| S v8 Carnell Law School Library Cornell University Library KF 411.888 1883 iam 3 1924 016 944 278 law COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND DOMESTIC, IN REGARD TO CONTRACTS, RIGHTS, AND REMEDIES, AND ESPECIALLY IN REGARD TO MARRIAGES, DIVORCES, WILLS, SUCCESSIONS, AND JUDGMENTS. BY JOSEPH STORY, LL.D. EIGHTH EDITION. BY MELVILLE M. BIGELOW. BOSTON: LITTLE, BROWN, AND COMPANY. 1883. fs - « Entered according to Act of Congress, in the year 1857, by WILLIAM W. STORY, in the Clerk’s Office of the District Court of the District of Massachusetts, Entered according to Act of Congress, in the year 1865, by WILLIAM W. STORY, in the Clerk’s Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1868, by WILLIAM W. STORY, in the Clerk’s Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1872, by WILLIAM W. STORY, in the Office of the Librarian of Congress at Washington. Entered according to Act of Congress, in the year 1888, by WILLIAM W. STORY, in the Office of the Librarian of Congress at Washington. KF HII Wie UNIVERSITY PRESS: JOHN WILSON AND SON, CAMBRIDGE. ‘PREFACE TO THIS EDITION. « Tue text and notes of the author, as they stood in the third edition of the present work, which edition contained the last revisions and emendations made by him, are in the present edi- tion .restored in their integrity by the removal of all matter interpolated since the author’s death. The notes and additions to the text made since that time have been used as materials for the double-column notes of this edi- tion. Ina few cases the notes of former editors stand as they appeared in the seventh edition; but most of the notes now appearing in double columns are new. ‘The author’s notes run across the page. The notes, other than the author’s, from the beginning of the work to the end of Chapter V., at page 226, and those at the end of section 473 a (page 650), and of section 5146 (page 781), were written by Mr. J. L. Thorndike, of the Boston Bar. The editor’s thanks are due to Mr. George J. Tufts for valua- ble assistance throughout the work. MELVILLE M. BIGELOW. Boston, May 1, 1888. ADVERTISEMENT TO THE SECOND EDITION. THE former edition of this work being exhausted, I have availed myself, in the preparation of the present edition, of the opportu- nity of revising, correcting, and amending the text and notes throughout, and of adding such new materials as have been fur- nished by the recent authorities at the common law, as well as by more diligent researches into foreign jurisprudence. For the opinions of some foreign jurists, I was obliged, in the former edi- tion (as the reader was informed in the notes) to rely upon the citations from their works which I found in other authors, not having access to the originals. With one or two unimportant exceptions, the originals of these foreign jurists are now in my possession, and have been consulted by me; so that I have been enabled to correct some errors in those citations, and also to fur- nish more complete and perfect statements of their respective opinions. Perhaps it may not be useless here to add that, in every case where any authority for any position is cited at the bottom of the page, the reader may rest assured that the very citation has been perused and diligently compared by me with the original. , As the works of foreign jurists, especially of those who lived before the middle of the eighteenth century, are rarely to be found in American libraries, either public or private, and are becoming daily more scarce and difficult to be purchased abroad, I have made my extracts therefrom more copious, and often cited the words of the original, so that the reader might be spared the necessity of further researches into the originals, and also might possess the means of ascertaining the accuracy of the expositions in the text. vi ADVERTISEMENT. These explanations may account for the fact, that the work, unexpectedly to myself, has swelled to double its former size; a fact which (as the pages and sections of the former edition are still preserved) might not readily occur to those who are not accustomed to examine the signatures at the bottom of the differ- ent sheets. Since the publication of the former edition, Mr. Burge has pub- lished his very able and comprehensive Commentaries on Colonial and Foreign Law, mainly as applicable to the colonies of Great Britain, in which he has devoted a number of chapters to the con- sideration of many of the topics embraced in the present work, The plan of his work, however, essentially differs from my own in its leading objects. It exhibits great learning and research ; and as its merits are not as yet generally known to the profession on this side of the Atlantic, I have made many references to it, and oceasional quotations from it, with the view of enabling the pro- fession to obtain many more illustrations of the doctrines than my own brief text would suggest, and also fully to appreciate his learned labors. Monsieur Foelix, also, the accomplished editor of the Revue Eitrangére et Frangaise (a highly useful and meri- torious periodical published at Paris), has, in the volume of the year 1840, discussed, in a series of articles, many topics of the Conflict of Laws, and given the opinions of the leading foreign jurists on the subject. I have gladly referred to his very interest- ing and lucid expositions, that my own countrymen may more readily understand their great value and importance. It is not probable that, in the course of my own life, this work will undergo any essential change from its present form. Other avocations and other pressing duties, judicial as well as profes- sorial, will necessarily occupy all the time and attention which I may hereafter be permitted to command for any juridical pursuits. I must, therefore, dismiss these Commentaries to the indulgent consideration of the reader, not as a work which has-surveyed the whole subject or exhausted the materials, but as an essay towards opening the leading doctrines and inquiries belonging to private international jurisprudence, which the genius and learning ADVERTISEMENT. vii and labors of more gifted minds may hereafter mould and polish and expand into an enduring system of public law. My own wishes will be fully satisfied, if (to use the language of my Lord Coke, in the close of his first Institute) anything shall be found herein, which “ may either open some windows of the law to let in more light to the student, by diligent search to see the secrets of the law, or to move him to doubt, and withal to enable him to inquire and learn of the sages, what the law, together with the true reason thereof, in these cases is.” JOSEPH STORY. January, 1841. TO THE HON. JAMES KENT, LL.D. Sir, Ir affords me very sincere satisfaction to have the opportunity of dedicating this work to you. It belongs toa branch of interna- tional jurisprudence which has been long familiar to your studies, and in which you have the honor of having been the guide and instructor of the American youth. I can trace back to your early labors in expounding the civil and the foreign law the motive and. encouragement of my own far more limited researches. I wish the present work to be considered as a tribute of respect to a distinguished master from his grateful pupil. It is now about thirty-six years since you began your judicial career on the bench of the Supreme Court of the State of New York. In the intervening period between that time and the pres- ent, you have successively occupied the offices of Chief Justice and of Chancellor of the same State. I speak but the common voice of the profession and the public when I say, that in each of these stations you have brought to its duties a maturity of judg- ment, a depth of learning, a fidelity of purpose, and an enthusiasm for justice, which have laid the solid foundations of an imperish- able fame. In the full vigor of your intellectual powers, you left the bench only to engage in a new task, which of itself seemed to demand by its extent and magnitude a whole life of strenuous diligence. That task has been accomplished. The Commentaries on American Law have already acquired the reputation of a jurid- ical classic, and have placed their author in the first rank of the benefactors of the profession. You have done for America what Mr. Justice Blackstone in his invaluable Commentaries has done for England. You have embodied the principles of our law in pages as attractive by the persuasive elegance of their style x DEDICATION. as they are instructive by the fulness and accuracy of their learning. You have earned the fairest title to the repose which you now seek, and which at last seems within your reach. It is in the noblest sense, Otiwm cum dignitate. May you live many years to enjoy it! The consciousness of a life like yours, in which have been blended at every step public spirit and private virtue, the affections which cheer and the taste which adorns the domestic circle, cannot but make the recollections of the past sweet, and the hopes of the future animating. . I am, with the highest respect, Your obliged friend, JOSEPH STORY. CamMBripGE, MassacHUsErts, January 1, 1834. PREFACE. I now submit to the indulgent consideration of the profession and the public another portion of the labors appertaining to the Dane Professorship of Law in Harvard University. The subject is one of great importance and interest ; and from the increasing intercourse between foreign States as well as between the differ- ent States of the American Union, it is daily brought home more and more to the ordinary business and pursuits of human life. The difficulty of treating such a subject in a manner suited to its importance and interest can scarcely be exaggerated. The mate- rials are loose and scattered, and are to be gathered from many sources, not only uninviting but absolutely repulsive to the mere student of the common law. There exists no treatise upon it in the English language ; and not the slightest effort has been made, except by Mr. Chancellor Kent, to arrange in any general order even the more familiar maxims of the common law in regard to it. Until a comparatively recent period, neither the English lawyers nor the English judges seem to have had their attention drawn towards it as a gréat branch of international jurisprudence, which they were required to administer. And as far as their researches appear as yet to have gone, they are less profound and satisfactory than their admirable expositions of municipal law. The subject has been discussed with much more fulness, learn- ing, and ability by the foreign jurists of continental Europe. But even among them there exists no systematical treatise embracing all the general topics. For the most part, they have discussed it only with reference to some few branches of jurisprudence, pecu- liar to the civil law, or to the customary law (almost infinitely varied) of the neighboring States of Europe or the different prov- xii PREFACE. inces of the same empire. And it must be confessed that their writings are often of so controversial a character, and abound with so many nice distinctions (not very intelligible to jurists of the school of the common law), and with so many theories of doubtful utility, that it is not always easy to extract from them such principles as may afford safe guides to the judgment. Ro- denburg, Boullenois, Bouhier, and Froland have written upon it with the most clearness, comprehensiveness, and acuteness. But they rather stimulate than satisfy inquiry ; and they are far more elaborate in detecting the errors of others than in widening and deepening the foundations of the practical doctrines of interna- tional jurisprudence. I am not aware that the works of these eminent jurists have been cited at the English bar ; and I should draw the conclusion that they are in a great measure, if -not altogether, unknown to the studies of Westminster Hall. How it should happen that, in this age, English lawyers should be so utterly indifferent to all foreign jurisprudence, it is not easy to conceive. Many occasions are constantly occurring in which they would derive essential assistance from it to illustrate the ques- tions which are brought into contestation in all their courts. In consulting the foreign jurists, I have felt great embarrass- ment, as well from my own imperfect knowledge of the jurispru- dence which they profess to discuss, as from the remote analogies - which it sometimes bears to the rights, titles, and remedies recog- nized in the common law. To give their opinions at large upon many topics would fill volumes ; to omit all statements whatever of their opinions would be to withhold from the reader many most important lights to guide his own studies and instruct his own judgment. I have adopted an intermediate course, and have laid before the reader such portions of the opinions and reason- ings of foreign jurists as seemed to me most useful to enable him to understand their doctrines and principles, and to assist him with the means of making more ample researches if his leisure or his curiosity should invite him to the pursuit. Humble as this task may appear to many minds, it has been attended with a labor truly discouraging and exhausting. I dare not even now indulge PREFACE. xii the belief that my success has been at all proportionate to my wishes or my efforts. I feel, however, cheered by the reflection (is it a vain illusion ?) that other minds of more ability, leisure, and learning, may be excited to explore the paths which I have ventured only to point out. I beg, in conclusion, to address to the candor of the profession my own apology in the language of Strykius: ‘Crescit disputatio nostra sub manibus; unum enim si absolveris jus, plura se offerunt consideranda. At nos tem- poris, quod nimis breve nobis fit, rationem habentes, accuratius illa inquirere haud possumus. Hine sufficerit, in presens spar- sisse quedam saltem adhuc jura, quidque de iis statuamus, vel obiter dixisse.” } JOSEPH STORY. CaMBRIDGE, MassacuusETTs, January 1, 1834. 1 Strykii, Disputatio 1, ch. 2, § 92, Tom. ii. p. 24. LIST OF AUTHORS CITED. \ Tue following list of some of the more important authors, whose works have been cited, may assist the student in his researches :— D’Acursseav, Henry Francis, Chancellor of France, born at Limoges, 1668, and died 1751. His works are collected and published in 13 vols. 4to. ALEXANDER aB ALEXANDRO, a Neapolitan lawyer, born 1461, and died at Rome about the age of 62. D’ARGENTRE, BERTRAND, President of the Presidial of Rennes, born in 1519, and died in 1590. His works are entitled “Commentarii in Patrias Britonum Leges, seu Consueiudines generales Ducatus Britannie.” Banus, Usatpus, born about 1324, died 1400. His works are comprised in 4 vols. folio. [Bar on “International Law.” Boston, 1883.] Barto1o, or BarrHo.us, born at Sasse Ferrato, in the March of Ancona, 1313, and died in his 46th year. He was called “the star and luminary of lawyers, the master of truth, the lantern of equity, the guide of the blind,” &c. His works were printed at Venice, 1499, in 4 vols. fol., according to Camus, in 1599, in 10 or 11 vols. fol., according to Watt. BovuieEr, J., President of the Parliament of Dijon, born at that place, 1673, and died 1746. His works, relating to the present subject, are published in 2 vols fol., and entitled, ‘Les Coutumes du Duché de Bourgogne avec les Observations du Président Bouhier.” Bouttenors, Lours, advocate in the Parliament of Paris, born at Paris, 1680, and died 1762, There are two works by him on the present subject: “Traité et de la Personalité et de la Réalité des Loix, Coutumes, Statuts, par forme d’Observa- tions,” in two vols. 4to, and “ Dissertations sur des Questions, qui naissent de la Contrariété des Loix et des Coutumes,” 4to. -This last was published first, and is the original outline of the larger work which afterwards appeared. Bretonnier, BARTHOLOMEW JOSEPH, advocate of the Parliament of Paris, born at Montrotier, near Lyons, 1656, and died 1727. He is the author of a work in 2 vols. 12mo, entitled “Recueil des principales Questions de Droit qui se jugent diversement dans les différens Tribunaux du Royaume, avec des Réflexions pour concilier la Diversité de la Jurisprudence.” He also edited the works of Henrys. Borer, Wiiu1am, “Commentaries on Colonial and Foreign Laws generally and in their conflict with each other.” 4 vols. 8vo. London, 1838. Borcunpvus, Burcunpivs, or Bourcorenn, Nicorats, jurisconsult, born at Enghien in Hainault, 1586. He is the author of a work entitled “ Tractatus Controver- siarum ad Consuetudinem Flandriz.” BYNKERSHOEK, CorNELIUS VAN, born at Middlebourg, 1673, and died 1737. His works are well known. Casarzais, Joszrpa LAURENTIUS DB, born at Genoa, 1670, and died 1737. His works are entitled, “Discursus legales de Commercio,” and are published in 2, 8, and 4 vols. folio. xvi LIST OF AUTHORS CITED. Curistinxus, Pavivs, born at Malines, 1533, and died 1638. His works are, “ Prac- ticarum Questionum Rerumque in Supremis Belgarum Curiis actarum et observa- tionum Decisiones ;” and “ Commentarii in Leges Municipales Mechlinienses. ; Cocuin, Henry, advocate in Parliament, born at Paris, 1687, and died 1747, His works are collected in 6 vols. 4to. fi Coguitte, Gur, advocate of the Parliament of Paris, born at Decize in Nivernois, 1523, and ‘died 1603. There is a work by him, “Des Coutumes des Nivernois.” Cusas, JAMES, born at Toulouse, 1520, and died 1590, His voluminous works need not be particularly mentioned. ; : Denisant, J. B., jurisconsult, born 1712, and died 1765. He published “ Collections de Décisions nouvelles relatives a la Jurisprudence.” (Dicey on “Domicil.” London, 1879.] Domat, Jonn, born at Clermont in Auvergne, 1625, and died 1696. His “ Civil Law” in its natural order is well known through the tzanslation of Dr. Strahan. Dosovtrn (in Latin Morinazus), CHARLES, born 1500, and died 1560. What he has written upon the present subject is to be found in his Commentary on the first book of the Code, verb. Conclusiones de Statutis, in his 53d Consilium, and in his notes on Alexander, Decius, and Chasseneuz. Doranton, A, Professor of Law at Paris. His works are, “ Cours de Droit Frangais, suivant le Code Civil,” in 20 vols. 8vo. Emericon, BALTAZARD Marts, advocate of the Parliament of Aix, born about 1725, and died 1784. His “ Traité des Assurances,” 2 vols. 4to, is referred to in the present Commentaries. : Ersxivz, Jouy, Professor of Law at Edinburgh. His principal work is entitled “ In- stitutes of the Laws of Scotland.” Evernarp, Nicnonas, born in the island of Walcheren, 1462, and died 1532. His works are “Topica Juris, sive Loci Argumentorum Legales;” and “ Consilia, sive Responsa Juris.” Foxttx, M., editor of the “Revue Etrangére et Francaise,” a learned periodical pub- lished at Paris, beginning in 1833 and still (1840) continued. Froxtanp, Louis, advocate of the Parliament of Rouen, died 1764. His works relat- ing to the present subject, in two 4to vols., are entitled, “ Mémoire concernant la Nature et la Qualité des Statuts.” GarLi, ANDREW, born at Cologne, 1525, and died 1587. He was called the Papinian of Germany. Grotius, Hueco, born at Delft, 1583, and died 1645. His works are well known. Heineccivs, JOHANNES GOTLEIB, Professor of Philosophy and Law at Halle, born at Eisenburg, 1681, and died 1741. His works need not be particularly mentioned. Henrys, CLavupe, jurisconsult, born at Monthrison, 1615, and died 1662. His works are collected in 4 vols. folio. Hertivs, Jonannes Nicoxavs, born near Giessen, 1651, and died 1710. His treatise “De Collisione Legum ” is to be found in his select works in 2 vols. 4to. Hoservs, Uricus, a lawyer, historian, and philologer, born at Dockum in the Dutch territories, 1635, and died 1694. His treatise “De Conflictu Legum” is to be found in his “ Preelectiones Juris Civilis,” 3 vols. 4to. Kames, Lorp (Henry Home), born at Kames, in Berwickshire, 1696, and died 1782. The reader is referred to his “ Principles of Equity.” Le Brun, Dents, advocate, died 1708, before the publication of his principal work, “ Traité de Communautés.” Levuwen, Simon van, born at Leyden, 1625, and died 1682. His work referred to, in the present Commentaries, is translated into English, with the title of “Com- mentaries on the Roman-Dutch Law.” [Linpuey on “Partnership,” 4th ed. London, 1878.] LIST OF AUTHORS CITED. xvii Lrvermore, Samvet, of New Orleans, died 1883. He is the author of “ Dissertations on the Contrariety of Laws.” Mascarpvus, JosePuus, an ecclesiastic and Italian jurisconsult, born at Sarzana towards the end of the 16th century, and died about 1630. He is the author of an extensive work, entitled “‘ De Probationibus Conclusiones.” Meruiy, M. (de Dovat). His voluminous works are entitled, “ Répertoire Univer- sel et Raisonné de Jurisprudence ;” and “ Questions de Droit.” Morwac, Antoine, born near Tours, first appeared before the Parliament of Paris in 1580, and died 1620. His works are comprised in 4 vols. folio. Parpessus, J. M., “ Cours de Droit Commercial,” 5 vols. 8vo. Paris, 1831. Pec, Peter, born at Zirckzee, in Zealand, 1529, and died 1589. His works are col- lected in 1 vol. folio. Poruirr, Ropert JOSEPH, born at Orleans, 1699, and died 1772. His works need not be particularly mentioned. PUFFENDORF, SAMUEL, born in Upper Saxony, 1632, and died 1694. His works are well known. Ropensure was a judge of the Supreme Court of Utrecht, and flourished about the middle of the 17th century. His treatise, “De Jure quod oritur ex Statutorum vel Consuetudinum Diversitate,” is to be found at the end of Boullenois’s “ Traité de la Personalité et de la Réalité des Loix.” [Savieny’s Private International Law, Guthrie’s transl. Edinburgh, 1869.] Srocxmans, Perer, born at Antwerp, 1608, and died 1671. His works are comprised in 1 vol. 4to. Srryxius, SAMUEL, born 1640, and died 1710. His son, Joun Samurt, was born 1668, and died 1715. Their works, with those of Ruertius, are collected in 14 vols. folio. Vort, Paut (the father), born at Heusden, in Brabant, 1619, and died 1677. His work on the present subject is entitled, “‘ De Statutis et eorum Concursu.” Vorr, Joun, son of Paul, born at Utrecht, 1647, and died 1714. His “ Commentary on the Pandects,” contains a short chapter, “ De Statutis.” [Westiake on “ Private International Law.” London, 1880. Wuazrton, Conflict of Laws. Philadelphia, 1872.] CONTENTS. List or AuTHORS CITED . Inpex To Cases CITED CHAPTER I. Intropuctory REMARKS CHAPTER ILI. GeneraL Maxims or. INTERNATIONAL JURISPRUDENCE . CHAPTER III. NationaL Domicin CHAPTER IV. \ Capacity or Prrsons CHAPTER V. MarriaGe . CHAPTER VI. Incipents TO MARRIAGES . CHAPTER VII. Forzrien Divorces i CHAPTER VIII. \Forzren ConTRACTS. . Pa xv-x" Xxi-xxx 21- 40- 67-1! 184-2: 227-2' 275-3. 315-5: xx CONTENTS. CHAPTER IX. PERSONAL PROPERTY. «. « © © © © «© «© @ @ CHAPTER X. \ REAL PROPERTY CHAPTER XI. \ WILLS AND TESTAMENTS CHAPTER XII. \Succzssion anp DisTRIBUTION e CHAPTER XIIL FOREIGN GUARDIANSHIPS AND ADMINISTRATIONS . CHAPTER XIV. JURISDICTION AND REMEDIES . CHAPTER XV. FOREIGN JUDGMENTS . CHAPTER XVI. \ Pewat Laws AND OFFENCES . CHAPTER XVII. EviDENCE AND PROOFs . INDEX 533-590 591-640 641-676 677-692 693-748 749-807 808-839 840-849 850-874 875 INDEX TO CASES CITED. [THE FIGURES REFER TO THE PAGES.] Andrews v. Herriot 775, 784, 863, 873 A. Andrews v. His Creditors 96, 171, 825, 344, 588 Abell v. Douglass 609, 867 v. Michigan Rld. Co. 180 Abington v. N. Bridgewater 45, 65 v. Pond 325, 327, 328, 876, 396, 397, Abraham v. Plestoro 576, 579 899, 402, 423, 442, 775 « Abston v. Abston 684 v. Smith 823 Acebal v. Levy 851, 385, 449 | Ann Green, The 43 Adam »v. Kerr 784 | Anonymous 747 Adams v. Cordis 428, 429 | Anstruther v. Adair 240, 259, 373 v, Evans 44 v. Chalmer 666, 670, 691 v. People 842 | Antelope, The 157, 158, 841 v. Robertson 377, 380 | Apperson v. Bolton 698, 652, 713 v, Wait 773 | Applegate v. Smith 652 v. Way 873 | Appleton v. Campbell 840, 341 Adeline, The 590 v. Lord Bray brook 862, 872 Agnew ». Platt 487 | Arayo v. Currell 868 Aikman v. Aikman 51, 53} Archer v. National Ins. Co. 351 Aitchison v. Dixon 51] Arendell v. Arendell 274 Akers v. Demond 171, 877, 379, 380, a Arglasse v. Muschamp 758 Albion Ins. Co. v. Mills 5 | Armstrong v. Lear 644, 715 Alcock v. Hopkins $08 v. Toler 880, 331, 332, 333, 834 Aldrich v. Kinney 829, 832] Arnold v. Potter 3877, 380, 395, 399, 442 Alford v. Baker 877, 866 | Arnott v. Redfern 396, 826, 829 Alivon v. Furnival 177, 561, 579, 781, | Arthur v. Hughes 736 788, 826, 827, 828, 829} Aspden v. Nixon “789, 740 Allardice v. Onslow 52| Atkins v. Smith 715, 733 Allen v. Bratton 877 | Atkinson v. Allen 831 v. Kemble 442 v. Anderson 147 v. Merchants’ Bank 444 | Att.-Gen. v. Bay State Mining Co. 175 v. Watson 864, 865 v. Bouwens 648, 715, 724, 781, 742 Alston v. Newcomer 61 v. Cockerell 715 Alves v. Hodgson 827, 846, 350, 856 v. Dimond 648, 725, 731, 734 Amedie, The 154, 159 v. Dunn 647, 679 American Bank v. Rollins 834 v. Hope 648, 731 American Bible Society v. Marshall 175 v. Kent 57 American Ins. Co. v. Owen 780 v. Lepine 731 v. Rosenagle 870, 872 v. Mill 629 Ames, In re 714 v. Napier 57 v. Duryea 57 v. Pottinger 45, 46, 47 v. McCamber 868, 870 v, Rowe 57 Amy v. The Supervisors 834 v. Wahlstatt 61 Anderson v. Anderson 49, 831 | Atwater v. Townsend 480, 787, 788 v. Caunter 715, 731, ie Augusta Ins. Co. v. Morton 598 v. Laneuville 2} Ayer v. Tilden 395 v, Milwaukee Ry. Co. gad Aymar v. Sheldon 260, 441, 442, 443, 444, 489, 506 XXli B. Babcock v. Weston Backhouse v. Selden 493 379 Bagby v. Railroad Co. 780 Bailey v. McDowell 871 Bain v. Ackworth 450 v. Whitehaven R. Co. 855, 856 Baker v. Smith 727 v. Wheaton 480, 484, 485, 487 Baldwin v. Gray 96, 100, 115 v. Hale 488, 546, 547, 810 Baldwin’s Appeal 714 Balfour v. Scott 642 Ballantine v. Golding 479, 483 Ballard v. Winter 545 Ballingalls v. Gloster 506 Ballister v. Hamilton 883, 392 Balme v. Wombough 442 Baltimore v. Chester 64 Baltimore R. Co. v. Glenn 864 v. May 834 Bangor v. Brewer 46 Bank of Augusta v. Earle 23, 35, 36, 170, 175, U7, 780 Bank of Australasia v. Harding 823, 830 v, Nias 823, 830 Bank of Cincinnati v. Hall 175 Bank of Commerce . Huntington 179, 180 Bank of Gallipolis v. Trimble 793 Bank of Georgia v. Lewin 442, 443 Bank of Louisiana r. Williams 250 Bank of Louisvillev. Young 377, 895, 407 Bank of Montreal v. Bethune 176 Bank of North America v. Wheeler 828 Bank of Old Dominion v. Allen 823 Bank of Rochester v. Gray 348, 444, 873 Bank of Tennessee v. Horn 741 Bank of the United States v. Don- nally 326, 367, 775, 776, 784, & v. Merchants’ Bank Bank of Washington v. Triplett 508 Banta v. Moore 722, 737 Baptiste v. Volunbrun 46 | Biggs v. Lawrence INDEX TO CASES CITED. Bartsch v. Atwater 476, 478 Bascom v. Albertson 645 Bateman v. Service 85, 175, 829 Battey v. Holbrook 788 Baxley v. Linah 823 Baxter v. New England Ins. Co. 830 Bayley v. Edwards 7, 833 Baylies v. Houghton 562 Bayon v. Vavasseur 853 Beach v. Bay State Co. 845 Beall v. Lowndes 598 Beason v. State 46 Beattie v. Johnstone 696 Beatty v. Mason 714 Beckford v. Wade 801, 802 761, 763, 764, 765, Becquet v. McCarthy 824, 827, 828 Beers v. Shannon 544 Bell v. Bruen 377 v. Kennedy 43, 48, 58, 54, 811 v. Nichols 714 v. Packard * 171 v. Pierce 63 Bellows v. Ingham 880, 832 Bemis v. McKenzie 864 Bempde v. Johnstone 49, 50, 51, 58, 56, 544, 642, 645 Benners v. Clemens 325, 377, 881, 426 Bennet, The 825 Bennett, Goods of 642 Bent v. Lauve 367 Bentley v. Whittemore 546, 547 Benton v. Burgot 830, 832 Berluchaux v. Berluchaux 868 Bernardi v. Motteux 818, 830 Berne v. Bank of England 780 Besse v. Pellochoux 267, 598 Betton v. Valentine 573 Bettys v. Milwaukee Ry. Co. 844, 845 Bholen v. Cleveland Bianchi, In bonis Bible Society 7. Pendleton Bicknell v. Field Bigelow v. Ames 549, 552, 556, 658 666, 667, 672 831 795 334, 337, 339 Barber v. Barber 49 | Billerica v. Chelmsford 64 v. Hartford Bank 816 | Bingham’s Appeal 544, 650, 652 v. Root 306, 307, 809 | Binnington v. Wallis 340 Bard v. Poole 176, 395, 396, 398, 780 | Bird v. Caritat 782, 787 Barker v. Stacy 545 v. Pierpont 782 Barkman v. Hopkins 871 | Birtwhistle v. Vardill 106, 112, 113, 116, Barney v. Patterson . 880, 831 120, 121, 122, 180, 188, 144, 481, 539, Barnum v. Barnum 144, 147 592, 598, 607, 652, 677, 681, 684 Barrera v. Alpuente 100 | Bischoff v. Wethered 761 Barrett v. Barrett 504, 786 Barringer v. Boyd 882 v. King 395 Barrow v. West 814 Barrows v. Downs 451, 870 Barrs v. Jackson 808 Barry v. Equitable Soc. 377 Barry’s Appeal 716 Bartlett, x parte . 49 nae v. Higgins 714, 735 v. Irasburg 68, 64, 65 Bissell v. Briggs 742, 762, 765, 766, 768, 809, 811, 816, 829, 832 v. Kellogg 818 v. Terry 598 Black v. Lord Bray brook 862, 872 v. Johnston 610 v. Zacharie 825, 328 Blackmore v. Brider 194 Blad v. Bamfield 815, 87 Blake v. Williams 476, 589, 557, 561, 572, 578, 575, 576, 817, 580, 598 INDEX TO CASES CITED. Xxili Blake Crusher Co. v. New Haven 780 | Brickwood v. Miller 681 Blakes, Ex parte 69, 757 | Briggs v. Briggs 311 Blanchard v. Equitable Safety Ins. v. Rochester 61 Co. Brigham v. Henderson 488, 547 v. Russell 28, 33, 35, 827, 349, 874, | Bright v. Bright 731 448, 479, 480, 481, 484, 485, 486, | Brine v. Insurance Co. 698 491, 492, 493, 494, 508 | Bristow v. Secqueville 349, 350, 855, Bligh v. James 392 856, 872 Bliss v. Brainard 851 | British American Land Co. v. Ames 175, v. Houghton 793 780 Blithman, Jn re 571, 645 | British Linen Co. v. Drummond 367, Blumenthal v. Tannenholz 48, 309 774, 794, 800, 803 Blumer, Ex parte 44 | Brock v. Frank 598 Blystone v. Burgett 545, 864 | Brodie v. Barry 136, 598, 639, 642, 645, Bodurtha v. Goodrich 810 685, 686, 687 Bold Buccleugh, The 816 v. Brodie 312 Bollard v. Spencer 735 | Broh v. Jenkins _ 800 Bolton v. Street 895, 899) Brook v. Brook _171, 188, 196, 216, 217, Bonati v. Welsch 250 218, 219, 221, 223, 225, 226 Bond v. Bond 755 | Broughton v. Bradley 379 v. Cummings 250, 825 | Brown v. Bridge 438 v. Graham 714, 715 v. Brown 666, 684, 691 v. St. George 66 v. Camden R. Co. 377, 378, 866 Bonds v. Foster 864 v. Clarke _ 823 Bonham v. Badgley 193 v. Collins 490, 547, 810 Booth v. Clark 578, 575 v. Duncan 334 Borden v. Borden 715 v. Gracey 865 v. Fitch 811, 313, 762, 829 v. Knapp 731, 785 Borland v. Boston 61, 62 v. Lynch 48 Boston v. Boylston 716, 718, 728, 737 v. Richardsons 361: Boston & Albany Rld. Co. v. Pearson 177 v. Smith 57 Boston & W. R. Co. v. Sparhawk 831 v. Stone 794 Boston Type Foundry v. Wallack 482, 483 v. Thornton 847, 862 Botanico Medical College v. Atchinson 868 v. United States 479 Boucher v. Lawson 880, 331, 339, 347, | Brownington v. Charlestown 64 : 819, 822, 826 | Brownlee v. Lockwood 714 Bourcier v. Lanusse 240, 263 | Bruce, In re 534 Bourke v. Ricketts 432 v. Bruce 50, 52, 54, 508, 537, 539, Bowaman v. Reeve 747 658, 642, 677 Bowditch v. Soltyk 482, 484 | Bruneau v. Bruneau 261 Bowen v. Bradley 442, 443 | Brunel v. Brunel 52 v. Newell 377 | Brush v. Curtis 782 Bowles v. Eddy 377 v. Wilkins 872 v. Orr 821, 826 | Bryan v. McGee 727 Bowman v. Carr 714 | Bryden v. Taylor 852 v. Miller 379 | Buchanan v. Deshon 599 Bowne v. Joy 833 v. Rucker 761, 762, 809 Bowry v. Bennet 841 | Buckinghouse v. Gregg 865 Boyce v. Edwards 885, 406, 424, 450 | Buckles v. Ellers 844 Boyd v. Clark 845 | Bucknam v. Thompson 58 v. Ellis 377 | Buckner v. Finley 447, 831 Boyes v. Bedale 144, 668, 666, 671 v. Van Lear 833 Boyle v. Zacharie 392, 487 | Bulger v. Roche 794, 800, 804, 805 Brackett v. Norton 826, 868, 868, 871 | Bulkley v. Williamstown 63 Bradford v. Farrand 882, 489 | Bullard v. Thompson 3879 v. Rice 832 | Bullock v. Rogers 742 Bradlaugh v. De Rin 440 | Bunbury v. Bunbury 676, 681 Bradshaw ». Heath 313 | Burbank v. Payne 714 Bradstreet v. Neptune Ins.Co. 810, 815, v. Whitney 731, 782 818 | Burchard v. Dunbar 773 Brauser v. New England Ins. Co. 179 | Burgess v. Alliance Ins. Co. 428 Braynard v. Marshall 447, 485, 487, 489 v. Burgess 193 Breadalbane v. Chandos 873 | Burlen v. Shannon 810, 817, 821 Bremer v. Freeman 588, 648, 869, 870 | Burn v. Cole 715 Brent v. Chapman 802' Burnham v. Rangeley 48, 52 INDEX TO CASES CITED. XX1V Burnham v. Webster 822, 830 | Cash v. Kennion 895, 426 Burrows v. Jemino 827, 856, 478, a ’ ene v. eas : ae v. Stryker 77 | Castrique v. Behren Burton, Be parte 483 v. Imrie 368, 545, 814, 8380, 832 v. Fisher 43 | Catesby’s Case 865 Bush v. Edgerly 645 | Catlin v. Bell 336 Bute Guardianship 697 v. Gladding | 43 Butler, Succession of 714 | Caulfield v. Sullivan 645, 651 v. Delaplaine 155 | Cavan v. Stewart 761, 809 v. Forbes 285 | Cecil Bank v. Barry 869 v. Freeman 212, 216 | Certain Logs of Mahogany 817, 8384 v. Gastrill 190, 193, 194 | Cesena Sulphur Co. v. Nicholson 177, 179 v. Hopper 154, 164 | Chafee v. Fourth National Bank 575 v. Myer 877, 880 | Chamberlain v. Chamberlain 645, 731 Butters v. Olds 877, 442 v. Napier 598, 651, 672 Buttrick v. Allen 162, 829, 830 | Champant v. Renelagh 405 Byrne v. Crowninshield 806 | Champion v. Wilson 863 v. Walker 782 | Champlin v. Tilley 715 Chandler v. Pocock 650 Chanoine v. Fowler 871 C. Chapin v. Dobson + 864 Chapman v. Robertson 364, 368, 393, 399, Caballero, Succession of 148| 400, 401, 402, 408, 424, 442, 592, 598, 630 Cabanne v. Skinker 718 | Charlotte v. Chouteau 864 Cadwalader v. Howell 63 | Chartres v. Cairnes 826, 478 Cagill v. Wooldridge 735 | Chase v. Alliance Ins. Co. 864, 866 Caldwell v. Ball 552 v. Blodgett 117, 842 v. Van Vlissengen 756 v. Chase 3810, 733 Calef v. Calef 309 v. Dow 877, 398 Cambioso v. Maffet 831, 334, 337 v. Flagg 488, 450 Cambridge v. Charlestown 64 | Chatfield v. Berchtoldt 629 Camden Mill Co. v. Swede Iron Co. 780 Cammell v. Sewell 544, 812 Campbell v. Crampton 101, 216, 218 v. Hall 21, 552 v. Nichols 379 v. Sheldon 781, 732 v. State 117 v. Stein 791 v. Tousey 715, 728, 727 v. Wallace 781, 732 Campion v. Kille 867 Cannan v. Bryce 832, 334, 386 Cantu v. Bennett 351 Capdevielle, Zn re 61 Capron v. Adams 426 Carey’s Appeal 44 Cargile v. Harrison 800 Carleton v. Bickford 810, 831 Carlisle v. Chambers 444 v. Tuttle 48 Carnegie v. Morrison 407, 872 Carpenter v. Grand Trunk Ry. Co. 378, 845, 864, 866 Carr v. Lowe 714, 716, 737 v. Shaw 499 Carroll v. East St. Louis 829 v. McPike 716, 737 v. Waters 451, 453 Carron Iron Co. v. Maclaren 177, 179 Carson v. Hunter 795 v. Oates 716 Carter v. Carter 306 Cartwright v. Greene 895 Carver v. Adams 482, 793 Chatham Bank v. Allison 378, 879, aa 44 Cheever v. Wilson 310 Cherry v. Speight 735 Chick v. Ramsdale 194 Chicopee v. Whately 65 Child v. Eureka Powder Works 8238 Chitty v. Glenn + 823 Christian Union v. Yount 175, 329, 780 Christie v. Secretan 818 Christmas v. Russell 831, 832 Church v. Hubbart 863, 869, 870, 871,872 v. Rowell 61 Citizens’ Bank v. Sharp 723 City Ins. Co. v. Commercial Bank ea il Clark v. Cochran 863 v. Connecticut Peat Co. 545, 556 v. Graham 698 v. Tarbell 547 Clarke v. Cochran 347 Cleaves v. Lord 823 Clegg v. Ievy 846, 350, 449 Clopton v. Booker 714 Clugas v. Penaluna 334, 387, 339 Coates, In re 482 Cobb v. Buswell 851 Cochran v. Martin 652 Coekell v. Gray 865 Cockerell v. Barber 426, 431 v. Dickens 584, 539, 598 Cockrell r. Cockrell 45 Coffin v. Coffin 482 Coffman v. Bank of Kentucky 444 INDEX TO CASES CITED. 