the American report (5 Martin, N.S. 569), is not readily accessible. But it must be borne in mind that, although the reasoning would extend to the rights of the spouses inter se, during the marriage, the judgment itself does not go further than the Scotch cases of Lashley v. Hog, 1804, 4 Paton, 581, and Kennedy v. Bell, 1864, 2 M. 587. The question in Saul's case arose after the dissolution of the marriage, and the decision affirmed the right of the children as their mother's next of kin to claim, as against the husband's creditors, one half of the goods in communion.

It is submitted that in Scotland it would be held that neither acquirenda nor acquisita will fall under the jus mariti, if they would have been the wife's separate property by the law of the original domicil of the spouses. In the case -e.g., of an English wife whose estate is vested in her by the English Act of 1882, it is provided that she shall hold as her separate property "all real and personal property which shall belong to her at the time of the marriage, or shall be acquired by or devolve upon her after marriage."1 It is thought that a man who marries a woman whose estate is subject to this Act, and subsequently acquires a domicil in Scotland, would be regarded as in the same position as if he had by an ante-nuptial marriage-contract renounced his jus mariti and right of administration over her estate as at the marriage, and also over acquirenda.2 In addition to the

equitable reasons against allowing the husband by a change of domicil to acquire greater rights in his wife's property than he had before, the adoption of this rule would obviate the great practical difficulty of fixing on any punctum temporis as that at which the change of domicil had been completed.

Effect of Change of Domicil on the Rights of the Spouses in their Heritable Estate.-Every right to heritage of whatever nature is regulated by the lex rei sitae. It can only be acquired or transmitted according to the rules of the country in which it is situated. Any right, therefore, which is enjoyed

1 45 & 46 Vict. c. 75, § 2. 2 As to renunciation of rights over acquirenda, see M'Dougall v. City of Glasgow Bank, 1879, 6 R. 1089.

3 See supra, Effect of change of

domicil on wife's capacity, p. 368 seq.

4 Ersk. iii. 2, 40; Purvis' Trs. v. P.'s Exors., 1861, 23 D. 812; Fr. ii. 1322.

HERITAGE-MARRIAGE CONTRACT.

415

by a husband in his wife's heritage situated abroad, or by a wife in her husband's, will subsist unaltered by any change of domicil. And whatever be the law of their former domicil, it will not be imported to regulate their rights as to Scottish heritage acquired after they have become domiciled in this country. In the absence of contract their respective rights will be in all respects the same as if their original domicil had been in Scotland.1

Where there is a Marriage Contract.-If the parties have competently declared their intention with regard to their mutual rights of property, either stante matrimonio or at the dissolution of the marriage, the contract will be effectual after a change of domicil. This must, of course, be taken with the limitation that no right will be given effect to which conflicts with the public law of the country in which it is sought to be enforced,2 There is no rule of construction peculiar to marriage contracts. Like other deeds, their interpretation will be referred to that law which the parties appear to have had in view at the time. In general, this will naturally be the place in which they contemplated the performance of the contract.3 But it may appear, from the phraseology of the deed, the nature of the provisions as to trust-machinery, or other circumstances, that the parties meant it to be construed by the lex loci contractus, although this does not coincide with the law of the intended domicil. In such a case, their intention will receive effect. And where this seems to have been the intention of parties, one set of provisions may be construed by the one law and another set by the other. It has been held in England that, where a marriage settlement was made between a domiciled Turk and an Englishwoman, on the faith of his promise to reside in England, that the effect and operation of the contract must be governed by English

4

1 Westlake, 3rd Ed., p. 192; and see per L. Wensleydale in Fenton v. Livingstone, 3 Macq., at p. 549, and per L. Brougham, ibid., at p. 532.

2 See per Lord Eldon in Lashley v. Hog, 1804, 4 Pat., at p. 617; Stair v. Head, 1844, 6 D. 904.

3 Stair v. Head, supra; Durrant

Steuart's Trs. v. Durrant Steuart, 1891, 18 R. 1114; see Duncan v. Cannan, 1854, 18 Beav. 128, aff. 1855, 7 De G., M. and G. 78.

4 Corbet v. Waddell, 1879, 7 R. 200.

5 Chamberlain v. Napier, 1880, 15 Ch. D. 614.

law, and that the settlement could not be annulled by a Turkish decree of divorce pronounced without due notice to the persons interested under the settlement.1

What Law decides whether Estate is Heritable or Moveable ?-The character of estate situated in a foreign country-i.e., the question whether it is heritable or moveable, is referred to the law of the foreign country. Story admirably expresses the doctrine thus: "For every nation having authority to prescribe rules for the disposition and arrangement of all the property within its own territory, may impress upon it any character which it shall choose, and no other nation can impugn or vary that character. So that the question in all these cases is not so much what are or ought to be deemed ex sua natura moveables or not, as what are deemed so by the law of the place where they are situated." Thus English mortgages, being personal estate by the law of England, will be moveable in a question between Scottish spouses. The clause in the Titles to Land Consolidation Act, 1868 (31 & 32 Vict. c. 101, § 117), which provides that heritable securities, though rendered moveable quoad succession, shall continue heritable between the spouses, has been held not to apply to foreign securities.4

5

Effect of change of Domicil on Donations inter virum et uxorem-(1.) Where Donations between Spouses are forbidden. In some states the prohibition, derived from the Roman law, of donations between husband and wife, is still in observance. A law of this kind, being based on considerations of public policy, and intended to preserve the purity of the domestic relations, will apply to all spouses domiciled within the territory at the date of the donation, irrespective of their domicil at the marriage. A gift of moveables made 4 Monteith v. M.'s Trustees, 1882, 19 S.L.R. 740, a judgment strongly dissented from by Lord Young.

