WIFE'S ESTATE SEPARATE BY LAW OF DOMICIL. 369

which the husband possesses over the wife, and of the extent to which she has placed her property under his control, it is conceived that the law of the actual domicil must in all cases govern, subject to such limitations as those suggested as applicable to the rights of foreign minors. Thus, where by the law of the domicil of the spouses there is a communio bonorum, any right which may exist in the wife of alienation or contract must depend on the law of the domicil.1

But it is no part of the public law of Scotland that a wife is merely by the fact of marriage incapable of dealing with property which is entirely her own, and in which during the marriage her husband has no legal interest. On the contrary, our law fully recognises the right of a woman before marriage to reserve to herself the full power of disposal of her estate, and to exclude the husband's rights, and the freedom of third parties to give or bequeath to her estate from which the husband's jus mariti and right of administration are excluded.

And it is settled that she may deal with such estate precisely as if she were an unmarried woman. The question, therefore, with regard to a married woman's contracts or alienations, depends in many cases not on capacity but on patrimonial right. If the estate is absolutely her own, the fact of marriage will not render her incapable of dealing with it. Now, if the estate of a foreign wife is in this position either by contract, or by the law, common or statutory, of her domicil, why should her right to deal with it be impaired by her residence in Scotland?

Where Wife has separate Estate by the Law of her Domicil. A married woman in Scotland, whose estate is held by her in virtue of the Married Women's Property Act, has no power to dispose of the capital without her husband's consent. But a married woman in England, whose estate is vested in her under the English Act, may dispose of it in the same manner as if she were a feme sole.3 Is her power to do so diminished by the fact that at the date of the contract or alienation she is resident in Scotland ? It seems clear that

1 See Gillespie's Bar, p. 417.

2 Biggart v. City of Glasgow Bank,

1879, 6 R. 470.

3 45 & 46 Vict. c. 75, § 1.

her rights in this respect suffer no diminution by her temporary residence in Scotland.

Where a Foreign Wife with separate Estate acquires a Scottish Domicil. If the views elsewhere expressed are correct with regard to the effect of change of domicil upon the patrimonial rights of the spouses, it will follow that if by the law of her former domicil the wife had the power of dealing with her separate estate without her husband's consent, she will continue to have the same power. Her status has no doubt changed, and every question which truly relates to her personal status must now be answered by the law of Scotland. But the possession of estate of which she has the full power of disposal is not inconsistent with the status of a Scottish wife, and to diminish her rights of dealing with what was separate estate before her Scottish domicil was acquired, would be arbitrarily to deprive her of a right not of status but of property.1

2

This view is supported by the English case of Duncan v. Cannan, although the point there was to a wife's power over estate conveyed by a marriage-contract. By the law of Scotland the wife had power to give a valid discharge for a sum of money comprised in the contract. It was held that the removal of her domicil to England did not superinduce a disability in her to give a receipt to trustees for the amount. The contention was that her capacity now depended on English law, by which, under a deed so expressed, she could not have given a valid receipt, the property not being expressed to be for her "separate use." Sir J. Romilly, M.R., held that the effect of the deed and the wife's powers under it must be governed by Scots law, and observed "to create a disability in one of two parties to a foreign contract, not existing according to the law which governs the contract, solely by reason of the change of domicil of the contracting parties to a country where such a disability exists, appears to me to be contrary to the principles governing such cases. In affirming the judgment, Knight Bruce, L.J., said: "If we introduce it (the contract),

1 Cf. Dicey, p. 195; but see Burge, i., p. 633.

2 1854, 18 Beavan, 128, aff. 1855,

7 De G., M. and G. 78.

3 18 Beav., at p. 141.

TRANSFER OF CORPOREAL MOVEABLE GOOD WHERE MADE.

371

we must introduce it as a Scotch contract, with all the incidents of a Scotch contract, so far at least as not prohibited by the English law; and it is not, I repeat, prohibited by the English law that a married woman should have conferred on her the power and capacity just referred to."1 The matter is no doubt clearer when the rights of parties stand upon contract, and the argument is hardly tenable that in changing their domicil they intended to innovate upon these rights. But it is conceived that the view that the question is, in the case of a wife, frequently one not of capacity but of patrimonial right, and that this will not be affected by change of domicil, is aided by cases turning on contract.2