860 878 878 Cogswell v. Dolliver Cohen v. Southeastern Ry. Co. Coit v. Millikin Collester v. Hailey 59 Collier v. Blake 598 v. Rivaz 43 Collins v. Collins 811 Collins Iron Co. v. Burkam 360, 877, re Colliss v. Hector Colombian Government v. Rothschild 780 Colt v. Partridge 833 Colton v. Longmeadow 61 Comer v. Cunningham 885, 545 Commercial Bank, Zn re 181 v. Barksdale 492, 506 Commonwealth v. Aves 155, 342 v. Deacon 848 v. De Longchamps 848 v. Green 117, 840, 842, 848 v. Griffith 739 v. Holloway 155, 1 v. Lane 117, 196, 217, 226 v. Perryman 195 871 206, 210, 216, 217, 225, 301, 803, 304 Conard v. Atlantic Ins. Co. 552 Conklin v. Egerton 714 Comparet v. Jernegan Compton v. Bearcroft Conner v. Paul 714 Connolly v. Connolly 819 Connor v. Bellamont 393, 395, 398, 399, 423 Consequa v. Fanning v. Willings 382, 383, 407, 429 896, 424, 863 Converse v. Bradley 488 Conway v. Beazle 106, 112, 175, 198, 214, 278, 279, 287, 288, 312, 481 Cook v. Litchfield 379, 444, 833 Cooke ». Orange 780 Cooley v. Scarlett 598 Coolidge v. Poor 382 Cooper v. Reaney 865 v. Reynolds 765, 810 v, Waldegrave 442, 447, 449, 478 Cope v. Alden 893, 898, 402 Coppin v. Coppin Cordeviolle, Succession of Corinth». Bradley , Cory v. Burr Courtois v. Carpentier Cowan v. Milbourn Cowell v. Springs Co. Cowles v. Townsend 598, G09, 652 716 64 39 367, 425, 787 336 175, 829, 730 37 Cox v. Adams 444 v. Cox 310 v. Mitchell 833 v. United States 881, 894 Craigie v. Lewin 43, 47 Crake v. Crake 866, 867 Cranstown v. Johnston 758, 759, 761 Crapo v. Kelly 546 Crawford v. Graves 714, 727 v. Patrick 188, 135 Craycoff v. Morehead 250 Crispin v. Doglioni 691 65 | Cutter v. Davenport XXV Cromwell v. Royal Ins. Co. 379 zu. Sac 895 Croninger v. Crocker 877, 406 Crookenden v. Fuller 46, 53 Cross v. Everts 45 Croudson v. Leonard 814, 830 Crowley v. Panama Ry, Co. 845 Crusoe v. Butler 651, 7382 Cubbedge v. Napier 825, 864, 866 Culbertson v. Floyd 61 Culver v. Benedict 562 Cummings v. Banks 830, 831 Cunningham v. Goelet 811 Curling v. Thornton 642, 643 Currie v. Bircham 781, 734, 787 Curtis v. Delaware R. Co. 877, 378 v. Hutton 592, 598, 652, 668 v, Leavitt 402 v. Smith 783 Cutler v. Wright 877, 399, 867 512, 598, 609, 681, 742 Cutts v. Haskins 49, 710 D. Dalhousie v. M’Donall 150 Dalrymplev. Dalrymple 35, 38, 99, 106, 107, 120, 126, 185, 187, 216, 281, 370, 870, 872 Danforth v. Penny 780, 816 Dangerfield v. Thruston 715 Daniel v. Hill 49 Dannelli v. Dannelli 217, 660, 663, 668, 672 Darby v. Mayer 98, 609, 681 D’Arcy v. Ketchum 765, 831, 832 Dater v. Earl 836 Davidson v. Lanier 340 Davis v. Estey 716, 728, 731, 748 v, Garr 377, 896 v. Jacquin 552 v. Morriss 731 v. Morton 793 v. Packard 830 v. Phillips 714 v. Smith 831 Dawes v. Boylston 716, 718, 737, 782 v. Head 716, 720, 728, 737, 743 Dawson v. Jay 697 Dean uv. Richmond 3809 De Bode’s Case 872 7| De Bonneval v. De Bonneval 53, 647, 679 Deck v. Deck 755 De Conty, Case of 142 De Cosse Brissac v. Rathbone 830 Decouche v. Savetier 115, 242, 246, 268, 878, 677, 794, 800, 802, 803 De Greuchy v. Wills 242 De Haber v. Queen of Portugal 780 De la Chaumette v. Bank of England, 492, 499, 502 Delafield v. Hand 873 Dela Vega v. Vianna 367, 774, 775, 786, 787, 794, 800, 803 XXvVi INDEX TO CASES CITED. Delegal v. Naylor 426, 483 Doulson v. Matthews 172 Delvalle ». Plomer 351 | Dow v. Rowell ay Dempsey v. Ins. Co. of Penn. 830 v. Sanborn Denegre v. Haun 823 | Dowdale’s Case 726, 728, 781 Dennick v. Railroad Co. 330, 845 | Downer v. Chesebrough 855 Dennis v. State 57 | Doyle v. McGuire 512, 600 Denny v. Faulkner 768, 773 | Drake v. Brander 833 v. Williams 850 | Drevon v. Drevon 45, 46 Depau v. Humphreys 345, 867, 407, 421, | Drew v. Drew 58 422, 423, 424, 439 v. Smith 351 De Roffignac, Succession of 71 Derrickson v. Smith 181 Descadillas v. Harris 478 Desesbats v. Berquier 86, 644, 648 Desnoyer v. McDonald 864, 865 De Sobry v. De Laistre 825, 326, 527, 840, 375, 405, 406, 589, 644, 677, 743, 3| Drummond v. Drummond 357, 358, 359, 686, 690, 747 Duchess of Kingston’s Case 815, 821 Dudley v. Warde 802 Dues v. Smith 259 Duke of Brunswick v. King of Han- over 780 863, 368, 873 | Dumaresly v. Fishly 216 Despard v. Churchill 533, 591, 629 Duncan v. Cannan 266 Detroit v. Palmyra 64 v. United States 304 Devisme v. Martin 573 | Dundas v. Bowler 443, 444, 546, 609 Dewar v. Span 393, oe, 423 v. Dundas 609 De Witt v. Burnett 4,762 | Dungannon v. Hackett 428 De Wolf v. Johnson 398, 896, 397, 398, 423 | Dunham v. Bower 817 De Wiitz v. Hendricks 342 | Dunlap v. Rogers 488, 547 Dial v. Gary 7138, 743 | Dunn v. Adams 444, 864, 866 Diana, The 159, 872 v. Welsh 377, 856 Dickinson v., Edwards 878, 379, 395, | Duntze v. Levett 285 442, 448 | Dupre v. Boulard 217 v. McCraw 715 Dupuy v. Wurtz 43, 44, 45, 46, 648 Dickson v. Dickson 117 | Durant v. Carter 65 Dike v. Erie Ry. Co. 377, 878 | Durnford v. Brooks 549 Dillard v. Harris 727 | Dutch West India Co. v. Moses 175, A Dimick v. Brooks 788 | Du Val v. Marshall Di Sora v. Phillipps 869, 870 | Dyer vr. Hunt 825, 827, 40 Ditson v. Ditson 810, 311 v. Smith 869, 871 Dix v. Cobb 558 Dixon v. Ramsay 504, 644, 715 D’Obree, Ex parte 570 E. Dobson v. Pearce 831 Doglioni v. Crispin 863, 678, 830 | Earl of Winchelsea v.Garetty 357, 359 Dolan v. Green 78, 379 | East India Co. v. Campbell 847 Dolphin v. Robbins 49, 287, 820 | Eaton v. Mellus 395 Donald v. Hewitt 462, 545 | Edgerly v. Bush 546 Don’s Estate, In re 141 | Edmonstone, Case of 280, 290 Don v. Lippmann 353, 375, 376, 381, 447, v. Lockhart 285 476, 762, 764, 765, 768, 774, 775, 787, ) Hiner v. Beste 482, 547, 576 791, 792, 794, 797, 800, 802, 804, 806, | Ekins v. East India Company, 395, 406, 809, 810, 826, 828, 855, 861 42 6, 428 Donegan v. Wood 866, 868 | Ela v. Edwards 739 Donnelly v. Corbett a Ellicott v. Early 489 Donovan v. Pitcher 328 | Elliot, Succession of 645, 652 Doolittle v. Lewis 7238, 725, 728, 730, ee Elliott». Lord Minto 359, 518, 592, 598, 2 684 Dormoy, Jn re 872 | Elliott Bank v. Western R. Co. 351 DOEy v. Dorsey 279, 314! Ellis v. Maxson 867 v. Maury 881 | Elmendorf v. Taylor 874 v. Thompson 733 | Ely v. James 864, 868 Doucet v. Geoghegan 46, 50, 52) Embury v. Conner ” 931 Dougherty v. McDonald 823 | Emerson v. Partridge 562 Douglas v. Brown 863 | Emery v. Berry 871 v. Caldwell we v. Hill 731 v. Douglas 1, 52; Emulous, The 479 v. Borst 760, 762, 768, 764, eS 810, Engel v, Scheuerman 831 829 : Engler v. Ellis 865 INDEX TO CASES CITED. Ennis v. Smith 46, 677, 819, 872 Foss v. Nutting 503, Enohin v. Wylie 668, 665, 672, 691 | Foster v. Hall Erickson v. Nesmith 181, 847 v. Sinkler Eubanks v. Banks 325, 328 v. Vassall Evans v. Anderson 877 | Fox v. Adams 546, v. Gray 478 | Frances, The v. Reynolds 863 | Francisco, Zn re v. Tatem 726, 727, 728, 832 | Franklin v. Twogood Everett v. Vendryes 442 | Frazier v. Fredericks 573, Ewer v. Coffin 831 v. McQueen Ewing, Zn re 508, 537, 5389, 543 v. Moore v. Warfield Freeman v. Howe F, Freeman’s Appeal Freeman’s Bank v. Ruckman 877, Fall River Iron Works v. Croade 546 | Freese v. Brownell 895, Fanning v. Consequa 881, 895, 406 | Freke v. Carbery 533, 588, 691, Fant v. Miller 346, 849, 350, 855, 856 | French v. French Faremouth v. Watson 194 v. Hall 326, 589, 542, 545, 776, Farmers’ Bank v. Haight 873 | Fretwell v. McLemore. Farnsworth v. Terre Haute Rld.Co. 175] Frey v. Kirk Farrar v. Olmstead 819 | Friendschaft, The Faulkner v. Hart 895 | Frierson v. Williams Fay v. Haven 645, 728 | Frink v. Buss Feaubert v. Turst 240, 242, 258, 873 | Frost v. Walker Felch v. Bugbee 488, 490, 546, 547 | Fuller v. Steiglitz Fell v. Darden 646 | Fuss v. Fuss 267, Fellows v. Lewis 716 v. Miner 544, 645, 731 Fenton v. Garlick 762 G. v. Livingstone 144, 194, 341] - Fenwick v. Sears 715, 775 | Gaetano, The 386, 390, Ferguson v. Clifford 545 | Galbraith v. Neville v. Crawford 810 | Gale v. Davis 262, v. Flower 854, 451 | Galliano v. Pierre v. Fyffe 325, 351, 376, 395, 773, 793 | Galpin v. Page 765, v. Mahon 761, 768, 809, 826, 827, 828, | Gambier v. Gambier 829 | Gardner v. Commercial Bank Ferraris v. Hertford 642, 644 | Garesché v. Chouteau Field v. Gibbs 829 ee v. Lane 379, Finch v. Mansfield 392 | Garnier v. Poydras Findlay v. Hall 879, 386 | Gay v. Rainey 378, 379, Findley v: Gidney 716 | Gaylord v. Stevens First Nat. Bank v. Baleom 56 | Gelston v. Hoyt 815, v. Price 181, 845, 848 | General Land Credit Co., In re v. Shaw 877, 378, 892| General Steam Navigation Co. v. Fisher v. Otis 402] Guillou 176, 589, 773, 811, Fisk v. Chandler 549 | Genesce Ins. Co. v. Westman Fithian v. New York & Erie Rid. Co. 179] Gentili, Zn bonis 588, 591, Flanagan v. Packard 325, 867 | Gibbs v. Fremont Flato v. Mulhall 864, 867 v. Howard Fletcher v. Spaulding 795 | Gilbreath v. Bunce 754, Foden v. Sharp 406, 450 | Gilman v. Brown 4538, 470, Fogle v. Schaeffer 714 v. Cutts Folger v. Columbian Ins. Co. 831 v. Gilman 46, 50, 544, Folliott v. Ogden 768, 781, 788, 841 v. Lockwood ‘488, 546, Forbes, Case of 280, 290 | Girolamo, The v. Cochrane 164, 157, 160, 330, 342 | Gleason v. Dodd v. Forbes 46, 51, 52, 54| Glenn v. Smith Ford v. Babcock 59 | Godard v. Gray 37, 880, v. Ford 272, 274 | Goddard v. Sawyer v. Hart 66 | Golson v. Ebert 877, 879, v. Pye 66 | Goodall v. Marshall Fores x. Fchae 341] Goodman v. Goodman Forsyth v. Baxter 865 v. Winter 598, XXVil 783 43 557 758 576 56 154 895 574 823 823 377 834 714 173 444 629 879 814 716 489 56 600 361, 177 828 268 855 827 263 377 810 640 598 377 392 87 444 715 817 181 844 176 629 442 792 867 568 59 714 810 590 831 715 832 609 386 833 146 716 XXVili INDEX TO CASES CITED. Goodman’s Trusts, Zn re 145, 146, 147, | Hall v. Winchell 481 149, 150 | Hallett v. Bassett 60, 65 Goodrich ». Williams 377 | Halley v. Ball 773 Goodsill'v. Brig St. Louis 462 | Halliday v. McDougal 447 Goodwin v. Jones 539, 566, 572, 580, 548, | Hally, The 82, 829, 589, 844, Le 715, 728, 729, 737, 742, 782 Halsey v. McLean Gordon v. Brown 684, 691 | Hamburgh, The 300 v. Pye 169, 285 | Hamilton v. Dallas 47 Gorrisson, Succession of 819 | Hammond v. Wilder 831 Gott v. Dinsmore 177, 855 | Hampden v. Levant 64 Gould v. Hayden 823 | Handy v. Ins. Co. 181 Grace, The Slave 82, 154, 163, 167 | Hanford v. Paine 546 Graham v. First National Bank "259, "541, Hannay v. Eve 8382 768 | Hannibal & St. Joseph Rid. Co. ». Granby v. Amherst "4 Crane 179 Granger v. Clark 831 | Hanover v. Turner 3806 Grant v. Clay Coal Co. 868 | Harden v. Palmer 59 v. Healey 383, 392, me 429 | Harding v. Alden 310, ae v. McLachlin 4,830 | Hardy v. Potter Grattan v. Appleton "644 Harmer v. Bell 564, 814, eo Gravillon v. Richards 716, 722 | Harmony, The Great Western Ry. Co. v. Miller 867 | Harper v. Butler 504, 608 Green v. Creighton 741 v. Hampton 598 v. East Tenn. R. Co. 377 v. Lee 645 v. Lewis 851 v. Stanbrough 645 v. Sarmiento 480, 489, 493, oe Harris v. Allnutt 865 v. Starr 823 v. Harris 795 v. Van Buskirk ‘BAG, 547, ee v. Hicks 194 Green, The v. Nasits 851 Greene v. Greene 49 v. White 864, 867 Greenwade v. Greer.wade 898, 865 | Harrison v. Burwell 189, 191, 193, 194 Greenwood v. Curtis 86, 169, 188, 195, v. Edwards 793 196, 327, 828, 834, 340, 342 Grell v. Levy Grimshaw v. Bender 895, 449 Griswold v. Hill 823 v. Pitcairn 822, 872 v. Waddington 342 Grover v. Grover 832 Guernsey v. Wood 487 Guier v. O’Daniel 48, 49, 50, 539, 710° Guildford v. St. Olaves 64 Guillander v. Howell 546 Guinness v. Carroll 827, 828 Gulick v. Loder 803 Gunn v. Howell 832 H. Hackett v. Kendall Haden v. Ivey 58 864 Haggart v. Morgan 61 Haggerty v. Amory 832 Hahnemannian Ins. Co. v. Beebe 845 Hairston v. Hairston 44 | Heebner v. Eagle Ins. Co. zu. Nixon 644, 654, 668, 670, 671 v. Sterry 351, 367, 456, 576, 581, 748 Harrod v. Barretto 832 Harteau v. Harteau 508, 310, 311 Hartford v. Morris 101, 102, 197, 198, 206, 208 Harvard College v. Gore 48, 45, 53 Harvey v. Archbold 397 v. Ball 148 v. Farnie 67, 101, 143, 184, 216, 311, 313, 820 v. Richards 587, 644, 716, 722, 737, 742 Hassell v. Hamilton 832 Hatch zv. Spotford 828, 833 Hatcher 7. McMorine 443, 444 Hatchett v. Berney 714 Hayden v. Androscoggin Mills 179 v. Nutt 274 Hazelhurst v. Kean 424 Healy v. Gorman 895, 396 Heath v. Samson 7 5 Hedenberg v. Hedenberg 714, 723, 727 385 Haldane v. Eckford 45, 46, 50, 61) Hegeman v. Fox 44, 50 Hall v. Boardman 647 | Heidelback, Ex parte 895, 397, 406, 422, v. Costello 872 442 v. De,Cuir 845 | Helena, The 830 v. Kimball 865 | Hellmann’s Will, Jn re 178, 645 v. Nasmith 58 | Hempstead v. Reed 480, 871, 872 v. Odber 824, 826, 827} Henderson v. Henderson 828 v. Pillow 868 | Henriques v. Dutch West India Co. 175 v. Williams 809, 810, 829, 832! Henry ». Adey 873 INDEX TO CASES CITED. XXI1X Henry v. Sargeant 841, 842, Hoxie v. Wright 880, 832 Hepburn v. Skirving 49 | Hoyt v. Gelston 825 Herbert v. Cook 827 v. Sprague 697 Herbert v. Herbert 101, 187, 216 v. Thompson 825 Hervey »v. Fitzpatrick 781 | Hubbard, Jn re 48, 697 v. Rhode Island Loc. Works 546 v. Epps 795 Hibernia Bank v. Lacombe 441, 442, 443 | Huber »v. Steiner 774, 794, 800, 802 Hick v. Hick 49 | Hudson v. Guestier 814 Hickman v. Alpaugh 864, 867, 868 | Hughes v. Cornelius 818, 830 v. Dudley 702 | Hull v. Augustine 863, 867 Hickok v. Bliss 59, 60 v. Blake 815 Hicks v. Brown 439, 444, 479 | Hullett v. King of Spain 780 v. Hotchkiss 487 | Hunt v. Hall 877, 895, 442 v. Powell 793 v. Hunt 311, 868 v. Skinner 58, 250 v. Standart 444 Higgins v. Scott 803 v. Stevens 725 Hildreth v. Shepard 443 | Hunter v. Fulcher 160 Hill v. Good 194 v. Potts 479, 481, 539, 552, 553, 558, v. Grigsby 864 566, 567, 568, 569, 570, 598, 677 v. Meek 740 | Hurd v. Elizabeth 780 v. Tucker 789, 740 | Hurlbut v. Seeley 61 v. Wilker 867 | Huse v. Hamblin 444 Hinkley v. Mareau 483, 786, ce 788 | Hussey v. Farlow 428 Hirschfield v. Smith 0, 441 | Hutcheson v. Peshine 574, 598 Hitchcock v. Aicken * g30 | Hutchins v. Kimmell 216 Hoadley v. Northern Transp. Co. 856 v. State Bank ; 723 Hoag v. Hunt 547 | Huthwaite v. Phaire 504, 734, 737 Hodgson v. Beauchesne 48, 45, 46, 47, 53 | Hyatt v. Bank of Kentucky 444 v. Temple 336 Hyde v. Goodnow 379, 380, 442, 448, 444, Hoffman v. iCasow 539 776 v. Hoffman 311 v. Hyde 143, 184 Hogg v. Lashley 642 | Hynes v. McDermott 198, 864 Hoggett v. Emerson 795 Holbrook v. Vibbard 441, 444 Holcomb »v. Phelps 677 I. Holman »v. Collins 867 v. Hopkins 645, 652 | Ilderton v. Ilderton 127, 187, 217, 291, v. Johnson 86, 381, 334, 339 808 v. King 869 | Imlay v. Ellefsen 786 Holmes v. Barclay 424, 772 | Indian Chief, The 54, 56, 57 v. Greene 62, 68, 65 | Indiana’ v. Helmer 832 v. Holmes 868 | Inglis v. Usherwood 564 v. Jennison 848 | Ingraham v. Geyer 546, 576, 580, a v. Remsen 86, 498, 587, 5389, 556, 558, v. Hart 560, 567, 568, 570, 572, 574, 575, | Innes v. Dunlop 501, 781 576, 577, 578, 580, 598, 644, 652, | Irby v. Wilson 677, 7 15, 743, 783, 815 | Irwin’s Appeal 644, 648, 852 Holthausen, Ex parte 879 | Isabella v. Pecot 870, 872 Holyoke v, ‘Baskins 49, 710 | Isham v. Gibbons 43 Hood v. Barrington 718 | Ivey v. Lalland 351 Hood’s Estate 46, 47 Hooker v. Olmstead 716, 738, 742 Hooper v. Gumm 879 J: Hopkins v. Hopkins 3806 Horne v. Horne 44| Jacks v. Nichols 377, 379, 895 154 v. Rouquette 440, 441 | Jackson v. Bulloch Hosford v. Nichols 398, 395, 396, 897, 399, v. Jackson 312 512, 598, 609, 681, 863, 872 v. Petrie 759, 760 Hoskins v. Matthews 44 v. Rose 117 Houghton v, Page 825, 827, 895, 396, 480 | Jamaica v. Townshend 64 Houlditch v. Donegall 826, 828 | James v. Allen 484 Houston v. Nowland 609 v. Catherwood 847, 350, 449 v. Potts 879 | Jameson v. Gregory 336, 892 Howard-v. Branner 442 | Jaques v. Withy 332 Howe Machine Co. v. Walker 175, 176 | Jauncy v. Sealey 737 XXX Jefferson v. Glover 714, 735 v. Washington 63, 64, 65 Jeffrey v. McTaggart 601, 781 Jenkins v. Lester 781, 7382 Jennings v. Jennings 652 v. Throgmorton 841 Jennison v. Hapgood 54, 679, 716 Jerningham v. Herbert 518, 610 Jessup v. Carnegie 868 Jewell v. Wright 895, 443 Johnson v. Chambers 866, 867 v. Copelan 48 v. Jackson 714, 727 v. Johnson 49, 216, 864 v. Parker 547 Johnston v.: Trade Ins. Co. 180, 181 Johnstone v. Beattie 44, 48, 697, 798 Jollett v. Deponthieu 569 Jones v. Garcia Del Rio 342 v. Gerock 645, 652 v. Hook 776 v. Randall 840, 341 v. Taylor 545 Jopp v. Wood 46, 48, 52 Jose Ferreira dos Santos, Case of 848 Josephine, The 57 Judd v. Porter 482, 483 K. Kavanaugh v. Day 398 Kearney v. King 869, 434, 447 Keegan v. Geraghty 67, 148, 149 Keerl v. Keerl 313 Kellar v. Baird 54 Kelley v. Drury 488, 546 Kellogg v. Winnebago 61 Kelly v. Davis 100 Kendall v. Coons 250 Kennebec Co. v. Augusta Ins. Co. 175 Kennedy v. Cassillis 19, 826 v. Cochrane 827 v. Ryall 48 Kenny v. Clarkson 872 104, 106, 187, 216 341, 379, 443 Kent v. Burgess Kentucky v. Bassford Kerr v. Kerr 310, 810, 821 v. Moon 698, 609, 681, 715 Key v. Harlan. 652 Keyser v. Pilgrim 250 v. Rice 758 Kibblewhite v. Rowland 285 Kieffer v. Ehler 816 Kilburn v. Bennett 46 v. Woodworth 765 Kildare v. Eustace 731, 758 Kilgore v. Dempsey 397, 407 King v. Chase 818 v. Foxwell 46, 50, 54 v. Harman’s Heirs 360 v. Sarria 341, 877, 890, 451 King of Spain v. Machado 873 King of Two Sicilies v. Willcox 842 Kingsbury v. Burnside 652 INDEX TO CASES CITED. Kingsbury v. Yniestra 810 Kloney’e nee 196, 217, 226 Kinnier v. Kinnier 310, 311 Kirkland v. Whately 49 Kittle v. De Lamater 377 Klein v. French 714 Klinck v. Price 866 Kline v. Baker 892, 863, 869 v. Kline 310 Kling v. Fries 340, 341, 867 Knight v. Wedderbern 154 Knowles v. Gaslight Co. 810 Knowlton v. Erie R’y Co. 825 Knox v. Jones 544, 598, 629, 652 Koster v. Merritt 377, 856 v. Sapte 679 Kraft v. Wickey 697, 702 Kreiss v. Seligman 336 L. Lacon v. Higgins 101, 187, 216 v. Hooper 365 Lacy v. Clements 49 Laird v. Hodges 773 La Jeune Eugénie 327, 340 Lamb v. Durant 552, 554 Land Grant Ry. v. Coffey County 176 Laneuville v. Anderson 663, 671 Lanfear v. Sumner. 549, 552, 554 Lang v. Gale 365 v. Reid 756 v. Whitlaw 610 Langdon v. Doud 59, 60 v. Potter 715 v. Young 864 Langston v. Aderhold 795 Langton v. Hughes Langworthy v. Little Lansdowne v. Lansdowne 335, 336 545 367, 368, 394, 66 6, 676 Lanusse v. Barker 274, 392, 395, 429 Lapham »v. Briggs 810 Lapice v. Smith 395 Lashley v. Hogg 240, 242, 258, 269 Lathrop v. Commercial Bank 780 Lautour z. Teesdale 198, 200 Law v. Mills 546, 574 Lawrence v. Bassett 60 v. Batcheller 451 v. Englesby 819 v. Jarvis 810 v. Kitteridge 544, 641, 677 v. Lawrence 714 v. Smith 341 Lazier v. Westcott 830 Leach v. Pillsbury 43 Leake v. Bergen 868, 864, 867 Leavenworth v. Brockway 865, 869 Lebel v. Tucker 440, 442 Le Breton v. Fouchet 100, 262, 263, a 2 v. Miles 240, 242, 251, 267 481 Le Chevalier v. Lynch INDEX TO CASES CITED. Lee v. Boston 68 v. Lenox 64, 65 v. Moore 715 v. Selleck 379, 442, 444 vy. Wilcocks 426 Leffingwell v. White 865 Le Forest v. Tolman 844, oa Legg v. Legg 8 Lehmner v. Herr 576 Leiber v. Union Pacific R. Co. 793 Leith v. Leith 810 Lemon v. People 154, 841, 848 Lentz v. Wallace 818 Leon, The 589 Leonard v. Columbia Nav. Co. 330, 845, 864, 867, 868 v. Whitney Leroux v. Brown 849, 449, oa Le Roy v. Beard 784 v. Crowninshield 351, 360, 483, 484, 489, 779, 794, 796, 798, 802, 803, 806 Le Sueur v. Le Sueur 312 Lett’s Trusts, In re 259 Lever v. Fletcher 339 Levett, Case of 280, 290, 475 Levy v. Levy 501, 504 Lewis, Zn re 644, 652 v. Baldwin 180 M. v: Fullerton 160 v. Headley 377 | Maberry v. Shisler 546 v. Ingersoll 406 | Mackereth v. Glasgow & South-Western v. McFarland 711, 712] Ry. Co. 179 v. Owen 447, 450, 478, 488, 489 | Mackey v. Coxe 714, 728, 740 v. Wallis 558, 559 | Madrazo v. Willes 157, 159, 342 v. Woodfolk” 328, 877, 864 | Magoun v. New England Ins. Co. 815 Libbey v. Hodgson 780 | Magraw v. Irwin 714, 727 Lichtenberger v. Graham 866 | Maguire v. Maguire 279 Lickbarrow v. Mason 654 | Mahorner v. Hooe 647 Liddiard, In re 731 | Malcolm v. Martin 666 Lightfoot v. Jae 789 | Male v. Roberts 106, 115, 170, 221, 222, v. Tena 4, 335, 339 325, 477, 863, 865, 867 Lincoln v. Battelle 794, 800, S01: 802, 803, | Maley v. Shattuck 817 871, 872 Malpica v. McKown 884, 889, 390, 868 v. Hapgood. 63 | Manly v. Turnipseed 714 v. Tower 810 | Manning v. Manning 312 Lindo v. Belisario 185, 870 | Manuel v. Manuel 645 Lindsay v. Hill 827, 773, 793 | Marburg v. Marburg 425 Lingen v. Lingen 144, 598 | March v. Eastern Rid. Co. 179 Little v. Riley 877 | Marchant v. Chapman 392 Littlefield v. Brooks 62, 63, 64) Marcy v. Marcy 714, 727 Littleton v. Tuttle 157 | Marheineke v. Grothaus 49 Liverpool Credit Co. v. Hunter a 363, | Maria v. Kirby 160 785, 830 Maria, The 589 Liverpool Ins. Co. v. Massachusetts "175, Marsh v. Elsworth 462, 545, 564 176, 328 v. Putnam 486, 547 Livingston v. Jefferson 772 | Martin v. Franklin 428, 429 Liza v. Puissant 160 v. Hall 545 Lloyd v. Guibert 3890 v. Nicolls 827, 828, 829 v. Johnson 340 v. Potter 545 ». Scott 893 | Marvin v. Dutcher 817 Lodge v. Phelps 608, ~ Mary, The 814 v, Spooner 428 | Mary Anne, The 814 Logan v. Praitlie 715, 731 | Mason v. Dousay 377 Lolley’s Case 112, 114, 214, 279, 285, 287, 299, 308, 304, 305, 312 XXX1 London Ry. Co. v. Lindsay 810 Loney v. Penniman 758 Long v. Ryan 61 Lord v. Staples 871 Loring v. Steineman 819 v. Tuorndike 216 Loud v. Loud 310 Louis v. Cabarrus 155 Louis, Le 154, 157, 159 Louisville Ry. Co. v. Letson 798 Low ». Bartlett 739 Lowe v. Farlie 715 Lowry v. Western Bank 444 Luckenbach v. Anderson Ludlow v. Van Rensselaer 831 389, 347, 381 Lumbard v. Aldrich 780 817 | Lundy’s Case 847 Lunsford v. Coquillon Lyall v. Paton Lyman v. Brown 833 Lynch v. Gov’t of Paraguay 117, 677 v. Miller 652 Lynes v. Coley 737 Lyon v. Ewings 379 v, Lyon 809, 810, 311 155, 162, 166 54 v. Fuller 274 v. Haile 483, 484 XXXii 274 851 731, 760 482, 483 Mason v. Homer v. Mason Massie v. Watts Mather v. Bush Maule v. Murray 833 Mawdesley v. Parke 574 Maxwell v. Maxwell 651 May v. Breed 486, 575 v. Wannamacher 488 Mayor v. Genet Mead v. Boxborougn 63 v. Dayton 545 v. Merritt 760 Mears v. Sinclair 48, 49 Mecca, The 810, 814 325, 826, 794 187, 196, 206, 207, 217, 224, 225, 296 549 816 359, 360, 784, 786, 791 456, 460, 793 Medbury v. Hopkins Medway v. Needham Meeker v. Wilson Megee v. Beirne Melan v. Fitz James Melbourn, Ex parte Mellish v. Simeon 430 Merchants’ Bank v. Griswold 825, 377 v. Spalding 828, 377, 443 Merchants’ Ins. Co. v. De Wolf 833 Meredith v. Hinsdale 784 Merrick v. Avery 462, 545 v. Van Santvoord 175, 829, 780 Merrill v. New England Mut. Life Ins. Co. 739, 8384 Meservey v. Gray 830, 3885 Metcalf v. Lowther 48 Mette v. Mette 217, 219, 223 Mever v. McCabe 864, 866 175, 198, 278, 286, 288, 292, 812 379 450 179 336, 379, 392 480, 483, 493 M’Carthy v. Decaix M’Carty v. Gordon M’Candlish »v. Cruger M’Coy v. Cincinnati Rid. Co. M’Intyre v. Parks M’Menomy v. Murray M’ Millan v. M’Niell 486 M’Neill v. Glass 551 McCarthy v. Chicago R. Co. 844 McClelland v, McClelland 702 McCormick v. Sullivant 598, 609, 652, 681 McCulloch v. Norwood 867 McCullough v. Rodrick 574 McDaniel v. Chicago & North West- ern R. Co. 327, 877, 378, 380, 442 v. Hughes 815 McDonald v. Mallory 845, 864, 867 INDEX TO CASES CITED. McLeod v. Board 372 McMahan v. Green 462 McMerty v. Morrison 795 McNamara v. Dwyer 702, 715, 731 v. McNamara 718, 734 McNeilage v. Holloway 502, 504, 736 MeNichol v. United States Reporting Agency MeNutt v. Wilcox McQueen v. Middletown Mfg. Co. 780 McRae v. Mattoon 783, 831 v. McRae 728 McVey v. Holden 270 Michigan Central R. Co. v. Boyd 377, 78, 856 Middlebrook v. Merchants’ Bank 723 Middlesex Bank v. Butman Middleton v. Janverin 106, 187, 210, 216 95 Miller v. Brenham v. Tiffany 377, 395, 399, 442 Miller’s Estate 716, 748 Milliken v. Pratt 171, 379 Mills v. Duryee 762 v. Wilson 377, 379, 395, 398 Milne v. Graham 499, 502 v. Moreton 882, 542, 561, 573, 574, 575, 576, 580, 598, 748, 782 v. Van Buskirk 832 Milnor v. New York R. Co. 328, 330 Milwaukee R. Co. v. Smith 377 Miner v. Austin 716 Mineral Point R. Co. v. Barron 7738, 798, 795 Mitchell v. Bunch é 760 v. Davies 651 v. United States 48, 50, 53 Mix v. State Bank 444 Moch v. Virginia Ins. Co. 179 Mohr v. Ins. Cos. . 179 Monson v. Palmer 46 Montgomery v. Bridge 395 Mooar v. Harvey 57 Moore v. Bonnell 544, 546 v. Budd 642, 644, 677 v. Clopton 327 v. Darell 643 v. Field 718 v. Gwynn 869 v. Harris 378 Moorhouse v. Lord 44, 45, 50, 52 Morgan v. McGhee 216 v. Nunes 61 Morrell v. Dickey Morris v. Eves v. Morris 697, 702, 725, 730 867, 482, 483 645 v. Underhill 795 | Morrissey v. Wiggins 864 McDougald v. Carey 866 | Morrison’s Case 559 McElmoyle v. Cohen 748, 802, 808, 832 Morse v. Elms 817 McFarland v. White 831] Morton v. Hatch 735 McGilvray v. Avery 823 | Moses v. Hart 716 McGoon »v. Scales 698 716 833 49 739 Mcllvoy v. Alsop McJilton v. Love McKenna, Succession of McLean v. Meek Mostyn v. Fabrigas 89, 378, 771, 772, 863, 869, 872 7 Moulin v. Ins. Co. 179 Moultrie v. Hunt 544, 648, 692 Moye v. May 544, 716 INDEX TO CASES CITED. Muir v. Schenck 558 Mullen v. Morris 895 Muller v. Dows 758 Mumford v. Stocker 823 Munro v. Munro 43, 122, 150, 647 v. Saunders 118, 141, 142, 148, pike 187 Manroe v. Douglas 52, 54, 598, 652, 679, 814, 815, 826, 830, 864 Mure v. Kaye 847 Murphy ». Collins 877, 863, 867 v. Murphy 240, 262, 263 Muctay v. De Rottenham 493 v. Murray 782 Musson v. Fales 342 v. Lake 325, 377 Mutual Benefit Ins. Co. v. Davis 329 Myers v. Beeman 816, 817 v. Carr 377, 879 N. Napton v. Leaton 810 Nash v. Tupper 175 Nat v. Coons 671 Nathan v. Giles 552 National Bank v. De Bernales 782 v. Green 7, 868 v. Morris 443 Neale v. Cottingham 669 v. Jeter 823 Needham v. Grand Trunk Ry. Co. fae 870 Nelson v. Bridport 387 Nelson, The Newark v. Glanford Brigg 64 Newburg Petroleum Co. v. Weare 175, 218 Newby v. Blakey 802 v. Colt’s Firearms Co. 175, 179 Newcomer v. Orem 250, 544 Newman v. Kershaw 398 Newmarket Bank v. Butler 488, 489, i 810 Newton v. Bronson 714, 731 New York Dry Docks v. Hicks 780 Niagara Bank v. Baker 863, 868 Niblett v. Scott 831 Niboyet v. Niboyet 67, 312 Nichols v. Porter 444 Nicholson v. Leavitt 598 Noonan v. Bradley 714 v. Kemp 544, 677, 787 Norris v. Chambers 758 v. Eves 422 v. Harris 644, 864, 865, 866, 867 v. Mumford 549 North Bank v. Brown 823 Northern Bank v. Squires 490 North Yarmouth v. West Gardiner 68, 65 Novelli v. Rossi 862, 363, 29 Noyes v. Butler 830 Nugent v. Vetzera 697, 702 ¢ XXXL O. Oakey v. Bennett 598 O’Bannon »v. O’Bannon 795 Obicini v. Bligh 829 O'Callaghan v. Thomond 602, 782 Occleston v. Fullalove 178 Ocean Ins. Co. v. Francis 818 v. Portsmouth Ry. Co. 816 Ochsenbein v. Papelier 831, Ockerman v. Cross 3877, 546 O’Dell v. Rogers 600 Odwin v. Forbes 110 Ogden »v. Folliott 768, 841 v. Saunders 349, 356, 456, 480, 485, 486, 487,489, 492, 559, 576, 580, 786 Ohio & Mississippi Rid. Co.’ v. Wheeler 181 Ohio Ins. Co. v. Edmondson 330, 474, 776, i Olcott v. Tioga Rid. Co. Oliver v. Liverpool Ins. Co. 76 Olivier v. Townes 549, 552, 578, 576, 677, 743 Olney v. Eaton 760 Ommaney »v. Bingham 56, 642 Opdyke v. Merwin 442 Opinion of Justices 62 Orcutt v. Orms 739 Ordronaux v. Rey 251, 267 Ormond v. Moye 816 Orr v. Amory 580, = Orrell v. Orrell Orr Ewing v. Orr Ewing 78 3 Ory v. Winter 446, “478, 484, 486, 491 Osborn v. Adams , 609 Osgood v. Maguire 547, 834 Ostell v. Lepage 833 Otis v. Boston 62, 63 v. Coffin 434 Otto Lewis, Ec parte 115 Overton v. Bolton 879 Owen », Boyle 869 Owings v. Hull 891 P; Packard v. Hill 871 Paine v. Drew 795 v. France 328 v. Lester 547 Pardo v. Bingham 462 Parham v. Pulliam 877, 395, 399 Parish v. Seton 572 Parker’s Appeal 716 Parrott v. Nimmo 250 Parsons v. Bangor 61 v. Lyman 544, 692, 714 Partee v, Kortrecht 716 Partington v. Att.-Gen. 691, 725 Patterson v. Gaines 187, 216 Pattison v. Mills 842, 385 Pauska v. Daus 864, 865 XXXIV 313, 765, 830 Pawling v. Bird 178, 756, 771 Peabody v. Hamilton Peacock v. Banks 895, 865 Peale v. Phipps 741 Pearce v. Brooks 836 v. Olney o Beni v. Hansborough Pearsall v. Dwight “36, 325, 327, 328, 16 Peck v. Hibbard 877, 447, 484, 486, ar INDEX TO CASES CITED. Poe v. Duck 487 Polydore v. Prince 154 Pond v. Cooke 545, 780 v. Makepeace 504, 794, 739 Ponsford v. Johnson 117, 217 Pope v. Nickerson 367, 390 v. Pickett 598 Popplewell v. Pierce 845 Porter v. Wagner 817 Potinger v. Wightman 48, 49, 648, ee v. Hozier 484, 776,786 | Potter v. Brown 444, 471, 477, 479, 480, v. Mayo 877, 897, 407 484, 492, 589, 575, 642, 677 v. Mead - 742 v. Titecomb 598 Peckham v. North Parish in Haver- Powell v. Guest 66 hill 780 | Powers v. Lynch 881, 439, 444 Pecquet v. Pecquet 863, 868 | Pratt v. Adams 398 Pellecat v. Angell 334, 336 v. Chase 488, 546 Peninsular Nav. Co. v. Shand 3878, 379| Prentiss v. Savage 363, 381, 439, 444, Penn v. Lord Baltimore 731, & 480, 491, 495 Penniman v. Meigs 493 | Pres. of U. S. v. Drummond 46, 47 Pennoyer v. Neff Pressey v. Wirth 845 811, 810, 834 Pennsylvania v. Ravenel 4 Pennsylvania Co. v. Fairchild 377, 378 People v. Baker 811 v. Dawell 811 v. Lambert 869 Percival v. Hickey 590 Perkins v. Davis 60 v. Guy 795 200 773 Pertreis v. ” pondene Peters v. Stewart v. Warren Ins. Co. 588, 814, 817 Phelps v. Holker 765 v. Kent 398 v. Pond 645 Phillips v. Allan 482, 483, 488, 489 v. Eyre 844, 846, 847 v. Godfrey 831 v. Greg 216 v. Hunter 539, 552, 558, 566, 568, 569, 598, 815, 822, 827 v. Wills 823 Phipps v. Anglesea 393 Pheenix Ins. Co. ». Commonwealth 176 Pickard v. Bailey 872 Pickering v. Fisk 844, 858 v. Stephenson 179 Picquet, Ex parte 715 v. Swan 754, 762 Pierce v. O’Brien 487, 546 Pierson v. Garnett Pilkington v. Commissioners for Claims 433, 436 Pine v. Smith 379, 428 Pingree v. Hudson River Ins. Co. 675 Pinney v. Cummings 795 Pipon v. Pipon 539, 677 Pitt v. Pitt 311 Pittsburgh Ry. Co. v. Lewis 844 Planché v. Fletcher 330, 339 Platt v. Att~Gen. 45, 47, 50, 51 Platt’s Appeal 310 Plestoro v. T Abiaiath 576, 579 Plummer v. Woodburne 762, 764, 824 9} Preston v. Melville 678, 714, 715, 716, 728, 724, 727, 734 Price v. Dewhurst 642, 644, 665, 666, 677, 678, 714, 715, 826, eee o. Morgan Prigg v. Commonwealth 165 Probate Court v. Hibbard 844 Producers’ Bank v. Farnum 487 Prosser v. Warner 311 Providence v. Adams 818 Pugh v. Cameron 879, 386 Purdy v. Doyle 828 Purple v. Whithed 736 Putnam v. Johnson 43 v. Putnam 115, 187, 206, 207, 225 Q. Quelin v. Moisson 488, 569, 572 Quin v. Keefe 79, 484 R. Rabun v. Rabun 351, 609 Radcliff v. United Ins. Co. Rafael v. Ferelst 818 769, 771, 840 Raffanel, Zn bonis 54 Railroad Co. v. Bank of Ashland _—_ 877, 395, 397, 442 v. Harris 179, 780 v. Schutte 818 v. Lewis 863 Ramsey v. Stevenson 649, 554 Rand v. Hubbard 504, 505, 728 Ranelaugh v.Champaute 398, 395, 432 Rangely v. Webster 822 Rankin v. Goddard 830 v. Lydia “162 Rape v. Heaton 810 Rau v. Von Zedlitz 864 Rawlinson v. Stone 504, 505 INDEX TO CASES CITED. 782 Raymond ». Johnson 441 Read v. Adams v. Edwards. 379 Receiver v. First National Bank 328, a Reed, Goods of Reed’s Appeal “ea Reeder v. Holcomb 46 Reel v. Elder 310 Regina v. Brighton 64, 194 v. Lesley 341 v. Povey 872, v. Stapleton 64 v. St. Giles-in-the-Fields 194 v. St. Ives 64 v. St. Leonard 64 ‘y, Whitby 49, 64 v. Worcester 68, 64 Renaisance, The Rex v. Ball v. Brampton v. Hutchinson v. Kimberley v. Lolley 175, 198, 214 v. Picton 872 Rhode Island Bank v. Danforth 546, 547 Ricardo v. Garcias 8380 Rice, In re 702 v. Courtis 547 v. Harbeson 746, 773 v. Merrimack Hosiery Co. 773 Richards v. Dutch 716, 718 v. Miller 645, 652 v. Richards 504 Richardson v. Maine Ins. Co. 842 v. New York Central R. Co. 829, 788, 844, a + v. Rowland Richmondvill Manuf. Co. v. Prall 546 Riddick v. Moore 504 834 714 715 50 Riggs v. Johnson County Riley v. Moseley uv. Riley Ringgold v. parley Ripley v. Hebron 64 Ripple v. Ripple 826 Ritchie v. Smith 336 Roach v. Garvan 212, 819, 826 Roberdeau v. Rous 760 Robert Fulton, The 834 Roberti v. Methodist Book Concern 51 Roberts v. McNeely 877, 442 Robinson v. Bland 35, 36, 206, 274, 327, 841, 381, 395, 406, 421, 422, 424, 484, 511, 542, 771, 775, 786 v. Campbell 783 v. Crandall 736 v. Dauchy 864, 869 v Imperial Silver Mining Co. 181 v. Jones , 818 v. Ward 765 Rocco v. Hackett 832 Rockmaboye v. Mottichund 795, 798 Rodgers v. Allen 574 Roethke v. Philip Best Brey Co. 3840, 1, 377, 866 XXXV Rogers v. Gwinn 831 v. Rogers 831 Roots v. Merriwether 863, 864 Rose v. Himely 812, 814 v. McLeod 488, 489 v. Phillips 399 v. Ross 142, 148 Ross v. Ross 48, 67, 148, 149, 184, alls 65 v. Southwestern R. Co. 702 Rothschild v. Currie 489, 440, 441, 447, : 493, 505, 506 Rouquette v. Overmann 440, 442 Rousillon v. Rousillon 810 Royal Bank of Scotland v. Cuthbert or, 582 251 735, 736 22, 84, 101, 102, 116, 187, 198, 200 644 v. Smith Rucks v. Taylor Ruding v. Smith Rue High, App. Ruggles v. Keeler 798 Rundle v. Delaware Canal 772 Runyan v. Coster 175, 780 Russell v. Field 833 v. Madden 677 v. Smyth 754, 824 Bitherford v. Clark 718 Ryan v. Ryan 101, 137 8. Salmon v. Wooton 833 Sanderson v. Ralston 44, 49 Sands v. Smith 877, 395 Sanford v. McCreedy 736 v. Sanford 831 Santa Cruz, The 590 Santo Teodoro v. Santo Teodoro 312 Sapphire, The 780 Satterwaithe v. Dought 346 y Saul v. His Creditors " 12, 14, 15, 16, 29, 32, 33, 36, 67, 96, 100, 115, 154, 247, 249, 250, 254, 256, 257, 260, 261, 262,’ 263, 270, 874, 424, 71, 600 Saunders v. Drake 82, 666 v, Williams 576 Savage v. O’Neil 864 v. Scott 59 Savoye v. Marsh 447, 487 Sawer v. Shute 259 Sawyer v. Maine Ins. Co. 815 Sayre v. Helme 727 Scarth v. Bishop of London 722 Schacklett v. Polk 600 Schibsby v. Westenholz 37, 178, 761, 810, 11, 830 Schollenberger, Ex parte 179 School Directors v. James 48, 49 Scofield v. Day 896, 424, 428, 429 Scotland, The 390, 589 Scott v. Alnutt 611, 514, 559 v. Bevan 426, 433 uv. Key 148 XXXVI Scott v. Pilkington v. Seymour 830, 832, 833 89, 833, 845, 847 Scoville v. Canfield 841 Scribner v. Fisher 488, 546, 810 Scrimshire v. Scrimshire 35, 43, 48, 103, 104, 105, 106, 187, 201, 202, 203, 205, 216, 221, 731, 820 Scudder v. Union Bank 8651, 773, 795 Searight v. Calbraith 478 Sears v. Boston 44, 45, 50, 61, 68 Second National Bank v. Hall 829 v. Hemingray 793 Seevers v. Clement 831, 833 Selkrig v. Davies 251, 268, 511, 556, 559, 562, 570, 582, 687, 598, 599, 757 Sell v. Miller 598, 600 Selma Ry. Co. v. Lacey 844 Senter v. Bowman 877, 395 Sessions v. Little 542 Sewall v. Lee 599 v. Sewall 810, 311 v. Wilmer 544, 650, 652 Shanklin v. Cooper 444 Shannon v. Shannon 310 Sharp v. Davis 379 Sharpe v. Crispin 45, 48, 49, 57 Shattuck v. Cassidy 731 Shaw v. Att’y Gen. 287 v. Gould 67, 217, 287, 820 v. Shaw 54, 311 v. Wood 864 Shedden v. Patrick 118, 129, 148, 149 Shegogg v. Perkins 737 Shelby v. Guy 802 Sheldon v. Rice 718 Shelton v. Tiffin 46, 810 Sherman v. Page 714 Sherrill v. Hopkins 484, 486, 487, 491 Sherwood v. American Bible Society 175 Shipman v. Thompson 735 INDEX TO CASES CITED. Sleeper v. Paige 60, 65 Sloan v. Frothingham 714 v. Waugh 785 Smiser v. Robertson 823 Smith v. Bartram 868, 868 Brown 490, 810 Buchanan 488, 489, 493, 570, 781 Bull 864 Chicago Ry. Co. 351 Condry 589 Croom 46, 51 Derr 144 Godfrey 825, 327, 330, 336 Healy 787, 788 Kelly 148 Lathrop 831, 833 Maxwell 101 McAtee 250 McLean 825, 545 Mead 325, 826, 375, 406 eseeseeeessseesseeeeeeeseeees Muncie Bank 864, 865, 866 Mutual Ins. Co. 180 . Mut. Fire Ins. Co. 833 . Nicolls 761, 824 People 44 Peterson 866 Shaw 429, 430 Smith 310, 479, 484, 489, 493 Spinolla 776, 786 St. Louis Ins. Co. 181 . Stotesbury 341 Union Bank 715, 748, 744 Webb 714 . Weed Sewing Machine Co. 175 v. Williams 818 Smoot v. Russell 864 Snaith v. Mingay 394 Sneed v. Ewing 188 Snook v. Snetzer 758, 760 Society for Propagating Gospel v. - 7 Short v. Trabue 442, 448, 444| Wheeler Shreck v. Shreck 218, 318 | Solomons v. Ross 559, 569, 782 Shultz v. Pulver 677, 788 | Somerset’s Case 28, 154, 159, 342 Shumway v. Stillman 766, 809, 829, 832 | Somerville v. Somerville 47, 48, 49, 53, Siegel v. Robinson 510, 607 587, 638, 642, 645 Silcox v. Harper 731 | Sottomayor v. De Barros 171, 216, 217, Sill ». Worswick 508, 589, 552, 553, 556, 218, 219, 223 557, 559, 566, 567, 568, 569, 570, 598, 642, | Soule v. Chase 488, 493 677 | South Carolina Bank v. Case 780 Silver v. Stein 714 | Southern Bank v. Wood 546 Silver Lake Bank v. North 780 | Southey v. Sherwood 341 Simmons, Fx parte 154, 165 | Southwestern R. Co. v. Webb 866 Simonin v. Mallac 216, 217, 220, 221, 223 | Spalding v. Preston 340 Simpson v. Fogo 828, 363, 830 | Speed v. May 574 v. Foster 714 | Spratt v. Harris 714, 731 Sims v. Sims 117, 842 | Springfield Bank v. Merrick 332 Sinclair v. Frazer 762, 826, 827 | Sprowle v. Legge 869, 434, 447 _v. Sinclair 820 | Stacy v. Thrasher 740 Skiff v. Solace ; 545 | Stanley v. Bernes 56, 642, 648 Skinner v. East India Co. 771 | Stanwix, Gen. and Daughter, Case of 851 Skottowe v. Young 147 | Stapleton v. Conway 394, 398, 399, 402, Slack v. Walcott 735 423, 482 Slacum v. Pomery 424, 489, 448, 492 | Starbuck v. Murray 810, 830 Slaughter v. Garland 7| Stark Bank v. Pottery Co. 867 67 Slave Grace, The 82,154, 163 167 Starkweather v. American Bible Soc. 529 INDEX TO CASES CITED. XXXVii State v. Barrow 274 | Tanner v. King 43 v. Candler 117, 842 | Tappan v. Poor 481, 483 v. Caspar 62 | Tarleton v. Tarleton 817, 822, 827 v. Groome 50 | Taylor v. Barron 830 v. Hallett 44] —v. Boardman 645 v. Jackson 869 v. Bryden 831 v. Kennedy 196, 217, 226 o. Chester 836 v. Knight 841 v. Columbian Ins. Co. 647, 575 v. Osborn 716 v. Phelps 766, 822 v. Ross 61 v. Royal Saxon, The 834 v. Twitty 871 v. St. Mary Abbott 66 State Ins. Co., In re 425, 442 | Tazewell v. Davenport 61 St. Aubyn v. O’Brien 278 | Territt v. Bartlett 340 St. John v. Hodges 743 | Thayer v. Boston 62, 63 St. Louis v. Wiggins Ferry Co. 175, 179 v. Brooks 772 Steamship Co. v. Tugman 181 v. Elliott 377 Stearns v. Burnham 504, 715, 736 | Thompson v. Adv. Gen 534, 539 Steele v. Braddell 216 v. Ketcham 106, ‘170, 325, 381, "395, Steer, In re 46 396, 477, 867 Stein’s Case 268, 556, 570, 599 v. Powles 342, 396, 397, 424 Stevens v. Gaylord 716, 718, 783, 738 v. State 810 v. Norris 547 v. Stewart 873 Stevenson v. Gray 217 v. Swoope 175 v. Masson 45 v. Whitman 810 v. Payne 827, 877, 868 v. Wilson 504, 715, 736 Stewart v. Chambers 484 | Thomson v. Adv. Gen. 61, 147 v. Ellice’ 895 | Thorndike v. Boston 45, 46, 50, 61 v, Garnett 665 | Thorne v. Watkins 507, 508, 544, 677, Still v. Woodville 44 : 684, 715, 733 Stockton v. Staples 62 | Thornton v. Curling 666, 677 Stoddard v. Harrington 488, 546, 810 | Thorp v. Craig 443, 444 Stone v. Perry 351 | Thurburn v. Steward 378, 457 Stout v. Wood 844, 866 | Thuret v. Jenkins 546, 554 Stover, In re 46 | Thurman v. Stockwell 574 Strathmore v. Bowes 133, 135 | Thurston v. Rosenfield 512, 600, 627 Strathmore Peerage 118, 129, 148 | Tickner v. Roberts 848, 444 Stuart v. Bute v. Moore Studd v. Studd Sturdivant v. Neill Sturges v. Crowninshield Suarez v. New York Sudlow v. Dutch Rhenish Ry Co. Supples v. Cannon Suse v. Pompe Sussex Peerage Case Sutton v. Warren Suydam v. Broadnax Swearingen v. Morris -v. Pendleton Sweet v. Brackley Swickard v. Bailey Swift v. Kelly v. Swift Syme v. Stewart Symonds v. Union Ins. Co. T. Taft v. Ward Talbot v. Seeman Talleyrand v. Boulanger Talmage v. Chapel 697 697 651 645 480, 486, 798 677 Tilden v. Blair Tillman v. Walkup Titus v. Hobart v, Scantling 877, 378, 379, 395, ey 7 Tioga Rld. v. Blossburg & Corning Rid. 181 483, 786, 787, & 180 | Todd v. Neal 492 818 | Toomer v. Dickerson 788 425, 442 | Touro v. Cassin 327 217, 870 | Tourton v. Flower 715 196 | Tovey v. Lindsay 175, 198, 278, 279, 286, 788 287, 298 587, 544, 714 | Townes v. Durbin 250, 645 727, 728 | Townsend v. Jemison 803 832 v. Kendall 702 795 v. Maynard 377 188, .216 v. Riley 395 715 | Trabue v. Short 442, 444 Tracy v. Talmage 836 6 | Trasher v. Everhart Trecothick v. Austin 177 | Trimble v. Trimble 863, 871 | Trotter v. Trotter 785 | Tulloch v. Hartley 739! Tully v. Herrin 826, 327, 328, 776, 783, 784, oe Se 868 715, 733 ] Trimbey v. Vignier 325, 327, 360. ” 367, 439, 440, 445, 500, ‘601, 502, 505, 6, 788 6 86 651, 663, 665, 672 598, 851, 862 578 XXXVill INDEX TO CASES CITED. Tyler v. Bell 715, 731, 734] Walker v. Witter 826, 827 Pati °” 377| Wall v. Williamson 184, 188, 216 Tyree v. Sands 454. Wallner v. Att.