1 Colliss v. Hector, 1875, L.R. 19, Eq. 334.

2 Downie v. D.'s Trs., 1866, 4 M. 1067; Fr. ii. 1319; and see per L. Fraser, Ordinary, in Tennent v. T.'s Exrs., 16 R., at p. 881.

6

5 See D. 24, i. 1; Phillimore, iv., p. 318; Gillespie's Bar, p. 420; Guthrie's Savigny, p. 297; Burge, i., 3 Conflict of Laws, § 447. The P. 639. English rule is the same, Dicey, p.

Savigny, l.c.

DONATIONS WIFE'S DEBTS.

417

inter conjuges will be valid or invalid, according as the law of the domicil at its date allows or prohibits it. It is disputed whether a gift of immoveables, situated in a territory where the prohibition exists, is valid if made between spouses domiciled in a country where the donation is lawful. Pothier holds that this will be decided by the lex rei sitae, while Savigny thinks that in this case the lex domicilii should prevail, on what appears the sound ground that the law of the territory has no concern with the purity of the relation of spouses domiciled in another state. And this view has the approval of Bar. (Gillespie's Bar, p. 420.)

(2.) Donations which are revocable when made.-It has not been decided whether a donation made inter conjuges, in a country where such donations are revocable—e.g., in Scotland, will become irrevocable if the spouses afterwards acquire a domicil in a country where this rule does not obtain, as-e.g., in England.

It appears clear that, if the subject of the gift were Scotch. heritage, it would be revocable by the donor, notwithstanding a change of domicil. And it is thought, with deference to the contrary opinion of Lord Fraser,2 that the foreign Court would give effect to the law of Scotland if the gift were one of moveables. The intention of the donor was to make a conditional gift, and there is no presumption that, in changing his domicil, he meant to render the donation absolute.3

Effect of Change of Wife's Domicil on Husband's Liability for Wife's Debts.-A husband's liability for his wife's debts contracted before marriage is now limited in Scotland, where the marriage took place after 1st January, 1878, "to the value of any property which he shall have received from, through, or in right of his wife at, or before, or subsequent to the marriage." 4

If a domiciled Scotsman marries in a foreign country a woman domiciled there, it would seem that his liability for

1 Guthrie's Savigny, p. 297; Pothier, Traité des Donations entre mari et femme, Art. 2, n. 19.

ii. 1322.

Cf. Tennent v. T.'s Executor,

1889, 16 R. 876, rev. sub. nom. Welch v. Tennent, 1891, 18 R. H.L. 72, where, however, the domicil was Scottish throughout.

4 40 & 41 Vict. c. 29, § 4.

her ante-nuptial debts will fall under this statutory restriction. But the point is not free from doubt. The ground of a husband's liability at common law was that at marriage the wife's moveable estate passed to him by universal assignation. But since the Act of 1881 the wife's estate remains separate if she marries a domiciled Scotsman, whatever may be the law of the wife's domicil before marriage, or the law of the place of celebration in regard to the patrimonial effects of marriage (44 & 45 Vict. c. 21, § 1). It would seem, therefore, that as the husband's rights in his wife's estate are determined by the law of Scotland, the same law ought to regulate his liability for her ante-nuptial debts.1

But in England the liability is similarly limited, and in a recent case the facts were these:-An Englishman married a woman who had contracted debt in Jersey, and appears to have been domiciled there, though the report is defective on this point. A husband, by the law of Jersey, is liable, in solidum, for his wife's ante-nuptial debts. The marriage took place in England, and the husband received no such property with the wife as to make him liable under the English Act. It was held that the husband was not liable, on the ground that as the marriage took place in England, which was his domicil, the liabilities arising from the contract must be determined by the lex loci contractus. But it was observed by both Grove, J., and Lopes, J., that the husband would have been liable if he had married in Jersey. But these remarks were obiter. The reason for the husband's liability in solidum in Jersey being that the wife's property passes to him by the universal assignation of marriage, as it did in Scotland at common law, and that the wife is withdrawn from the diligence of her creditors, it is not very easy to see why a foreign husband to whom her estate does not pass by marriage, the law of his domicil allowing the wife to retain her estate as separate property, should, notwithstanding, be liable for her debts. It would seem more natural to hold that the place where the 1 See Westlake, p. 68 and p. 273; Fr. ii. 1321; Burge, i. 636 seq. Neither Westlake nor Fraser gives a distinct opinion. Mr. David Murray thinks the law of the wife's domicil before marriage will fix the

husband's liability. Property of Married Persons, p. 58.

2 45 & 46 Vict. c. 75, § 14.

3 De Greuchy v. Wills, 1879, 4 C. P.D. 362.