Surely the proper course would be to make the duty of the registrar ministerial only, and to provide that if any dispute as to what ought to be entered on the register arises, either between the parties themselves or between the parties and the registrar, it ought to be referred to the Court.

Since this article was printed I have received some kind criticisms from a learned friend as to the user of the word 'conclusive' on pp. 364 and 365. *

In the case of unregistered land the abstract is conclusive as to the title, and the description of the parcels in the conveyance is conclusive both as to extent and boundaries, subject in either case to the rights of the person in possession.

In the case of registered land the title of the registered owner is conclusive against all the world, subject only to the exceptions mentioned in the Act, but the description of the parcels in the registered transfer is not conclusive as to extent or boundaries, even as against the transferror. I have endeavoured to show that the fact of the title being conclusive against the person in possession will facilitate fraud, and that it will be safe to make the parcels in a registered transfer conclusive as to extent and boundaries if the title of the registered owner and every registered transfer is made subject to the rights of the person in possession: and that making this change in the law as to registered land will not throw any appreciable burden on a purchaser.

HOWARD W. ELPHINSTONE.

[Sir Howard Elphinstone's experience is so much greater than mine that my agreement can add but little weight to his reasons : but, as I have already signed a published memorial in which some of those reasons were embodied, I may be allowed to say here that they seem to me unanswerable. Possession has been the foundation of title to English land for at least seven centuries, and no serious attempt has been made to justify overturning that foundation. But registration might be properly encouraged by giving a registered possessory title the benefit of a shorter term of limitation.-ED.]

ASIATIC MIXED MARRIAGES.

HE object of this paper is to examine some of the questions raised by the marriage of a European woman in a monogamous European country, such as England, to a domiciled Asiatic living under a personal law which admits polygamy-for example, an Indian Mahometan-and especially where the Asiatic husband already has, at the time of the marriage, a wife living in his own country. The morality or expediency of such marriages will of course not be discussed. It is enough that such cases are possible and not unknown.

The personal law of an Indian does not generally restrict him to one wife, though it may be mentioned that amongst the Hindus social custom prohibits Vaisyas, i.e. the main bulk of the population, from being married to more than one person at a time. By the personal law, therefore, the possession of an Indian wife is no bar to his having an English wife, and vice versa. As most Indians visit this country for temporary purposes only, their domicile remains Indian (Steel v. Lindsay, 9 Ct. Sess. Rep., 4th Series, 160), and the capacity to marry depends on the lex domicilii (Sotto mayor v. De Barros, 1880, 3 P. D. 1, 5 P. D. 94, 47 L. J. P. 23, 49 L. J. P. I). Viewed thus, a married Indian can validly and lawfully marry in England an Englishwoman without fear of committing bigamy. It remains to see how far this is modified by the law of England; for English Courts refuse to recognize the lex domicilii when it is in direct opposition to a rule of English law (Brook v. Brook, 9 H. L. C. 193; Metle v. Mette, 1859, 1 Sw. & Tr. 416, 28 L. J. P. 117).

The law of nations as received in England does not recognize a marriage celebrated according to a law, such as the personal law of Hindus and Mahometans in India, which permits polygamy. Dissolution of such a marriage will not be granted (Hyde v. Hyde, 1866, L. R. 1 P. & D. 130, 35 L. J. P. 57; Ardesir Cursetjee v. Perozboye, 10 Moo. P. C. 375); nor will its issue be entitled to succeed to English lands (Re Bethell, Bethell v. Hildyard, 1888, 38 Ch. D. 220, 57 L. J. Ch. 487). In these respects the native marriage is no marriage at all. Succession to personalty being regulated by the lex domicilii, the children of the Indian marriage will be allowed to participate in the division of it. See In re Ullee, 1885, 53 L. T. 711. There is no reason why English Courts should differ from the American Courts in upholding the validity of native marriages to

this extent. See Early v. Godley, 42 Minnesota, 361; Kohogum v. Jackson Iron Co., 76 Michigan, 498; Wall v. Williamson, 8 Alabama, 48; Boyer v. Dively, 58 Missouri, 510; The Kansas Indians, 5 Wallace (U. S. Sup. Ct.), 737; all recognizing the validity of marriages amongst the Red Indians celebrated according to the customs and laws of their tribes. British Indian law guarantees to each subject the benefit of his own personal law; British Indian Courts will, therefore, respect native marriages and grant all relief incident

thereto.

What is then the position of the European wife? Is the union lawful or bigamous? In re Ullee, 1885, 53 L. T. 711, throws some light on the question. There, the Nawab Nizam of Bengal, a married Mahometan, when on a visit to England in 1870, induced an English lady, 4, to embrace the Mahometan faith and then to go through the ceremony of marriage with him according to Mahometan rites. Children born of the marriage were recognized by the Nawab as legitimate. In 1880, he went through the ceremony of marriage with another Englishwoman, B, in London, before the Lord Mayor, and thereupon A separated from him. Without A's consent the children were sent to England for education. The Nawab, by his will, appointed English guardians to them, settled property on, and recognized them as legitimate. On his death, A filed a petition claiming custody of the children, on the ground that as her marriage with the Nawab was invalid, the children were illegitimate, and ought to be in the custody of their mother. The Court held that undoubtedly the marriage was no marriage at all in England, it having been celebrated according to Mahometan law, which permitted polygamy; but that the children were not necessarily illegitimate, their legitimacy being recognized according to the lex domicilii of the putative father; and that even if the children were illegitimate, A was not entitled to their custody after they had passed the age of seven, which they had. The case, however, is indecisive, for (1) d's own petition relied on the invalidity of her marriage; (2) the Court grounded the invalidity on the fact that the marriage was celebrated according to a polygamous law; (3) the point was not necessary for the decision. The decision was briefly affirmed by the Court of Appeal, 54 L. T. 286, solely on the ground of the children's interest, and without discussing the validity of the marriage.

open.

