In Guépratte v. Young, 1851, 4 De G. & S. 233, where however the contract was not one on marriage, Knight-Bruce quoted, as "generally true," the maxims: si lex actui formam dat, inspiciendus est locus actus, non domicilii; si de solemnibus quæritur aut de modo actus, ratio ejus loci habenda est ubi celebratur.

Here however a practical difficulty often arises. Art. 1394 of the Code Napoleon requires that "all marriage contracts shall be made. before the marriage by notarial act." Suppose an Englishwoman marries a Frenchman domiciled in France, and that her fortune comprises money vested in English trustees under the trusts of an English settlement, she and her friends, and their English solicitor, naturally wish that any disposition which on her marriage may be made of her fortune should be made by a deed in the English language and form, not only as being more intelligible to themselves, but as being also more intelligible to the trustees of the settlement under which her fortune is held, who will one day have to act on the disposition now to be made. The proper course would be to execute such a deed, and incorporate it besides in a notarial act, so as to satisfy every possible requirement. But the notarial act is omitted, from haste or thoughtlessness. Will the English deed, which alone is executed, be operative? If it was executed in France, it does not satisfy the lex loci actus if in England, and it should appear that the requirement of a notarial act is held in France to be a stringent rule of domestic policy, excluding the usual maxims of private international law, will the deed be permitted to operate in England when operative force is denied to it by the law of the matrimonial domicile, which generally regulates the rights of the husband and wife in movable property? Such cases have been dealt with in this country with a strong disposition to give effect to the intention of the parties, and with that disregard of the lex loci actus which has been noticed above, p. 10, as characteristic of the English treatment of the subject.

In Van Grutten v. Digby, 1862, 31 Beav. 561, Romilly, where the deed in English form was executed in France, the judge said: "I hold it to be the law of this country that if a foreigner and Englishwoman make an express contract previous to marriage, and if on the faith of that contract the marriage afterwards takes place, and if the contract relates to the regulation of property within the jurisdiction and subject to the laws of this country, then and in that case this court will administer the law on the subject as if the whole matter were to be

regulated by English law: " p. 567. This may be compared with the reference made by the same judge to the circumstance of his court having dominion over the fund, as a ground of decision in a case where the fund was not comprised in the contract made on the marriage: Watts v. Shrimpton, above, p. 65.

§ 34. But if the marriage settlement or contract relates to English land, it cannot operate as a conveyance unless it is in proper English form for that purpose, although, if otherwise valid, it will have with regard to the land whatever operation it may be entitled to as a

contract.

§ 35. Pursuing the principle which was enunciated immediately preceding § 33, the legality and operation of a marriage settlement or contract, when its meaning has been ascertained, and generally its interpretation also, will be referred to the law of the matrimonial domicile. No interests however can be created in English land but such as English law permits.

This is a convenient place for giving an elementary notion of interpretation, as private international law is concerned with it. Interpretation is a question of fact. Prima facie, the law of the place

of contract will furnish the most proper clue to the meaning of the parties. If they have used words which there are technical, or have mentioned coins, weights, or measures which under the same name have a different value there and elsewhere, it is the technical sense or the value of that place which they are most likely to have contemplated. Whatever they have not mentioned, yet must necessarily have had in mind, they most likely intended to follow according to the law of the same place, or the usages there prevailing. Yet these are but presumptions, and therefore liable to be rebutted. If the agreement expressly stipulate for a performance elsewhere, the usages and technical language of the latter place, at least in all that relates to the performance, are more likely to have been present to the minds of the contractors than those of the place of contract. Still more will this be the case if the place of performance be in the country from which both parties derive their personal law. And in the first edition, p. 174, I said it was conceivable-now I may say that the Italian code, see above, p. 36, is certainly right in laying down-that the common personal law of the parties will, even with

out the circumstance of a stipulated performance in its country, afford a safer guide to their meaning than the law of the merely casual place of contract. On all these points, the greatest writers on private international law have abstained from laying down sweeping presumptions, applicable to every description or example of agreement. But there can be no doubt that, generally, the interpretation of a marriage settlement or contract will be referred in England to the law of the matrimonial domicile, as being the place in which the performance of the contract is contemplated, and that from which the personal law of one party at least is derived.

Interpretation of a power to charge, on marriage, an annual sum on land in Ireland, and of the execution of that power, the domicile being in England. "If this were the case of a simple charge of £3000 on lands in Ireland, the place of contract, the domicile of the parties, the place appointed for payment, and other circumstances might require consideration, and would furnish the ground for the decision of the case; but the instrument itself must in this case give the rule of decision-a settlement making various arrangements, some like to the provision in question, others different from it:" Eldon; Lansdowne v. Lansdowne, 1820, 2 Bligh 60, 87. A marriage contract was made between persons domiciled in Scotland, and an equity was afterwards alleged to exist for a settlement out of a fund comprised in such contract. The operation of the contract by Scotch law was held to govern the case. Anstruther v. Adair, 1834, 2 M. & K. 513, Brougham.