-Gen. 61, a v. Patterson v. Wallace 645 U Walling v. Beers 811 ‘ Wallis v. Brightwell co 666 Udny v. Udny 41, 43, 44, 45, 48, 60, 51, | Walsh vy. Durkin ber . 54, 56, 57, 67, 149, 217, 218 Waid v, Arredondo ” 760 Union Bank v. Jolly : 741 &. Movitson 562 Union Locomotive Co. zv. Erie Ry. g08 | War dows Avell 478 0. ‘ . . Ware v. Gowen 60 United ee uv. Bank of United 597 | Warren ». Copelin oe 608 v. Crosby 598, 609, 652, 681] FEM oton 64, 65 pas 372 | Warrender v. Warrender_ 36, 49, 112, 114, es McRae 842. 869, 870 175, 184, 190, 214, 218, 219, 278, 285, oe ace vee TRO 287, 294, 306, 314, 326, 344, 362, 453, Utterion 0 Tewsh 285 | or anburn, In toe! 39) 510, 764, B41, B44 ashburn, én re ’ Watkins v. Wallace 328, 566, 591, 598, 609 . Vv. Watson v. Bourne 480, 484, a . Walk 73 Vanbuskirk v. Hartford Ins. Co. 545 Watts a Kinsey 772 Van Buskirk v. Muloch 871 v. Waddle 767 Van Cleef v. Therasson 478 | Wayman v. Southward 787 Vandenheuvel v. U. Ins. Co. 817, 818 | Waymell v. Reed 334, 337, 339 Vander Donckt v. Thelusson 872 Wayne Bank v. Low 877, 879, 895, 442, vas Dorn v. Bodley nani S¥6 a 443 an Fossen v. State 11) wi 7 Van Hook v. Whitlock ee deh ae ee ae Vanquelin v. Bouard 735, 741, 830 | Webber v. Donnelly 341, 866 Van Raugh v. Van Arsdaln 489,"493 | Webster v. Rees * 795 Van Reimsdyk v. Kane 327, 351, 381, 480, | Weeks ». Pearson 823 ; 776, 794, 802, 803 | Welch »v. Sykes 831 Van Schaick v. Edwards 327, pe 408, | Weld v. Boston 46 21, 422 | Well : : Van Voorhis v. Brintnall 117, 217 vane vee eo Vanzant v. Arnold 490 | West v. Platt 817 Varnum v. Camp 546 | West Cambridge v. Lexington 115, 117, Vaughan v. Barclay 731 187, 207 v. Morrison 818 | Westcott v. Brown 810 v. Northup . 715 v. Fargo 7 woes - Paulding 60 | Western v. Genesee Ins. Co. 3i7 Meee 56 | Western Ins. Co. v. Virginia Coal Co. 818 Vom y Th eatty 714 | Western Transportation Co. v. Kil- Veet v, Eunphreys 380 derhouse ee Very v. McHenry 498, 495, 547, 573 Westen Vinee Rel Gocme Barts 7 Vickery v. Beir 714 | Wetherell v. Jones 837 Vidal v. Thompson 880, 361, 416, 418, 422, Wheeler v. Burrow 48 Virgini 445, 448 v. Walker 598 irginie, La 54 v, Webster 59 Vischer v. Vischer 810) Whelan v. Kinsley 863 Von Hemert v. Porter 895 | Whicker v. Hume 45, 46, 50 4 Whipple v. Robbins 834 Whiston v. Stodder 326, 327, 828, 384,454 WwW. White v. Brown , 50, 538, v. Canfield Wadham v Marlow 567 v. Friedlander 877, 442 Wadleigh v. Veazie 838 v. Hall 760 Walcot v. Walker 841 v. Hart 325 Walker v. Perkins 340 o. Howard 175, 598, 652 INDEX TO CASES CITED. White v. Whitman 833 Whitford v. Panama R. Co. 845, 864, 867 Whiting v. Beebe 823 Whitney v. Sherborn 63 v. Walsh 814 v. Whiting 547 Whittaker v. Wright 714 Whittemore v. Adams 787 Whitton v. Wass 60 Whyte v. Rose 714, 722, a Wigglesworth v. Dallison 5 | Woodruff v. Hill 377, 440, 442 Wightman v. Wightman 189, 190, 196 v. Schultz 716 Wilbraham v. Ludlow 64, 65 v. Taylor 816 Wilcox v. Hunt 826, 367, 775, 776, 852, | Woods v. Wicks 181 863 | Woodstock v. Hartland 64 v. Kassick 810 | Woodward v. Roane 645, 574 Wilcox Co. v. Green 867 v. Tremere 809 Wilkins v. Ellett 544, 677, 723, 783 | Woodworth v. Spring 697 - Williams v. Armroyd 814, 815 | Worcester v. Wilbraham 65 v. Benedict 741 ) Worden v. Nourse 879, 545 v, Carr 851 | Wright v. Andrews 851, 810, 811 v. Cresswell 329, 780 v. Boston 46 v. Haines 793 v. Boynton 811 v. Jones 37, 714, 716, 774, 8380 v. Gilbert 714 v. Oates 117 v. Oakley 60 v. Saunders 43, 49 v. Paton 484 v. Storrs 723 v. Phillips 716 v. Wade 444, 446 v. Remington 828 v. Wilkes 873 | Wright’s Trusts, In re 149, 150, 151 Willings v. Consequa 825, 787 | Wrigley, In re 64 Willis v. Baldwin 341 | Wynne v. Jackson 846, 350, 449 Williston v. Michigan Rd. Co. 181 Wills v. Cowper 612, 598, 609, 652, 681, 712 Wilson, In re 556, 559, 566, 569 Ns v, Cox 651 v. Demers 795 | Yates v. Thomson 347, 651, 663, 671, v. Jackson 810 677, 691, 852, 855, 856, 867, 858, 863 v. Niles 8382 | Yeaton v. Fry 873 v. Terry 46 | Yelverton v. Yelverton 49, 57, 754 v. Tunstall 823 | Young v. Crossgrove 795 v, Wilson 46 v. Templeton 266, 872 Wilson’s Trusts, Zn re 145, 147 | Yrisarri v. Clement 397 Wilson Packing Co. v. Hunter 179 Winchelsea v. Garetty 857, 518, 684, ae Winchendon »v. Hatfield it _ Winslow v. Brown 866 Xxxix Winthrop v. Carleton 395, 406 Wolff v. Oxholm ‘479, 498, 495, 561, "781, 788, 841 Wood v. Gamble 823 v. Jackson 818 v. Partridge 558 v. Watkinson 776, 830, 882 Woodard v. Michigan Southern R. Co. 830, 844 Woodbridge v. Wright 787, 788, 794 Z. Zipcey v. Thompson 546 COMMENTARIES ON THE CONFLICT BETWEEN FOREIGN AND DOMESTIC LAWS. CHAPTER I. INTRODUCTORY REMARKS. 1. Diversity of Laws in different Countries.—The earth has long since been divided into distinct nations, inhabiting diffe- rent regions, speaking different languages, engaged in different. pursuits, and attached to different forms of government.’ It is natural that, under such circumstances, there should be many variances in their institutions, customs, laws, and polity, and that these variances should result sometimes from accident, and sometimes from design, sometimes from superior skill and know- ledge of local interests, and sometimes from a choice founded in ignorance and supported by the prejudices of imperfect civili- zation, Climate and geographical position, and the physical adaptations springing from them, must at all times have had a powerful influence in the organization of each society, and have given a peculiar complexion and character to many of its arrange- ments. The bold, intrepid, and hardy natives of the north of Europe, whether civilized or barbarous, would scarcely desire or tolerate the indolent inactivity and luxurious indulgences of the Asiatics. Nations inhabiting the borders of the ocean, and accustomed to maritime intercourse with other nations, would naturally require institutions and laws adapted to their pursuits and enterprises, which would be wholly unfit for those who should be placed in the interior of a continent, and should main- 1 Upon the subject of this chapter the learned reader is referred to Burge’s Commentaries on Colonial and Foreign Law, vol. 1, pt. 1, ¢. 1, p. 1-82. 1 2. CONFLICT OF LAWS. [s. 1-2, tain very different relations with their neighbors, both in peace and war. Accordingly we find that, from the earliest records of ° authentic history, there has been (as far at least as we can trace : them) little uniformity in the laws, usages, policy, and institu- tions either of contiguous or of distant nations. The Egyptians, the Medes, the Persians, the Greeks, and the Romans differed not more in their characters and employments from each other, than in their institutions and laws. They had little desire to learn or to borrow from each other; and indifference, if not contempt, was the habitual state of almost every ancient nation in regard to the internal polity of all others. 2. Intercourse between the ancient Nations.—Yet even under such circumstances, from their mutual intercourse with each other, questions must sometimes have arisen as to the operation | of the laws of one nation upon the rights and remedies of parties in the domestic tribunals, especially when they were in any measure dependent upon, or connected with, foreign transac- tions. How these questions were disposed of we do not know. But it is most probable that they were left to be decided by the analogies of the municipal code, or were abandoned to their fate, as belonging to that large class of imperfect rights, which rests wholly on personal confidence, and is left without any appeal to remedial justice. It is certain-that the nations of antiquity did not recognize the existence of any general or universal rights and obligations, such as among the moderns constitute what is now emphatically called the Law of Nations. Even among the Romans, whose jurisprudence has come down to us in a far more perfect and comprehensive shape than that of any other nation, - there cannot be traced out any distinct system of principles applicable to international cases of mixed rights. This has beer in some measure accounted for by Huberus! upon the supposi- tion that, at the time to which the Roman jurisprudence relates, the Roman dominion extended over so great a portion of the habitable world, that frequent cases of contrariety or conflict of laws could scarcely occur? But this is a very inadequate account of the matter; since the antecedent jurisprudence of 1 2 Hub. lib. 1, tit. 3, p. 24. 2 The language of Huberus is, ‘In jure Romano non est mirum nihil hae ; de re extare, cum populi Romani per omnes orbis partes diffusum, et aquabili jure gubernatum imperium, conflictui diversarum legum non eque potuerit esse subjectum.”” — 2 Hub. lib. 1, tit. 3, 8: 1. CHAP. 1] INTRODUCTORY REMARKS. 3 Rome must have embraced many such cases at earlier periods; and if there had been any rules, even traditionally known, to govern them, they could scarcely have failed of being incor- porated into the Civil Codes of Justinian. In many of the nations over which the Romans extended their dominion, the inhabitants were left in possession of the local institutions, usages, and laws, to a large extent; and commercial as well as political intercourse must have brought many diversities of laws and usages in judgment before the tribunals of justice! We have the most abundant evidence on this head, in relation to the Jews, after they had submitted to the Roman yoke, who were still permitted to follow their own laws in the times of our Saviour, and down to the destruction of Jerusalem.? 2a. Barbarian Irruption into the Roman Empire.—When the northern nations by their irruptions finally succeeded in esta- blishing themselves in the Roman Empire, and the dependent nations subjected to its sway, they seem to have adopted, either by design, or from accident or necessity, the policy of allowing the different races to live together, and to be governed by and to preserve their own separate manners, laws, and institutions in their mutual intercourse. While the conquerors, the Goths, Burgundians, Franks, and Lombards, maintained their own laws and usages and customs over their own race, they silently or expressly allowed each of the races over whom they had obtained an absolute sovereignty, to regulate their own private rights and affairs according to their own municipal jurisprudence. It has accordingly been remarked by a most learned and eminent jurist, that from this state of society arose that condition of civil rights denominated personal rights, or personal laws, in opposition to territorial laws.3 1 See 1 Hertii Opera, s. 4, de Collis. Leg. p. 119, s. 2; Id. p. 169, ed. 1716. 2 There are traces to be found in the Digest of the existence and operation of the lex loci. See Dig. 50, 1, 21,7; Dig. 50, 6, 5,1; Dig. 50, 4, 18, 27; Dig. 50, 8, 1; Livermore, Dissert. p. 1, n. a. 8 Savigny’s History of the Roman Law in the Middle Ages. The whole passage is exceedingly interesting and curious, and therefore I quote it at large from Mr. Cathcart’s translation, vol. 1, c. 8, p. 99-104. — * When the Goths, Burgundians, Franks, and Lombards founded kingdoms in the coun- tries formerly subject to the power of Rome, there were two different modes of treating the conquered race. They might be extirpated by destroying or enslaving the freemen, or the conquering nations for the sake of increasing their own numbers, might transform the Romans into Germans, by forcing 4 CONFLICT OF LAWS. [s. 28, 3. 2b. Absence of Remedy in case of Conflict of Laws.—Still how- ever this was but a mere arrangement in the domestic polity of on them their manners, constitution, and laws. Neither mode however was followed ; for although many Romans were slain, expatriated, or enslaved, this was only the lot of individuals, and not the systematic treatment of the na- tion. Both races on the contrary lived together and preserved their sepa- rate manners and laws. From this state of society arose that condition of civil rights denominated personal rights, or personal laws, in opposition to terri- torial laws. The moderns always assume that the law to which the individual owes obedience, is that of the country where he lives ; and that the property and contracts of every resident are regulated by the law of his domicil. In this theory the distinction between native and foreigner is overlooked, and national descent is entirely disregarded. Not so however in the Middle Ages, where, in the same country, and often indeed in the same city, the Lombard lived under the Lombardic, and the Roman under the Roman law. The same distinction of laws was also applicable to the different races of Germans. The Frank, Burgundian, and Goth, resided in the same place, each under his own law, as is forcibly stated by the Bishop Agobardus, in an epistle to Louis le Debonnaire. ‘It often happens,’’ says he, ‘‘ that five men, each under a different law, may be found walking or sitting together.” ‘In the East Gothic kingdom alone, this custom was not originally fol- lowed. There, an artificial and systematic plan was adopted, which belongs to the particular history of that nation, and cannot be brought within the general inquiry. All the other states followed the system of personal laws; and this universal practice could not have arisen from accidental reasons, but from common views, principles, and wants. These may be appropriately illus- trated at present. ‘ According to the general opinion the system of personal laws prevailed among all the German nations, from the earliest times; and it is customary to explain this circumstance by the love of freedom so peculiar to these races. In the first place however it is difficult to perceive how such an institution could arise merely from regard to liberty. Such an attachment might indeed create a wish among nations or individuals, to preserve their own laws ina foreign country, or under a foreign yoke; but the question is, how were the predominant people induced to grant them this privilege? The benevolent and hospitable disposition of the victorious may have been partly the cause; but their mere love of freedom affords no satisfactory explanation. This humane treatment of foreigners was not deeply seated in the character of the old Germans. It is probable that among them every foreigner was, at first, a Wildfang, and belonged to the class of the Biesterfreien, denied the advan- tages arising from service in the national army or from the obligations of fealty, and living as an alien, unprotected by any power except the weak hand of the general government, who, while they excluded him from the rights of marriage, inherited his property, and exacted his composition, if slain. Fur- ther, the want of such an institution as the personal laws, could never have been felt in a country without trade, and where few foreigners resided. Jn these circumstances, its introduction was impossible. If only a single Goth lived in the Burgundian Empire, none of his countrymen could be found to Msg ie Gothic law, and the Burgundians themselves were entirely iguo- rant of it. CHAP. 1] INTRODUCTORY REMARKS. 5 each particular nation; and even then it must often have in- volved serious embarrassments whenever questions arose in regard to conflicting rights and claims and remedies, growing out of dealings and acts and contracts between individuals belong- ing to different races. But when the question assumed a more comprehensive character, and the point to be decided was, what rule should prevail, where there was a conflict of laws between different sovereignties wholly independent of each other, and there were rights to be established of a private nature between some of the subjects of each sovereignty, there was no recognized principle or practice, which was promulgated by all, or submitted to by all. Such rights were probably left without any remedy, and became either the subject of private adjustment, or were silently disregarded. 3. The Law of Nations.—The truth is, that the Law of Na- tions, strictly so called, was in a great measure unknown to an- ‘The truth is, that the want of such an institution, and the possibility of introducing it, could occur only after the nations were blended together in considerable masses. The internal condition of each kingdom would then produce what could never have been brought about by mere benevolence to- ward individual foreigners. According to this account of the origin of the sys- tem of personal laws, it prevailed in all the German states, settled in countries formerly subject to Rome. At first, the validity of two laws only was ad- mitted: e. g., the law of the victorious race, and of the vanquished Romans. Individuals belonging to other German nations did not at first enjoy the right of living under their own laws ; but when our supposed kingdom had extended its conquests, and spread out its dominion over other German tribes, then the laws of the conquered German races were acknowledged in the same manner as the Roman formerly had been. Thus also every foreign law prevailing in the empire of the conqueror was admitted and considered as valid among all the vanquished. This practice ought to have produced the following results. At first, in the northern parts of France, the Frank and Roman laws must have been exclusively received; and under the Carlovingian dynasty it would become necessary to admit likewise the laws of the West Goths, Burgundians, Alemans, Bavarians, and Saxons; because these, as nations, belonged to the empire. Italy however did not form a province under the Franks, and there could not consequently be the same reason for admitting the validity of Lom- bardic law within the Frank empire. In Italy also under the Lombardic kings, only Lombardic and Roman law could have prevailed to the exclusion of every other; but after its conquest by the Franks, all the multifarious for- eign laws existing in the territory of the conquerors must have been intro- duced. Now these anticipated results are supported by history; and this accordance is a strong practical confirmation of that account of the origin of personal laws already established by general reasoning.’ — The same passage will be found in Mr. Guenoux’s French translation of the same work, vol. 1, c. 3, p. 84-88, ed. 1830; Id. c. 3,8. 80, ed. 1889. 6 CONFLICT OF LAWS. [s. 3-6. tiquity, and is the slow growth of modern times, under the com- bined influence of Christianity and commerce.! It is well known that when the Roman Empire was destroyed, the Christian world was divided into many independent sovereignties, acknowledging no common head, and connected by no uniform civil polity. The invasions of the barbarians of the North, the establishment of the feudal system in the Middle Ages, and the military spirit and enterprise cherished by the Crusades, struck down all regular commerce, and surrendered all private rights and contracts to mere despotic power. It was not until the revival of commerce on the shores of the Mediterranean, and the revival of letters and the study of the Civil Law by the discovery of the Pan- dects had given an increased enterprise to maritime navigation, and a consequent importance to maritime contracts, that any- thing like a system of international justice began to be developed. It first assumed the modest form of commercial usages; it was next promulgated under the more imposing authority of royal ordinances ; and it finally became by silent adoption a generally connected system, founded in the natural convenience, and as- serted by the general comity of the commercial nations of Europe. The system thus introduced for the purposes of commerce has gradually extended itself to other objects, as the intercourse ‘of nations has become more free and frequent. New rules, resting on the basis of general convenience and an enlarged sense of national duty, have from time to time been promulgated by jurists, and supported by courts of justice, by a course of juridi- cal reasoning which has commanded almost universal confidence, respect, and obedience, without the aid either of municipal sta tutes, or of royal ordinances, or of international treaties. 4. Necessity for General Rules.—Indeed, in the present times, without some general rules of right and obligation, recognized by civilized nations to govern their intercourse with each other, the most serious mischiefs and most injurious conflicts would arise. Commerce is now so absolutely universal among all coun- tries, the inhabitants of all have such a free intercourse with each other, contracts, sales, marriages, nuptial settlements, wills, and successions, are so common among persons whose domicils are in different countries, having different and even opposite laws on the same subjects, that without some common principles + See 1 Ward, Law of Nations, c. 6, p. 171-200 ; Id. ¢. 3, p: 120-180. CHAP. L] INTRODUCTORY REMARKS. “th adopted by all nations in this regard, there would be an utter confusion of all rights and remedies ; and intolerable grievances would grow up to weaken all the domestic relations, as well as to destroy the sanctity of contracts and the security of property. 5. Illustrations.—A few simple cases will sufficiently illustrate the importance of some international principles in matters of mere private right and duty. Suppose a contract, valid by the laws of the country where it is made, is sought to be enforced in another country where such a contract is positively prohibited by its laws; or, vice versa, suppose a contract invalid by the laws of the country where it is made, but valid by that of the country where it is sought to be enforced, it is plain that unless some uniform rules are adopted to govern such cases (which are not uncommon), the grossest inequalities will arise in the ad- ministration of justice between the subjects of the different countries in regard to such contracts. Again: by the laws of some countries marriage cannot be contracted until the parties: arrive at twenty-one years of age; in other countries not until they arrive at the age of twenty-five years. Suppose a marriage to be contracted between two persons in the same country, both of whom are over twenty-one years but less than twenty-five, and one of them is a subject of the latter country. Is such a mar- riage valid or not? If valid in the country where it is cele- brated, is it valid also in the other country? Or the question may be propounded in a still more general form: is a marriage, valid between the parties in the place where it is solemnized, equally valid in all other countries? Or is it obligatory only as a local regulation, and to be treated everywhere else as a mere nullity ? 6. Questions of this sort must be of frequent occurrence, not only in different countries wholly independent of each other, but also in provinces of the same empire which are governed by dif- ferent laws, as was the case in France before the Revolution; and also in countries acknowledging a common sovereign, but yet organized as distinct communities, as is still the case in regard to _ 1 Boullenois, in his preface (vol. 1, p. xviii), says: ‘Il régnera donc tou- jours entre les nations une contrariété perpetuelle de loix ; peut-étre régnera- t-elle perpétuellement entre nous sur bien des objets. De 1a la nécessité de s’instruire des régles et des principes que peuvent nous conduire dans la déci- sion des questions, que cette variété peut faire naitre.’ 8. CONFLICT OF LAWS. [s. 6-9. the communities composing the British Empire, the Germanic | Confederacy, the States of Holland, and the dominions of Austria _ and Russia! Innumerable suits must be litigated in the judicial : forums of these countries and provinces and communities, in which the decision must depend upon the point whether the na- ture of a contract should be determined by the law of the place where it is litigated, or by the law of the domicil of one or of both of the parties, or by the law of the place where the contract is made; whether the capacity to make a testament should be regu- lated by the law of the testator’s domicil, or that of the location (situs) of his property; whether the form of his testament should be prescribed by the law of the place of his domicil, or by that of the location of his property, or by that of the place where the testament is made; and in like manner, whether the law of the domicil, or what other law, should govern in cases of succes- sion to intestate estates.” 1. Territorial Limits of Laws.—It is plain that the laws of one country can have no intrinsic force, proprio vigore, except within the territorial limits and jurisdiction of that country. They can bind only its own subjects, and others who are within its jurisdic- tional limits ; and the latter only while they remain therein. No other nation, or its subjects, are bound to yield the slightest obe- dience to those laws. Whatever extra-territorial force they are to have, is the result, not of any original power to extend them abroad, but of that respect, which from motives of public policy other nations are disposed to yield to them, giving them effect, as the phrase is, sub mutuz vicissitudinis obtentu, with a wise and liberal regard to common convenience and mutual benefits and necessities. Boullenois has laid down the same exposition as a part of his fundamental maxims. ‘Of strict right,’ says he, ‘all the laws made by a sovereign have no force or authority, except within the limits of hisdomains. But the necessity of the public general welfare has introduced some exceptions in regard to civil commerce.’ ‘ De droit étroit, toutes les lois, que fait un souverain, n’ont force et autorité que dans l’étendue de sa domination ; mais la nécessité du bien public et général des nations a admis quelques exceptions dans ce qui regarde le commerce civil.’ 1 See 1 Froland, Mémoires sur les Statuts, pt. 1, c. 1, s. 5-10. * Livermore, Dissert. 8, 4 ; Merlin, Répert. Statut. 5 1 Boullenois, Prin. Gén. 6, p. 4. CHAP. 1] INTRODUCTORY REMARKS. me) 8. Consequence of the Independence of Nations.—This is the natural principle flowing from the equality and independence of nations. For it is an essential attribute of every sovereignty, that it has no admitted superior, and that it gives the supreme law within its own dominions on all subjects appertaining to its sovereignty. What it yields, it is its own choice to yield, and it cannot be commanded by another to yield it as matter of right. And accordingly it is laid down by all publicists and jurists, as an incontestable rule of public law, that one may with impunity disregard the law pronounced by a magistrate beyond his own territory. ‘Extra territorium jus dicenti impune non paretur,’ is the doctrine of the Digest ;} and it is equally as true in rela- tion to nations, as the Roman law held it to be in relation to magistrates. The other part of the rule is equally applicable: ‘Idem est, et si supra jurisdictionem suam velit jus dicere;’ for he exceeds his proper jurisdiction when he seeks to make it ope- rate extra-territorially as a matter of power.? Vattel has deduced a similar conclusion from the general independence and equality of nations, very properly holding that relative strength or weak- ness cannot produce any difference in regard to public rights and duties; that whatever is lawful for one nation is equally lawful for another; and whatever is unjustifiable in one is equally so in another.2 And he affirms in the most positive manner (what indeed cannot well be denied), that sovereignty, united with domain, establishes the exclusive jurisdiction of a nation within its own territories, as to controversies, to crimes, and to rights arising therein.* 9. Conflict of Laws.—The jurisprudence, then, arising from the conflict of the laws of different nations in their actual application to modern commerce and intercourse, is a most interesting and important branch of public law. To no part of the world is it of more interest and importance than to the United States, since the union of a national goverment with already that of twenty-six distinct states, and in some respects independent states, necessarily creates very complicated private relations and tights between the citizens of those states, which call for the 1 Dig. 2,1, 20; Pothier, Pand. 2, 1, n. 7. 2 Dig. 2,1, 20; Pothier, Pand. 2, 1, n. 7. 8 Vattel, Prelim. s. 15-20; Id. bk. 2, c. 3, 8. 35, 36; Le Louis, 2 Dod. 210. * Vattel, bk. 2, c. 7, 8. 84, 85. 10 CONFLICT OF LAWS. . [s. 9-12. constant administration of extra-municipal principles. This branch of public law may therefore be fitly denominated pri- vate international law, since it is chiefly seen and felt in its application to the common business of private persons, and rarely rises to the dignity of national negotiations, or of national controversies. 10. Treatment of the Subject by English Writers.—The subject has never been systematically treated by writers on the common law of England, and indeed seems to be of very modern growth in that kingdom, and can hardly as yet be deemed to be there cultivated as a science, built up and defined with entire accuracy and decision of principles. More has been done to give it form and symmetry within the last fifty years than in all preceding time. But much yet remains to be done to make it what it ought to be, in a country of such vast extent in its commerce, and such universal reach in its intercourse and polity.? 11. Zts Discussion by Continental Jurists.—The civilians of continental Europe have examined the subject in many of its bearings with a much more comprehensive philosophy, if not with a more enlightened spirit. Their works however abound with theoretical distinctions, which serve little other purpose than to provoke idle discussions, and with metaphysical subtil- ties which perplex, if they do not confound, the inquirer. They are also mainly addressed to questions intimately connected with their own provincial or municipal laws and customs, some of which are of a purely local, and others of a technical and pecu- liar character; and they do not always separate those considera- tions and doctrines which belong to the elements of the general science, from those which may be deemed founded in particular national interests and local ordinances. Precedents too have not, either in the courts of continental Europe or in the juridical discussions of its eminent jurists, the same force and authority, which we, who live under fic influence of the common law, are 1 The civilians are accustomed to call the questions arising from the con- flict of foreign and domestic laws, mixed questions (questions mixtes). 1 Fro- land, Mémoires des Statuts, c. 1, s. 9, p. 18; Id. c. 7, s. 1, p. 155. 2 Mr. Chancellor Kent has remarked that these topics of international law were almost unknown in the English courts prior to the time of Lord Hard- wicke and Lord Mansfield, and that the English lawyers seem generally to have been strangers to the discussions on foreign law by the celebrated jurists of continental Europe. 2 Kent Comm. 455. CHAP. I.] é INTRODUCTORY REMARKS. 11 accustomed to attribute to them; and it is unavoidable that many differences of opinion should exist among them, even in relation to leading principles. But the strong sense and critical learning of the best minds among foreign jurists, have generally maintained those doctrines which at the present day are deemed entirely persuasive and satisfactory with us, who live under the common law, as well for the solid grounds on which they rest, as for the universal approbation with which they are entertained by courts of justice. 12.. Personal, Real, and Mixed Statutes.—In their discussions upon this subject the civilians have divided statutes into three classes, personal, real, and mixed. By statutes, they mean, not the positive legislation, which in England and America is known by the same name, namely, the acts of parliament and of other legislative bodiés, as contradistinguished from the common law, but the whole municipal law of the particular state, from what- ever source arising.2 Sometimes the word is used by them in contradistinction to the imperial Roman law, which they are accustomed to style, by way of eminence, the common law, since it constitutes the general basis of the jurisprudence of all conti- nental Europe, modified and restrained by local customs and usages, and positive legislation.? Paul Voet says: ‘Sequitur jus particulare, seu non commune, quod uno vocabulo usitatis- 1 The late Mr. Livermore (whose lamented death occurred in July, 1833), in his learned Dissertations on the Contrariety of Laws, printed at. New Or- leans in 1828, has enumerated the principal continental writers who have dis- cussed this subject at large. JI gladly refer the reader to these Dissertations, as very able and clear. There is also a catalogue of the principal writers in Boullenois, Traité des Statuts, Preface, vol. 1, p. 29, note 1; in Dupin’s edi- tion of Camus, Profession d’Avocat, vol. 2, tit. 7, s. 5, art. 1561-1566 ; in Froland, Mémoires concernans les Qualités des Statuts, vol. 1, pt. 1, ¢. 2, p. 15; in Bouhier, Coutum. de Bourg. vol. 1, ¢. 28, p. 450; and in Mr. Burge’s recent Commentaries on Colonial and Foreign Law, pt. 1, c. 1, p. 6- 82. In the preparation of these Commentaries I have availed myself chiefly of the writings of Rodenburg, the Voets (father and son), Burgundus, Du Moulin (Molinaeus), Froland, Boullenois, Bouhier, and Huberus, as embrac- ing the most satisfactory illustrations of the leading doctrines. My object has not been to engage in any critical examination of the comparative merits or mistakes of the different commentators, but rather to gather from each of them what seemed most entitled to respect and confidence. ? Bouhier, Coutum. de Bourg. vol. 1, p. 173-179, s. 9-82; 1 Hertii Opera, de Collisione Legum, s. 4, art. 5, p. 121; Id. p. 172, ed. 1716. 8 Bouhier, Coutum. de Bourg. vol. 1, p. 175, 178, s. 16, 28, 29. 12 CONFLICT OF LAWS. , [S. 12, 13, simo statutum dicitur, quasi statum publicim tuens.! Appella-" tur etiam jus municipale. Etiam in jure nostro dicta bes sa lex municipit, quemadmodum i in genere signat jus commune.’* And he defines it thus: ‘ Est jus particulare ab alio eee quam Imperatore constitutum.? Dico, jus particulare, in quantum opponitur juri communi, non prout est gentium et naturale, sed prout est jus civile Romanorum, populo Romano commune, et omnibus, qui illo populo parebant.* Additur, ab alio legislatore, cum qui statuta condit, recte et suo modo legislator appelletur, ut ipsa statuta leges dicuntur municipiorum. Et quidem, ad alto, quia regulariter statuta non condit Imperator; excipe, nisi muni- cipibus jura det, statuta prescribat, secundum que ipsi sua regant municipia.5 Denique adjicitur, quam imperatore, quod licet Imperator solummodo dicatur legislator, id tamen, non alio sensu obtineat, quam quod suis legibus non hune aut illum popu- lum, verum omnes constringat, quos suze clementie regit impe- rium.’