3

Validity in point of form of transfer of moveables.—It must be borne in mind that a bona fide purchaser for value, who is in possession of a corporeal moveable, can generally defend his right to it by showing that it was effectually transferred to him on a title good by the lex rei sitae. The maxim mobilia sequuntur personam, as applicable to transfers of particular moveables by contract, has suffered many rude shocks in recent cases, and the learned editor of Story even suggests that the exceptions would probably be less frequent if the maxim were lex situs mobilia regit. The rule expressed in an English case, "if personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere," was approved of as a sound general rule though open to exceptions in Castrique v. Imrie,3 and a similar doctrine underlies the judgment in the Scottish case of Connal v. Loder. And in a recent case the purchaser of a stolen horse successfully defended his title against the person from whom it had been stolen, by proving that he bought it in Ireland in open market, although sale in market overt in Scotland would not have purged the vitium reale.7

17 De G., M. and G., at p. 91. 2 See Guépratte v. Young, 1851, 4 De G. and S. 217; Peillon v. Brooking, 1858, 25 Beavan, 218; and see next section.

3 8th Ed., p. 543.

4 Cammell v. Sewell, 1860, 5 H. and N. 728.

51870, L.R. 4 E. and I. App., at p. 429; Lee v. Abdy, 1886, 17 Q.B. D. 309.

6 1868, 6 M. 1095, see per Moncreiff, L.J.-C., at p. 1110. And see Westlake, 3rd Ed., p. 179 seq.

7 Todd v. Armour, 1882, 9 R. 901.

CHAPTER XL.

THE FORM BY WHICH THE MARRIAGE IS CONSTITUTED.

Lex loci actus must be complied with as regards the forms of marriage. The Scottish Courts will not regard as valid a marriage which in point of form did not fulfil the requirements of the law of the place in which it was contracted. In other words, the lex loci contractus is the law which dictates the forms which are to be treated as conclusive evidence of matrimonial consent. No form of marriage is prescribed by the law of Scotland itself, and a marriage may be contracted in this country without the intervention of a minister or of a registrar. But an irregular marriage entered into abroad will not be valid,—although the evidence of consent would have been sufficient if it had taken place in Scotland,—if the lex loci actus be not satisfied. This doctrine has not been the subject of decision, and is not supported by much authority in Scotland.1 But the rule is so settled in England and America, and it is submitted that it is in accordance with principle. Two exceptions are admitted:-1. where compliance with the lex loci was impossible; 2. where the marriage was celebrated in terms of some British statute dealing with marriages of subjects of the Queen contracted abroad. These will be considered later. Lord Fraser says a marriage invalid in the country where it is celebrated will be so in every other country.2 Mr. Gillespie, in his valuable edition of Bar, maintains that this would not be so held in Scotland, although he does not dispute that the law is fixed in this sense both in England and America. "The marriage-contract being in Scotland so purely a matter of consent, and so entirely

1 See Fr. ii. 1297; Warrender v. W., 1835, 2 S. and M'L., at p. 198,

per L. Brougham.

2 ii. 1309.

IRREGULAR MARRIAGE ABROAD.

373

independent of form, it would seem, with all deference to Lord Fraser's authority, to savour of absurdity to hold that Scots persons must, if they desire to enter into their contract abroad, go through the forms prescribed by the law of the foreign country. Is it to be said that, while the interchange of consent openly before witnesses in Edinburgh will constitute a marriage, the same consent cannot be interchanged before the same witnesses in Paris, and that the Scots Court will refuse to uphold the same contract proved in the same way? Lord Fraser cites no authority in support of his dictum, and principle seems to be against it." The theory advanced here is supported by writers on private international law of great eminence. Bar says the rule "locus regit actum" is, as applied to marriage, merely permissive-i.c., a marriage in accordance with the local forms will always be good, but the parties, if they prefer it, may legally avail themselves also of the forms of their own country, provided that be possible in fact. This was held by the Supreme Court of Saxony. A marriage celebrated in Belgium between two Saxon subjects. was sustained, although the law of Belgium, which required celebration before a civil official, had not been complied with.3 Savigny expresses the same view, and thinks that in performing any juridical act, the person doing it has the choice between the form in use at the place of the act and the form of "the place to which the juridical act properly belongs,"—a curious phrase, apparently equivalent here to the locus solutionis. He says, "If inhabitants of a country where the ecclesiastical ceremony is required enter into a marriage in a country that prescribes a juridical form, and not a religious ceremony, and if they there get themselves married in the religious form, without observing the juridical form of the country, the marriage is valid, because they have used the form of their own country, the natural and permanent seat of the marriage." 4 But this is to place the contract of marriage in a different position from every other contract. It is a wellknown rule of private international law that the formalities required for a contract by the law of the place where it was

Gillespie's Bar, 2nd Ed., p. 371. 2 Ibid., p. 359.

3 Ibid., p. 359, note.

4 Guthrie's Savigny, 2nd Ed., p.

325.