It is not easy to see how a change of domicile, important as are the questions it raises with regard to the matter of § 32, can give rise to any question as to the operation of an express contract. But in Duncan v. Cannan, 1854, 18 Beav. 128, Romilly, and 1855, 7 D. M. G. 78, Knight-Bruce and Turner, the matrimonial domicile was Scotch, and it was admitted that Scotch law governed. Under the contract, as operating by that law, the wife's concurrence in a receipt for a sum of money comprised in the contract was assumed to be necessary, and, if necessary, would certainly be effectual. She concurred in such a receipt after the domicile had been transferred to England, by the law of which country her receipt would be ineffectual, having regard to the words of the matrimonial contract, though by mentioning separate use the contract might have made her receipt effectual under the law of England. It was argued that Scotch law adopts the rule of private international law which determines capacity according to the actual domicile; that the wife, by the law of her actual domicile, wanted capacity to give a receipt; and that her receipt was therefore ineffectual. But all three judges held it to be effectual. There is no magic in the word "capacity." That which a person has capacity to do is simply that which he can effectually do; and his capacity, spoken of collectively, is the total of his abilities to do different things effectually. The matrimonial contract in this case gave the lady a pecuniary benefit, and the question whether she could still receive it after the change of domicile was identical with the question raised about her capacity: they were not two ques

tions, admitting of the former being solved by help of the answer to the latter. In Guépratte v. Young (see above, p. 47), the question of capacity related to the making of a new agreement.

§ 36. Where the marriage takes place on the faith of an agreement that the husband shall transfer his domicile to another country, the law of the latter country governs the legality and operation of an express matrimonial contract as to property.

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

§ 37. If a settlement or express contract is made on the marriage, not comprising all the movable property of both consorts, the question whether it excludes any rights which would otherwise arise in the part not comprised in it will be decided by the law of the matrimonial domicile, as appropriate both to the operation of the settlement or contract and to the destination of the property on which it has no operation.

See Watts v. Shrimpton, above, p. 65.

§ 38. It is admitted in principle that the succession to either consort on death must be separated from the effect of marriage on property, and be regulated by the law of the last domicile of the deceased. In practice however there is occasionally some difficulty, on the question what points belong to the department of succession, and what to the pecuniary effects of the marriage.*

In Foubert v. Turst, 1702, Pre. Cha. 207, and 1703, 1 Bro. P. C. 38 fol., 129 oct., the consorts were in community under an antenuptial contract, except as to a sum of 800 livres, which was to "be the proper estate of the wife and her heirs of her part." There was also a postnuptial contract, which appears to have been held inoperative. The wife predeceasing the husband, and without issue, after a removal of the domicile from the custom of Paris to England, "her heirs of her part" according to the custom were of course entitled, by contract, to the 800 livres; but the husband, as successor to his wife by the law of England, claimed her share in the community as to the rest; while her relations claimed this also, evidently on the ground that the antenuptial contract had been made with the intervention of the wife's mother, who should therefore be considered as having stipulated for them by implication, when she stipulated

*Sec Savigny. syst. d. heut. Röm. rechts, § 379; Guthrie's translation, p. 247.

for the community in return for the portion which she gave with her daughter. Lord keeper Wright repelled this implication, holding that a contract, which so far as it went coincided with the custom of Paris, must be taken as an adoption of the custom. But his decree was reversed in the house of lords, and the wife's share in the community given to the heirs of her part, on their counsel pointing out that in certain particulars, collateral to the stipulation of community, the contract deviated from the custom of Paris, whence it was argued that it could not in any part be considered as an adoption of it. The contract was probably most correctly interpreted by the higher court; but if the antenuptial contract had been between the husband and wife alone, with no particular reason for implying a stipulation in favour of her relations, or if the parties had married under the custom of Paris without express contract, there is no reason to suppose that the house of lords would not have held the husband entitled, as successor to his wife by the law of her last domicile, to the share in the community which the contract, or the law of the matrimonial domicile, would have given her on her death. In Lashley v. Hog, 1804, 1 Robertson's Sc. Ap. Ca. 4, lord Eldon said that "if there had been no contract, the law of England would have regulated the rights of the husband and wife, who were domiciliated in England, at the dissolution of the marriage." This dictum has been quoted in favour of the new as against the matrimonial domicile, in the question which arises between them on the matter of § 32: but it is not likely that lord Eldon meant any thing of that kind.

Divorce.

Two causes affecting the tie of marriage, jactitation of marriage and nullity of marriage, and two affecting the personal relations of the parties during the continuance of that tie, divorce a mensa et toro and restitution of conjugal rights, were ancient subjects of ecclesiastical jurisdiction. That is to say, the jurisdiction in them was exercised by the courts of bishops who acknowledged each other, and were acknowledged by the secular power in their respective countries, as officers of the same church; the laws administered in those courts were kept uniform by a common appeal to the pope; and the same laws distributed suits among those courts by rules of competence as authoritative as those which the law of England lays down for the competence of different county courts, or the law of France for that of the tribunals of first instance. As long as this state of things continued, and between countries in which it continued, no question similar to those of private international law could arise about the causes in question. But in consequence of the reformation, the English bishops ceased to be officers of the same