® Merlin says: ‘This term, statute, is generally applied to all sorts of laws and regulations. Every provision of law is a statute, which permits, ordains, or prohibits anything.’ ‘Ce terme (statut), s’'applique en général & toutes sortes de lois et de réglemens. Chaque disposition d’une loi est un statut, qui permet, ordonne, ou défend quelque chose.’ ‘ 18. Definition of the three Classes of Statutes.—The civilians have variously defined the different classes of statutes or laws. The definitions of Merlin are sufficiently clear and explicit for all the purposes of the present work, and will therefore be here cited. The distinctions between the different classes are very important to be observed in consulting foreign jurists, since they have been adopted by them from a very early period, and per- vade all their discussions. Personal statutes are held by them to be of general obligation and force everywhere; but real sta- tutes are held to have no extra-territorial force or obligation? 1 P. Voet, de Statut. s. 4, c. 1, s. 1; Id. p. 123, ed. 1661. 2 Thid. 8 P. Voet, de Statut. s. 4, c. 1, s. 2; Id. p. 194, ed. 1661. 4 Tbid. 5 P. Voet, de Statut. s. 4, c. 1, s. 2; Id. p. 125, ed. 1661. § P. Voet, de Statut. s. 4, c. 1, s. 2; Id. p. 125, ed. 1661; Id. s. 1, ¢. 4; Id. p. 35, ed. 1661; Liverm. Dissert. I. p. 21, note (b), ed. "1828. 7 Merlin, Réperiaize, art. Statut. vol. 31, ed. 1828, Bruxelles; Saul v. His Creditors, 5 Mart. N.S. (La.) 569, 589. * Rodenburg, de Statut. Divers. c. 8, p. 7; 1 Froland, Mémoires des Sta- tuts, c. 7,8. 1,2. CHAP. 1.] : INTRODUCTORY REMARKS. 13 ‘Personal statutes,’ says Merlin, ‘are those which have princi- pally for their object the person, and treat only of property (biens) incidentally (accessoirement) ; such are those which re- gard birth, legitimacy, freedom, the right of instituting suits, majority as to age, incapacity to contract, to make a will, to plead in proper person, &c.? Real statutes are those which have principally for their object property (biens), and which do not speak of persons, except in relation to property; such are those which concern the disposition which one may make of his pro- perty, either while he is living, or by testament.2 Mixed sta- tutes are those which concern at once persons and property.’ But Merlin adds, ‘ that in this sense almost all statutes are mixed, there being scarcely any law relative to persons, which does not at the same time relate to things.’ He therefore deems the last classification unnecessary, and holds that every statute ought to receive its denomination according to its principal object. As that object is real or personal, so ought the quality of the sta- tute to be determined.’ But this distribution into three classes is usually adopted precisely as it is stated by Rodenburg: ‘ Aut enim statutum simpliciter disponit de personis; aut solum- modo de rebus; aut conjunctim de utrisque.’® And he pro- 1 The term biens, in the sense of the civilians and continental jurists, com- prehends not merely goods and chattels, as in the common law, but real estate. But the distinction between movable and immovable property is nevertheless recognized by them, and gives rise in the civil law, as well as in the common law, to many important distinctions as to rights and remedies. ? See Pothier, Coutum. d’ Orléans, c. 1, s. 1, art. 6. 3 See Pothier, Coutum. d'Orléans, c..1, s. 2, art. 21. * Merlin, Répertoire, Statut.; Id. Autorisation Maritale, 5.10. § Ibid. § Rodenburg, de Statut. Diversitate, c. 2, p. 4; Le Brun, Traité de la Com- munauté, liv. 2, c. 3, s. 20-48; Bouhier, Coutum. de Bourg. c. 21-37; Voet, de Statut.s. 4,¢. 2, p. 116-124; Id. p. 129-148, ed. 1661; Livermore, Dis- sert. s. 65-162 ; 1 Froland, Mémoires, Qualité des Statuts, pt. 1, ¢. 3, p. 25; Id. c. 4, p. 49, c. 5, p. 81, c. 6, p. 214; Boullenois, Traité des Statuts, vol. 1, preface, p- 22; Pothier, Coutum. d’Orléans, c. 1, s. 1, art. 6-8. — Boulle- nois distributes all statutes into three classes: ‘Ou le statut dispose simple- ment des personnes ; ou il dispose simplement.des choses; ou il dispose tout 4 la fois des personnes et des choses.’ 1 Boullenois, Traité des Statuts réels et personnels, tit. 1, c. 2, obs. 2, p. 25; Id. Princ. Gén. p. 4,6. Mr. Henry, in his Dissertation on Personal, Real, and Mixed Statutes, has adopted the like dis- tribution, without any acknowledgment of the source (Boullenois) from which he has drawn all his materials. See Henry on Personal and Real Statutes, ce. 1, 8.2 toc, 8,8. 1, p. 2-33. See also Livermore’s Dissert. 2, s. 65-162, p. 62-106; Id. s. 168, p. 109. Mr. Justice Porter in delivering the opinion of 14 CONFLICT OF LAWS. fs. 18, 14. ceeds to explain this division in the following manner: ‘Que ita constrictim dicta sic habentur explicatius: Aut universus person status, aut conditio in dispositione statuti vertitur, citra ullam rerum adjectionem, adeoque de personis agitur in abstracto, absque ulla consideratione rerum, ut, verbi gratia, quoto quis etatis anno sui juris sit, quando exeat parentum potestate, de quibus et consimilibus exemplis mox fusius. Aut in solas nu- dasque res statuti dispositio’ dirigitur, ut nullum intervenire necesse sit actum hominis, aut aliquam concurrere persone operam ; cujusmodi sunt, quibus rerum successionibus ab intestato jus ponitur, ut bona materna cedant maternis, paterna paternis, nothi succedant matribus, non succedant patribus, quando suc- cedatur in stirpes, quando in capita; que jura successionum ab intestato appellaveris. Aut permittit denique, vetat, aut ordinat, actum a personis circa res peragendum, ex utriusque complexu constructum statutum, contra quod, ut queat committi quippiam, persone actum intervenire necesse est. Quo pertinent. Sine in- dulto principis de rebus suis nemo testator; conjuges sibi in- vicem non leganto; vir citra consensum uxorium res soli non alienato.’} 14. Classification.—In the application of this classification to , particular cases, there has been no inconsiderable diversity of opinion among the civilians. What particular statutes are to be deemed personal, and what real; when they may be said princi- pally to regard persons, and when principally to regard things; these have been vexed questions, upon which much subtility of discussion and much heat of controversy have been displayed, The subject is in itself full of intrinsic difficulties; but it has been rendered more perplexed by metaphysical niceties and over- curious learning.? Hertius admits, that these subtilities have so the Supreme Court of Louisiana, in the case of Saul v. His Creditors (5 Mart. N.S. 569, 590), said, that foreign jurists, by a personal statute, mean that which follows and governs the party subject to it, wherever he goes; and a real statute is that which controls things, and does not extend beyond the limits of the country from which it derives its authority. Is not this a description of ee effect of such statutes, rather than a definition of their nature? See Id. 1 Rodenburg, de Statut. Divers. c. 2, p. 4 (2 Boullenois, Appendix, p. 4). ? See 1 Boullenois, tit. 1, c. 1, obs. 2, p. 16, &c.; Id. c. 2, obs. 5, p. 114-122; 1 Froland, Mém. des Stat. c. 2, p. 15; 2 Kent Comm. 458-457; Saul v. His Creditors, 5 Mart. N.S. (La.) 569-596 ; Henry on Foreign Law, c. 3, p. 23, &c. The Supreme Court of Louisiana have made some very just remarks on CHAP. 1] INTRODUCTORY REMARKS. 15 perplexed the subject, that it is difficult to venture even upon an explanation. His language is: ‘De collisu legum anceps, diffi- cilis, et late diffusa est disputatio, quam nescio, an quisquam ex- plicare totam aggressus fuerit.’1 And in another place he adds: ‘Ceterum junioribus plerisque placuit distinctio inter statuta, realia, personalia, et mixta. Verum in iis definiendis mirum est, quam sudant doctores.’? Bartolus has furnished a memorable example of these niceties. After remarking upon the distinc- tion between personal and real statutes, and the mode of distin- guishing the one from the other, and that in England the custom obtains of the eldest son’s succeeding to all the property, he says: ‘Mihi videtur, quod verba statuti seu consuetudinis, sunt diligenter intuenda. Aut illa disponunt circa res; ut per hac verba, “ Bona decedentis ut veniant in primogenitum ;” et tunc de this subject. ‘ We are led,’ says Mr. Justice Porter, in delivering the opinion of the court, ‘into an examination of the doctrine of real and personal sta- tutes, as it is called by the continental writers of Europe, a subject the most intricate and perplexed of any that has occupied the attention of lawyers and courts, one on which scarcely any writers are found entirely to agree, and on which it is rare to find one consistent with himself throughout. We know of no matter in jurisprudence so unsettled, or none that should more teach men distrust of their own opinions and charity for those of others.’ Saul v. His Creditors (5 Mart. N.S. (La.) 569, 588). Chancellor D’Aguesseau has at- tempted a definition, or test, of real and personal laws. THe says: ‘ The true principle in this matter is to examine if the statute has property directly for its object, or its destination to certain persons, or its preservation in families, so that it is not the interest of the person whose rights or acts are examined, but the interests of others to whom it is intended to assure the pro- perty, or the real rights, which were the cause of the law. Or if, on the con- trary, all the attention of the law is directed towards the person, to provide in general for his qualifications, or his general absolute capacity, as when it relates to the qualities of major or minor, of father or son, of legitimate or illegitimate, of ability or inability to contract, by reason of personal causes. In the first hypothesis, the statute is real; in the second, it is personal.’ Cited in 5 Mart. N.S. (La.) p. 594; D’ Aguesseau, (Euvres, ‘tom. 4, p. 660, 4to ed. How unsatisfactory is this description, when applied in practice. 1 1 Hertii, Opera, de Collis. Legum, s. 1, n. 1, p. 91; Id. s. 4, n. 3, p. 121, 122; Id. p. 129, and p. 170, ed. 1716. ? 1 Hertii, Opera, s. 4, n. 3, p. 120; Id. p. 170, ed. 1716. See also 1 Fro- land, Mém. Qualité des Statut. c. 3-7; Bouhier, Coutum. de Bourg. c. 23, 8. 58, 59. — Mr. Livermore has given a concise view of the various opinions of foreign jurists on this subject, which will well reward a diligent perusal. Liverm. Dissert. 2, s. 56-162. His own opinions, which exhibit great acute- ness, will also be found in the same work from s. 163-214. The subject is es amply discussed in Froland, Boullenois, Bouhier, Le Brun, and Roden- urg. 16 CONFLICT OF LAWS. [s. 14, 15. omnibus bonis judicabo secundum usum et statutum, ubi res sunt situate, quia jus affecit res ipsas, sive possideantur a cive, sive ab advena. Aut verba statuti seu consuetudinis disponunt circa personas ; ut per hee verba, “ Primogenitus succedat ;” et tune, » aut ille talis decedens non erat de Anglia, sed ibi haberet pos-— sessiones ; et tunc tale statutum ad eum et ejus filios non porri- © gitur, quia dispositio circa personas non porrigitur ad forenses.! Aut talis decedens erat Anglicus, et tune filius primogenitus succederet in bonis que sunt in Anglia, et in aliis succederet de jure communi.’ So that, according to Bartolus, if a statute de- clares in words, that ‘ The estate of the intestate shall descend to the eldest son,’ (Bona decedentis ut veniant in primogenitum), it is a real statute; if it says in words, that ‘ The eldest son shall succeed to the estate’ (Primogenitus succedat), it is a personal statute.? This distinction has been justly exploded by other civilians, as the mere order and construction of the words of the statute, and not its objects, would otherwise decide its character 1 Bartolus, ad Cod. 1,1, De Sum. Trinit. 1. 1, Cunctos populos, n. 42; Liverm. Dissert. s. 68, 69, p. 63, 64; 1 Boullenois, obs. 2, p. 16, 17.— The text of Bartolus, in the only edition to which I have access (Venet. 1602), abounds exceedingly in abbreviations, so that in some few instances I am not perfectly sure that I have given the exact word. ? 1 Boullenois, tit. 1, ¢. 1, obs. 2, p. 16, 17; Liverm. Dissert. s. 8, p. 22, 23; Id. s. 67, 68, p. 62, 63; Mr. Justice Porter in the case of Saul v. His Creditors, 5 Mart. N.S. (La.) 569, 590-595; Burgundus, tract. 1, s. 4, p. 16; Stockman. decis. 125, s. 8, p. 263. 8 Thid. p. 19; Liverm. Dissert. 2, s. 67, 68; Id. s. 69-77; 1 Froland Mém. Statut. pt. 1, c. 3, s. 3,4; Bouhier, Coutum. de Bourg. c. 53, s. 58-99. — The opinion of the court by Mr. Justice Porter, in Saul v. His Creditors (5 Mart. N.S. (La.) 569, 590-596), illustrates this subject in a very striking manner. ‘ According to the jurists,” says he, ‘of those countries, a personal statute is that which follows and governs the party subject to it wherever he goes. The real statute controls things, and does not extend beyond the limits of the coun- try from which it derives its authority. The personal statute of one country controls the personal statute of another country, into which a party once go- . verned by the former, or who may contract under it, should remove. But it is subject to a real statute of the place where the person subject to the personal should fix himself, or where the property on which the contest arises may be situated. So far the rules are plain and intelligible. But the moment we attempt to discover from these writers what statutes are real, and what are personal, the most extraordinary confusion is presented. Their definitions — often differ, and when they agree on their definitions, they dispute as to their application. Bartolus, who was one of the first by whom this subject was examined, and the most distinguished jurist of his day, established as a rule that, whenever the statute commenced by treating of persons, it was a personal CHAP. L] INTRODUCTORY REMARKS. 17 15. Le Brun says that in order to ascertain whether a statute is personal or not, it is necessary to examine whether it univer- one; but if it began by disposing of things, it was real. So that if a law, as the counsel for the appellants has stated, was written thus: ‘‘ The estate of the deceased shall be inherited by the eldest son,’’ the statute was real; but if it said: ‘‘ The eldest son shall inherit the estate,’’ it was personal. This dis- tinction, though purely verbal and most unsatisfactory, was followed for a long time, and sanctioned by many whose names are illustrious in the annals of jurisprudence; but it was ultimately discarded by all. D’Argentré, who re- jected this rule, to real and personal statutes added a third, which he called mixed. The real statute, according to this writer, is that which treats of im- movables: In quo de rebus soli, id est immobilibus, agitur. And the personal, that which concerns the person abstracted from things: Statutum personale est illud quod afficit personam universaliter, abstracte ab omni materia reali. The mixed he states to be one which concerns both persons and things. D’Ar- gentré, Comm. ad Leg. Brit. des. Donat. art. 228, n. 5 to n. 9; tom. 1, p. 648. This definition of D’Argentré of a personal statute has been adopted by every writer who has treated of this matter. A long list of them, amounting to twenty-five, is given by Froland, in his Mémoires concernans la Qualité des Statuts, among which are found Burgundus, Rodenburg, Stockmans, Voet, and Dumoulin. (Froland, Mémoires concernans la Qualité des Statuts, c. 5, no. 1.) But the definition which he has given of a real statute does not seem to have been so generally adopted. It was however followed by Burgundus, Rodenburg, and Stockmans. Boullenois, who is one of the latest writers, attacks the defini- tions given by D’Argentré, and, as he supposes, refutes them; he adds others, which appear to be as little satisfactory as those he rejects. He divides per- sonal statutes into personal particular and personal universal; personal par- ticular he subdivides again into pure personal, and personal real. (Boullenois, Traité de la Personalité et de la Réalité des Lois, tit. 1, cap. 2, obs. 4, p. 44+ 52.) Voet has two definitions: one, that a real statute is that which affects principally things, though it also relates to persons; and the other, that a per- sonal statute is that which affects principally persons, although it treats also of things. It would be a painful and a useless task to follow these authors through all their refinements. President Bouhier, who wrote about the same time as Boullenois, and who has treated the subject as extensively as any other writer, after quoting the definitions just given, and others, says that they are all defective, and that he cannot venture on any until the world are more agreed what statutes are real and what are personal. While they remain so uncertain, he thinks the best way is to follow the second definition of Voet, which is, “that a real statute is that which does not extend beyond the terri- tory within which it is passed, and a personal is that which does.’? (Bouhier, sur les Coutumes de Bourgogne, c. 28, no. 59.) This last mode of distin- guishing statutes, which teaches us what effect a statute should have, by direct- ing us to inquire what effect it has, is quite as unsatisfactory as the rule given by Bartolus, who judged of it by the words with which it is commenced. The rules given by Chancellor D’Aguesseau are perhaps preferable to any other. “That,” says he, “ which truly characterizes a real statute, and es- sentially distinguishes it from a personal one, is not that it should be relative to certain personal circumstances, or certain personal events; otherwise, we should be obliged to say that the statutes which relate to the paternal power, 2 18 CONFLIOT OF LAWS. [s. 15, 16, sally governs the state of the person, independent of property. If it does not universally govern the state of the person, but only particular acts of the person, it is not personal. Thus, a statute which prohibits married persons from making donations to each other is purely real and local, because it regulates a particular act only. And a statute to be personal must regulate the state of the person without speaking of property (biens). Thus a statute which excludes females from inheriting fiefs, in favor of the right of wardship, the tenancy by curtesy (droit de viduité), the prohibi- tion of married persons to confer advantages on each other, are personal sta- tutes; and yet it is clear, in our jurisprudence, that they are considered as real statutes, the execution of which is regulated, not by the place of domicil, but by that where the property is situated. The true principle in this matter is, to examine if the statute has property directly for its object or its destination to certain persons, or its preservation in families, so that it is not the interest of the person whose rights or acts are examined, but the interest of others, to -whom it is intended to assure the property, or the real rights, which were the cause of the law. Or if, on the contrary, all the attention of the law is directed towards the person, to provide in general for his qualifications, or his general and absolute capacity; as when it relates to the qualities of major or minor, of father or of son, legitimate or illegitimate, ability or inability to contract, by reason of personal causes.’’ ‘Jn the first hypothesis the statute is real, in the second it is personal, as is well explained in these words of D’Argentré: ‘Cum statutum non simpliciter inhabilitat, sed ratione fundi aut juris realis alterum respicientis extra personas contrahentes, totas hanc inhabilitatem non egredi locum statuti.’”” (Ciuvres D’Aguesseau, vol. 4, 660, cinquante-qua- trieme plaidoyer.) This definition is, we think, better than any of the rest; though even in the application of it to some cases, difficulty would exist. If the subject had been susceptible of clear and positive rules, we may safely be- lieve this illustrious man would not have left it in doubt; for if anything be more remarkable in him than his genius and his knowledge, it is the extra ordinary fulness and clearness with which he expresses himself on all questions of jurisprudence. When he therefore, and so many other men of great talents and learning, are thus found to fail in fixing certain principles, we are forced to conclude that they have failed, not from want of ability, but because the matter was not susceptible of being settled on certain principles. They have attempted to go too far; to define and fix that which cannot in the nature of things be defined and fixed. They seem to have forgotten that they wrote on a question which touched the comity of nations, and that that comity is, and ever must be, uncertain; that it must necessarily depend on a variety of cir cumstances which cannot be reduced within any certain rule; that no nation will suffer the laws of another to interfere with her own to the injury of her citizens; that whether they do or not must depend upon the condition of the country in which the foreign law is sought to be enforced, the particular law of her legislation, her policy, and the character of her institutions; that in the conflict of laws, it must be often a matter of doubt which should prevail; and that, whenever that doubt does exist, the court which decides will prefer the laws of its own country to that of the stranger.’ “ CHAP. 1] INTRODUCTORY REMARKS. 19 males; or which excludes a beneficiary heir from the succession, in favor of the simple heir; or which excludes a daughter who is endowed from the succession, is real and local; for all these statutes. speak of property. For the same reason, he holds the Senatus-consultum Velleianum, by which a married woman was prohibited from binding herself for the debt of another person? (and which was borrowed from the Roman law into the custo- mary jurisprudence of some of the French provinces), to. be a real statute, because it regulates a particular act of the person only.2, And he adds that the definition of a real statute results from that of a personal statute. In one word, a statute is real which regulates a particular act of the person, or which speaks of property.2 Other jurists of distinguished reputation (among whom is Boullenois) have denied this to be a sound distinction, and have specially held the Senatus-consultum Velleianum to be a personal statute.”’ 4 16. Purpose of this Work.—It is not my design to engage in the controversy as to what constitutes the true distinction between personal statutes and real statutes, or to examine the merits of the various systems propounded by foreign jurists on this subject. It would carry me too far from the immediate purpose of these commentaries, even if I felt myself possessed (which I certainly do not) of that critical skill and learning which such an examination would require, in order to treat the subject with suitable dignity. My object is rather to present the leading principles upon some of the more important topics of private international jurisprudence, and to use the works of the civilians to illustrate, confirm, and expand the doctrines of the common law, so far at least as the latter have assumed a settled form. If, in referring to the authority of the civilians I should speak of the personality of laws (personnalité des statuts), and the reality of laws (réalité des statuts), let it not be attributed to a spirit of innovation upon the received usages of our language, but rather to a desire to familiarize expressions, which in this 1 Dig. 16, 1, 1; Dig. 16, 1, 16, 1. ? Le Brun, Traité de la Communauté, liv. 2, ¢. 8, s. 5, n. 20-48, p. 810-319. 8 Ibid. 4 1 Boullenois, Princep. Gén. 5; Id. obs. 8, p. 40; Id. obs. 4, p. 43, 49; Id. obs. 5, p. 78, 79, 82, 101, 103, 105, 106, 118; Henry on Foreign Law, 81, 50. 20° CONFLICT OF LAWS. [s. 16-19, peculiar sense have already found their way into our juridical discussions, and are becoming daily more and more important to be understood by American lawyers, since they are incorporated into the very substance of the jurisprudence of some of the states in the Union.1. By the personality of laws foreign jurists gene-— rally mean all laws which- concern the condition, state, and capacity of persons; by the reality of laws, all laws which concern property or things; que ad rem spectant.2, Whenever they wish to express that the operation of a law is universal, they compendiously announce that it is a personal statute; and whenever, on the other hand, they wish to express that its opera- tion is confined to the country of its origin, they simply declare it to be a real statute. 1 See note to 2 Kent Comm. 456. 2 1 Boullenois, obs. 8, p. 41, 42. Mr. Livermore, in his Dissertations, used the words personality and reality; Mr. Henry, in his work, the words, per- sonalty and realty. I have preferred the former, as least likely to lead to mis- takes, as personalty is in our law confined to personal estate, and realty to real estate. CHAP. II.] GENERAL MAXIMS. 21 CHAPTER IL. GENERAL MAXIMS OF INTERNATIONAL JURISPRUDENCE. 17. Subject of the Chapter.—Before entering upon any exami- _ nation of the various heads which a treatise upon the Conflict of - Laws will naturally embrace, it seems necessary to advert to a few general maxims or axioms which constitute the basis upon which all reasonings on the subject must necessarily rest; and without the express or tacit admission of which it will be found impossible to arrive at any principles to govern the conduct of nations, or to regulate the due administration of justice. 18. I. ZLerritorial Sovereignty of every Nation.—The first and most general maxim or proposition is that which has been already adverted to, that every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The direct conse- quence of this rule is, that the laws of every state affect and bind directly all property, whether real or personal, within its territory, and all persons who are resident within it, whether natural-born subjects or aliens, and also all contracts made and acts done within it.! A state may therefore regulate the man- ner and circumstances under which property, whether real or personal or in action, within it, shall be held, transmitted, bequeathed, transferred, or enforced; the. condition, capacity, and state of all persons within it; the validity of contracts and other acts done within it; the resulting rights and duties grow- ing out of these contracts and acts; and the remedies and modes of administering justice in all cases calling for the interposition of its tribunals to protect and vindicate and secure the whole- some agency of its own laws within its own domains. 19. Accordingly Boullenois has laid down the following among his general principles (principes généraux). He says, 1 Henry on Foreign Law, pt. 1, c. 1, 8.1, p. 1; Huberus, lib. 1, tit. 3, s. 2; Campbell v. Hall, Cowp. 208; Ruding v. Smith, 2 Hagg. Cons. 383. 22 CONFLICT OF LAWS. [s. 19-21. (1) He, or those, who have the sovereign authority, have the sole right to make laws; and these laws ought to be executed in all places within the sovereignty where they are known, in the prescribed manner. (2) The sovereign has power and authority over his subjects, and over the property which they possess within his dominions. (3) The sovereign has also authority to regulate the forms and solemnities of contracts which his sub- jects make within the territories under his dominions, and to prescribe the rules for the administration of justice. (4) The sovereign has also a right to make laws to govern foreigners in many cases; for example, in relation to property which they possess within the reach of his sovereignty; in relation to the formalities of contracts which they make within his territories, and in relation to judiciary proceedings, if they institute suits before his tribunals. (5) The sovereign may in like manner make laws for foreigners who even pass through his territories; but these are commonly simple laws of police, made for the pre- servation of order within his dominions; and these laws are either permanent, or they are made only for certain particular occurrences! The same doctrine is, either tacitly or expressly, conceded ‘by every other jurist who has discussed the subject at large, whether he has written upon municipal law or upon public law.” 20. II. Zerritorial Limits of Sovereignty. Another maxim or proposition is, that no state or nation can by its laws directly affect or bind property out of its own territory, or bind persons not resident therein, whether they are natural-born subjects. or others. This is a natural consequence of the first proposition; » for it would be wholly incompatible with the equality and exclu- siveness of the sovereignty of all nations, that any one nation should be at liberty to regulate either persons or things not within its own territory. It would be equivalent to a declara- tion that the sovereignty over a territory was never exclusive in any nation, but only concurrent with that of all nations; that each could legislate for all, and none for itself; and that all might establish rules which none were bound to obey. The absurd results of such a state of things need not be dwelt upon. Accordingly, Rodenburg has significantly said, that no sovereign 1 1 Boullenois, Traité des Statuts, p. 2-4. ? Vattel, b. 2, . 7, 8. 84, 85. CHAP. IL] GENERAL MAXIMS. 23 has a right to give the law beyond his own dominions; and if he attempts it, he may be lawfully refused obedience; for wherever the foundation of laws fails, there their force and jurisdiction fail also. ‘ Constat igitur extra territorium legem dicere licere nemini, idque si fecerit quis, impune ei non pareri; quippe ubi’ cesset statutorum fundamentum, robur et jurisdictio.”! P. Voet speaks to the same effect: ‘Nullum statutum, sive in rem, sive in personam, si de ratione juris civilis sermo instituatur, sese extendit ultra statuentis territorium.’? Boullenois (as we have seen) announces the same rule: ‘De droit étroit, toutes les loix, que fait un souverain, n’ont force et autorité que dans l’étendue de sa domination ;’® and indeed it is the common language of jurists Mr. Chief Justice Parker: has recognized the. doctrine in the fullest manner. ‘That the laws,’ says he, ‘of any state cannot by any inherent authority be entitled to respect extra-territorially, or beyond the jurisdiction of the state which enacts them, is the necessary result of the independence of distinct sovereignties,’ ® 21. Natural Allegiance.—Upon this rule there is often in- grafted an exception of some importance to be rightfully under- stood. It is that although the laws of a nation have no direct binding force or effect, except upon persons within its own terri- tories, yet that every nation has a right to bind its own subjects by its own laws in every other place.6 In one sense this excep- tion may be admitted tobe correct and well founded in the prac- tice of nations; in another sense it is incorrect, or at least it requires qualification. Every nation has hitherto assumed it as clear that it possesses the right to regulate and govern its own native-born subjects everywhere; and consequently that its laws extend to and bind such subjects at all times and in all places. This is commonly adduced as a consequence of what is called natural allegiance, that is, of allegiance to the govern- ment of the territory of a man’s birth. Thus Mr. Justice Black- stone says: ‘Natural allegiance is such as is due from all men 1 Rodenburg, de Stat. c. 8, 8.1, p. 7. 2 Voet, de Stat. s. 4, c. 2, n. 7, p. 124; Id. 188, 139, ed. 1661. § 1 Boullenois, Princ. Gén. 6, p. 4; Id. c. 8, obs. 10, p. 152. 4 Id. 5 Blanchard v. Russell, 13 Mass. 4. The same doctrine is reasoned out with great ability in the opinion of Mr. Chief Justice Taney in the case of the Bank of Augusta v. Earle, 138 Pet. 584-591. ; 6 Henry on Real and Personal Statutes, pt. 1, ¢. 1, p. 1. 24 CONFLICT OF LAWS. [s. 21-24. born within the king’s dominions, immediately upon their birth.’ ‘Natural allegiance is therefore a debt of gratitude which can- not be forfeited, cancelled, or altered, by any change of time, place, or circumstance. An Englishman who removes to France -or to China owes the same allegiance to the king of England there as at home, and twenty years hence as well as now.’? And he proceeds to distinguish it from local allegiance, which is such as is due from an alien, or stranger born, for so long a time as he continues within the dominions of aforeign prince. The for- mer is universal and perpetual; the latter ceases the instant the stranger transfers himself to another country ;* and it is there- fore local and temporary. Vattel on the other hand seems to admit the right of allegiance not to be perpetual even in na- tives; and that they have a right to expatriate themselves, and, under some circumstances, to dissolve their connection with the parent country.® 22. Rights of a Nation over its own Subjects.—Without enter- ing upon this subject (which properly belongs to a general trea- tise upon public law) it may be truly said that no nation is bound to respect the laws of another nation, made in regard to the sub- jects of the latter, who are non-residents. The obligatory force of such laws of any nation cannot extend beyond its own terri- tories. And if such laws are incompatible with the laws of the country where such subjects reside, or interfere with the duties which they owe to the country where they reside, they will be disregarded by the latter. Whatever may be the intrinsic or obligatory force of such laws upon such persons if they should return to their native country, they can have none in other na- tions wherein they reside. Such laws may give rise to personal relations between the sovereign and subjects, to be enforced in his own domains; but they do not rightfully extend to other na- tions. ‘Statuta suo clauduntur territorio, nec ultra territorium disponunt.’ Nor indeed is there, strictly speaking, any diffe- rence in this respect, whether such laws concern the persons, or concern the property of native subjects. A state has just as much intrinsic right, and no more, to give to its own laws an extra-territorial force as to the property of its subjects situated abroad, as it has in relation to the persons of its subjects domi-.: 11 Black. Comm. 369, 370; Foster, C. L. 184. 2 Thid. 8 Vattel, b. 1, c. 19, s. 220-228, CHAP. II] GENERAL MAXIMS. 25 ciled abroad. That is, as sovereign laws, they have no obligation on either the person or the property. When, therefore, we speak of the right of a state to bind its own native subjects everywhere, we speak only of its own claim and exercise of sovereignty over them when they return within its own territorial jurisdiction, and not of its right to compel or require obedience to such laws on the part of other nations within their own territorial sove- reignty. On the contrary, every nation hasan exclusive right to regulate persons and things within its own territory, according to its own sovereign will and public policy. 23. III. Recognition of the Laws of one State by another. — From these two maxims or propositions there flows a third, and that is, that whatever force and obligation the laws of one coun- try have in another depend solely upon the laws and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit con- sent.1 A state may prohibit the operation of all foreign laws, and the rights growing out of them, within its own territories. It may prohibit some foreign laws, and it may admit the: opera- tion of others. It may recognize and modify and qualify:some | foreign laws; it may enlarge or give universal effect to others. It may interdict the administration of some foreign laws ; it may favor the introduction of others. When its own code speaks positively on the subject, it must be obeyed by all persons who are within the reach of its sovereignty. When its customary, unwritten, or common law speaks directly on the subject, it is equally to be obeyed; for it has an equal obligation with its posi- tive code. When both are silent, then, and then only, can the question properly arise, what law is to govern in the absence of any clear declaration of the sovereign will. Is the rule to be promulgated by a legislative act of the sovereign power? Or is it to be promulgated by courts of law, according to the analogies which are furnished in the municipal jurisprudence? This ques- tion does not admit of any universal answer ; or rather, it will be answered differently in different communities, according to the organization of the departments of each particular government.” 24, Authority exercised by the Courts.