because in all matters of guardianship the High Court acts mainly on its discretion and with reference to the particular circumstances of each case, and because the later decisions involve a recognition of foreign guardianship not in reality consistent with the doctrine of the earlier cases that the powers of guardians are strictly local.

The authority of a guardian who is not appointed by the Courts of the foreign infant's domicil (e. g., of a guardian appointed by a French Court for an Italian infant) will, it is conceived, not be recognised in England.

RULE 131.1 — A foreign guardian has, unless interfered with by the Court, control over the person of his ward while in England.

Comment.

An Italian guardian brings his ward, also an Italian, to England. The guardian takes his ward out of England. He acts legally, and does not expose himself to any legal proceedings for removing his ward.

RULE 132.2-A foreign guardian cannot dispose of movables situate in England belonging to his ward (?).

Comment.

A French guardian of a French minor sells to M goods belonging to such minor which are situate in England. The guardian cannot (semble) give a good title to the goods, and by selling them may possibly expose himself to an action for conversion.

(D) LEGITIMACY.3

RULE 133.— A child born anywhere in lawful wedlock is legitimate.

1 Nugent v. Vetzera, 1866, L. R. 2 Eq. 704. A foreign guardian cannot exercise in England any powers over his ward which could not be exercised by an English guardian. See language of Lord Cottenham in Johnstone v. Beattie, 1843, 10 Cl. & F. 42, 113, 114; contrast language of Wood, V. C., L. R. 2 Eq. 714.

2 Story, 504 a. See American cases cited, Story, s. 504 a, note 4, and observations of Wood, V. C., in Scott v. Bentley, 1855, 1 K. & J. 281, 284.

3 See Story, ss. 87 a, 93-93 w, 105-106; Westlake, 3rd ed., pp. 88-92; Phillimore, ss. 532–542; Wharton, ss. 240–250; Savigny, Guthrie's transl., s. 380, pp. 302, 308–317. See App., Note 11, Legitimation.

Comment.

If any dispute arises as to the legitimacy of a child ostensibly born in lawful wedlock, it will be found that the matter in dispute is not the soundness of Rule 133, but either the validity of the marriage, or the fact of the child being born in wedlock. The principle itself, expressed in the Rule, is beyond dispute.

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RULE 134.—The law of the father's domicil at the time of the birth of a child born out of lawful wedlock, and the law of the father's domicil at the time of the subsequent marriage of the child's parents, determine whether the child becomes, or may become, legitimate in consequence of the subsequent marriage of the parents (legitimatio per subsequens matrimonium).

Case 1. If both the law of the father's domicil at

the time of the birth of the child and the law of the father's domicil at the time of the subsequent marriage allow of legitimatio per subsequens matrimonium, the child becomes, or may become, legitimate on the marriage of the parents.

Case 2. If the law of the father's domicil at the time of the birth of the child does not allow of legitimatio per subsequens matrimonium, the child does not become legitimate on the marriage of the parents.

1 See as to Validity of Marriage, chap. xxvi., Rules 169, 170, pp. 626, 642, post.

2 Udny v. Udny, 1869, L. R. 1 Sc. App. 441; Re Wright's Trusts, 1856, 2 K. & J. 595; 25 L. J. Ch. 621.

3 Vaucher v. Solicitor to Treasury, 1888, 40 Ch. D. (C. A.) 216.

4 It is not certain that he will become legitimate on the marriage of his parents, since the law of the country where the father is then domiciled may for the purpose of legitimation require something more than the marriage; it may, for example, require that the father should go through some additional ceremony or formality, or that he should not, between the child's birth and the subsequent marriage with the child's mother, have been married to any other

woman.

ɓ Udny v.

Udny, 1869, L. R. 1 Sc. App. 441; Re Wright's Trusts, 1856, 2 K. & J. 595, 25 L. J. Ch. 621; Vaucher v. Solicitor to Treasury, In re Grove, 1888, 40 Ch. D. (C. A.) 216.

