the parties continued to be domiciled, or must be deemed to have been domiciled in England, up to the time of their respective deaths.

From the authorities which were cited at the bar, and from others to which I have been guided, by the very valuable work of Mr. Burge, it appears, that the most eminent jurists have differed materially in opinion on the subject of such circumstances, and as to the extent of which the lex loci rei site may be modified by the lex loci contractús, and the domicile of the parties. I do not think it necessary or proper to intimate any opinion on the effect which those circumstances may have on the title to the land; but whatever that may be, that effect cannot be precisely the same as that which the same circumstances may have on the right to the personalty.

The claim of the defendants to the land rests on this: that according to the general law of all countries, the title to land depends on the law of the country in which the land is situate; but according to the same general law, the title to the personal estate depends on the law of the country in which the owner is domiciled; and if, according to the argument of the defendants, a domiciled Englishman, who is a married man, cannot purchase a plantation in Demerara, without making his wife a partner or tenant in common with him in the land, it would not follow, that she acquired any interest whatever in any personal estate, stock, implements, or effects which he might have purchased with the land, or afterwards placed on it.

By the law of England, all personal estate which Mr. Bunbury possessed or acquired during the life of his first wife was his own, and was not subject to any claim she could have made as a partner, or to hold in community with him; and if the general law is to govern this question, she had no claim or interest in the money with which he bought the estate, or the money by means of which he stocked the plantations with the cattle, and furnished it with the implements and effects which were on the estate at the time of his death.

The defendants, however, claim a share of the testator's personal estate, not, indeed, confining themselves to personal estate in Demerara, but they claim a share

of the testator's personal estate by the law and usages of Holland; and I conceive they must intend to raise the question, whether the law of Holland is or is not to prevail in this respect, and they mean to contend for the affirmative. The defendants, therefore, claim the benefit of a species of partnership, and to be entitled to a share of partnership property, consisting partly of real, and partly of personal estate.

By the general law, the real estate situate in Demerara is subject to the law of Holland, and personal estate, anywhere situate, is subject to the law of England; but the defendants insist in this case, that both the real and personal is subject to the law of Holland, and claim to be entitled to an account of what is due to them accordingly.

Out of this claim, many considerations arise. Is the claim of the defendants to have any part of the testator's personal estate subjected to the law of community, a claim which is to be determined by the law of Holland; or would this Court be under any obligation to submit to the decision of any Dutch Court on the subject? If no part of the personal estate be, or ever were, subjected to the law of community, what effect would that circumstance have on the question whether the land was subject to the law of community? It is consistent with the law of community, independently of special contract, that only part of the property of the conjoints, as they are called, should be subject to it: and supposing it should be determined. that by the law of Holland the land was subject to the law of community, though, under the circumstances of the marriage and the domicile, the personal estate was not, and consequently, considering the case as a partnership in the land, in which the whole of the purchase-money was paid by one party, and the whole expense of cultivation defrayed by him, would he or not have any just or equitable claim to be reimbursed his advances by the partners, unexpectedly forced on him by the law of Holland, and who are now demanding their share of the land? and if there be any such equitable claim, could effect be given to it as a lien on land under the Dutch law, or would it be an equity, only to be made

available by the law of England, not to be enforced "in rem" by the law of Holland,

but "in personam,' by the jurisdiction which this Court has over the parties? These, I am sorry to say, are by no means all the questions which may have to be discussed between the parties; and it appears to me, the question as to the personal estate cannot be decided by the law of Holland alone; and if a moiety of the land should, according to the law of Holland, be decided to belong to the defendants, there may still be questions to be decided according to the principles of equity acted on in this court, before it can be determined that the defendants ought, in equity, to take for themselves the moiety of the land which may be adjudicated to them by the law of Holland; or if the real estate in Demerara is to be considered, by the law of the colony, as a partnership property, it is partnership property belonging to English subjects, subject to the law of England, and it must be dealt with in connexion, if there be any other partnership effects, and must be held subject to all just claims to be made on it. And then comes the question, whether it would be just to permit the defendants to withdraw their alleged share of the land from the mass of the partnership property, or from the estate of the testator, by a separate proceeding, which does not and cannot take into consideration all the questions which must be determined here, before it can appear whether they have a clear equitable and legal title to the land which they claim.

Under all these circumstances, having regard to the question between the parties to the account, which must be taken, for the purpose of giving effect to the claim of the defendants, if substantiated, and seeing such an account can only be taken here, where the parties are, the ends of justice appear to me to require, that the defendants should not be permitted, in Demerara, to take possession of their alleged share of the land, and the estate should, for the benefit of all parties, be protected by a manager and receiver, till the right is determined; but if possession be not taken, and no execution be sued out, there may be a convenience in permitting the defendants to proceed to make out their right to a share of the land, so far as to obtain

judgment or sentence in their favour, if the law of the colony should so entitle them; and the plaintiffs ought to consent, as was done in Beckford v. Kemble, to any order which may be made in the suit in Demerara, which this Court shall at any time think reasonable.