—Upon the continent of Europe some of the principal states have silently suffered their courts to draw this portion of their jurisprudence from the analo- 1 Huberus, lib. 1, tit. 3, s. 2. 2 See post, s. 38. 26 CONFLICT OF LAWS. [s. 24-26, gies furnished by the civil law, or by their own customary or positive code. France, for instance, composed, as it formerly was, of a great number of provinces, governed by different laws and customs, was early obliged to sanction such exertions of autho- rity by its courts, in order to provide for the constantly occurring claims of its own subjects living and owning property in different provinces, in a conflict between the different provincial laws. In England and America the courts of justice have hitherto exer- cised the same authority in the most ample manner; and the legislatures have in no instance (it is believed) in either country interfered to provide any positive regulations. ‘The common law of both countries has been expanded to meet the exigencies of the times as they have arisen ; and so far as the practice of na- tions, or the jus gentium privatum, has been supposed to furnish any general principle, it has been followed out with a wise and manly liberality. 25. Difficulty of establishing Principles of Recognition.—The real difficulty is to ascertain what principles in point of public convenience ought to regulate the conduct of nations on this sub- ject, in regard to each other, and in what manner they can be best applied to the infinite variety of cases arising from the compli- cated concerns of human society in modern times. No nation can be justly required to yield up its own fundamental policy and institutions in favor of those of another nation. Much less can any nation be required to sacrifice its own interests in. favor of another, or to enforce doctrines which, in a moral or political view, are incompatible with its own safety or happiness or con- scientious regard to justice and duty. In the endless diversities of human jurisprudence, many laws must exist in one country, which are the result of local or accidental circumstances, and are wholly unfit to be ingrafted upon the institutions and habits of another. Many laws, well enough adapted to the notions of heathen nations, would be totally repugnant to the feelings, as well as to the justice, of those which embrace Christianity. A heathen nation might justify polygamy, or incest, contracts of moral turpitude, or exercises of despotic cruelty over persons, which would be repugnant to the first principles of Christian duty. The laws of one nation may be founded upon a narrow selfishness, exclusively adapted to promote its own peculiar policy, or the personal or proprietary interest of its own subjects, to the CHAP. II.] GENERAL MAXIMS. 27 injury or even the ruin of those of the subjects of all other countries. A particular nation may refuse all eciprocity of commerce, rights, and remedies to others. It may assume a su- periority of powers and prerogatives, for the very purpose of crushing those of its neighbors who are less fortunate or less powerful. In these, and in many other cases which may easily be put without any extravagance of supposition, there would be ex- treme difficulty in saying that other nations were bound to enforce laws, institutions, or customs of that nation which were subversive of their own morals, justice, interest, or polity. Who, for instance (not to multiply cases), who would contend that any nation in Christendom ought to carry into effect, to its utmost range, the paternal power of the ancient Romans in their early jurispru-: dence, extending to the life and death of their children?! Or, who would now contend for that terrible power (if it ever really existed) under the law of the Twelve Tables, which enabled credi- tors to cut their debtor’s body into pieces, and divide it among them ?2 26. Views of Continental Jurists:—The jurists of continental Europe have, with uncommon skill and acuteness, endeavored to collect principles which ought to regulate this subject among all nations. But it is very questionable whether their success has been at all proportionate to their labor; and whether their prin- ciples, if universally adopted, would be found either convenient or desirable, or even just, under all circumstances. Their sys- tems indeed have had mainly in view the juridical polity, fit for the different provinces and states of a common empire, although they are by no means limited to such cases. It is easy to see that in a nation like France before the Revolution, governed by different laws in.its various provinces, some uniform rules might be adopted which would not be equally fit for the adoption of independent nations, possessing no such common interests, or such a common basis of jurisprudence. The leading positions maintained by many of the French jurists are, that the laws of a country which concern persons who reside within and are subject 1 Laws of the Twelve Tables, table 4, c. 1; 1 Pothier, Pandects, and Id. s. 1, 2 (8vo. ed. Paris, 1818), p. 886, 387; 1 Black. Comm. 452; Fergusson on Marriage and Divorce, 411; Grotius, b. 2, ¢. 5. 8. 7. 7 Table 3, ce. 4; 1 Pothier, Pandects, and Id. Comm. s. 2 (8v0. ed. Paris, 1818), p. 372, 880, 381; 2 Black. Comm. 472, 473. 28 CONFLICT OF LAWS. [s. 26-29, to its territorial jurisdiction ought to be deemed of universal obligation in*all other countries; that the laws which concern the property of such persons ought to be deemed purely local, and the laws of a mixed character, concerning such persons and property, ought to be deemed local or universal according to their predominant character. Thus Boullenois lays down these rules in pointed terms: ‘Les loix pures personnelles, soit person- nelles universelles, soit personnelles particuliéres, se portent par- tout; ¢e’est A dire, que l'homme est partout de l'état, soit univer- sel, soit particulier, dont sa personne est affectée, par la loi de son domicil. Les loix réelles n’ont point d’extension directe, ni indirecte, hors la jurisdiction et la domination du legislateur. ‘Le sujet et le matériel dominant direct et immédiat du statut en détermine Ja nature et qualité; c’est 4 dire, que le sujet et le matériel le font étre réel, ou personnel.’ } 27. Difficulty of applying their Rules.—Independent of the almost insurmountable difficulties in which the continental jurists admit themselves to be involved in the attempt to settle the true character of these mixed cases of international jurisprudence, and about which they have been engaged in endless controversies with each other, there are certain exceptions to these rules, gene- rally admitted, which shake the very foundation on which they rest, and admonish us that it is far easier to give simplicity to systems than to reconcile them with the true duties and interests of all nations in all cases. Take, for example, two neighboring states, one of which admits, and the other of which prohibits, the existence of slavery and the rights of property growing out of it; what help would it be to either, in ascertaining its own duties and interests in regard to the other, to say that their laws, so far as they regard the persons of the slaves, were of universal obligation, and, so far as they regard the property in slaves, they were real, and of no obligation beyond the territory - of the lawgiver ?2 28. Remarks of Mr. Justice Porter.—There is indeed great truth in the remarks which have been judicially promulgated on this subject by a learned court. ‘When so many men of great talents and learning are thus found to fail in fixing certain 1 1 Boullencis, Traité des Statuts, Princep. Gén. 18, 23, 27, p- 6, 7. * See Somerset’s Case (Lofft, 1; 20 How. St. Trials, 1), and Hargrave’s_ note to Co. Lit. 79 b, note 44. : s, 1), and Hargrave CHAP. II.] GENERAL MAXIMS. 29 principles, we are forced to conclude that they have failed, not from want of ability, but because the matter was not susceptible of being settled on certain principles. They have attempted to go too far, to define and fix that which cannot, in the nature of things, be defined and fixed. They seem to have forgotten that they wrote on a question which touched the comity of nations, and that that comity is, and ever must be, uncertain; that it must necessarily depend on a variety of circumstances which cannot be reduced to any certain rule; that no nation will suffer the laws of another to interfere with her own to the injury of her citizens ; that whether they do or not must depend on the con- dition of the country in which the foreign law is sought to be enforced, the particular nature of her legislation, her policy, and the character of her institutions; that in the conflict of laws it must often be a matter of doubt which should prevail; and that, whenever a doubt does exist, the court, which decides, will pre- fer the laws of its own country to that of the stranger.’ ! 29. Huberus.—Huberus has laid down three axioms, which he deems sufficient to solve all the intricacies of the subject. The first is, that the laws of every empire have force only within the limits of its own government, and bind all who are subjects thereof, but not beyond those limits.2 The second is, that all per- sons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed sub- jects thereof? The third is, that the rulers of every empire from comity admit that the laws of every people in force within its own limits ought to have the same force everywhere, so far as they do not prejudice the powers or rights of other governments, or of their citizens. ‘From this,’ he adds, ‘it appears that this matter is to be determined, not simply by the civil laws, but by the convenience and tacit consent of different people; for since the laws of one people cannot have any direct force among another people, so nothing could be more inconvenient in the commerce and general intercourse of nations than that what is valid by the laws of one place should become without effect by the diversity of laws of another; and that this is the true reason 1 Mr. Justice Porter, in delivering the opinion of the court in the case of Saul v. His Creditors, 5 Mart. N.S. (La.) 569, 595, 596. ?"Huberus, lib. 1, tit. 3; De Conflictu Legum, s. 2, p. 538. 8 Ibid. 4 Ibid. 30 CONFLICT OF LAWS. [s. 29-32. of the last axiom, of which no one hitherto seems to have enter- tained any doubt.’! 30. Hertius.:—Hertius seems to have been dissatisfied with these rules, and especially with the last ; and he doubts exceed- ingly whether this comity of nations, founded upon the notion of mutual convenience and utility, can furnish any sufficiently solid basis of a system. ‘Ob reciprocam enim utilitatem, in discipli- nam juris gentium abiise, ut civitas alterius civitatis leges apud se valere patiatur, adeoque exemplum hoe, ut evidentissimi argu- menti ad probandum, quod jus gentium revera a jure nature dis-_ tinctum sit, vult observari. Verum enim nos valde dubitamus,” num res hec ex jure gentium, sive mutua earum indulgentia, possit definiri, presertim cum in una eademque civitate collisio seepissime fiat. Norunt etiam periti ex solis exemplis jus gentium adstruere, quam sit fallax; tum si sola populorum conniventia id niti dicamus, que juris erit efficacia?’2 He adds, that he is dis- posed to search deeper into the matter: ‘ Nobis paullo altius libet repetere ;’8 and he proceeds to enunciate his own views under the known distinctions of personal statutes and real statutes, and then lays down the following rules. (1) ‘When a law is directed or has regard to the person, we are to look to (be go- verned by) the laws of the country to which he is personally sub- ject.’ ‘Quando lex in persondm dirigitur, respiciendum est ad leges illius civitatis, que personam habet subjectam.’4 (2) ‘Ifa law bears directly upon things, it is local, in whatever place and by whomsoever the act is done.’ ‘Silex directo rei imponitur, ea locum habet, ubicunque etiam locorum et a quocunque actus celebretur.’® (8) ‘If alaw gives the form (prescribes the form) 1 Ibid. These axioms of Huberus are so often cited, that it may be well to give them in his own words. (1) ‘Leges cujusque imperii vim habent intra terminos ejusdem reipublice, omnesque ei subjectos obligant, nec ultra. (2) Pro subjectis imperio habendi sunt omnes, qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorentur. (3) Ree tores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium prejudicetur. 2 Hub. lib. 1, tit. 3; De Conflict Legum, s. 2. ; 2 Hertii, Opera, de Collis. Leg. s. 4, n. 8,4, p. 120; Id. p. 170, 171, ed. 1718. 8 Ibid. . 4 1 Hertii, Opera, de Collis. s. 4, art. 8, p. 123; Id. p. 175, ed. 1716; post, 8. 238. 5 Id. s. 4, art. 9, p. 128; Id. p. 177, ed. 1716; post, s. 238. CHAP. IL] GENERAL MAXIMS. , 31 to the act, then the place of the act, and not of the domicil of the party, or of the situation of the thing, is to be regarded.’ ‘Si lex actui formam dat, inspiciendus est locus actus, non domi- cilii, non rei site.’! Now, after the admission of Hertius himself, that the usage of nations must furnish a very fallacious guide on such a subject, it is not a little difficult to perceive what superior authority or value his own rules have over those of Huberus. The latter has at least this satisfactory foundation for his most important rule, that he is mainly guided in it by the practice of nations; and he thus aimed, as Grotius had done before him, to avail himself of the practice of nations, as a solid proof of the acknowledged law of nations.? 31. Authority of Huberus.—Some attempts have been made, but without success, to undervalue the authority of Huberus. It is certainly true that he is not often spoken of, except by jurists belonging to the Dutch school. Boullenois, however, has quoted his third and last axiom with manifest approbation.® But it will require very little aid of authority to countenance his works, if his maxims are well founded; and if they are not, no approbation founded on foreign recognitions of them can dis- guise their defects. It is not, however, a slight recommendation of his works, that hitherto he has possessed an undisputed pre- ference on this subject over other continental jurists, as well in England as in America. Indeed his first two maxims will in the present day scarcely be disputed by any one; and the last seems irresistibly to flow from the right and duty of every nation to protect its own subjects against injuries resulting from the unjust and prejudicial influence of foreign laws, and to refuse its aid to carry into effect any foreign laws which are repugnant to its own interests and polity. 32. Laws prejudicial to other Nations.—It is difficult to per- ceive upon what ground a claim can be rested, to give to any municipal laws an extra-territorial effect, when those laws are prejudicial to the rights of other nations, or to those of their sub- 1 1 Hertii, Opera, de Collis. Leg. s. 4, art. 10, p. 126; Id. p. 179, ed. 1716; post, s. 238, 2 The’ Scottish courts seem constantly to have held the doctrine of Huberus in his third axiom to be entirely correct. See Fergusson on Marr. and Div. 395, 396, 410. ® 1 Boullenois, Traité des Statuts, c. 3, obs. 10, p. 155. 32 CONFLICT OF LAWS. [s. 32-35, jects. (a) It would at once annihilate the sovereignty and equality of every nation which should be called upon to recognize and en- force them, or compel it to desert its own proper interest and duty to its own subjects in favor of strangers, who were regardless of both. A claim so naked of any principle or just authority to support it is wholly inadmissible. 33. Comity.—It has been thought by some jurists that the term comity is not sufficiently expressive of the obligation of nations” to give effect to foreign laws when they are not prejudicial to their own rights and interests. And it has been suggested that the doctrine rests on a deeper foundation ; that it is not so much a matter of comity or courtesy as a matter of paramount moral duty.! Now assuming that such a moral duty does exist, it is clearly one of imperfect obligation, like that of beneficence, ©. humanity, and charity. Every nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded. And certainly there can be no pretence to say that any foreign nation has a right to require the full recognition and execution of its own laws in other territories, when those laws are deemed oppressive or injurious to the rights or interests of the inhabitants of the latter, or when their moral character is questionable, or their pro- visions are impolitic or unjust.2— Even in other cases it is diffi- cult to perceive a clear foundation in morals or in natural law for declaring that any nation has a right (all others being equal in sovereignty) to insist that its own positive laws shall be of superior obligation in a foreign realm to the domestic laws of the latter of an equally positive character. What intrinsic right | has one nation to declare that no contract shall be binding which is made by any of its subjects in a foreign country, unless they are twenty-five years of age, any more than another nation where the contract is made has a right to declare that such a contract shall be binding if made by any person of twenty-one years of age? One would suppose that if there be anything clearly within the scope of national sovereignty, it is the right to fix 1 Liverm. Dissert. p. 26-30. * See Mr. Justice Porter, in the case of Saul v. His Creditors, 5 Mart. N.S (La.) 569, 596-599. (a) The Halley, L. R. 2 P. C. 193, 208. CHAP. II] GENERAL MAXIMS. 33 what shall be the rule to govern contracts made within its own territories. 34. Every Nation the Judge of its own Duty in this Respect. — That a nation ought not to make its own jurisprudence an instru- ment of injustice to other nations, or to their subjects, may be admitted. But in a vast variety of cases which may be put, the rejection of the laws of a foreign nation may work less injustice than the enforcement of them will remedy. And here again every nation must judge for itself what is its true duty in the administration of justice in its domestic tribunals. It is not to he taken for granted that the rule of the foreign nation which complains of a grievance is right, and that its own rule is wrong. 35. Foundation of the Administration of International Law. — The true foundation on which the administration of international law must rest is, that the rules which are to govern are those which arise from mutual interest and utility, from a sense of the incon- veniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice, in order that justice may be done to us in return.2- This is the ground upon which Ro- denburg puts it. ‘ Quid, igitur,’ says.he, ‘rei in causa est, quod personalia statuta territorium egrediantur? Unicum hoc ipsa rei natura ac necessitas invexit, ut cum de statu et conditione ho- minum queritur, uni solummodo judici, et quidem domicilii, uni- versum in illa jus sit attributum ; cum enim ab uno certoque loco statum hominis legem accipere necesse est, quod: absurdum, earumque rerum naturaliter inter se pugna foret, ut in quot loca quis iter faciens, aut navigans, delatus fuerit, totidem ille statum mutaret aut conditionem ; ut uno eodemque tempore hic sui juris, illic alieni futurus sit; uxor simul in potestate viri, et extra ean- dem sit; alio loco habeatur quis prodigus, alio frugi.’? Presi- dent Bouhier expounds the ground with still more distinctness: ‘Mais avant toutes choses il faut se souvenir, qu’encore que la régle étroite soit pour la restriction des coutumes dans leurs limi- tes, l’extension en a néanmoins été admise en faveur de J’utilité publique, et souvent méme par une espéce de nécessité, &e. Ainsi, quand les peuples voisins ont souffert cette extension, ce 1 See post, s. 75; and Mr. Justice Porter’s opinion in Saul v. His Creditors, 5 Mart. N.S. (La.) 569, 596, 597, 598. 2 Liverm. Dissert. p. 28; Blanchard v. Russell, 13 Mass. 4. ® Rodenburg de Stat. Diversit. tit. 1, c. 8, s. 4; 2 Boullenois, App. p. 8. 3 34 CONFLICT OF LAWS. [s. 35-38, n'est point qu’ils se soient vus soumis 4 un statut étranger. © C'est seulement, parce qu’ils y ont trouvé leur intérét particulier en ce qu’en pareil cas leurs coutumes ont le méme avantage dans les provinces voisines. On peut done dire, que cette extension est sur une espéce de droit des gens, et de bienséance, en vertu du- quel les différens peuples sont tacitement demeurés d’accord, de souffrir cette extension de coutume & coutume, toutes les fois que V équité et P'utilité commune le demanderoient ; 4 moins que celle, ot I’ extension seroit demandée ne contint en ce cas une disposi- tion prohibitive.’ ? 86. Extent of the Recognition of Foreign Laws.—But of the nature and extent and utility of this recognition of foreign laws respecting the state and condition of persons, every nation must judge for itself, and certainly is not bound to recognize them when they would be prejudicial to its own interests. The very terms in which the doctrine is commonly enunciated carry along with them this necessary qualification and limitation of it. Mu- tual utility presupposes that the interest of all nations is con- sulted, and not that of one only. Now this demonstrates that the doctrine owes its origin and authority to the voluntary adop- tion and consent of nations. It is therefore in the strictest sense a matter of the comity of nations, and not of any absolute paramount obligation superseding all discretion on the subject. 387. Opinions of Vattel and Lord Stowell.—Vattel has with great propriety said: ‘ That it belongs exclusively to each nation to form its own judgment of what its conscience prescribes to it, of what it can do or cannot do, of what is proper or improper for it todo. And of course it rests solely with it to examine and determine whether it can perform any office for another nation, without neglecting the duty which it owes to itself.’ Lord Stowell has pointed out the same principle in his usual felicitous manner. Speaking with reference to the validity of a Scotch marriage, in controversy before him, he remarked: ‘ Being em tertained in an English court, it [the cause] must be adjudicated according to the principles of English law applicable to such 4 case. But the only principle applicable to such a case by the law of England is, that the validity of Miss Gordon’s [the plaix- 1 Bouhier, Cout. de Bourg. c. 23, s. 62, 63, p. 467. 2 2 Kent Com. 457, 458. 8 Vattel, Prelim. Disc. p. 61, 62, s. 14, 16. CHAP. II.] GENERAL MAXIMS. 35 tiff's] marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judg- ment of the law of Scotland.’ ! 38. Comity of Nations.—There is then not only no impropriety in the use of the phrase ‘comity of nations,’ but it is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another.? It is derived altogether from the voluntary consent of the latter, and is inadmissible when it is contrary to its known policy or prejudicial to its interests. In the silence of any posi- tive rule affirming or denying or restraining the operation of fo- reign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interests. (2) Itis not comity of the courts, but the comity of the nation, which is administered and ascer- tained in the same way, and guided by the same reasoning, by which all other principles of the municipal law are ascertained and guided2 The doctrine of Huberus would seem therefore 1 Dalrymple v. Dalrymple, 2 Hagg. Cons. 58. See Scrimshire v. Scrimshire, 2 Hagg. Cons. 407, 416. 2 See Robinson v. Bland, 2 Burr. 1077, 1079; Blanchard v. Russell, 18 Mass. 4. 3 See this doctrine expressly recognized by the Supreme Court of the United States, in Bank of Augusta v. Earle, 13 Pet. 519, 589. Mr. Chief Justice Taney, in delivering the opinion of the court, said: ‘It is needless to enu- merate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The cases of contracts made in a foreign country are familiar examples; and courts of justice have always expounded and executed them according to the laws of the place in which they were made, provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the na- ‘tion by which it is offered, and is inadmissible when contrary to its policy or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sove- reignties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations. It is truly said, in Story’s Conflict of Laws, s. 38, that, “In the silence of any positive rule, affirming or denying or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repug- (2) Bateman v. Service, 6 App. Cas. 886, 889 (P. C.). 36 CONFLICT OF LAWS. [s. 38. to stand upon just principles; and though, from its generality, it leaves behind many grave questions as to its application, it has much to commend it in point of truth, as well as of simplicity. It has accordingly been sanctioned both in England and America by a judicial approbation, as direct and universal as can fairly be desired for the purpose of giving sanction to it as authority, or as reasoning.! (a). nant to its policy or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other prin- ciples of municipal law are ascertained and guided.’’’ 1 Out of the great variety of authorities in which the rules of Huberus are directly or indirectly approved, the reader is referred to the following: Co. Lit. 79 b, Hargrave’s note, 44; Robinson v. Bland, 2 Burr. 1077, 1078; Holman v. Johnson, Cowp. 341; 2 Kent Com. 453-463; Pearsall v. Dwight, 2 Mass. 84, 90; Desesbats v. Berquier, 1 Binn. (Pa.) 336; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 469; Mr. Cowen’s note to 4 Cowen (N. Y.) 510; Saul v. His Credi- tors, 5 Mart. N.S. (La.) 569, 596-598; Greenwood ». Curtis, 6 Mass. 358; Bank of Augusta v. Earle, 13 Pet. 519, (a) Comity and Law. The princi- ple upon which a foreign law is ap- plied in dealing with a matter that is governed by it is stated by Lord Brougham in Warrender v. Warren- der, 9 Bligh, 115; 2 Cl. & F. 529, as follows: ‘ This is sometimes expressed, and I take leave to say inaccurately expressed, by saying that there is a comitas shown by the tribunals of one country towards the laws of the other country. Such a thing as comitas or courtesy may be said to exist in cer- tain cases, as where the French courts inquire how our law would deal with a Frenchman in similar or parallel circumstances, and, upon proof of it, so deal with an Englishman in those circumstances. This is truly a comi- tas, and can be explained upon no other ground; and I must be permit- ted to say, with all respect for the usage, it is not easily reconcilable to any sound reason. But when the courts of one country consider the laws of another in which any contract has been made, or is alleged to have been made, in construing its meaning, or ascertaining its existence, they can 588-591. hardly be said to act from courtesy, ex comitate; for it is of the essence of the subject-matter to ascertain the meaning of the parties, and that they did solemnly bind themselves; and it is clear that you must presume them to have intended what the law of the country sanctions or supposes; it is equally clear that their adopting the forms and solemnities which that law prescribes, shows their intention to bind themselves, nay, more, is the only safe criterion of their having en- tertained such an intention. There- fore the courts of the country where the question arises, resort to the law of the country where the contract was made, not ex comitate, but ex debito justitie; and in order to explicate their own jurisdiction by discovering that which they are in quest of, aud which alone they are in questof, the meaning and intent of the parties.’ Mr. Redfield, in the 6th edition of this work (p. 36), said, ‘ The foreign law by which the contract or relation was created, and according to which, in its inception, it was expected by: the parties to the relation to be per CHAP. II.] GENERAL formed, becomes an indispensable element, in order to translate such contract, relation, or duty into the vernacular language of the forum where the remedy is sought. And the courts, in referring to the law of the foreign state in order to give the proper force and interpretation to the contract or relation and the conse- quent duties and obligations, cannot be said to act from comity, any more than they could be said to refer to a dictionary of the foreign language from comity, when such reference was indispensable to the proper un- derstanding of the terms in which the contract is expressed. The know- ledge of the foreign language is not more indispensable to comprehend the natural force of the terms of the con- tract, than the knowledge of the fo- reign law is to a full comprehension of the legal effect of such terms.’ The principle upon which the courts enforce foreign judgments was con- sidered by Blackburn, J., in Godard v. Gray, L. R. 6 Q. B. 148. After stat- ing that the duty of enforcing such judgments was not an admitted prin- ciple of the law of nations, and that several of the continental nations did not enforce them except where there were reciprocal treaties to that effect, he continued, ‘But in England and in those states which are governed by the common law, such judgments are enforced, not by virtue of any treaty, nor by virtue of any statute, but upon a principle very well stated by Parke, B., in Williams v. Jones, 18 M. & W. 683: ‘Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to an- other, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be main- tained. It is in this way that the judgments ‘of foreign and colonial courts are supported and enforced.”?’ In Schibsby v. Westenholz, L. R. 6 Q. B. 159, Blackburn, J., stated this principle again, and added, ‘ And we MAXIMS. 37 think that if the principle on which foreign judgments were enforced was that which is loosely called comity, we could hardly decline to enforce a foreign judgment given in France against a resident in Great Britain under circumstances hardly, if at all, distinguishable from those under which we, mutatis mutandis, might give judgment against a resident in France; but it is quite different if the principle be that which we have just laid down.’ Referring to an English statute by which foreigners may be summoned in certain cases and judg-. ment may be given against them if they fail to appear, he said, ‘ Shoulda foreigner be sued under the provisions of the statute referred to, and then come to the courts of this country and desire to be discharged, the only ques- tions which our courts could entertain would be whether the acts of the British legislature, rightly construed, gave us jurisdiction over this foreigner, for we must obey them. But if, judg- ment being given against him in our courts, an action were brought upon it in the courts of the United States (where the law as to the enforcing of foreign judgments is the same as our own), @ further question would be open, viz., not only whether the Bri- tish legislature had given the English courts jurisdiction over the defendant, but whether he was under any obliga- tion which the American courts could recognize to submit to the jurisdiction thus created. This is precisely the question which we have now to deter- mine with regard to the jurisdiction assumed by the French jurisprudence over foreigners. . . . The question we have now to answer is, can the empire of France pass a law to bind the whole world? We admit, with perfect can- dor, that in the supposed case of a judgment obtained in this country against a foreigner under the provi- sions of the Common Law Procedure Act, being sued on in a court of the United States, the question for the 38 CONFLICT court of the United States would be, can the Island of Great Britain pass a law to bind the whole world? We think in each case the answer should be, No, but every country can pass laws :to bind a great many persons; and therefore the further question has to be determined, whether the defen- dant in the particular suit was such a person as to be bound by the judg- ment which it is sought to enforce.’ The notion that comity or courtesy is the foundation of the effect given to foreign laws seems to be similar to that from which the terms conflict of laws and private international law came to be applied to the subject that treats of the effect to be given to such laws. There is really neither a con- flict of any laws, nor anything inter- national in the law that is treated of. If, in a case before an American court, the rights of the parties depend upon a transaction which took place in France, and the transaction is of a kind concerning which the French law and that of the American court are different, the question arises whether the transaction .is governed by the French law or not. If the court decides that it is governed by the French law, then it is bound to apply that law in determining the rights of the parties, not from cour- tesy or politeness to France, but be- cause justice requires it. The rights of the parties depend partly on the circumstances of the transaction, and partly on the law which gave the transaction its force and effect. It would be as unjust to apply a diffe- rent law, as it would be to determine the rights of the parties by a different transaction. In applying the French law, the court does not allow it to operate in America, but only recog- nizes the fact that it did operate in France. In such a case as this, it is evident that there is no conflict of laws. There is a difference between the French law and the American law, and there OF LAWS. [s. 38, is a question which of them applies to the case, but the question itself as- sumes that only one does apply, and there can be no conflict between a law that applies to a case and another that does not. The question which of the two laws is applicable cannot properly _ be called a conflict of the laws. There is nothing international in the rules by which the court determines which law is applicable. They do not belong to that system of rules which nations observe in their conduct to- wards one another. There is no ob- ligation or duty recognized between nations to deal with such cases at all, or to deal with them in any particular. way. If the court takes jurisdiction of the case in which the question arises, it must establish some rules for de- termining which law is applicable. These rules are part of the municipal law of the country or state to which the court belongs. This was ex- pressed by Lord Stowell in a case where the validity of a ceremony of marriage performed in Scotland was in question: ‘ Being entertained in an English court, it must be adjudicated according to the principles of English law applicable to such a case. But the only principle applicable to sucha . case by the law of England is, that the validity of Miss Gordon’s mariage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland.’ Dalrymple v. Dalrymple, 2 Hagg. Cons. 58; supra, s. 387. As the subject is common to the law of all nations, the opinions of foreign judges and jurists upon questions of this kind are useful in the same way as their opinions upon other subjects common to different countries. It may also be said with regard to this subject, as was said with regard to marine insurance by Brett, L.J., 1 Ll CHAP. IL] GENERAL ferring to a remark of Chancellor Kent, that ‘it is most advisable that the law should, if possible, be in con- formity with what it is in all coun- tries,’ (Cory v. Burr, 9 Q. B. D. 469; American Ins, Co. v. Dunham, 15 Wend. (N.Y.) 11), but it is certain that there is a difference in the laws of different countries upon this sub- ject, especially between those of con- tinental Europe and those of countries governed by the English common law. It cannot be said even that the jurisdiction of cases involving ques- tions of foreign law is founded upon comity or courtesy. It exists be- cause the cases are of a kind within the general jurisdiction of the court, and the circumstance that a question of foreign law is involved is not a ground for an exception to the jurisdiction. See Mostyn v. Fabrigas, 1 Sm. L. C. (6th ed.) 623 ; Scott v. Seymour, 1 H. & C. 219. The juris- diction of the court depends upon the policy or interest of the state, not upon courtesy to foreign states or sovereigns. Even if the jurisdiction could be rested upon courtesy ‘ MAXIMS, 39 when the parties were foreigners, or when the obligation or liability to be enforced was created by foreign laws, as in case of a contract made, or a tort committed, in a foreign country, still there would be cases where the jurisdiction could not rest upon that foundation. A right of dower may depend upon the validity of a marriage in a foreign country. A right of action for taking goods from @ person’s possession in the country where the action is brought may de- pend upon whether he acquired a title to them by a transaction in a foreign country. Courtesy to a foreign state could not be the ground upon which the court would take cognizance of a claim to dower in land within its ju- risdiction, or of a trespass committed within its jurisdiction, although a question of foreign law be involved. If the court takes cognizance of the case, it must decide whether the fo- reign law applies to it or not. If it decides that the foreign law is appli- cable, it will give effect to it, not from comity, but because it is the law that governs the case- 40 CONFLICT “OF LAWS. {s. 39-42, CHAPTER III. NATIONAL DOMICIL. 