Lord

ships 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 transferring 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 magis"trate to give it effect; that, in short, I had a good title, if I chose 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 own "forms and rules, and without an intimation of the assign

(k) The Royal Bank of Scotland and others (Creditors) v. Cuthbert and others (Assignees, &e).—Rose's (Bankruptcy) Rep. vol. i. p. 481. Appendix (A.D. 1813).

“ment or anything done to attach the property according to our own Law. But, what I yielded to, was the considera"tion that it had been recognized as Law by judgments of "the Chancellor for so long a period that it might be con“sidered 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 expediency, 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, (l) 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 persons, nor whether a distinction is to be made between property accruing before and after the change of Domicil.

(1) 5 De Gex, M. &. G. p 278 (before the Lords Justices, 1854). (m) In the case of Watts v. Shrimpton, mentioned above, there had been an express contract, vide supra, p. 311.

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 acccruing 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.

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 doctrine, he contends, flies in the face of the rule of Law which does

(a) I. 253.

(b) Rodenburgh, de jure, tit. 2 ch. 1. p. 105.

J. Voet de judicüs, 1. 5, t. i. n. 101.

Boullenois, t. 1 tit. i. c. 2. Obs. iv. p. 61.

Pothier, Intr. c. 10 tit. i. n. 13, p. 2.

(c) Les coutumes du Duche de Bourgogne avec les observations du President Bouhier, c. xxviii, 3.

Burge, I. 257.

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. 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 incli"nation 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 Maidment, where an English "mother was sought to be made liable to a child in aliment,

(d) Merlin, t. i. s. 10, pp. 532-3.

Burge, I. 257.

(e) Macdonald v. Macdonald; Bell & Murray, Cases &c. in the Court of Session, vol. viii. (2nd series), p. 331.