The order of the Master of the Rolls having been appealed from, and discussed before the LORD CHANCELLOR, his Lordship, on the 19th of June 1839, affirmed the same, and delivered judgment as follows:I am not at all surprised at this case being brought here; it certainly is one of very great difficulty, and a considerable degree of novelty; and I am not at all surprised at the doubt the Master of the Rolls had as to the order he should pronounce; but I am quite satisfied, in the present state of the case, that the order pronounced is right.

There is no doubt whatever of the jurisdiction of this Court, acting upon the person, to prevent the party proceeding in a foreign court-it is not disputed, nor can it be; it is constantly done, not interfering with the foreign court, any more than this Court interferes with the Court of Queen's Bench, but acting upon the persons, and prohibiting them from doing that which, under the circumstances, the Court thinks they ought not to do. It is equally certain, that the law of the country where the land is situate is the law which is to determine the rights of the parties claiming the succession to that land; but that is not the question in discussion between these parties. The question here is of a totally different character; and that doctrine never has been extended, nor can it be extended to cases where parties have or are alleged to have created interests as between themselves, which supersede the law of the land, and create a law for themselves. [His Lordship here shortly stated the facts of the case, and then proceeded as follows:]-The first question raised is, is the question to be decided according to the law of Holland, or have the parties, by contract, precluded themselves from saying, that the property is affected by that law? It comes at once to the case, on which no one entertains any doubt, that if parties contract for land in Demerara, this

Court will exercise jurisdiction, and decide the rights of the parties, not according to what the law of Demerara would be, independently of contract, but what the law is which the parties have made for themselves, by the contract they have entered into between themselves. It comes to the case which I suggested to the counsel in the argument, that if this was a case of partnership, to be regulated by contract, the law where the land was situate would be matter quite immaterial, except as it might create great difficulty (as in one of the cases cited) in carrying the contract of the parties into effect; but still the rights of the parties, as far as they could be carried into effect, would be carried into effect, according to that which they themselves have arranged as between themselves. The rights of the parties, therefore, depend not on the law of the country. On that, I apprehend, there could be no doubt, if the question of the settlement was out of dispute; at any rate, it cannot arise till that preliminary question is disposed of. Have the parties or not made a law for themselves? is the first question. Certainly this Court is as competent, wherever the parties are situate, to decide on a question of that sort, as the Demerara Court can be.

But there is another circumstance in this case. It is admitted, this Court must come to an adjudication as to personal property, because, as far as the personal property is concerned, it is not in dispute this Court must administer it; therefore, in order to enable the Court to administer it, it must adjudicate on that very question which will decide the point as to whether the law of community is to prevail or not; so that there is a cause pending in this court on which this Court must adjudicate on the question of foreign law-that is, adjudicate on the question of the settlement, on the adjudication of which the question of foreign law will depend, to the extent, at least, of part of the property which is to be administered.

Nothing can be more inconvenient, where this Court is in a situation to make it absolutely necessary to adjudicate on a principle, that it should not be able to adjudicate on the whole principle. But supposing the Court proceeds so far, and

finds the law of community does apply to this case, and that the parties have not made a law for themselves, and taken this property out of the principles of the law of community, then the Court must, as far as the personalty is concerned at least, make those inquiries, and direct those accounts to be taken which are necessary, in order to ascertain what the estate in community was. Why, part of the estate in community is the land in Demerara; other part in community, is property to be administered in this court, and admitted to be administered in this court. I think it would be a great inconvenience, almost an impossibility, and contrary to all the principles where accounts and inquiries affect a mass of property, to confine it to a particular description of property, and on which the Court cannot do justice, without having the whole under its jurisdiction.

For these reasons, though there is a good deal of novelty in the position of the question and the rights of the parties, I think that the order of the Master of the Rolls, as pronounced, is not opposed by any principle of law, or any principle of equity it is not interfering with any foreign jurisdiction; it is only taking to itself the adjudication of the whole subject-matter, part of which is admitted to be necessarily within its jurisdiction.

It is true, if permitting these proceedings to go on in Demerara would enable this Court more satisfactorily to dispose of the question between the parties, it would be my duty, and there might be good reason for doing that which was done in Lord Minto's case, namely, permitting the proceedings to go on to an adjudication in the Court of Session, in order to ascertain what the Scotch law was. In one view of this case, there is no necessity for that: if it be found that the settlement does preclude the law of community, there is no necessity for inquiring what the law of Holland would be as to the law of community; but I do not find the proceedings in Demerara are at all calculated to bind the rights of these parties. As I understand, from what Mr. Turner read, it is a proceeding by which the children of the first marriage are claiming posssesion of land against, not the children of the second marriage, with whom the contest is, but against those