Re Wright's Trusts, 1856, 2 K. & J. 595; 25 L. J. Ch. 621; Shedden v.

Case 3.-If the law of the father's domicil at the time of the subsequent marriage of the child's parents does not allow of legitimatio per subsequens matrimonium, the child does not become legitimate on the marriage of the parents.1

Provided that a person born out of lawful wedlock cannot be heir to English real estate, nor can any one, except his issue, inherit English real estate from him.2

Comment and Illustrations.

According to the law of England, of the Northern States of America, and of all countries governed by the English common law, a child born before the marriage of his parents cannot be legitimated by their subsequent marriage. According to the law of Scotland, of France, and of most countries which have adopted, or have been influenced by, the law of Rome, such a child is or may be legitimated by the subsequent marriage of the parents. These countries, in short, allow what is technically known as legitimatio per subsequens matrimonium.3

Patrick, 1854, 1 Macq. 535; Munro v. Saunders, 1832, 6 Bli. 468; Dalhousie v. M'Douall, 1840, 7 Cl. & F. 817; Munro v. Munro, 1840, 7 Cl. & F., 842.

1 Vaucher v. Solicitor to Treasury, 1888, 40 Ch. D. (C. A.) 216. As to meaning of "marriage," see chap. xxvi., Rule 169, p. 626, post.

2 Birtwhistle v. Vardill, 1835, 2 Cl. & F. 571; In re Don's Estate, 1857, 4 Drew. 194; 27 L. J. Ch. 98.

The principle of this proviso applies when the child is the offspring of the marriage between a man and his deceased wife's sister. Such a marriage, when celebrated in a country such as Denmark, by Danish subjects there domiciled, is probably valid, even in England; but the child of such a marriage cannot inherit English real estate, since it has been held that in order "to inherit land it is not enough to be the issue of married parents, but it "is also necessary to be the issue of parents who would have been married if "they had gone through the ceremony of marriage in the country where the "land lies." (Fenton v. Livingstone, 1859, 3 Macq. 497, and opinion of J. Westlake, Parliamentary Paper, No. 145, 3rd April, 1876.)

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3 "The laws of most of the states on the continent of Europe admit this "legitimation generally, though with distinctions in respect of certain ille"gitimate children, or in respect of the form of the acknowledgment by the "parents. It is also the law in the law of the Isle of Man, Guernsey, and Jersey, in Lower Canada, St. Lucia, Trinidad, Demerara, Berbice, at the "Cape of Good Hope, Ceylon, Mauritius, - - as well as in North America, in "the States of Vermont, Maryland, Virginia, Georgia, Alabama, Mississippi, "Louisiana, Kentucky, Missouri, Indiana, and Ohio, also in Scotland. In "Ireland, England, and those of its dependencies in the West Indies and

This fundamental difference of law has given rise to various questions as to the extra-territorial effect produced on the legitimacy of a child by the marriage of his parents after his birth. Whether, for example, a child born in Scotland is to be considered legitimate in England on the subsequent marriage of his parents in Scotland or England; whether a child born in England of parents domiciled in Scotland becomes legitimate on the marriage of its parents in England or in Scotland; whether regard is to be had to the place of birth or to the place of marriage; and other inquiries of the same kind, have (in consequence of the difference between English and Scotch law) constantly come before the English Courts, or before the House of Lords sitting as a Court of appeal from Scotland.1

After some fluctuation in the decisions, the principle stated in Rule 134 has been well established. The test whether the subsequent marriage of a child's parents can legitimate him is the law of the father's domicil at the time of the child's birth, taken in combination with the law of the father's domicil at the time of the subsequent marriage.

