The

PART II. acquisition by the husband of an English domicil.(a) PROPERTY. House of Lords, in the case cited, held that the rights of the CAP. VII. wife, acquired by marriage when the domicil was French, were Assignments not affected by the acquisition of an English domicil afteron marriage. wards, on the ground that French spouses, marrying without a written settlement, impliedly contract for a communauté des biens under the French code. It does not appear that the correctness of Lashley v. Hog is affected by this decision. The argument that English spouses similarly enter into an implied contract that their property shall be regulated by English law, has no doubt some plausibility. The distinction appears to be that in the case of an English marriage, the distribution of the property on the husband's death depends upon the fact whether or not he dies intestate, which is in his own power. The wife therefore acquires no vested rights in his property by marriage, and does not contract for any. Consequently, there seems to be no reason why at his death, the law of his domicil should not regulate the succession.

It is probably on the peculiar importance of the law of the matrimonial domicil on all questions arising out of the marriage, that those decisions are really founded, which refer the question of capacity to enter into a matrimonial contract as to property to the lex domicilii, in preference to the lex loci.(b) The question of capacity to contract, however, will be found at some length under that heading.(c)

p. 335.

pp. 335-337.

SUMMARY.

ASSIGNMENT OF PERSONAL PROPERTY ON MARRIAGE.

Where no marriage contract or settlement is entered into, the rights of the parties in and to each other's goods are absolutely regulated by the law of the domicil of the husband at the time the marriage takes place.

When there is such a marriage contract or settlement, the law of the domicil is prima facie that which regulates its validity and interpretation; but whether or not the place where the contract is executed is that of the matrimonial domicil, the governing law appears to be that of the place which must be taken to have been in the intention and contemplation of the parties, either as their intended future (a) De Nicols v. Curlier (1900), App. Ca. 21.

(b) Cooke's Trusts, 56 L. J. Ch. 637; Cooper v. Cooper, 13 App. Cas. 88, 108. (c) Infrà, chap. viii.

residence, or as the locus of the subject-matter of the settle

ment.

PART II. PROPERTY.

Even where there is no dispute as to the proper governing CAP. VII. law, in consequence of the marriage having been celebrated, p. 335. and the contract entered into, in the country of the domicil, yet the rights created by it will not prevail against a subsequent bankruptcy of the husband in a competent foreign court, inasmuch as the distribution of assets in a concursus of creditors is governed by the lex fori alone.

Rights in property once given to the wife, either by express p. 337or implied contract on the marriage, will not be taken away or affected by a subsequent change of the matrimonial domicil.

APPENDIX TO CHAPTER VII.

THE WILLS ACT, 1861.

24 & 25 VICT. CAP. 114.

An Act to amend the Law with Respect to Wills of Personal Estate made by British Subjects.

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. Every will and other testamentary instrument made out of the United Kingdom by a British subject (whatever may be the domicil of such person at the time of making the same or at the time of his or her death) shall, as regards personal estate, be held to be well executed for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be made according to the forms required either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of Her Majesty's dominions where he had his domicil of origin.

2. Every will and other testamentary instrument made within the United Kingdom by any British subject (whatever may be the domicil of such person at the time of making the same, or at the time of his or her death) shall, as regards personal estate, be held to be well executed, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made.

3. No will or other testamentary instrument shall be held to be revoked or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent change of domicil of the person making the same.

4. Nothing in this Act contained shall invalidate any will or other testamentary instrument as regards personal estate which would have been valid if this Act had not been passed, except as such will or other testamentary instrument may be revoked or altered by any subsequent will or testamentary instrument made valid by this Act.

5. This Act shall extend only to wills and other testamentary instruments made by persons who die after the passing of this Act.

PART III.-ACTS.

CHAPTER VIII.

CONTRACTS.

INASMUCH as the greater part of the contracts entered into in the transaction of the ordinary business of life relate more or less directly to property, of one kind or another, it has been necessary in the course of the preceding pages, while speaking of the operation of local and foreign laws upon movable and immovable property, to refer more than once to the relation to the same laws of the contracts by which such property is dealt with, and to show that the operation of those contracts is often modified and governed by the effect of the lex situs upon the subject-matter with which they are concerned. The necessity of treating of the rights and capacities of persons has similarly given rise to a discussion, which would otherwise have been premature, of the effect which such strictly personal qualifications have upon the contracts into which the persons enter. It is nevertheless possible, theoretically speaking, to consider the subject of contracts by itself, abstracting them in theory from the persons who make them and the property which they concern. In practice it will no doubt frequently be found that the law of persons, and the law of property, arise either singly or together to compete with the law of contracts for the ultimate decision of the particular case which is the subject of inquiry; but this is a difficulty which is not confined to private international jurisprudence, and occurs with equal frequency in the investigation of ordinary municipal law. But the inevitable result must be, that just as, in the consideration of the claims of English law to regulate things and persons, it was not practicable to escape entirely from its operation upon contracts, so in the discussion of contract, it will be impossible uniformly to ignore the law of persons and things.

In considering the jurisdiction assumed by English law over

PART III.
ACTS.

CAP. VIII.

ACTS.

PART III. contracts, and the extent of its right to determine and define those which come before it, the following factors must be CAP. VIII. regarded as important: (i.) The place where the contract was Contracts made, or the locus contractus celebrationis; (ii.) the place where Jurisdiction. the contract is to be or was to be performed, or the locus solutionis; (iii) the situs, or situation of the property which it is intended by the contracting parties to affect; (iv.) the status of the contracting parties themselves; and (v.) the operation of the lex fori upon the remedy which the litigants seek to obtain from the English Court. The questions of situs rei and status persona have already been discussed, and the whole subject of remedies will be considered when treating of Procedure ;(a) but it will not be practicable to keep the consideration of contract law as a whole entirely distinct from these last-mentioned branches of the subject. It is proposed to treat here of contracts from their inception to their enforcement according to the natural order in which the difficulties arising from the subject present themselves.

(i.) Jurisdiction as to Contracts.

It is not proposed to enter into the questions of jurisdiction which are peculiar to Roman jurisprudence and to the systems of those countries which are derived from the civil law. The distinctions between the forum rei, the forum domicilii, the forum actoris, the forum rei sita, the forum rei gesta, and the forum rei solvendæ are of little practical importance to the English lawyer, (b) whose object is to inquire simply how far the statutory and common law powers of his own Courts extend, and over what matters they will assume and maintain jurisdiction.

The jurisdiction which entitles the tribunals of any State to pronounce judgment in personam, arises from its sovereign territorial power. "Extra territorium jus dicenti impune non paretur." The subjects of a State, bound to it by the tie of allegiance, are in a special and theoretical sense under the control of their lawful Sovereign wherever they go. This is illustrated in English law by the practice of serving a writ upon a British subject out of the jurisdiction, but notice of the writ only upon a foreigner. But for the purpose of enforcing contracts between individuals, the State does not ordinarily look to their nationality as a test of its competence. It looks rather

(a) Infrà, chap. x.

(b) They may be found discussed in Story, §§ 532-538; Westlake, p. 89, p. 104; J. Voet, Pandect., tom. i. lib. 5, § 77, seq.