JUDGMENT

Markby, J. - It is admitted between the parties that the Official Assignee as such Assignee is entitled to half of the said fund.

2. The argument before me has turned entirely upon the construction of the Succession Act, especially of Section 4, and it has been assumed throughout the argument that the questions which arise relate to moveable property. Section 4 of the Succession Act provides that "no person shall by marriage acquire any interest in the property of the person whom he or she marries, or become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried." It is contended for the plaintiff, that that section must be read as if it had run thus: "No person having a British Indian domicile shall by marriage acquire, &c." Mr. Evans for the defendant contends that the section governs every marriage in India. There has not been, as far as I am aware, any previous discussion as to the meaning of this section, and I must therefore be guided by the general frame and scope of the Act. In order fully to understand this, it seems to me necessary to consider, from a somewhat general point of view, how marriage in a foreign country affects the moveable property of the parties thereto.

3. Now what was the law before the Succession Act was passed? The law of India would not be easy to ascertain. It was probably the law of England, except so far as a personal law could be claimed by the members of any particular class; or some persons might say that there was no law of India--no lex loci at all. But it is not necessary now to inquire which of these two views is correct. It is more important to consider what was the law of Europe and America, for it is clear that the Succession Act was based upon the general principles current among persons of the Christian faith.

4. Now where, as in the present case, a man and woman having the same domicile marry during a temporary sojourn in a foreign country, and do not evince any intention to change their domicile, the law of all Christian countries is unanimous as to the interest which they acquire in the moveable property of each other. It is that interest which is given them by the law of the country wherein they are domiciled at the time of the marriage. Upon this point, all the authorities are, as far as I am aware, absolutely concurrent. This is in fact a branch of the more general proposition that moveables are always in contemplation of law supposed to be situate in the country where the owner has his or her domicile; and that principle can, in the present case, be applied without difficulty, because we are not embarrassed in the present case by any distinction between the domicile of the husband and the domicile of the wife, or by any change of domicile at or after the marriage. All these complications are avoided in the simple case which we are considering. I need only observe that the rule of law is not that moveables have no situs. They have a situs, but that situs is the domicile of the owner. This is, I believe, the true mode of stating the principle. The authorities in support of this proposition amongst the Civilians (as they are usually called) are innumerable; they will be found collected in Burge on Colonial and Foreign Laws, Vol. I, p. 632, where also the American authorities are referred to. For the English law, I may refer to Enohin v. Wylie 10 H.L.C. 1 and the remarks of Lord Westbury at page 15. He was there speaking of succession. But the rule is general; the rights which arise upon all occasions, whether upon marriage or succession, whether by the act of the parties or by the operation of law, are as to moveable property governed by the law of the domicile where, in contemplation of law, the moveables are situate.

5. It would, indeed, be unnecessary to insist upon this, which is an elementary proposition, were it not that in the case of marriage, Story, by representing the disagreement amongst lawyers as to the inc