This principle applies to three different cases:

Case 1. If the law of the country, for example, Scotland, where the father is domiciled (not necessarily where he is resident) at the time of a child's birth, and also of the country, for example, France, where the father is domiciled at the time of the marriage with the child's mother, recognises legitimatio per subsequens matrimonium, the child, though born before the marriage of his parents, may become legitimate on their subsequent marriage. Thus, where the child's father was domiciled though not residing in Scotland at the time of the child's birth in England, it was held that the subsequent marriage of his parents, whilst the father retained his Scotch domicil, made the child legitimate.2

Case 2. If the law of the country (for example, England or "North America which have not been named, as well as in the other States "of North America, legitimation by subsequent marriage is not admitted at "all." Schaeffner, Entwickelung des internationalen Privatrecht, p. 49, cited Savigny, Guthrie's transl., 2nd ed., p. 308.

1 Most of the decisions on this subject are given by the House of Lords as a Scotch Court of appeal; but it is conceived that the principles laid down, e. g., in Udny v. Udny, may be taken as generally binding, and would be adhered to by the House of Lords when sitting as an English Court. See especially, Vaucher v. Solicitor to Treasury, In re Grove, 1888, 40 Ch. D. (C. A.) 216, which determines that the subsequent marriage of a child's parents does not legitimate him, if at the time of the marriage the father is domiciled in a country the law whereof does not allow of legitimatio per subsequens matrimonium. 2 Munro v. Munro, 1840, 7 Cl. & F. 842.

New York) where the father is domiciled at the time of the child's birth does not allow of legitimatio per subsequens matrimonium, no subsequent marriage will avail to make the child legitimate.

Thus, where an Englishman, domiciled in England, had, while residing in France, a child by a Frenchwoman, herself domiciled in France, it was held that the subsequent marriage of the parents did not legitimate the child. This was a particularly strong case, because the father had, after the birth of the child but before the marriage, acquired a French domicil.

Case 3. If, lastly, the law of the country (for example, England) where the father is domiciled, at the time of the subsequent marriage with the child's mother, does not allow of legitimatio per subsequens matrimonium, the marriage will not avail to make the child legitimate.

Thus, where a Genevese citizen was at the time of the birth of his child domiciled at Geneva, the law whereof allowed of legiti matio per subsequens matrimonium, and, having afterwards obtained an English domicil, then married the child's mother, it was held that the subsequent marriage did not legitimate the child.2 "In my opinion," says Cotton, L. J., "the domicil at birth must "give a capacity to the child of being made legitimate; but then "the domicil at the time of the marriage, which gives the status, "must be domicil in a country which attributes to marriage that "effect." 3

The domicil of the mother is immaterial.

Thus, where a child's mother was at the time of his birth a domiciled Frenchwoman, it was distinctly laid down that "no "importance can be attributed to the fact of the mother being

1 Re Wright's Trusts, 1856, 25 L. J. (Ch.) 621; 2 K. & J. 595.

2 Vaucher v. Solicitor to Treasury, In re Grove, 1888, 40 Ch. D. (C. A.) 216. This case is not, it is true, absolutely decisive, for some of the judges took the view that the father was domiciled in England, both at the time of the child's birth and at the time of his marriage with the child's mother. But the very decided expressions of opinion both by Cotton, L. J. (pp. 231-233), and by Fry, L. J. (p. 241), are nearly equivalent to a decision on the point in question.

3 Ibid., p. 233, judgment of Cotton, L. J. It must be admitted that in some reported cases, e. g., Re Wright's Trusts, 1856, 2 K. & J. 595, 614, judgment of Page Wood, V. C.; Munro v. Munro, 1840, 7 Cl. & F. 842; Udny v. Udny, 1869, L. R. 1 Sc. Ap. 441, expressions have been used which seem to imply that judges of authority considered that the effect of a marriage subsequent to a child's birth depends wholly on the domicil of the father at the time of the birth, and that the father's domicil at the time of the marriage is immaterial, but no reported case prior to Vaucher v. Solicitor to Treasury required a decision as to the effect to be attributed to the law of the father's domicil at the time of the marriage.