who are, under the instrument executed by the father, in the possession of that estate. I have no means of knowing, nor can I trust the interest of the children of the second marriage to such defence as those parties might think proper to make; and whatever, therefore, is the adjudication of the Court of Demerara between those parties, it is not possible to preclude the question which the children of the second marriage may think proper to raise against the children of the first marriage. I think it would be exceedingly inconvenient-and that is the ground on which Sir John Leach proceeds, in Bushby v. Munday--to adopt a course which might lead to a different adjudication on the same question between tribunals which have no controul one over the other; so that if this Court were to proceed and adjudicate on the question which will be the primary question to be decided, and decide that this settlement precludes the law of community from applying, and so distribute the property which it has under its jurisdiction according to the instrument executed by the father, and the Court of Demerara should adjudicate precisely the reverse with regard to the land, and the one goes to the House of Lords, the other to the Privy Council, adverse decisions. may take place upon the very same question, one applicable to one part of the property, and the other to the other. Sir John Leach saw the inconvenience of that; and though the jurisdiction of the Court of Session is quite as independent of this Court, as the Court of Demerara can be, he said, "I will not permit these parties to go on in the Court of Session; and one reason is, because, as the matter must be ultimately disposed of here, and as this Court has possession of the subject-matter, by having the party before it against whom the allegation is made, he ought not to be permitted to use the instrument which he has obtained. If I permit the party to proceed against the land in Scotland, there may be a decision by the Court of Session one way, and by this Court another way, which will be extremely inconvenient." In this case, that inconvenience undoubtedly ought not to prevail, provided the party was in a situation in which he had a right to say, "the law of

Demerara is to prevail, and I have a right to assert my title according to the law of Demerara;" but when I find it does not turn on the Dutch law, but it turns on a preliminary question, which this Court is not only as competent as the Court of Demerara to decide upon, but, according to the position of the parties, much more competent, inasmuch as it has all the parties here, I think, as a matter of discretion, it would be exceedingly inconvenient and improper to allow these proceedings to go on, involving the same question, with the chance of their coming to opposite conclusions.

For these reasons, in the present state of the case-it may be hereafter extremely proper to permit proceedings to go on in Demerara-but in the present state of the case, with this preliminary question existing between the parties, which this Court is perfectly competent to decide, and which, if decided one way, will prevent the necessity of any further litigation anywhere, I am of opinion, the order of the Master of the Rolls is the right order to pronounce. I should be very glad, if it were possible to guard against what Mr. Turner has anticipated as a possible result-namely, that the adjudication in favour of his clients should leave them without the means of having the benefit of such a decision.

No doubt the undertaking on the part of the plaintiffs was not exactly what it was intended to be, and if those children were litigant parties in the proceedings in Demerara, a different arrangement might be made; but they are not so; the children of the second marriage are not parties to the proceedings at all; and that also adds to the difficulty of carrying into effect the reservation which the Master of the Rolls has made. They not being parties to that, I do not know how they are to be affected by any proceedings there. The Court will undoubtedly have the power to compel them to submit to any order which this Court might impose on them-i. e. to consent to any proceedings in Demerara; but they are not parties to the proceedings there, and I am afraid that reservation will not be operative: at the same time, I am not aware that I could introduce anything for their better protection.

The testator died in 1806.

Mildred Addis died in 1818, leaving Henry Joseph Addis, her eldest son, her surviving. The bill stated, that Henry Joseph Addis, being in very distressed circumstances, advertised his reversionary interest in these freehold and copyhold estates for sale by public auction, but was induced by John Crook to enter into a private contract with him; and conveyed his reversionary interest to John Crook, by a deed executed in April 1819. The consideration, which was expressed to be given in the deed, was 6251., and a bond for the payment of 1,000l., in case Crook should become entitled to the fee simple of these estates. The bill alleged, that 500%. only was actually paid, and that the

NEW SERIES, VIII.-CHANC.

bond was afterwards brought up by a friend of Crook, and on his behalf, for 50l.

In 1828, Francis Gostling, the son, entered into an agreement with Crook for the purchase of the reversionary interest of Henry Joseph Addis, who was persuaded by them to join in suffering certain common recoveries, whereby the estates were limited to Francis Gostling in fee; but the bill alleged, that Henry Joseph Addis did not receive any adequate consideration.

Crook died in 1831, leaving Wm. Crook, one of the defendants, his heir-at-law, who was also his legal personal representative.

Francis Gostling the son, by his will, dated the 24th of July 1830, devised these estates; and under the dispositions of this will, A. F. Campbell, the first-named defendant on the record, was interested in them as tenant for life. Gostling died in

1835.

In 1832, Henry Joseph Addis died in the workhouse of Margate, leaving the plaintiff, Henry John Addis, his eldest son.

The annual rental of the estates in question was stated to be 1,000l.

The bill sought to set aside the sale which had been made to Crook.

The defendant Campbell insisted, by his answer, that a fair and adequate price had been given for the reversionary and contingent interest of Henry Joseph Addis ; and he admitted, that he had in his possession certain deeds, documents, papers, and writings relating to these estates.

The plaintiff now moved, that all these deeds, documents, &c., might be deposited with the defendant's clerk in court.

Mr. Pemberton and Mr. J. W. Hill supported the motion; and

Mr. Kindersley and Mr. Roupell opposed it.

The MASTER OF THE ROLLS stated the facts of the case, and said, that as this was the purchase of a reversionary interest, it was subject to the restrictions and conditions, which the Court had imposed on transactions of that nature. The purchaser was to shew that there was no fraud, and that he gave a full consideration; and he was bound to state what were the particulars of the transaction, in order to shew that it was a fair one. The transaction was evidenced by the conveyance to Crook,

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