The first circumstance leaves the question to a certain extent Would the marriage have been declared void had A's suit been for restitution of conjugal rights, for separation, or for divorce? Perhaps it would have been; still there is considerable room for doubt.

It is difficult to see what bearing the Mahometan rites had on the invalidity of the marriage. A was a domiciled Englishwoman, and remained so till the completion of the marriage. For it is a well-known principle of international law that one cannot divest oneself of an existing domicile merely by entertaining an intention to that effect, when one continues to reside within the country of the domicile (Re Stern, 1858, 3 H. & N. 594, 28 L. J. Ex. 22); nor can one acquire a new domicile by merely abandoning the old and without fixing actual residence somewhere else (Craigie v. Lewin, 1843, 3 Curt. Eccl. Rep. p. 447). It would follow that an unmarried woman does not change her domicile by any mere declaration of intention in contemplation of marriage. See Turner v. Thompson, 1888, 13 P. D. at p. 41; Harvie v. Farnie, 1882, 8 App. Ca. 43. Merely embracing the Mahometan faith cannot be said to have altered her domicile. It merely changed her religion; and English law does not base one's personal law on one's religion. The marriage was celebrated in London, and if registered was valid according to English law. The previously performed Mahometan rites were in no way essential to it. It was the registration, if any, and not the observance of the Mahometan rites that constituted A the wife of the Nawab. And English law does not sanction polygamy1.

The invalidity of the marriage, more assumed than proved by the Court, can be supported on three grounds only; viz. (1) that the Nawab by his personal law could contract as many marriages as he chose; and therefore every marriage, wherever celebrated, was necessarily polygamous and void. This view, if adopted, must lead to very serious consequences. For even an unmarried Indian, Turk, or Mormon cannot take a lawful English wife, and if he purports to do so the children are illegitimate. A European having adopted a non-monogamous faith, and acquired an Indian domicile, is in the same predicament. What is worse, any Indian, Turk, &c., or an Indianized European can, like the tyrant for whose behoof the Arabian Nights' Tales were told, have a new wife every twenty-four hours, for he has simply to go through ceremonies after ceremonies of marriage; and as each marriage is no marriage at all, there is no bigamy. (2) That the Nawab, being already married, could not take a lawful English wife.. This would be throwing overboard the decisions in Hyde v. Hyde and In re Bethell, and recognizing the first marriage as valid. One way of reconciling the cases would be

The writer has not been able to find the entry of marriage at Somerset House; but this he does not consider conclusive, owing to the almost illimitable number of ways in which the Nawab might have signed his name. He has been informed by a member of the Nawab's family that the marriage is believed to have been registered.

to suppose that the contract of marriage was entered into with an unlawful intention on the part of the Nawab, but not on the part of A; and that A could therefore avoid it (Cowan v. Melbourn, 1867, L. R. 2 Ex. 230); but that would hardly apply, for after full knowledge of facts decided to abide by the contract, and did not repudiate it for fourteen years. Another way would be to suppose that A was aware of the Nawab's marriage at the time she united her lot with his, and therefore there was nothing but a contract of concubinage. There is nothing in the case to lead one to make this assumption: besides, in either case, it would be presuming that the first marriage is such as an English Court considers valid and binding absolutely. (3) That the mode of celebration did not comply with the requirements of English law, of which there is no proof.

The only tenable ground is the one first mentioned; and if the view that an Anglo-Indian marriage is invalid be adopted, we must be prepared to face all the consequences. Suppose an Indian student marries in England, and then acquires a domicile here. He dies intestate and seised of large estates of freehold. Who is entitled to them? Not the children of the English marriage, for they are illegitimate, so long as Doe d. Birtwhistle v. Vardill, 1840, 7 Cl. & F. 571 stands as authority. Nor yet the children of any Indian wife, if he had one; In re Bethell, 38 Ch. D. 220. Nor his ascendants, for the marriage of ascendants was polygamous. The lands must therefore go to the Crown. Indians had better beware of investing their cash in English lands.

The criminal aspect of the case is no less interesting. Was marrying an act of bigamy? According to 24 & 25 Vict. c. 100. s. 57 the offence arises when a person, being married, shall marry another person while the first husband or wife is alive. The second marriage may take place in England or Ireland, or elsewhere if the person is a British subject. The answer to the question depends on the status created by the first and second marriages, and on the meaning attached to the words 'marry' and 'marriage.' If the word 'marry' means going through a ceremony of marriage, valid according to the lex loci celebrationis, and 'marriage' means the ceremony of marriage, this signification will give the same meaning to the word 'marry' throughout the section-the offence of bigamy was committed. Put if the word 'married' means having a lawful or lawfully wedded wife or husband, and the word 'marry' means going through the ceremony of marriage, then there was no bigamy (R. v. Kay, 1876, 16 Cox, C. C. 292), unless we regard the first marriage as a marriage according to the law of England, and overrule the decision in Hyde v. Hyde. It must be