89. Matters to be dealt with in this Work.—Having disposed of these preliminary considerations, it is proposed, in the further progress of these commentaries, to examine the operation and effect of laws: first, in relation to persons, their capacity, state, and condition; secondly, in relation to contracts; thirdly, in relation to property, personal, mixed, and real; fourthly, in rela- tion to wills, successions, and distributions; fifthly, in relation to persons acting in autre droit, such as guardians, executors, and administrators; sixthly, in relation to remedies and judicial sen- tences; seventhly, in relation to penal laws and offences; and eighthly, in relation to evidence and proofs. 40. Domicil.—As however in all the discussions upon this sub- ject, perpetual reference will be made to the domicil of the party it may be proper to ascertain what is the true meaning of the term domicil; or rather, what constitutes the national or local domicil of a party, according to the understanding of publicists and jurists.? 41. Definition.—By the term domicil, in its ordinary accepta- tion, is meant the place where a person lives or has his home. -In this sense the place where a person has his actual residence, inhabitancy, or commorancy, is sometimes called his domicil. In a strict and legal sense that is properly the domicil of a per- son where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi),? (a) 1 Upon the subject of this chapter the leamed reader is referred to Burge’s Col. & For. Law, vol. 1, p. 1, ¢. 2, p. 82-57. 2 Dr. Lieber’s Encyc. Americ. art. Domicil. (a) The term domicil in its techni- Conflict of Laws, always signifies 4 cal sense, in which'it is used in the country or territory subject to one CHAP, I1.] NATIONAL DOMICIL. 41 42. Roman Law.—In the Roman law it is said: ‘ There is no doubt that every person has his domicil in that place which he makes his family residence and principal place of his business ; from which he is not about to depart, unless some business requires ; when he leaves it, he deems himself a wanderer; and when he returns to it, he deems himself no longer abroad.’ ‘In eodem loco singulos habere domicilium, non ambigitur, ubi quis larem rerumque ac fortunarum summam constituit; unde rursus non sit discessurus, si nihil avocet; system of law. It does not signify any particular place within such country. The object of the branch of law treated of in this work is to determine by what system of law a case is governed. When it is go- verned by the law of domicil, the law which governs is that of the country in which the person is domiciled. The purpose of an inquiry as to his domicil is accomplished as soon as it is ascertained in what country he has his domicil. It is to that country that the term domicil.is applied. All the facts which make it his domi- cil may also exist in respect of some particular place in that country, but this is immaterial and it is not always the case. Mr. Dicey shows how a per- - son may be domiciled in a country without being domiciled at any par- ticular place in it; e. g. a Frenchman might come to England and live at Manchester, with the intention of re- siding permanently in England, but intending to live at Manchester for a limited time only; or, a person domi- ciled in England might live in a house which he had taken on a lease for three years and intended to live in no longer; or, a person, without having a more permanent residence, might go from hotel to hotel and from water- ing-place to watering-place (see Dicey on Domicil, 55-59). Lord Westbury said, in Udny »v. Udny, L. R. 1 H. L. Sc. 457, ‘ The law of England, and of almost all civilized countries, ascribes to each unde cum profectus est, individual at his birth two distinct legal states or conditions; one by vir- tue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain muni- cipal rights, and subject to certain ob- ligations, which latter character is the civil status or condition of the indi- vidual, and may be quite different from his political status. The politi- cal status may depend on different laws in different countries; whereas the civil status is governed univer- sally by one single principle, namely, that of domicil, which is the crite- rion established by law for the pur- pose of determining civil status. For it is on this basis that.the personal rights of the party, that is to say, the law which determines his majo- rity or minority, his marriage, suc- cession, testacy, or intestacy, must depend.’ Commercial or trade domicil is a term used to designate the residence which in time of war determines whether a person’s property embarked in trade is to be regarded as of a bel- ligerent or neutral character. This subject belongs to public international law, and is not within the scope of this work. See Westlake (ed. 1880) 285; Dicey on Domicil, 341. 42 CONFLICT OF LAWS. [s. 42-44 peregtinari videtur; quod si rediit, peregrinari jam destitit.’ And in another place it is said: ‘If any one always carries on his business, not in a colony, but in a municipality or city where he buys, sells, and contracts, where he makes use of and attends the forum, the public baths and public shows, where he cele- brates the holidays and enjoys all municipal privileges, and none in colony, he is deemed there to have his domicil, rather than in the place (colony) in which he sojourns for purposes of agricul- ture. ‘Si quis negotia sua non in colonia, sed in municipio, semper agit, in illo vendit, emit, contrahit, eo in foro, balneo, spectaculis utitur, ibi festos dies celebrat, omnibus denique municipii commodis, nullis coloniarum, fruitur, ibi magis habere domicilium, quam ubi colendi causa diversatur.’? And again: ‘He is deemed an inhabitant who has his domicil in any place, and whom the Greeks call wapocxor, that is to say, a neighbor or person inhabiting near to a village. For those are not alone to be deemed inhabitants who dwell in a town, but those also who cultivate grounds near its limits so that they conduct themselves as if their place of abode were there.’ ‘Incola est, qui aliqua regione domicilium suum contulit; quem Greeci waposxov (id est, juxta habitantem) appellant. Nec tantum hi, qui in oppido morantur, incole sunt; sed etiam, qui alicujus oppidi finibus ita agrum habent, ut in eum se quasi in aliquam sedem, recipiant.’! Some at least of these are more properly descriptions than defi- nitions of domicil. Pothier has generalized them in his own introduction to this title of the Pandects, and says: ‘The seat of the fortune or property which any person possesses in any place constitutes: his chief domicil.’ ‘Domicilium facit potissimum sedes fortunarum suarum, quas quis in aliquo loco habet.’! Voet says: ‘Proprie dictum domicilium est, quod quis sibi con- stituet animo inde non decedendi, si non aliud avocet.’ 4 43. Definitions by French Jurists.—The French jurists have defined domicil to be the place where a person has his principal establishment. Thus Denizart says: ‘The domicil of a person 1 Cod. 10, 39,7; Pothier, Pand. 50, n. 15; 1 Voet, ad Pand. 5, 1, n. 92, p. 844; Id. n. 94, p. 845. ; ? Dig. 50, 1, 27; Pothier, Pand. 50, 1, n. 18; 2 Domat, Public Law, b. 1, tit. 16, s. 3, art. 4. ® Dig. 50, 16, 239, s. 2; Id. 50, 16, 203; Pothier, Pand. 50, n. 16. * Pothier, Pand. 50, 1, introd. art. 2, n. 18. 5 Voet, ad Pand. 5, 1, n. 94. CHAP. m1] NATIONAL DOMICIL. 43 is the place where a person enjoys his rights, and establishes his abode, and makes the seat of his property.’ ‘Le domicile est le lieu, ob une personne, jouissant de ses droits, établit sa demeure et le siége de sa fortune.’1 The Encyclopedists say: ‘ That it is, properly speaking, the place where one has fixed the centre of his business.’ ‘C’est, & proprement parler, lendroit, ot l’on a placé le centre de ses affaires.’? Pothier says: ‘It is the place where a person has established the principal seat of his residence and of his business.’ ‘C’est le lieu, ok une personne a établi le siége principal de sa demeure et de ses affaires.’® And the mo- dern French Code declares that the domicil of every Frenchman, as to the exercise of civil rights, is at the place where he has his principal establishment (est au lieu, ot il a son principal éta- blissement).’4 Vattel has defined domicil to be a fixed residence in any place with an intention of always staying there But this is not an accurate statement. It would be more correct to say that that place is properly the domicil of a, person in which his habitation is fixed without any present intention of removing therefrom.§ 44. What constitutes Domicil.—Two things then must concur to constitute domicil: first, residence ; and secondly, the inten- tion of making it the home of the party. There must be the fact and the intent; for, as Pothier has truly observed, a person can- not establish a domicil in a place, except it be animo et facto.’(a) 1 Denizart, art. Domicil. 2 Encyclop. Moderne, art. Domicil. 8 Pothier, Introd. Gén. Cout. d’ Orléans, c. 1, s. 1, art. 8. 4 Cod. Civ. art. 102. See also Merlin, Répert. art. Domicil. 5 Vattel, b. 1, c. 19, s. 22. ® Dr. Lieber’s Encyc. Amer. Domicil; Putnam ». Johnson, 10 Mass. 488; Tanner v. King, 11 La. 175. 7 Pothier, Cout. d’ Orléans, c. 1, s. 1, art. 9. 2 Hage. Cons. 405, 406. See Scrimshire v, Scrimshire, (a) Munro v. Munro,7 Cl. & F. 842, 877, 891; Bell v. Kennedy, L. R. 1H. L, Se.807; Udny v. Udny, L. R. 1 H. L. Se. 441; Hodgson v. Beau- chesne, 12 Moore P. C. 285; Craigie v. Lewin, 8 Curteis, 435; Burton v. Fisher, 1 Milw. Ecc. 183, 188; Col- lier v. Rivaz, 2 Curteis, 855, 837; Mitchell v. United States, 21 Wall. 350; Catlin v. Gladding, 4 Mason, 808; The Ann Green, + Gall. 274, 285; Burnham v. Rangeley, 1 Woodb. & M. 7; White v. Brown, 1 Wall. jun. 217; Harvard College v. Gore, 5 Pick. (Mass.) 370; Ross v. Ross, 103 Mass. 575; Leach v. Pillsbury, 15 N.H. 187; Dupuy v. Wurtz, 53 N. Y. 556; Isham v. Gibbons, 1 Bradf. (N. Y.) 69 ; Foster.v. Hall, 4 Humph. (Tenn.) 846; Williams v. Saunders, 5 Cold. [s. 44, 45, 44 CONFLICT OF LAWS. Voet emphatically says: ‘Illud certum est, neque solo animo atque destinatione patris familias, aut contestatione sola, sine re et pacto, domicilium constitui; neque sola domus comparatione in aliqua regione; neque sola habitatione, sine proposito illic perpetuo morandi.’1 So D'Argentré says: ‘Quamobrem, qui figendi ejus animum non habent, sed usus, necessitatis, aut nego- tiationis causa alicubi sint, protinus a negotio discessuri, domi- — cilium nullo temporis spatio constituent; cum neque animus sine facto neque factum sine animo ad id sufficiat.’* However in many cases actual residence is not indispensable to retain a domi- cil after it is once acquired; but it is retained, animo solo, by the mere intention not to change it or to adopt another. If, therefore, a person leaves his home for temporary purposes, but with an intention to return to it, this change of place is not in law a change of domicil. (a) Thus, if a person should go ona voyage to sea, or to a foreign country, for health, (6) or for pleasure, or for business of a temporary nature, with an intention to return, such a transitory residence would not constitute a new domicil, or amount to an abandonment of the old one; for it is not the mere act of inhabitancy in a place which makes it the domicil, but it is the fact coupled with the intention of remain- ing there, animo manendi.® 45. Ascertainment of Domicil.—It is sometimes a matter of no small difficulty to decide in what place a person has his true 1 1 Voet, ad Pand. 5, 1, n. 98, p. 346. 2 D’Argentré, ad Leg. Britonum, art. 9, n. 4, p. 26. 8 Pothier, Cout. d’ Orléans, c. 1, s.1, art. 9; Encyclop. Amer. art. Domicil; Cochin, Ciuvres, tom. 5, p. 4-6, 4to ed. (Tenn.) 60; Horne v. Horne, 9 Ired. (N. C.) 99; Hairston v. Hairston, 27 Miss. 704; State v. Hallett, 8 Ala. 159; Sanderson v. Ralston, 20 La. An. 312; Smith v. People, 44 Ill. 16; Carey’s Appeal, 75 Pa. St. 201; Adams v. Evans, 19 Kans. 174; Ex parte Blumer, 27 Tex. 734. (a) Sears v. Boston, 1 Met. (Mass.) 250. (b) Udny v. Udny, L. R. 1 H. L. Sc. 458; Moorhouse v. Lord, 10 H. L. C. 283, 285; Still v. Woodville, 38 Miss. 646. Even if the person ex- pected to die in the foreign country, it would not become his domicil, for the animus manendi would not exist. Johnstone v. Beattie, 10 Cl. & F. 189; Dupuy v. Wurtz, 53 N. Y. 556. But if a person resides in a foreign coun- try animo manendi, a change of do- micil will not be prevented by the circumstance that he chose that coun- try as his residence because he thought it suitable to his health. Hoskins». Matthews, 8 D. M. & G. 138, 28} Hegeman v. Fox, 31 Barb. (N. ¥: 475. See Dicey on Domicil, 133-137. i CHAP. IIL] NATIONAL DOMICIL. 45 or proper domicil. (a) His residence is often of a very equivo- cal nature; and his intention as to that residence is often still more obscure. Both are sometimes to be gathered from slight circumstances of mere presumption, and from equivocal and con- flicting acts.(b) An intention of permanent residence may often be ingrafted upon an inhabitancy originally taken for a special or fugitive purpose.?((¢) And, on the other hand, an intention to change the domicil may be fully announced, and yet no cor- respondent change of inhabitancy may be actually made.’ (d) 1 Pothier, Cout. d’Orléans, c. 1, art. 20; Merlin, Répert, Domicil, s. 2, 6; Bouhier, Cout. de Bourg. c. 22, s. 196-206. 2 The Harmony, 2 C. Rob. 822, 324; Pothier, Cout. d’Orléans, c. 1, art. 15. 3 See Harvard College v. Gore, 5 Pick. (Mass.) 370. (a) No one can be without a domicil, and no one can have more than one domicil at the same time. Udny v. Udny, L. R.1 H. L. Se. 441; Abington v. North Bridgewater, 23 Pick. (Mass.) 170, 177; Thorndike v. Boston, 1 Met. (Mass.) 242; Dupuy v. Wurtz, 53 N. Y. 556; Cross v. Everts, 28 Tex. 523. It is sometimes said that a person cannot have more than one domicil at the same time for the same purpose. This qualification was pro- bably suggested by the use of the term domicil to designate different kinds of residence, to which the term is not applicable in its technical sense stated above (s. 41, note). For instances of this use of the term see s. 49, note. See also Dicey on Domicil, 61-64. It has never been held that a person can have a domicil, in its technical sense, in more than one country at one time. The rules for ascertaining domicil ad- mit of only one domicil at a time. In order to give any effect to the sug- gestion that a man may have different domicils for different purposes, the purpose for which reference is made to domici] in cases of a conflict of laws, must be regarded as a single purpose. For this purpose he cannot have more than one domicil at the same time. (6) See Whicker v. Hume, 7 H.L. C. 124; Cockrell v. Cockrell, 25 L. J. Ch. 730; 2 Jur. N.S. 727; Drevon v. Dre- von, 84 L. J. Ch. 129; 10 Jur. N.S. 717; Stevenson v. Masson, L. R. 17 Eq. 78; Thorndike ». Boston, 1 Met. ‘(Mass.) 245, 246; Sears v. Boston, 1 Met. (Mass.) 250. (c) Udny v. Udny, L. R. 1H. L. Se. 458; Platt ». Att.-Gen., 3 App. Cas. 836 (P. C.); Haldane v. Eckford, L. R. 8 Eq. 681. (da) A change of domicil from one country or state to another under the same sovereign or government, as from Scotland to England, or from one of the United States to another, is more easily inferred than a change to a foreign country. Whicker v. Hume, 7 H. L. C. 159; Moorhouse v. Lord, 10 H. L. C. 286, 287; Att.-Gen. v. Pottinger, 6 H. & N. 733. Little evidence is required to show that a man desires to resign his domi- cil of origin, where the probability of such a desire is great; as where a man had a Portuguese domicil of origin, but his family was English and he had been brought up in England and always expressed a dislike of Portugal and a desire to leave it. Sharpe v. Crispin, L. R. 1 P. & M. 620. Length of residence raises the pre- sumption of intention to acquire do- micil. Hodgson v. Beauchesne, 12 46 ‘Domicilium re et facto transfertur, non nuda contestatione.’ CONFLICT OF LAWS. [s. 45, 46, ie The Roman lawyers were themselves greatly puzzled upon this 1 Dig. 50, 1, 20; Pothier, Pand. 50, 1, n. 26. Moore P. C. 829; King v. Foxwell, 3 Ch. D. 518; Doucet v. Geoghegan, 9 Ch. D. 456 ; President of the United States v. Drummond, 33 Beav. 449; Shelton v. Tiffin, 6 How. 185. The declarations, oral or written, of a person whose domicil is in ques- tion, are admissible evidence of his intention in residing at any place, if they are made before the controversy has arisen, but their weight depends much upon the circumstances. Hodg- son v. Beauchesne, 12 Moore P. C. 325; Forbes v. Forbes, Kay, 341; In re Steer, 3H. & N. 594; Crooken- den v. Fuller, 1 Sw. & T. 441; Drevon v. Drevon, 84 L. J. Ch. 129; Jopp v. Wood, 4D. J. & S. 616; Haldane v. Eckford, L. R. 8 Eq. 631, 642; Dou- cet v. Geoghegan, 9 Ch. D. 441; Dupuy v. Wurtz, 53 N. Y. 556; Thorndike v. Boston, 1 Met. (Mass.) 242; Kilburn v. Bennett, 3 Met. (Mass.) 199; Monson v. Palmer, 8 Allen (Mass.) 551; Wilson v. Terry, 9 Allen (Mass.) 214; Reeder v. Hol- comb, 105 Mass. 93; Baptiste v. Vo- lunbrun, 5 Harr. & J.(Md.) 97; Smith v. Croom, 7 Fla. 161; Beason »v. State, 34 Miss. 602. His descriptions of himself in legal instruments are treated as declarations, but in some cases it has been said that by them- selves they are entitled to but little weight. Forbes v. Forbes, Kay, 341; Whicker v. Hume, 13 Beav. 866, 400; Att.-Gen. v. Pottinger, 6 H. & N. 733; Ennis v. Smith, 14 How. 422; In re Stover, 4 Redf. (N. Y.) 82; Wilson v. Terry, 9 Allen (Mass.) 214; Wright v. Boston, 126 Mass. 161; Weld v. Boston, 126 Mass. 166; Smith v. Croom, 7 Fla. 81, 161; Gil- man v. Gilman, 52 Me. 177. In Mas- sachusetts such declarations were rejected in Wright v. Boston, 126 Mass. 161, and Weld v. Boston, 126 Mass. 166, on the ground that decla- rations were not admissible in favor of the party making them except when they accompanied acts of which evidence was admissible, and the re- ception of such declarations in eyi- dence in Wilson v. Terry,9 Allen, 214, was disapproved; but it would seem that although the declarations might be of little value, yet, according to the rule laid down in the case where they were rejected, they ought to have been deemed competent, because they accompanied the act of residing, and might show the person’s intention in doing that act. See Bangor v. Brewer, 47 Me. at p. 102. . A person may himself testify as to his intention. Wilson v. Wilson, L. R. 2 P. & M. 435; Reeder v. Hol- comb, 105 Mass. 93. A Frenchman’s marrying in Eng- land without taking the steps neces- sary to perfect the marriage by French law has been treated as evidence of his intention to abandon his French domicil of origin. Doucet ». Geoghe- gan, 9 Ch. D. 441 (C.A.); Drevon ». Drevon, 34 L. J. Ch. 129. So has the making of a will the provisions of which would not be valid if the testator retained his former domicil. Doucet v. Geoghegan, 9 Ch. D. 441 (C.A.); Drevon v. Drevon, 34 L. J. Ch. 129; Haldane v. Eckford, L. R. 8 Eq. 631; Hood’s Estate, 21 Pa. St. 106. A person’s removing the remains of his deceased children from a ce metery in another country to the place where he was residing, and his bwy- ing them there, has been considered important evidence of his intention to make that place his permanent resi- dence. Haldane v. Eckford, L. 2 8 Eq. 631. But where an English- man who had married a Frenchwomal CHAP. IIL] NATIONAL DOMICIL. 47 subject by cases of an equivocal nature; and Ulpian and Labeo and others held different opinions respecting them.1 Thus, to the question where a person had his domicil, who did his busi- ness equally in two places, Labeo answered that he had no domi- cil in either place.? But other jurists, and among them was Ulpian, were of opinion that a man might in such a case have two domicils, one in each place.? Celsus seems to have thought that, in such a case, which place was the domicil of the party depended upon his own choice and intention And Julian doubted whether, if he had no fixed choice and intention, he could have two domicils.® 46. Acquisition and Change of Domicil. — Without speculating upon all the various cases which may be started upon this sub- ject, it may be useful to collect together some of the more impor- tant rules which have been generally adopted as guides in the cases which are of most familiar occurrence. First, the place of birth of a person is considered as his domicil if it is at the time of his birth the domicil of his parents. ‘ Patris originem unusquis- 1 Dig. 50, 1, 5; Id. 50, 1, 27, s. 1-8; Pothier, Pand. 50, 1, n. 16; Id. n. 18, 21, 22. 2 Dig. 50, 1, 5; Pothier, Pand. 50, 1, n. 18; post, s. 47. 3 Dig. 50, 1, 6, 2; Pothier, Pand. 50, 1, n. 18. 4 Dig. 50, 1, 27, 2; Pothier, Pand. 50, 1, n. 18. 5 Dig. 50, 1, 27, 2; Pothier, Pand. 50, 1, n. 18; Somerville v. Somerville, 5 Ves. 750, 786, 790; 2 Domat, Public Law, b. 1, tit. 16, s. 3, p. 462; Id. art. 6; post, s. 47. and resided at Paris, purchased on her death there a burial place in Paris for her interment, and expressed his purpose to be buried there himself, the purchase was not considered as any cogent evidence of an intention to ac- quire a French domicil. Hodgson ». Beauchesne, 12 Moore P. C. 285, 323. The expression of a wish to be buried at a particular place is not regarded as an important circumstance in ques- tions of domicil. Platt v. Att.-Gen., 3 App. Cas. 836, 344 (P. C.); Hood’s Estate, 21 Pa. St. 106. There is a strong presumption against a person who is in the mili- tary service of the country of his do- micil, abandoning that domicil and acquiring a foreign domicil, but it seems that this presumption may be overcome by evidence of intention. Hodgson v. Beauchesne, 12 Moore P. C. 319; Craigie v. Lewin, 3 Cur- teis, 485; Att.-Gen. v. Pottinger, 6 H. & N. 738. There has however been an opinion that a man, by entering the military service of a foreign country, acquires a domicil in that country. See Somerville v. Somerville, 5 Ves. 759, in argument; President of the United States v. Drummond, 33 Beav. 451; Dicey on Domicil, 139. An English peer is not incapaci- tated by his political duties from ac- quiring a foreign domicil of choice. Hamilton v. Dallas, 1 Ch. D. 257. 48 CONFLICT OF LAWS. [s. 46. que sequatur.’! This is usually denominated the domicil of birth or nativity, domicilium originis. But if the parents are then on a visit, or on a journey (in itinere), the home of the parents (at least if it is in the same country) will be deemed the domicil of birth or nativity.2 If he is an illegitimate child, he follows the domicil of his mother. (a) ‘ Ejus, qui justum patrem non habet, prima origo a matre.’? Secondly, the domicil of birth of minors continues until they have obtained a new domicil. (6) Thirdly, minors are generally deemed incapable, proprio marte, of chang- ing their domicil during their minority, and therefore they retain the domicil of their parents; and if the parents change their domicil, that of the infant children follows it; and if the father dies, his last domicil is that of the infant children.*(¢) ‘ Placet 1 Cod. 10, 31, 836; 2 Domat, Public Law, b. 1, tit. 16, s. 3, art. 10; 1 Boul- lenois, obs. 4, p. 53; Voet, ad Pand. 5, 1, n. 91, 92, 100. See Scrimshire », Scrimshire, 2 Hagg. Cons. 405, 406; Cochin, CEuvres, tom. 5, p. 5, 6; Id. 698, 4to ed. 2 Dr. Lieber’s Encyc. Amer. art. Domicil; Pothier, Cout. d’Orléans, c. 1, art. 10, 12; Somerville ». Somerville, 5 Ves. 750, 787; 1 Boullenois, obs. 4, p. 53. 3 Dig. 50, 1,9; Pothier, Pand. 50, J, n. 3. 4 Id.; Pothier, Cout. d’Orléans, c. 1, art. 12, 16; 2 Domat, Public Law, b. 16, tit. 16, s. 3, art. 10; Guier v. O’Daniel, 1 Binn. (Pa.) 349, 851; Voet, ad Pand. 5, 1, n. 91, 92, 100. (a) The law attributes to every individual, as soon as he is born, the domicil of his father if the child be legitimate, and the domicil of the mother if illegitimate. Udny »v. Udny, L. R. 1 H. L. Se. 441; Dou- glas v. Douglas, L. R. 12 Eq. 617. (v) Bell v. Kennedy, L. R. 1 H. L. Se. 807. (c) The domicil of a minor changes with that of his father. Sharpe v. Crispin, L. R.1 P. & M. 611, 617; Jopp v. Wood, 84 Beav. 88; 4 D. J. & S. 616; Guier v. O’Daniel, 1 Binn. (Pa.) 352, n.; School Directors v. James, 2 Watts & S. (Pa.) 570; Ken- nedy v. Ryall, 67 N. Y. 379; 8 Jones & Sp. (N. Y.) 847; In re Hubbard, 82.N. Y. 90; Wheeler v. Burrow, 18 Ind. 14; Johnson v. Copeland, 35 Ala. 521; Metcalf v. Lowther, 56 Ala. 312; Blumenthal v. Tannenholz, 31 N. J. Eq. 194; Mears v. Sinclair, 1 W. Va. 185. After the father’s death the domicil of the minor changes with that of his mother. Potinger ». Wightman, 3 Mer. 67; Johnstone ». Beattie, 10 Cl. & F. 188; Sharpe». Crispin, L. R. 1 P. & M. 617; Brown v. Lynch, 2 Bradf. (N. Y.) 214; School Directors v. James, 2 Watts & S. (Pa.) 570; Carlisle v. Tuttle, 30 Ala. 6138. Upon the mother’s marry- ing again, the minor child does not necessarily acquire the domicil of the husband without any actual change. Brown v. Lynch, 2 Bradf. (N. Y.) 214; School Directors v. James, 2 Watts & S. (Pa.) 568. In Mears ». Sinclair, 1 W. Va. 185, it was held that the mother, after marrying again, could not change the domicil of her minor children. It is not easy to see a reason for the rule asserted in this CHAP. III] ‘ NATIONAL DOMICIL. ‘49 etiam filium-familias domicilium habere posse; non utique ibi, ubi pater habuit, sed ubicunque ipse constituit.’! Fourthly, a married woman follows the domicil of her husband. (a) This 1 Dig. 50, 1,1. 1, 8, 4; Pothier, Pand. 50,1, n. 25. Whether a guardian or father can change the domicil of a minor, or idiot, or insane person, under his charge, has been matter of doubt, upon which different opinions have been expressed by jurists. In the affirmative there may be found among others, Bynkershoek, Boullenois, Bretannier. In the negative, Pothier and Mornac. See Pothier, Cout. d’Orléans, c. 1, art. 17; Bynker. Quest. Privat. Juris, lib. 1,¢. 16; Merlin, Répert. Domicil, s. 5, art. 2, 3; Boullenois, Quest. de la Contrariété des Lois, quest. 2, p. 40, ed. 1782. See also Guier v. O’Daniel, 1 Binn. (Pa.) 849, n.; Somerville v. Somerville, 5 Ves. 750, 787; Potinger v. Wightman, 3 Mer. 67; Cutts v. Haskins, 9 Mass. 543; Holyoke v. Haskins, 5 Pick. (Mass.) 20. 2 Voet, ad Pand. 5, 1, n. 101; Warrender v. Warrender, 9 Bligh, 89, 103, 104. decision. See Dicey on Domicil, question was one of jurisdiction (Ex 1038. -parte Bartlett, 4 Bradf. (N. Y.) 221; The domicil of a lunatic does not see Marheineke v. Grothaus, 72 Mo. change with that of his guardian or 204). If a lunatic has been of un- committee. Westlake (ed. 1880) 273; sound mind continuously from the Dicey on Domicil, 132. See Bempde time he attained his majority, his v. Johnstone, 3 Ves. 198; Sharpe v. domicil continues to change with that Crispin, L.R. 1 P. & M. 611; Hep- of his father, as during minority. burn v. Skirving, 9 W. R. 764. A Sharpe v. Crispin, L. R.1 P. & M. similar rule applies to the domicil of a 611. minor. School Directors v. James, 2 (a) Dolphin v. Robins, 7 H. L. C. Watts & S. (Pa.) 571; Daniel v. Hill, 390; Yelverton v. Yelverton, 1 Sw. & 52 Ala. 480; Mears v. Sinclair, 1 W. T. 574; Pennsylvania v. Ravenel, 21 Va. 185. But the guardian or com- How. 103; Greene v. Greene, 11 Pick. mittee may change the residence of (Mass.) 410; Johnson v. Johnson, 12 a lunatic from one place to another Bush (Ky.) 485; Hick v. Hick, 5 within the same state or country. Bush (Ky.) 670; Williams v. Saun- This has been held in cases where the ders, 5 Cold. (Tenn.) 60, 79; Sander- jurisdiction of a probate court to grant son v. Ralston, 20 La. An. 312; administration depended upon the Succession of McKenna, 23 La. An. lunatic’s residence in a particular 869; Lacey v. Clements, 36 Tex. county or place. Holyoke v. Haskins, 661. 5 Pick. (Mass.) 20; Anderson v. An- It has been held that after a di- derson, 42 Vt. 850. It would probably vorce a mensa et thoro a wife may be so in a question of residence aris- have a separate domicil from that of ing under the English poor-laws. her husband. Barber v. Barber, 21 Reg. v. Whitby, L. R. 5 Q. B. p. 881. How. 582. See Dolphin v. Robins, 7 A similar rule has been applied inthe H. L. C. 890. ease of a minor whose father and As to the power of a wife to ac- imother were dead, where the question quire a separate domicil that will give ;was in what town the minor should jurisdiction to grant a divorce, see ibe taxed (Kirkland »v. Whately, 4 s. 229 a, post. jAllen (Mass.) 462), and where the 4 50 CONFLICT OF LAWS. , [s. 46, results from the general principle that a person who is under the power and authority of another possesses no right to choose a domicil.1 ‘Mulierem, quamdiu nupta est, incolam ejusdem civi- tatis videri, cujus maritus ejus est.’ ? Fifthly, a widow retains the domicil of her deceased husband until she obtains another domicil. ‘Vidua mulier amissi mariti domicilium retinet.’® Sizthly, prima facie, the place where a person lives is taken to be his domicil, until other facts establish the. contrary.* (a) Seventhly, every person of full age having a right to change his domicil, it follows, that if he removes to another place with an intention to make it his permanent residence (animo manendi), it becomes instantaneously his place of domicil.? Highthly, if a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, it is to be deemed his place of domicil, notwith- standing he may entertain a floating intention to return at some future period. (6) Minthly, the place where a married man’s 1 Dr. Lieber’s Encyc. Amer. Domicil; Pothier, Cout. d’Orléans, c. 1, art. 10; 2 Domat, Public Law, b. 1, tit. 16, s. 8, art. 11, 18; Merlin, Répert, Domicil, s. 5. ; : 2 Dig. 50, 1, 38, 8; Id. 5, 1, 65; Pothier, Pand. 50, 1, n. 24; 2 Doma Public Law, b. 1, tit. 16, s. 8, art. 12; Voet, ad Pand. 5, 1, n. 101. 8 Dig. 50, 1, 22,1; Pothier, Pand. 50, 1, n. 28. 4 Bruce v. Bruce, 2 B. & P. 229, n.; Id. 230; Bempde v. Johnstone, 3 Ves. 198, 201; Stanley v. Bernes, 3 Hagg. Ecc. 373, 487. 5 Pothier, Cout. d’Orléans, c. 1, art. 13. ® Bruce v. Bruce, 2 B. & P. 229, n.; Id. 230; Stanley v. Bernes, 3 Hagg. Ecce. 873. (a) Sears v. Boston, 1 Met. (Mass.) v. O’Daniel, 1 Binn. (Pa.) 352, ni 251; Mitchell v. United States, 21 Wall. 852; Dicey on Domicil, 116. (®) ‘ Domicil of choice is a conclu- sion or inference. which the law de- rives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an inten- tion of continuing to reside there for an unlimited time.’ Udny v. Udny, L. R. 1 H. L. Se. 458 (by Lord West- bury); Haldane v. Eckford, L. R. 8 Eq. 631; King v. Foxwell, 83 Ch. D. 518; Platt v. Att.-Gen., 3 App. Cas. 836 (P. C.); Doucet v. Geoghegan, 9 Ch. D. 441 (C.A.); Mitchell ». United States, 21 Wall. 350; Guier White v. Brown, 1 Wall. jun. 217; Hegeman v. Fox, 81 Barb. (N. ¥.) 475; Thorndike v. Boston, 1 Met (Mass.) 242; Ringgold v. Barley, 5 Md. 186. See Gilman v. Gilman, & Me. 165; State v. Groome, 10 Jowa, 308. In Moorhouse v. Lord, 10 H. L. @. » 283, Lord Cranworth said, ‘In ordet to acquire a new domicil, according an expression which I believe I used on a former occasion (Whicker » Hume, 7 H. L. C. 159), and which I shall not shrink on that account from repeating, because I think it is a col rect statement of the law, a mal CHAP. III.] NATIONAL DOMICIL. 51 family resides is generally to be deemed his domicil.1(a) But the presumption from this: circumstance may be controlled by 1 Pothier, Cout. d’ Orléans, c. 1, art. 20; Bempde v. Johnstone, 3 Ves. 198, 201. (a) Platt v. Att.-Gen., 3 App. Cas.. 336 (P. C.); Forbes v. Forbes, Kay, 341; Aitchison v. Dixon, L. R. 10 “¢ must intend quatenus in illo exuere patriam.’’ It is not enough that you merely mean to take another house in some other place, and that on account of your health, or for some other rea- son, you think it tolerably certain that you had better remain there all the days of your life. That does not sig- nify; you do not lose your domicil of origin, or your resumed domicil, merely because you go to some other place that suits your health better, unless, indeed, you mean either on account of your health, or for some other motive, to cease to be a Scotch- man and become an Englishman, or a Frenchman, or a German.’ Lord Kingsdown said (p. 292), ‘A man must intend to become a Frenchman instead of an Englishman.’ The rule thus laid down cannot now be con- sidered as a correct statement of the law. It was followed in In re Capde- vielle, 2H. & C. 985, and Att.-Gen. v. Wahlstatt, 8 H. & C. 374, but in the former Bramwell, B., said, ‘ The ex- pressions used appear to me, with great deference, far too extensive. To say that a man cannot abandon his domicil of origin without doing all that in him lies to divest himself of his country, is a proposition which, with great submission, I think cannot be maintained.’ Lord Hatherley said in Udnyv. Udny, L. R. 1 H. L. Se. 452, ‘TI think some of the expressions used in former cases as to the intent ‘ ex- uere patriam,” or to become “ a French- man instead of an Englishman,’’ go beyond the question of domicil. The question of naturalization and of alle- giance is distinct from that of domi- Eq. 589; Roberti v. Methodist Book Concern, 1 Daly (N. Y.) 3; Smith v. Croom, 7 Fla. 81, 156. cil. A man may continue to be an Englishman, and yet his contracts and the succession to his estate may have to be determined by the law of the country in which he has chosen to settle himself.’ Lord Westbury, in the same case (p. 460), referring to the expressions of Lord Kingsdown above quoted, said, ‘ These words are likely to mislead, if they were intended to signify that for a change of domicil there must be a change of nationality, that is, of national allegiance. That would be to confound the political: and civil states of an individual, and to destroy the difference between patria and domicilium.’ In Haldane ». Eckford, L. R. 8 Eq. 640, James, V.C., said that the rule as laid down by Lord Westbury in Udny v. Udny differed from the rule as laid down in Moorhouse v. Lord, and the cases fol- lowing it, ‘in which, if I may use the expression, that unfortunate term exuere patriam was intréduced, as if it were a question of nationality, and not of more or less permanence of resi- dence. It does differ from those cases, but it differs in bringing back the law to that which (in my opinion) was al- ways, before those cases, considered to have been the law, and evidently is the law as laid down by the treatise writers, viz., that domicil was to be considered as changed whenever there was a change of residence of a per- manent character voluntarily as- sumed.’ Wickens, V.C., in Douglas v. Douglas, L. R. 12 Eq. 644, ex- pressed his concurrence in this view of the law. In Aikman ». Aikman, 3 Macq. 52 CONFLICT OF LAWS. [s. 46, 47. other circumstances; (a) for if it is a place of temporary esta- blishment only for his family, or for transient objects, it will not be deemed his domicil.1. Tenthly, if a married man has his family fixed in one place, and he does his business in another, the former is considered the place of his domicil.? 47. Eleventhly, if a married man has two places of residence at different times of the year, that will be esteemed his domicil which he himself selects, or describes, or deems to be his home, or which appears to be the centre of his affairs, or where he votes, 1 Pothier, Cout. d’Orléans, c. 1, art. 15. 2 Ante, s. 42-44. (a) Douglas v. Douglas, L. R. 12 Eq. 617; Burnham v. Rangely, 1 Woodb. & M. 7. 858, Lord Campbell said, ‘If a man is settled in a foreign country, engaged in some permanent pursuit requiring his residence there, a mere intention to return to his native country on a doubtful contingency will not prevent such a residence in a foreign country from putting an end to his domicil of origin.’ This is probably what Story meant by ‘a floating intention to re- turn.’ A refusal by a Frenchman to be naturalized in England on the ground that he might return to reside in France, and that he would not give up his French citizenship, is not enough to prevent the acquisition of an English domicil. Brunel v. Brunel, L. R. 12 Eq. 298. See also Ander- -son v. Laneuville, 9 Moore P. C. 325, 334. In Doucet v. Geoghegan, 9 Ch. D. 441, declarations of a testator that he would’ go back to France when he had made his fortune were relied on to prove that he never meant to ac- quire an English domicil. Jessel M.R. and James, L.J., said that the declarations were too indefinite for that purpose, and that they were not sufficient to outweigh actions which showed an intention of permanent re- sidence. Brett, L.J., said, ‘I think such a condition [making a fortune] is not sufficient; it ought to be a con- dition which limits the residence to a definite time; and when the condition refers only to a time as indefinite as it can possibly be, it cannot be said to confine the residence to a definite time. There can be nothing so inde- finite as the time at which a man ex- pects to make his fortune.’ It seems doubtful whether these expressions of Brett, L.J., can be supported. In Jopp v. Wood, 4 D. J. & S. 616, it was held that a residence in India for the mere purpose of business did not change a Scotch domicil of origin, where it ap- peared that there was an intention of returning finally to Scotland. See Allardice v. Onslow, 33 L. J. Ch. 484; 10 Jur. N.S. 352. In an early case it was established | that a domicil in India, commonly called an Anglo-Indian domicil, was acquired by residence in India in the service of the East India Company. Bruce t. Bruce, 2 B. & P. 229, n.; Munroe v. Douglas, 5 Mad. 379, 404; Forbes v. Forbes, Kay, 341, 356; Moor- house v. Lord, 10 H. L. C. 281; Allar- dice v. Onslow, 33 L. J. Ch. 434; 10 Jur. N.S. 352. But in Jopp v. Wood, 4D. J. &S. 616, it was held that such a residence did not change the domi- cil of a person who was not in the ser- vice of the East India Company and who did not intend to abandon his previous domicil. See Dicey on Domicil, 140; Westlake (ed. 1880) 277, 282. CHAP. HI.] NATIONAL DOMICIL. 53 or exercises the rights and duties of a citizen Twelfthly, if a man is unmarried, that is generally deemed the place of his domi- cil where he transacts his business, exercises his profession, or assumes and exercises municipal duties or privileges.? But this rule is of course subject to some qualifications in its application.® Thirteenthly, residence in a place, to produce a change of domicil, must be voluntary. If therefore it be by constraint or involun- tary, as by banishment, arrest, or imprisonment, the antecedent domicil of the party remains. (a) Fourteenthly, the mere inten- tion to acquire a new domicil, without the fact of an actual removal, avails nothing; neither does the fact of removal without the intention. Fifteenthly, presumptions from mere circum- stances will not prevail against positive facts, which fix or deter- mine the domicil.6 Sizteenthly, a domicil once acquired remains until a new one is acquired.7(6) It is sometimes laid down that a person may be without any domicil; as, if he quits a place with an intent to fix in another place, it has been said that while he is in transitu he has no domicil. Julian, in the Roman law, has so affirmed. ‘Si quis domicilio relicto naviget, vel iter faciat, querens quo se conferat, atque ubi constituat; hunc puto sine domicilio esse.’§ But the more correct principle would seem to 1 Pothier, Cout. d’Orléans, c. 1, art. 20; Somerville v. Somerville, 5 Ves. 750, 788-790; Harvard College v. Gore, 5 Pick. (Mass.}) 370; Cochin, Zuvres, tom. 3, p. 702, 4to ed. 2 Somerville v. Somerville, 5 Ves. 750, 788, 789. 8 Tdem. 4 2 Domat, Public Law, b. 1, tit.16, s. 3, art. 14; Merlin, Répertoire, Dom- icil, s. 4, art. 8; Bempde v. Johnstone, 3 Ves. 198, 202. 5 Ante, s. 44. 6 Dr. Lieber, Encyc. Amer., Domicil; ante, s. 42-44. 7 Somerville v. Somerville, 5 Ves. 750, 787; Merlin, Répertoire, Domicil, s. 2; Harvard College v. Gore, 5 Pick. (Mass.) 370; Cochin, CEuvres, tom. 5, p- 5, 6, 4to ed. 8 Dig. 50, 1, 27, 2; Pothier, Pand. 30,1, n. 18; 2 Domat, Public Law, b. 1, tit. 16, s. 3, art. 9; ante, s. 45. . (a2) De Bonneval v. De Bonneval, 1 Curteis, 856; White v. Brown, 1 Wall. jun. 217. (5) The onus probandi lies upon those who assert a change of domicil. Bell v. Kennedy, L. R. 1 H. L. Se. 807; Aikman v. Aikman, 3 Macq. 877; Hodgson wv. Beauchesne, 12 Moore P. C. 285; Crookenden ». Fuller, 1 Sw. & T. 441; Mitchell v. United States, 21 Wall. 350; White v. Brown, 1 Wall. jun. 217; Dupuy v. Wurtz, 53 N. Y. 562. In Hicks v. Skinner, 72 N. C. 1, it. was held that a man might abandon his domicil of origin, and, until he acquired another, be without domicil, except that of actual residence. 54, CONFLICT OF LAWS. [s. 47, 48, be, that the original domicil is not gone until a new one has been actually acquired, facto et animo.! (a) Seventeenthly, if a man has acquired a new domicil different from that of his birth, and he removes from it with an intention to resume his native domicil, the latter is reacquired, even while he is on his way, in itinere, (6) for it reverts from the, moment the other is given up.? (¢) 1 See Jennison ». Hapgood, 10 Pick. (Mass.) 77; Bruce v. Bruce, 2 B. & P, 229, n.; Cochin, Euvres, tom. 5, p. 5, 6, 4to ed.; ante, s. 44. 2 The Indian Chief, 3 C. Rob. 12; La Virginie, 5 C. Rob. 98. On the subject of domicil, the learned reader is referred to Fergusson on Marriage and Divorce, Appendix, p. 277-362; and Henry on Foreign Law, Appendix A, p. 181, &c.; Cochin, Euvres, tom. 5, p. 4-6, 4to ed.; In re Wrigley, 8 Wend. (N. Y.) 184. (a) Bell v. Kennedy, L. R. 1 H. L. Sc. 807; Shaw v. Shaw, 98 Mass. 158. In Forbes v. Forbes, Kay, 353, Lord Hatherley, when vice-chancel- lor, stated as one of the propositions he considered settled, ‘ That a new domicil cannot be acquired except by intention and act, “animo et facto;” and apparently, if a man be in iti- nere, it is a sufficient act for this pur- pose. (See Sir John Leach’s judg- ment in Munroe v. Douglas, 5 Mad. 879).’ Sir J. Leach’s words were, ‘A domicil cannot be lost by mere aban- donment. It is not to be defeated animo merely, but animo et facto, and necessarily remains until a subsequent domicil be acquired, unless the party die in itinere toward an intended domicil.’ These last words were de- signated by Lord Hatherley in Udny v. Udny, L. R. 1 H. L. Se. 449, as ‘a remarkable qualification,’ and he sug- gested that it was founded upon a de- cision that a domicil of origin had revived although the person died in itinere; Lord Chelmsford said, ‘ There is an apparent inconsistency in this passage, for the vice-chancellor hav- ing said that a domicil necessarily re- mains until a subsequent domicil be acquired animo et facto, added, ‘ un- less the party die in itinere towards an intended domicil;’’ that is, at a time when the acquisition of the subse- quent domicil is incomplete and rests in intention only.’ See also Lyall v. Paton, 25 L. J. Ch. 746; Dicey on Domicil, 84. Westlake however (ed. 1880, p. 276) states as a rule for the change from one domicil of choice to another, that ‘In the event of death in itinere, the last domicil is the one towards which the person is journey- ing,’ and says, ‘this part of Leach’s doctrine does not seem to have been censured in Udny v. Udny.’ (b) In bonis Bianchi, 3 Sw. & T. 16,18. The abandonment of the ac- quired domicil is not complete until the person has left the country. In bonis Raffenel, 3 Sw. & T. 49. (c) Udny v. Udny, L. R. 1 H. L. Sc. 441; King v. Foxwell, 3 Ch. D. 518; In re Wrigley, 8 Wend. (N. Y.) 134, 140; Reed’s Appeal, 71 Pa. St. 378. See White v. Brown, 1 Wall. jun. 217, 265; Kellar v. Baird, 5 Heisk.. (Tenn.) 39. In Udny v. Udny, Lord Hatherley said (L. R. 1H. L. Se. p. 450), ‘It seems reasonable to say that if the choice of a new abode and actual set- tlement there constitute a change of the original domicil, then the exact converse of such a procedure, viz., the intention to abandon the new domicil, CHAP. IL] NATIONAL DOMICIL. 55 48. The foregoing rules principally relate to changes of domi- cil from one place to another within the same country or terri- and an actual abandonment of it, ought to be equally effective to de- stroy the new domicil. That which may be acquired may surely be aban- doned, and though a man cannot, for civil reasons, be left without a domi- cil, no such difficulty arises if it be simply held that the original domicil revives,’ Referring to the last part of s. 47 (supra), he said, (p. 451), ‘ The qualification that he must abandon the new domicil with the special in- tent to resume that of origin is not, I think, a reasonable deduction from the rules already laid down by deci- sion, because intent not followed by a definitive act is not sufficient. The more consistent theory is, that the abandonment of the new domicil is complete animo et facto, because the factum is the abandonment, the ani- mus is that of never returning.’ Lord Chelmsford said (p. 454), ‘I do not think that the circumstances men- tioned by Story in the above passage, viz., that the person has removed from his acquired domicil with an intention to resume his native domicil, and that he is in itinere for the purpose, are at all necessary to restore the domicil of origin. The true doctrine appears to me to be expressed in the last words of the passage: “It (the domicil of origin) reverts from the moment the other is given up.’? This is a neces- sary conclusion if it be true that an acquired domicil ceases entirely when- ever it is intentionally abandoned, and that a man can never be without a domicil. The domicil of origin al- ways remains, as it were, in reserve, to be resorted to in case no other domicil is found to exist. This appears to me to be the true principle upon this sub- ject, and it will govern my opinion upon the present appeal.’ Lord West- bury said (p. 458), ‘ Domicil of choice, as it is gained animo et facto, so it may be put an end in the same man- ner. Expressions are found in some of the books, and in one or two cases, that the first or existing domicil re- mains until another is acquired. This is true if applied to the domicil of origin, but cannot be true if such general words were intended (which is not probable) to convey the con- clusion that a domicil of choice, though unequivocally relinquished and abandoned, clings, in despite of his will and acts, to the party, until an- other domicil has animo et facto been acquired... . A natural-born Eng- lishman may, if he domicils himself in Holland, acquire and have the sta- tus civilis of a Dutchman, which is of course ascribed to him in respect of his settled abode in the land, but if he breaks up his establishment, sells his house and furniture, discharges his servants, and quits Holland, declaring that he will never return to it again, and taking with him his wife and children, for the purpose of travelling in France or Italy in search of another place of residence, is it meant to le said that he carries his Dutch domicil, that is, his Dutch citizenship, at his back, and that it clings to him per- tinaciously until he finally sets up his tabernacle in another country? Such a conclusion would be absurd; but there is no absurdity, and on the con- trary much reason, in holding that an acquired domicil may be effectually abandoned by unequivocal intention and act; and that when it is so deter- mined the domicil of origin revives until a new domicil of choice be ac- quired. ...In Mr. Justice Story’s Conflict of Laws’ (s. 48) ‘it is stated that “the moment the foreign domi- cil (that is, the domicil of choice) is abandoned, the native domicil or domi- cil of origin is reacquired.” And such appears to be thé just conclusion from CONFLICT OF LAWS. [s. 48, 49, 56 torial sovereignty, although many of them are applicable to residence in different. countries or sovereignties. In respect to the latter there are certain principles which have been gene- rally recognized by tribunals administering public law, or the law of nations, as of unquestionable authority. First, persons who are born in a country, are generally deemed to be citizens and subjects of that country.1 A reasonable qualification of the rule would seem to be, that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health, or curiosity, or occa- sional business. It would be difficult however to assert that in the present state of public law such a qualification is universally established. Secondly, foreigners who reside in a country for permanent or indefinite purposes, animo manendi, are treated universally as inhabitants of that country. Thirdly, a national character acquired in a foreign country by residence changes when the party has left the country animo non revertendi, and is on his return to the country where he had his antecedent domicil. And especially if he be in itinere to his native coun- try with that intent, his native domicil revives while he is yet in transitu; for the native domicil easily reverts.2? The moment 11 Black. Com. 366, 369. 2 Vatitel, b. 1, c. 19, s. 218. 8 The Venus, 8 Cranch, 278, 281; The Frances, 8 Cranch, 335; The Indian Chief, 3 C. Rob. 12; Bempde v. Johnstone, 3 Ves. 198, 202; The Friendschaft, #Wheat. 14; Omnianey v. Bingham, cited 5 Ves. 757, 765. several decided cases, as well as from between patria and domicilium’ the principles of the law of domicil.’ In Connecticut it has been held that this rule does not apply where the domicil of origin and the domicil of choice are both under the same na- tional jurisdiction, as in the case of two of the United States, and that therefore a domicil of origin in the State of New York did not revive upon the abandonment of an acquired domicil in Connecticut. First Na- tional Bank ». Balecom, 85 Conn. 351. It is stated in the judgment that the rule grew out of native allegiance or citizenship; but this, to use the words of Lord Westbury, is ‘ to confound the political and civil states of an indi- vidual, and to destroy the difference (Udny v. Udny, L. R.1 H. L. Se. 460; see also ante, s. 41, note). The case was decided in 1868, the year before Udny v. Udny, and reliance was placed upon Munroe v. Douglas, ; 5 Mad. 379, in which Sir John Leach held that the original domicil did not revive upon an abandonment of an acquired domicil, and which was over- ruled in Udny v. Udny. In this last- ® mentioned case the domicil of origin .. was Scotland, and it revived upon the abandonment of the domicil of choice, which was England; this is quite as strong an instance of both being un- der the same national jurisdiction, a3 if one were New York and the other Connecticut. CHAP, IIL] NATIONAL DOMICIL. 57 a foreign domicil is abandoned, the native domicil ‘is reac- quired. (a) But a mere return to his native country, without an intent to abandon his foreign domicil, does not work any change of his domicil.!. Fourthly, ambassadors and other foreign ministers retain their domicil in the country which they repre- sent, and to which they belong. But a different rule generally applies to consuls and to other commercial agents, who are pre- sumed to remain in a country for purposes of trade, aud who therefore acquire a domicil where they reside.2(6) Fifthly, children born upon the sea are deemed to belong, and to have their domicil in, the country to which their-parents belong. 49. Kinds of Domicil—From these considerations and rules the general conclusion may be deduced, that domicil is of three sorts; domicil by birth, domicil by choice, and domicil by opera- tion of law. The first is the common case of the place of birth, domicilium originis; the second is that which is voluntarily acquired by a party, proprio marte. The last is consequential, as that of the wife arising from marriage.’ (c) 1 Ibid. 2 Vattel,-b. 1, c. 19, s. 217; The Indian Chief, 3 C. Rob. 12, 27; The Josephine, 4 C. Rob. 25. 8 Ibid. 4 Vattel, b.1, c. 19, s. 216; Dr. Lieber’s Encyc. Amer. art. Domicil. 5 Pothier, Cout. d’Orléans, c. 1, art. 12. Whoever wishes to make more extensive researches upon this subject may consult Denizart’s Dictionary, art. Domicil; Encyclopédie Moderne, tom. 10, art. Domicil; Merlin, Répertoire, Domicil; 2 Domat (by Strahan), p. 484; lib. 1, tit. 16, s. 8, of Public Law; (@ Udny v. Udny, L. R. 1H. L. Sc. 441, 453, 459. (6) It cannot be inferred from a person’s residing in a country as an ambassador or attaché, that he intends to make that country his home. On the other hand, if he has already ac- quired a domicil there, he does not lose it by accepting such an office. Heath v. Samson, 14 Beav. 441; Att.- Gen. ». Kent, 1 H. & C. 12. The rule is the same as regards consuls. Udny v. Udny, L. R. 1 H. L. Se. 441; Sharpe v. Crispin, L. R.1 P. & M. 611. The expressions in The Indian Chief, 3 C. Rob. at p. 27, related, not to domicil, but to the national charac- ter of property of a consul employed in trade in time of war, which is a question of public international law. Ante, s. 41, note. It is not presumed that a man in- tends to change his domicil when he resides in another country in the ser- vice, military, naval, or civil, of his sovereign. Att.-Gen. v. Napier, 6 Ex. 217; Brown v. Smith, 15 Beay. 444; Yelverton v. Yelverton, 1 Sw. & T. 574; Att.-Gen. v. Rowe, 1 H. & C. 81; Dennis v. State, 17 Fla. 389. But he may change his domicil under such circumstances if he has the intention - of doing so. Mooar v. Harvey, 128 Mass. 219; Ames v. Duryea, 6 Lans. (N. ¥.) 155. (c) Interpretation of ‘ Residence,’ ‘ In- 58 CONFLICT OF LAWS. [s. 49, Dig. 50, 1; per'tot.; Cod. 10, 30, 2, 7; Voet, ad Pand. 5, 1, 90-92 7 Bynkershoek, Quast. Priy. Juris. lib. 1, c. 11, and the authorities cited in Dr. Lieber’s. Encyclopedia Americana, Domicil; Henry on Foreign Law, Appendix A, on Domicil, 181-209. habitant,’ &c., in Statutes. — It often be- comes necessary to determine the place in which a person resides, or of which he is an inhabitant, in the sense in which the word is used in some statute. Sometimes the question is whether he resides in a particular country or state, at others it is in what part of a coun- try or state he resides, as, for example, in what town. As instances of such statutes may be mentioned those which provide that an inhabitant of a state shall be taxed, or shall be entitled to vote, in the town where he resides, or that a pauper shall have a right to sup- port in the town-where he resides, and those which limit the time for bringing an action against a person who resides out of the state, or provide a special mode of procedure in such cases. Residence is used in these statutes in different senses. When it is used in reference to a country, e.g., one of the American states, it may or may not have the meaning of domicil accord- ing to the purpose of the statute. " When it is applied to a town or other part of a country or state, it has not the technical meaning of domicil, because in its technical sense domicil is appli- cable only to a country (ante, s. 41, note), but in such cases it may in some respects resemble domicil. It does not belong to the subject of this work to ascertain the residence intended by these statutes, except when the word has the technical meaning of domicil. But in some American cases, the term domicil has been applied to such residence when the latter word did not have that technical meaning. It is important that the rules laid down in these cases for ascertaining such resi- dence should not be confused with the . rules for ascertaining domicil. It will be useful therefore to point out some of the differences, as well as some of the resemblances, which exist between domicil and the different meanings of residence. In some of the United States the statute of limitations contains a provi- sion that the time during which a per- son is absent from and resides out of the state shall not be taken as part of the time limited for the commence- ment of an action against him. A state being a country, in the sense of 4 territory subject to one system of law (Dicey on Domicil, 1; ante, s. 41, note), the term domicil is one that may properly be applied to it, but, in con- struing the statute, the question is whether residence or domicil is referred to by the expression ‘ Resides out of the state.’ In Maine it has been de- clared that residence in the statute does not mean domicil, but ‘is sy- nonymous with dwelling-place or home.’ * The absence of the debtor must be something more than a trans- ient departure from his home on business or pleasure, and a temporary sojourn out of the state.’ Drew » Drew, 37 Me. 389; Bucknam»v. Thomp- son, 388 Me. 171. In Vermont a simi- lar construction has been given to the statute. Hackett v. Kendall, 23 Vt 275; Hall v. Nasmith, 28 Vt. 791. The word domicil is sometimes used in the decisions as the equivalent of resi dence, but it is clear that it is not so used in its technical sense. Thus the court says, in Hackett v. Kendall, 23 Vt. 278, ‘ This question of domicil may possibly be viewed differently with reference to different subjects. But the consideration which must have operated upon the legislature in 8 framing the statute in this case seem to us to have been what is suggested - by counsel, — whether the defendant's domicil in this state was so broken up | that it would not have been competent CHAP, II.] NATIONAL to serve process upon him by leaving a copy there. And for that purpose, it seems to us, there must be some place of abode, which his family or his ef- fects exclusively maintain in his ab- sence, and to which he may be expected soon, or in some convenient time, to return, so that, a copy being left there and notice in fact proved, the plaintiff may take a valid judgment.’ By the statutes of Vermont, process might be served on the defendant personally or by leaving a copy ‘ at the house of his usual abode’ (Rev. Sts. ¢. 28, 8. 12; Comp. Sts. c. 31, s. 16). In this case the defendant, who lived at Granville, Vermont, went to Massachusetts in April or May, intending to remain there and work during the season, and then to return to Granville, and not in- tending to change his residence from Granville to Massachusetts. He took his wife and child with him, and left his furniture and effects at Granville, but apparently he kept no place of abode there to which he might return. The intention of his wife in accom- panying him was to visit some friends. He remained in Massachusetts at work till the following January, and then returned to Granville. During the last three or four months of his stay in Massachusetts he kept house there, and about the time he began to keep house he made arrangements for returning to Granville in pursuance of his original intention. It was held that he did not reside in Vermont within the meaning of the statute during his absence in Massachusetts. A similar effect is given to the provision in New Hamp- shire. Gilman v. Cutts, 23 N. H. 376; 27 N. H. 348. In New York the pro- vision was declared to refer to resi- dence out of the state as distinguished from merely temporary absence, ex- cursions for pleasure or business, with a return to the state as the residence of the debtor. Wheeler v. Webster, 1E. D. Smith, 1; Harden v. Palmer, 2E. D. Smith, 172; Hickok v. Bliss, 34 Barb. 321; Ford». Babcock, 2 Sandf. DOMICIL. 59. 518, 529. The exception from the time limited was afterwards extended by the St. 1867, c. 781, s. 6, so as to include continuous absence for a year or more. In Iowa the provision was that ‘the time during which a defendant is a non-resident of the state shall not be included’ in the period of limitation; and in Savage v. Scott, 45 Iowa, 180, 133, the court says, ‘ We need not in- quire in what state he holds a domicil; he had a residence here of the character that would subject him to the process of the courts of this state. While he held this residence, the statute of limi- tations ran against the note and mort- gage... . That residence in the state, and not citizenship or domicil, deter- mines the fact of the meaning of the statute, cannot be doubted. The dis- tinction which the law draws between the place of residence and that of do- micil or citizenship, is plain.? In Massachusetts the provision was taken from the New York statute, and was first enacted in the Rev. Sts. of 1836 (Commissioners’ Report. pt. 8, p. 275). The commissioners, who suggested it, stated its object to be that‘ the debtor must remain within the state during the whole period prescribed for the limitation, in order to avail himself of its provisions.’ In Collester v. Hai- ley, 6 Gray, 517, it was held that the absence shown was not to be excluded from the period, Shaw, C.J., saying, ‘The facts disclosed temporary ab- sences only, or visits, leaving his family here, effecting no change of domicil or residence.’ In Langdon v. Doud, 6 Allen, 423, the court said, ‘In the case of Collester v. Hailey, it was decided that . . . the time of a debtor’s absence from the state without losing his domicil is not to be excluded in computing the period of limitation of an action against him; in other words, that temporary absences, al- though extending over consecutive periods of several months, but effect- ing no change in the legal domicil of the debtor, do not operate to extend 60 CONFLICT the period of limitation;’ and, ‘A residence out of the state, as applied to the subject-matter, may well mean the acquisition of a domicil without its limits.’ In subsequent cases the question has been dealt with as one of domicil. Hallet v. Bassett, 100 Mass. 167; Whitton v. Wass, 109 Mass. 40; Perkins v. Davis, 109 Mass. 239. The following reason for attributing this signification to the statute was given in Langdon v. Doud, 6 Allen, 425, ‘ A creditor can at any time com- mence a suit to enforce a claim against a debtor domiciled within the state. A writ can be served by leaving a sum- mons at his last and usual place of abode, and, in case of his absence from the state, actual notice of the pendency of the action can be given to him, so that a valid and binding judgment can be obtained.’ But it is also held in Massachusetts that a defendant not domiciled in the state may, if he has ever been an inhabitant, be proceeded against in precisely the same way. Lawrence v. Bassett, 5 Allen, 140, 142; Wright v. Oakley, 5 Met. 400. It would seem reasonable that the time within which a creditor should have aright to sue should depend upon the debtor's hay- ing his residence in the state (factum), rather than upon his intention (ani- mus) in residing elsewhere, upon which his domicil would depend. Byanother provision of the statute, the time li- mited does not begin to run until the defendant comes into the state, if, when the action accrues, he is simply out of the state. The subsequent pro- vision, suspending the running of the statute when he afterwards is absent from and resides out of the state, might reasonably not have been in- tended to be limited to cases where he resides out of the state with the inten- ‘tion necessary to constitute a domicil in another state or country. It may be doubted however whether, in the Massachusetts cases upon this subject, the word domicil has been used in its technical sense. In the case where OF LAWS. [s. 49, the rule was first laid down (Langdon v. Dowd, 6 Allen, 423) the court said that the construction adopted was the same as in other states where there was a similar provision, citing cases in Vermont, New York, Maine, and New Hampshire, which are mentioned above, and in which residence was held to have a signification different from domicil. The residence, which in Massachusetts is called domicil, is held to be changed, notwithstanding an intention to return, which would prevent a change of domicil, in its technical sense. Sleeper v. Paige, 15 Gray, 349, 350; Hallet v. Bassett, 100 Mass. 171. In Ware v. Gowen, 111 Mass. 526, the defendant, an inhabi- tant of Massachusetts, went to Russia to perform a contract with the Rus- sian government, and was absent eight years; he always intended to return; while he was absent, his wife went back and forth between Europe and America; some of his children re- mained in Massachusetts; and _ his furniture was stored there; the court declared this to be sufficient evidence that he ‘ was absent from and resided out of the state within the meaning of the statute.’ In Minnesota, in Venable v. Paulding, 19 Minn. 488, 492, the court says, ‘To depart from and reside out of the state means 4 change of residence from this state to some other state, not a temporary or occasional absence. Hickok v. Bliss, supra;’ and it seems to have adopted as a rule, ‘that such residence out of the state must be, not merely tempo- rary and occasional, but of such a character, and with such intent, as to constitute a change of domicil (Hal- let v. Bassett, 100 Mass. 167), under standing domicil, as the Massachu- setts court understands it, to mean, in this connection, the debtor’s home of place of abode. Langdorm v. Doud, 6 Allen, 423.’ In states where the statutes autho- rize an attachment of property whenthe defendant is not'a resident of the state, CHAP. III.] it has been generally held that resi- dence, and not domicil, determines the operation of the statute, and resi- dence is defined as a permanent abode for the time being. Haggart v. Morgan, 5 N. Y. 422; Hurlbut v. Seeley, 11 How. Pr. (N. Y.) 507; Mayor v. Genet, 4 Hun, 487; 63 N. Y. 646; Long». Ryan, 30 Grat. (Va.) 718; Morgan v. Nunes, 54 Miss. 808; Alston v. Newcomer, 42 Miss. 186. The liability of a person to taxation in a particular state or country, as well as the place within such state or country where he shall be taxed, often depends upon the meaning of the words inhabitant and resident in the statute. When the statute says that every inhabitant of the state shall be taxed, his liability to taxation gene- rally depends upon domicil, in its techni- calsense. Thorndike v. Boston, 1 Met. (Mass.) 242; Sears v. Boston, 1 Met. (Mass.) 250; Borland v. Boston, 132 Mass. 89; Church v. Rowell, 49 Me. 3867; Parsons v. Bangor, 61 Me. 457; State v. Ross, 23 N. J. L. 517; Cul- bertson v. Floyd, 52 Ind. 361; Kel- logg v. Winnebago, 42 Wis. 97. This construction is consistent with the probable intention that all persons do- miciled in the state should be taxed. Jt is also somewhat analogous to the construction given to the English sta- tutes imposing legacy or succession duties upon the personal estate of de- ceased persons; these statutes contain no express limitation of their applica- tion, but they have been held to apply only to persons domiciled in the coun- try. Thomson v. Adv.-Gen., 12 Cl. & F. 1; Wallace v. Att.-Gen., L. R. 1 Ch. 1. In Briggs v. Rochester, 16 Gray (Mass.) 837, which was fol-, lowed in Colton v. Longmeadow, 12 Allen (Mass.) 598, it was held that a person domiciled in Massachusetts, who was on his way to a place in an- other state, which he intended to make his permanent residence, and had ac- tually passed the limits of Massachu- setts on his way to that place, had NATIONAL DOMICIL. 61 ceased to be an inhabitant of Massa- chusetts, and was therefore not taxa- ble, although he had not lost his domi- cil there. But in Borland v. Boston, 182 Mass. 89, it was decided that do- micil, in its technical sense, was the test of liability to taxation, and the doctrine of those cases was disapproved, and they should’ be considered as over- ruled, though in terms it is left for fu- ture litigation to determine whether they will be followed ‘in cases presenting precisely similar circum- stances.’ It should be observed how- ever that, even by the test of domicil, Briggs v. Rochester (16 Gray, 337), was rightly decided, for the person whose liability to taxation was in question had actually acquired a new domicil in the state of New York, though the fact does not seem to have been no- ticed; he had left Massachusetts in- tending to reside at Motthaven in New York, and he was staying at an- other place in New York, with the in- tention of remaining permanently in that state, though not at that place; he had thereby acquired a domicil in New York, and lost his domicil in Massachusetts (Dicey on Domicil, 56- 59; ante, s. 41, note). In Parsons v. Bangor, 61 Me. 457, the cases of Briggs v. Rochester, and Colton v. Longmeadow, were approved, but per- haps unnecessarily, for the decision seems to have been placed upon the ground (p. 460) that there was an ac- tual change of domicil. In Illinois, where a statute provided that certain personal property of persons residing in the state should be taxed, it was held that residence meant, not do- micil, but a settled fixed abode with an intention to remain permanently, at Jeast for a time, and that a person having such a residence in that state was subject to taxation, although his domicil was in another state. Taze- well v. Davenport, 40 Til. 197. When the right of voting at elections is limited to such citizens as reside in the state, it is held that domicil is the 62 CONFLICT criterion of the right to vote, as it is of the liability to taxation. Borland v. Boston, 132 Mass. 89; Fry’s Case, 71 Pa. St. 302. But in Holmes »v. Greene, 7 Gray (Mass.) 299, a rule is laid down as to domicil for this pur- pose, which might properly be applied to the residence intended by the sta- tute of limitations, but’ cannot be con- sidered applicable to domicil in its technical sense, and it is doubtful whether the case can be supported since the decision in Borland v. Boston (supra). A citizen of Massachusetts, residing at Fall River in that state, being obliged to give up the house he oceupied, and not being able to find such a house as he desired in Fall River, removed temporarily, across the state line, to a place in Rhode Island, a short distance from his former resi- dence, intending to return to Fall River, and retaining his place of busi- ness there; he actually returned in thirteen months. It was held that he was not entitled to vote at an election in Fall River six months after his re- moval to Rhode Island, because he had changed his domicil. In the judg- ment it is said, ‘where the domicil of a party is in issue, evidence of his in- tent may have an important and de- cisive bearing on the question, but it must be in connection with other facts, to which the intent of the party gives efficacy and significance. . . . Butno case can be found where the domicil of a party has been made to depend on a bald intent, unaided by other proof. The factum and the animus must concur in order to establish a domicil.? They must undoubtedly concur in order to establish a new do- micil, but until they do concur, the old domicil remains. If there be resi- dence (factum), the domicil must de- pend entirely upon the intention (ani- mus), for until they concur, there is no change (ante, s. 44). In this case, the intention of remaining did not concur with the act of residing in Rhode Island, and so no domicil there OF LAWS. [s. 49, was established. The plaintiff would have found it difficult to escape taxa- tion in Massachusetts, according ‘oy Borland v. Boston, 132 Mass. 89, and it is there stated that the test of the right to vote is the same as that of lia. bility to taxation. In the latter case the plaintiff, who was held liable to taxation, had left Massachusetts with the intention of not returning, and had gone to Europe with his family, intending to reside there for an indefi- nite time, and had formed the inten- tion of residing, upon his return to America, at a place in Connecticut. The ‘residence’ or ‘habitancy’ in a town, which by statute determines where a person liable to taxation shall be taxed, resembles domicil in some respects, while in others it differs from it.’ It has already been mentioned that the term domicil, in its techni- cal sense, is not properly applicable to a town or part of a state. As every person domiciled in the state is liable to taxation, and the place of taxation is the town where he resides, a resi- dence, actual or constructive, in some town in the state, is attributed to him, in order that the purpose of the statute may be carried out. Otis v. Boston, 12 Cush. (Mass.) 44, 48; Littlefield v. Brooks, 50 Me. 475, 476. The place for voting is fixed by the same resi- dence as the place of taxation (Opinion of Justices, 5 Met. (Mass.) 590; Bor- land v. Boston, 182 Mass. 89; Otis» Boston, 12 Cush. (Mass.) 44, 49; State v. Casper, 36 N. J. L. 867), except in New York in one instance mentioned below. Residence or habitancy for these purposes is commonly defined . in the words of the Massachusetts constitution) as the place ‘ where he dwelleth or hath his home; the tem domicil is often applied to it, and it has been said that it ¢ must be practi- cally equivalent to that legal residence which establishes the domicil.’ Otis v. Boston, 12 Cush. (Mass.) 44, 49: Thayer v. Boston,124 Mass. 144; Stock ton v. Staples, 66 Me. 197; Cadwalader CHAP. IIL] v. Howell, 18 N. J. L. 138. When a person has his home in a town, he re- tains his residence there, if his domi- cil in the state continues, until he ac- quires another residence in the state. Otis v. Boston, 12 Cush. (Mass.) 44; Bulkley v. Williamstown, 3 Gray (Mass.) 493; Sears v. Boston, 1 Met. (Mass.) 250; Littlefield v. Brooks, 50° Me. 475, 477. He does not lose his residence by temporary absence. Lee v. Boston, 2 Gray (Mass.) 484, 492; Lincoln v. Hapgood, 11 Mass. 350. But if he removes to another town for an indefinite time with the intention of not returning, his residence is changed, although he intends not to remain in that town permanently, but to remove again after a limited time. Mead v. Boxborough, 11 Cush. (Mass.) 362; Whitney v. Sherborn, 12 Allen (Mass.) 111. If he retained no place of abode in the former town, his residence would probably be deemed to be changed, even if he did intend to return; as between two towns in the same state, Holmes v. Greene, 7 Gray (Mass.) 299, which is mentioned above, seems rightly decided. It is also probable that, if an inhabitant of one town should remove to another without re- taining any dwelling-place in the former to return to, an intention of returning after a definite time would not prevent a change of residence, unless his absence under the circum- stances could be considered as tempo- rary. (See Wellington v. Whitchurch, 4 B.& S. 100.) A person who has come into the state with the intention of making ‘it his home, and has thus acquired a domicil in the state, may never have resided in any place in the state, except temporarily, as ata hotel, and without any intention of making his home there. His domicil in the state would make him liable to taxa- tion somewhere, and he must therefore be deemed to reside in some town in the state. Yetif the rules of domicil were applied to ascertain what we will in this instance call the town of his do- NATIONAL DOMICIL. 63 micil, his domicil would not be in any ‘town inthe state. When a person has two or more places of residence in dif- ferent towns, in which he resides at dif- ferent times in the year, it is held in New York that he is taxable at the one where he is actually residing at the time when the tax is assessed, though he would vote at the place of his prin- cipal residence (Bell v. Pierce, 51 N.Y. 12), but in Massachusetts it is held that he should be taxed at the place which under all the circumstances of the case should be considered his home (Thayer v. Boston, 124 Mass. 132). A settlement or right to support under the poor-laws is often acquired by re- sidence in a place for a certain length of time. The residence by which this right is gained has much less resemblance to domicil than the resi- dence which fixes the place of taxa- tion. Laws imposing taxes create an obligation which an inhabitant of the state is not permitted to throw off at will, and for the purposes of such laws he must therefore have a residence somewhere. North Yar- mouth v. West Gardiner, 58 Me. 211. But there is not a similar necessity for attributing to every person a re- sidence by which he may in course of time acquire a right to support. A person cannot, for this purpose of the poor-laws, be resident in two places at the same time (Reg. v. Worcester, L. R. 9 Q. B. 344, 345), but he may be without any residence, and a resi- dence may be abandoned or lost without another being acquired. (Jefferson v. Washington, 19 Me. 293; North Yarmouth v. West Gardi- ner, 58 Me. 207; Barton v. Irasburgh, 33 Vt. 159.) In North Yarmouth v. West Gardiner, 58 Me. 212, the court says, ‘ Upon the party alleging a five years’ residence is the burden of proof, and he must show it to have continued all the five years. But if the abandonment of a home, ‘“ with bag and baggage,’’ with no intention of returning, is not an end of that 64 CONFLICT home, then, in many cases, the jury would be obliged to find a five years’ residence upon the proof of one month, or a day even.’ A residence may be retained during an absence for a temporary purpose, if there is an intention to return when the purpose is accomplished. Jamaica v. Towns- hend, 19 Vt. 267; Warren v. Thomas- ton, 43 Me. 406; Corinth v. Bradley, 51 Me. 540; Ripley v. Hebron, 60 Me. 379; Granby v. Amherst, 7 Mass. 1; Cambridge v. Charlestown, 13 Mass. 501; Lee v. Lenox, 15 Gray (Mass.) 496, 498; Reg. v. Brighton, 4 E. & B. 236; Reg. v. St. Leonard, L. R. 1 Q. B. 21; Reg. v. St. Ives, L. R. 7 Q. B. 467; Guildford v. St. Olave’s, 25 L. T. 803. But it will be lost notwith- standing an intention to return, if the absence is too long to be considered temporary. Reg. v. Stapleton, 1 E. & B. 766; Wellington »v. Whitchurch, 4 B. & S..100; Barton v. Irasburgh, 33 Vt. 159. In determining whether residence is retained during absence, an important element to be considered is whether the person has any dwell- ing-place to return to. Reg. v. St. Ives, L. R. 7 Q. B. 467, 470; Guild- ford v. St. Olave’s, 25 L. T. 803, 804; Jamaica v. Townshend, 19 Vt. 267; Barton ». Irasburgh, 33 Vt. 159. In Warren v. Thomaston, 43 Me. 418, the court says, ‘In the discussions in our books upon the pauper laws the term domicil is frequently used... . Its introduction has, at times, it is feared, tended to confuse and mislead, rather than to simplify and aid in the trial of this class of causes. In its ordinary sense, as used by legal wri- ters, it has not the same restricted meaning as the words residence, dwelling-place, and home have in the statute under consideration.’ In Jef- ferson v. Washington, 19 Me. 300, the same court says, ‘The counsel... treats the words dwelling-place and home as if synonymous with domicil, and proceeds to argue that one domi- cil continues till another is gained; OF LAWS. [s. 49. and that to havea domicil a man need not have any particular place of dwell- ing, or for his home; and he cites numerous authorities to support his position. But the answer to them all is, that domicil, though in familiar language used very properly to signify a man’s dwelling-house, has, in cases arising under international Jaw, and kindred cases thereto, a sort of tech- nical meaning. And the authorities cited all apply to it in this sense.’ See also Reg. v. Stapleton, 1 E. & B. 766, 771; Littlefield v. Brooks, 50 Me. 477-479. Residence is broken by. a departure without an intention to return, however short the absence may be. Detroit v. Palmyra, 72 Me. 256; Hampdeu v. Levant, 59 Me, 557; Billerica v. Chelmsford, 10 Mass. 394; Reg. v. Worcester, L. R. 9 Q.B. 840; Newark v. Glanford Brigg, 2 Q. B. D. 522. The residence by which a settlement is gained must be vo- luntary and not by legal constraint. Woodstock v. Hartland, 21 Vt. 563; Brownington v. Charlestown, 32 Vt. 411. Under a statute requiring seven years’ residence to gain a settle- ment, it has been held that the resi- dence is not broken by imprisonment for two years for a criminal offence, where the man has a home to which he intends to return. Baltimore ». Chester, 53 Vt. 815. Where a statute provided that a pauper should not be removed from a parish in which he had resided for a certain time next before the application to remove him, it was held, in the case of a woman who had resided in a parish during that period, that she did not lose her residence by being afterwards taken from the parish by her relations when she had become insane and was inca pable of exercising any choice. Reg. v. Whitby, L. R. 5 Q. B. 825. In Massachusetts the word domicil has been applied, as it has elsewhere, to the residence mentioned in the poor- laws, but it appears from Wilbraham v. Ludlow, 99 Mass. p. 592, that it has CHAP. IIL] not been so used in its technical sense. In Abington v. North Bridgewater, 23 Pick. 170, the court, after saying that in these laws, the terms being an in- habitant, residing, &c., were used to designate the place of a person’s domicil, stated some of the general rules of domicil, and among them, that ‘every one has a domicil of ori- gin, which he retains until he ac- quires another; and the one thus acquired is in like manner retained.’ The point decided in this case was that, where a man lived in a house upon the line between two towns, and the part in one town was not sufficient for a habitation, his residence was in the other town. No case decides that a residence continues for the purpose of gaining a settlement, till another residence is acquired, though there are expressions in Worcester v. Wil- braham, 13 Gray, p. 590, which have a tendency that way. The question there decided was, whether, upon proof of a short absence followed by a return, the presumption was that the person had an intention of returning or not. In Chicopee v. Whately, 6 Allen, 508, it was held that insanity occurring after a change of residence did not prevent the gaining of a settlement by a continuance of the residence; and the rule applied was, not that a residence continues till an- other is acquired, but that ‘ a state of things once shown to exist is presumed to continue till a change is proved.’ In Lee v. Lenox, 15 Gray, 498, where it is decided that residence is not broken by a temporary absence with an intention to return, the court re- fers with approval to the discussion of the question of residence in Warren v. Thomaston, 48 Me. 406, which is quoted from above. In Wilbraham v. Ludlow, 99 Mass. 587, it was de- cided that a man who left his home without any intention of returning, and worked as a day-laborer in diffe- rent towns, did not retain a construc- tive residence in the town where his NATIONAL DOMICIL. 65 former home was. It is said in the judgment, ‘Such a man, so situated, when he is laboring in one town with no other intention as to residence ex- cept to have'a home wherever he works, may well be deemed to live there with the purpose of remaining for an indefi- nite period of time, and thus to have all the home he has anywhere, as much of a domicil as a wanderer can have.’ This case practically decides, as Jef- ferson v. Washington, 19 Me. 293, and Barton v. Irasburgh, 83 Vt. 159, expressly did under similar circum- stances, that a residence does not necessarily continue until another is acquired. In cases arising under other statutes, so little weight has been given to a mere intention of returning (Holmes v. Greene, 7 Gray, 299; Sleeper v. Paige, 15 Gray, 349, 350; Hallet v. Bassett, 100 Mass. 171), that such an intention would probably not be considered sufficient to retain a constructive residence under the poor- laws in a place where the person had ceased’ to reside, unless his absence was a temporary one. The conse- quence of a different rule would be (as pointed out in North Yarmouth v. West Gardiner, 58 Me. 212) that a settlement might be acquired as if by a five years’ residence, where there had really been a residence of only a month or a day. By the 2 Will. 4. c. 45, s. 27, a per- son is not entitled, by reason of cer- tain qualifications, to be registered as a voter in a borough, unless he has re- sided for the six months previous to the last day of July within the bo- rough or within seven miles of it. Although absence will not prevent a constructive residence within the meaning of the act, so long as the person possesses a house to return to, and retains the liberty of returning and the intention of returning, yet he ceases to be a resident if he deprives himself of the liberty of returning, as by letting his house or giving another the right of occupying it for a time 66 CONFLICT however short (Ford v. Pye, L. R. 9 C. P. 269; Durant v. Carter, L. R. 9 C. P. 261), or by entering the army (Ford v. Hart, L. R. 9 C. P. 273), or by committing a criminal offence for which he is imprisoned for a part of the period (Powell v. Guest, 18 C. B. N.S. 72). By the 30 & 31 Vict. c. 102, s. 4, it is a part of the qualifi- cation for the lodger franchise in bo- roughs, that the person shall have re- sided in the lodgings during the twelve months preceding the last day of July. A man was held to be qualified, who possessed during the twelve months lodgings in London, and resided in them when he was in London, which had been, at intervals, for two months out of the twelve, although he had a house in the country where he kept an establishment of servants through the year, and where he resided when not in London (Bond v. St. George, L. R. 6 C. P. 312). Soa man was held tobe quali- fied in respect of lodgings in which his wife and family resided, and in which he could sleep at any time and did sleep once or twice a week during OF LAWS. [s. 49-51. the twelve months, although he also resided in lodgings which had been taken for him in the same house with a gentleman whom he had been em- ployed to attend, and in which he slept when he did not sleep at the former place (Taylor v. St. Mary Ab- bott, L. R.6 C. P. 809). In these cases the persons had two residences. From the cases that have been mentioned, it will be seen that a man may be domiciled in a state, and be deemed to reside in it and in a particular town in it for the purposes of taxation, and at the same time he may reside out of the state with- in the meaning of the provision in the statute of limitations that has been referred to. He may reside in a particular town so as to be taxable there, and may at the same time not reside there so as to acquire a settlement under the poor-laws. For the purposes of the poor-laws he can reside in but one place at the same time, while under the English elec- tion laws he may reside in several places at the same time. CHAP. Iv.] CAPACITY OF PERSONS. 67 CHAPTER IV. CAPACITY OF PERSONS. 50. WE now come to the consideration of the operation and effect of foreign laws in relation to persons and their capacity, state, and condition.! (a) 51. Obligation of Personal Laws. — All laws which have for their principal object the regulation of the capacity, state, and condition of persons, have been treated by foreign jurists gene- rally as personal laws.2 They are by them divided into 1 Upon the subject of this chapter the learned reader is referred to Burge’s Commentaries on Colonial and Foreign Law, vol. 1, pt.1, ¢. 3, s. 1, p. 52, &e.; Id.s. 2, p. 92, &c.; Id. s. 8, p. 101; and to Id. c. 4, p. 118-185. Cujacius de- fines the condition of a party thus: Conditio pro statu accipitur; puta, pater- familias sit, an filius-familias, servus, an liber. AMtatem, valitudinem, facul- tates, mores non significat. Liverm. Dissert. s. 26, p. 38, cites Cujacii, Obs. lib. 7, cap. 36. 2 See Saul v. His Creditors, 5 Mart. N.S. (La.) 569, 596. Boullenois enumerates as personal all laws which regard majority or minority, emanci- pation, interdiction for lunacy or prodigality, subjection of married women to the marital power, subjection of minors to the power of their parents and guardians, legitimacy and illegitimacy, excommunication, civil death, in- famy, nobility, foreigners and strangers, and naturalization. 1 Boullenois, obs. 4, p. 46, 51; Id. 78; Id. 800. See also Merlin, Répert. Statut. Pothier enumerates among personal laws those respecting the paternal power, the guardianship of minors and their emancipation, the age required to make a will, and the marital authority. Pothier, Cout. d’ Orléans, introd. c. 1, art. 6. See, also, Rodenburg, de Div. Stat. tit. 2, ¢. 5, s. 16; 2 Boullenois, App. 48. Le Brun enumerates among personal statutes those respecting majority, legi- timacy, guardianship, and the paternal power. Le Brun, Traité de la Com- munaute, liv. 2, c. 3,5. 5, n. 25. See also Bouhier, Cout. de Bourg. c. 28, s. 64; 1 Boullenois, c. 2, obs. 5, p. 74-122; 1 Burge, Col. & For. Law, c. 3, 8. 1, p. 57, &c. (2) Questions of personal status de- v. Geraghty, 101 I]. 26. ‘ The status pend on the law of the domicil. Shaw v. Gould, L. R. 3 H. L. 55, 83; Udny v. Udny, L. R. 1H. 1. Se. 441, 457; Harvey v. Farnie, 8 App. Cas. 43; Ross v. Ross, 129 Mass. 248; Keegan of an individual, used as a legal term, means the legal position of the in- dividual in or with regard to the rest of a community.’ Niboyet v. Nibo- yet, 4 P. D. p. 11, by Brett, L.J. 68 CONFLICT OF LAWS. [s. 51, 51a, two sorts; those which are universal, and those which are special. The former (universal laws) regulate universally the capacity, state, and condition of persons, such as their minority, majority, emancipation, and power of administration of their own affairs. The latter (special laws) create an ability or a disability to do certain acts, leaving the party in all other respects with his general capacity or incapacity! But whether laws purely per- sonal belong to the one class or to the other, they are for the most part held by foreign jurists to be of absolute obligation every- where, when they have once attached upon the person by the law of his domicil.2 Boullenois has stated the doctrine among his general principles. Personal laws, says he, affect the person with a quality which is inherent in him, and his person is the same everywhere. Laws purely personal, whether universal or particu- lar, extend themselves everywhere ; that is to say, a man is every- where deemed in the same state, whether universal or particular, by which he is affected by the law of his domicil. ‘Ces loix per- sonnelles affectent la personne d’une qualité qui lui est inhérente, et la personne est telle partout.’ And again, ‘ Les loix pures personnelles, soit personelles universelles, soit personelles parti- culiéres, se portent partout; c’est & dire, que l’homme est partout de l’état, soit universel, soit particulier, dont sa personne est af- fectée par la loi de son domicile.* L’état personnel du domicile se porte partout. Habilis vel inhabilis in loco domicilii, est habilis vel inhabilis in omni loco.’® Rodenburg says: ‘ Whenever in- quiry is made as to the state and condition of a person, there is 1 See Henry on For. Law, 2, 3; 1 Froland, Mem. c. 5, p. 81. 2 How extensively this rule may operate, may be readily understood by simply referring to the different ages at which majority is attained in different countries. By the civil law full age was not attained until twenty-four. By the old law of France the age of majority was twenty-five. By the custom of Normandy the age of majority was twenty; by the law of Spain, the age of twenty-four; by that of Holland, twenty-five. In some parts of Germany the majority is attained at twenty-one; in others, at eighteen; in others, at twen- ty-five; in Saxony, at twenty-one; and so in England, Scotland, Treland, and the United States of America. The present law of France, for all purposes except marriage, adopts the same age; but for marriage the rule is still twenty- ee 1 Burge, Col. & For. Law, pt. 1, ¢. 4, p. 118, 114, 115; post, s. 66, note, 8 1 Boullenois, Prin. Gén. p. 4. 4 1 Boullenois, Prin. Gén. 10, 18, p. 4, 6; obs. 4, 10, 12, 14, 46. 5 Boullenois, Dissert. sur Quest. de Contrarieté des Loix, ed. 1732, Disc Prél. p. 20, régle, 10. CHAP. IV.] CAPACITY OF PERSONS. 69 but one judge, that of his domicil, to whom the right appertains to settle the matter.’ ‘Cum de statu et conditione hominum queritur, uno solummodo judici, et quidem domicilii, universum in illa jus sit attributum.’! Hence, says Hertius, the state and quality of a person are governed by the law of the place to which he is by his domicil subjected. Whenever a law is directed to the person, we are to refer to the law of the place to which he is personally subject. ‘Hine status et qualitas persone regitur a legibus loci, cui ipsa sese per domicilium subjecit.2, Quando lex in personam dirigitur, respiciendum est ad leges illius civitatis, que personam habet subjectam.’ ® 51a. Foreign Jurists.—Froland, Bouhier, Rodenburg, Paul Voet, Pothier, and others lay down a similarrule.4 Froland lays down the doctrine in the following broad terms. A personal sta- tute not only exerts its authority in the place of the domicil of the party; but its provisions follow the party, and accompany his person, in every place where he goes to contract; and it extends over all his property (biens) under whatever customs it may be situated: ‘Et qu’elle influe sur tous ses biens sous quelques cou- tumes, qu’ils soient assis.’5 Bouhier adopts the very rule of Boullenois: ‘ Quand le statut personnel du domicile est en concur- rence avec le statut personnel de la situation des biens, celui du domicile doit ’emporter sur celui de la situation des biens.’® And again he says: It is necessary constantly to hold that the capa- city or incapacity which the law of the domicil has impressed upon the person should follow the person into all places; so that it shall become utterly impossible that a person, being incapable in the place of his residence, should go to contract in another place 1 Rodenburg, de Div. Stat. tit. 1, c. 8, s. 4-10; 1 Boullenois, p. 145, 146; Id. obs. 14, p. 196; 2 Boull. App. 789. 2 1 Hertius, de Collis. Leg. s. 4, n. 5, p. 122; Id. p. 178, 174, ed. 1716. 8 Id.; Id. n. 8, p. 128; Id. n. 12, p. 128; Id. p. 175; Id. p. 182, ed. 1716. 4 1 Froland, Mém. de Statut. c. 7, s. 2, p. 156; Id. vol. 2. c. 33, s. 8, 9, 10, p. 1574; Bouhier, Cout. de Bourg. c. 23, s. 92, p. 461; Id. c. 24,s. 11, p. 463; Jd. c. 22, s, 5-11, p. 418; Voet, de Statut. s. 4, c.2, n. 6, p. 187, 188; Henry on For. Law, ¢. 4, p. 84; Pothier, Introd. Gén. Cout. d'Orléans, ¢. 1, art. 7; 1 Hert. Opera, de Coll. s. 4, n. 5, p. 121, n. 8, p. 123; Id. p. 172, 178, 175, ed. 1716. See also Foelix, Revue Etrangére et Frangaise, &c., 1840, vol. 7, p- 200-216. Since the present work was in the press I have for the first time seen these Dissertations of Mr. Foelix, and I shall gladly avail myself of his learned labors. 5 1 Froland, Mém. c. 7, 8. 2, p. 156; Id. c. 5, 8. 4, p. 895 post, s. 84. ® Bouhier, Cout. de Bourg. c. 23, s. 91-96, p. 461; Id. c. 22, s. 4-14, s. 19. 70 CONFLICT OF LAWS. [s. 51 a-52, where he would have been capable if he had been domiciled there. ‘Tl faut donc tenir pour constant, que la capacité ou l’incapacité, que la loi du domicile a imprimée sur Ja personne la suit en tous lieux. En sorte que ce seroit inutilement, que étant incapable au lieu de sa résidence, elle voudroit aller contracter dans un endroit, ot il auroit été capable, si elle y avoit été domiciliée.’? Abraham & Wesel uses language equally strong: * Quotiescunque enim de habilitate atque inhabilitate persone queritur, toties domicilii le- ges et statuta spectanda, ut quocumque persona abeat, id jus sit, quod judex domicilii statuerit ;’* and he applies the rule to mova- ble and immovable property. Pothier says that personal statutes exert their power upon the persons in relation to their property (biens) wherever it may be situated: ‘Au reste, ces statuts per- sonnels exercent leur empire sur les personnes par rapport a tous leur biens, quelque part qu’ils soient situés.’*+ Rodenburg says: ‘Quocumque modo se cassus habuerit, contrahentium erit respi- cere ad suum cujusque domicilii locum, impressam ibidem persone qualitatem, aut adeptam domi conditionem cujus ignarus non sit oportet, qui cum alio volet contrahere. Quare Hollandie incola major Ultrajecti, minor apud suos, contrahit apud nostrates in- valide. Contra Ultrajectinus lege domicilii major contrahit in Hollandiz efficaciter ; ut maxime ex more regionis istius rerum suarum necdum habentur compos.’& Stockmannus holds equally strong language ; ‘ Unde recte, eum, qui inhabilis est in uno loco, etiam in alio inhabilem censeri ; et si aliter statuamus, incertus et varius erit personarum status; cum tamen uti personam ubique eandem, ita qualitatem persone inherentem, velut ejus accidens, ubique uniformem esse conveniat.’® Merlin has expressed it in equally comprehensive terms,’ saying that the law of the domicil 1 Bouhier, Cout. de Bourg. c. 24, s. 11, p. 463. ? Wesel, Com. ad Novell. Constit. Ultraj. art. 18, s. 23, p. 169, 170. 8 Id. s. 25, 27, p. 170, 173; Liverm. Diss. s. 55, p. 56. 4 Pothier, Introd. Gén. aux Cout. d’Orléans, ¢. 1, art. 7 ; post, s. 69. oe de Diversit. Statut. tit. 2, c. 1, s, 2; 2 Boullenois, App. ® Stockmann. Decis. 125, s. 6, p. 262, cited also 1 Boullenois, obs. 6, p. 181; Liverm. Dissert. s, 22, p. 85. See also Abraham & Wesel, Comment. ad Nov. ine Ultraject. art. 18, n. 24, 25, p. 170-172; Liverm. Dissert. s. 55, p. 56. * Merlin, Répert. Stat.; Id. Majorité, s. 5; Id. Autorisation Maritale, s. 10. The like rule is maintained by Burgundus, Stockmans, and D’Argen- tré, as to personal property and covenants. See Liverm. Diss. p. 34, 35, 50; Merlin, Répert. Majorité, s. 5; Id. Autorisation Maritale, s. 10. CHAP. IV.] CAPACITY OF PERSONS, 71 as to majority or minorjty governs in respect even to property (biens) situate in another territory.1 51 6. Paul Voet, on the other hand, speaks in far more qualified language, and lays down several rules on the subject. (1) That a personal statute only affects the subjects of the state or ter- ritory wherein it is promulgated, and not foreigners, although doing some business there. ‘Statutum personale tantum afficit subditos territorii, ubi statutum conditum est; non autem for- enses, licet ibidem aliquid agentes.’2. (2) That as a personal statute does not affect a person out of the territory, it cannot’ therefore be reputed to be the same without the territory as it is within. ‘Statutum personale non afficit personam extra territor- ium ; sic ut pro tali non reputetur extra territorium, qualis erat intra.’ (3) That a personal quality cannot be added out of the territory to a person not a subject. ‘Personalis qualitas non potest extra territorium addi persone non subjecte.’*, (4) A per- sonal statute accompanies the person everywhere in respect to property (biens) situate within the territory of the state where the person affected by. it has his domicil. ‘Statutum personale ubique locorum personam comitatur, in ordine ad bona intra ter- ritorlum statuentis sita, ubi persona affecta domicilium habet.’5 We shall also presently see that he distinguishes between the effect of a personal statute upon movable, and its effect upon im- movable property.§ 52. The result of the doctrine maintained by the jurists above named, except Paul Voet, is, that a person who has attained the age of majority by the law of his native domicil, is to be deemed everywhere the same, of age; and, on the other hand, that a per- son who is in his minority by the law of his native domicil, is to be deemed everywhere in the same state or condition.’ Thus, for example, if, by the law of the place of his original domicil, a person cannot make a will of his property before he is twenty-one years of age, he cannot, if under that age, make a valid will, even of such property as is situate in a place where the law allows per- sons of the age of fourteen years to make a will of the like pro- 1 Merlin, Répert. Majorité, s. 5, edit. Brux. 1827, p. 189. 2 Voet, de Stat, s. 4, c. 2, p. 187, ed. 1661. * Id. 4 Id. p. 188, 5 Id. p. 138, 6 Post, s. 52. 7 1 Boullenois, p. 108, &c., 1 Burge, Col. & For. Law, pt. 1, ¢. 4, p. 113-135. 72 CONFLICT OF LAWS. [s. 52, 53. perty.1 So, if by the law of her original domicil a married ' woman cannot dispose of her property except with the consent of her husband, she is equally prohibited from disposing of her property situate in another place, where no such consent is requi- site Many jurists apply this doctrine indiscriminately to mova- ble, as well as to immovable property. Thus, Boullenois says: - -- “ If a man has immovable property, situate in a place where the age of majority is fixed at twenty-five, and by the law of his own domicil he is of age at twenty, he may at twenty sell or alienate such immovable property. On the other “hand, if by the law of the place where the immovable property is situate he is of age at twenty, but by the law of his domicil not until twenty-five, he cannot sell or alienate such property until the age of twenty- five.’ ? But other jurists distinguish between movable and im- movable property, applying the law of situs to the latter, and the law of the domicil to the former.? Paul Voet insists throughout upon this distinction, and holds that no personal statute extends to immovable property situate elsewhere. ‘Non tamen statutum personale sese regulariter extendet ad bona immobilia alibi sita.’® But he admits that such a statute will apply to movable property, upon the ground that, wherever it may be situate, it follows the domicil of the owner. ‘* Quin tamen ratione mobilium ubicunque sitorum, domicilium seu personam domini sequamur, ut tamen spectentur loca, quo destinata, nullus iverit inficias ; idque propter expressos textus juris civilis, quibus mobilia certo loco non alli- gantur, verum secundum juris intellectum personam comitari, eique adherere judicantur ; id quod etiam mores ubique locorum sequuntur.”® Burgundus holds the same opinion: ‘ Conse- quenter ea, que sunt personalia, una cum persona circumferun- 1 Pothier, Cout. d’Orléans, c. 1, art. 7; 1 Boullenois, Prin. Gén. 19, p. 7; Id. obs. 16, p. 205; 1 Froland, Mém. c. 7, p. 156; Bouhier, Cout. de Bourg. c. 22, s. 5-11; c. 24, s. 7-13; Mer. Répert. Majorité, s. 5; Id. Autorisation Maritale, s. 10; Rodenburg, de Divers. Statut. tit. 2, c. 1, s. 1; 2 Boullenois, App. p. 11. 2 Jbid. Henry on Foreign Law, s. 1, p. 31. 8 Boullenois, Dissert. sur des Quest. de la Contrar. des Loix, Quest. 1, p. 19, 20; Basnage, Coutum. de Normand. tom. 2, art. 481, p. 243. See also Mer- lin, Répert. Majorité, s. 4, 5. 4 Voet, Burgundus, Stockmans, and Peckius, cited in Merlin, Répert. Ma- jorité, s. 5, p. 189, ed. 1827; ante, s. 52 a. 5 P. Voet, ad Statut. s. 4, c. 2, n. 6, p. 188, ed. 1661; Id. c. 3, n. 4, p. 148 ® P. Voet, ad Statut. s. 4, c. 2, n. 9, p. 189, 148, ed. 1661. Aare CHAP. IV.] CAPACITY OF PERSONS. 73 tur, quocumque loco se transtulerit, et per universa territoria, viresque et effectum porrigunt. Realia situm rerum sic spectant, ut territorii limites non excedant; quia rebus ipsis sunt affixa.’} Many other jurists maintain the same distinction ;? but it needs not be here further insisted on, as it will hereafter come more fully under our consideration. 53. The doctrine as to the nature and operation of personal statutes, thus asserted by foreign jurists, even with the distinction in its application between movable property and immovable pro- perty, is found attended with many difficulties ; and many of these jurists are compelled to make exceptions in its application which go far to limit, if not to impair, its real force and efficiency.? In- deed the language held by some of them on this subject has not. always such a precision, as to its actual extent and operation, as to free the mind from all doubt in regard to the true meaning, Merlin says :* ‘ The law of the domicil governs the state of the person and his personal capacity or incapacity. It also governs personal actions, movables, and movable effects, in whatever place they may in fact be situated. The power of the law of the domi- cil extends everywhere to everything within its reach or juris- diction, so that he who is of a majority by the law of his domicil, is of the age of majority everywhere. The law of the place where the property (biens) is situate regulates the quality and disposi- tion of it. When the law of the domicil and that of the situation (situs) are in conflict with each other, if the question is respect- ing the state and condition of the person, the law of the domicil ought to prevail; if it is respecting the disposition of property (biens), the law of the place where they are situate is to be fol- lowed.’ ‘If several real statutes are found in conflict with each other, each one has its own effect upon the property (biens) which it governs.’® Now, this language of Merlin is in some parts sufficiently broad to cover movable property, as well as im- movable property, and yet it is very clear that the disposition of movable property and the capacity to dispose of it are by many 1 Burgundus, tract. 1, s. 3, p. 15. 2 See J. -Voet, Stockmannus, and Peckius, cited post, s. 54, and 1 Boulle- nois, obs. 4, p. 57; Id. obs. 6, p. 181; Sandius, lib. 4, tit. 8, definit. 7, p. 104. 5 See Livermore, Diss. p. 62-106. 4 Merlin, Répert. Statut. See also Id. Majorité; s. 5; Id. Autorisation Maritale, s. 10. 5 Thid. 6 Thid. 74 CONFLICT OF LAWS. [s. 58-54 a, foreign jurists and by Merlin himself held to be governed by the law of the domicil of the owner, according to the maxim that movables follow the person: ‘Mobilia sequuntur personam,.’! What perhaps Merlin intends here to assert may be, that where a person is incapable by the law of his domicil, he cannot dispose of any of his property situate elsewhere, the incapacity exten- ding even to places where he is not domiciled, and where, by the local law, he would otherwise have capacity to dispose of it; but that, where a person is capable by the law of his domicil, and the question does not respect his personal capacity to dispose of pro- perty, but only the extent to which it may be exercised by persons who are capable, there the law of the place where it is situate will govern.2 Yet he would seem also to intimate that there is or may be some distinction between personal property and real property (between movables and immovables), as to the effect of the operation of the lex domicilii.2 54. In another place Merlin lays down the rule that a law which declares a person a major or a minor who is born within its reach of jurisdiction, is personal, and extends to property (biens) situate out of the territory; or in other words, that a statute respecting majority full and entire is personal, and extends to property (biens) situate out of the territory. ‘ Le statut de la majorité pleine et entiére est personnel, et s’étend aux biens situés hors de son territoire.’* Thus if, by the law of the place where a person has his domicil, he is of majority at the age of twenty, and has the faculty of disposing of his property situate there, the same faculty will extend to his property situate in another country, where he would not be capable of alienating until he was twenty- five years of age. And he applies this doctrine equally to mov- ables and immovables.® He admits that the Voets, Burgundus, Stockmans, and Peckius, while they deem such a law to be per sonal, insist that it does not extend to the disposal of immovables situate in a foreign country, where a different rule as to capacity 2 Ibid. 2 Pothier, Cout. d’Orléans, c. 1, art. 7; 1 Boullenois, Prin. Gén. 16, p.%5 | Id. obs. 19, p. 338, &c.; Rodenburg, c. 8, s. 4, 9, 10, p. 7-9; Id. c. 2, p- 5 Voet, de Stat. s. 7, c. 2, p. 125, s. 8; Pothier, de Choses, pt. 2, s. 8; Liver more, Dissert. 82. 8 See Merlin, Répert. Majorité, s. 5, p. 188, 189, ed. Brux. 1827. 4 Ibid. 5 See Merlin, Répert. Majorité, s. 5, p. 188, 189, ed. Brux. 1897. CHAP. IV.] CAPACITY OF PERSONS, 75 or majority prevails.! Merlin in another place says: ‘If the law of the domicil declares a person incapable to sell, alien, contract, or to bind himself in any manner to another, it is impossible that his immovables, in whatever country they may be situated, can be aliened, bound, or hypothecated by him. Who has ever doubted that the interdiction pronounced against a prodigal, or a madman, by the judge of his domicil, was an obstacle to the alienation of his property (biens) which is situate within the reach of another ju- risdiction? Who has ever doubted that the tutor (guardian) named by the judge of the domicil has the right to administer the property (biens) which is within the territory of another judge?’2 This is very bold and uncompromising language, but it will be very difficult to sustain it without many qualifications. It may be added that the modern Civil Code of France expressly declares that the laws concerning the condition and capacity of persons govern Frenchmen even if residing in a foreign country.3 In the progress of our inquiries it will be found that many excep- tions are admitted to exist as to the operation of personal laws, and that the practice of nations by no means justifies the doctrine in the extent to which it is ordinarily laid down by many foreign jurists. . 54a. John Voet, on the other hand, is one of the few jurists who insist that personal statutes of all sorts respecting capacity or incapacity, majority or minority, legitimacy or illegitimacy, have no extra-territorial operation, either directly or consequen- tially. ‘ Verius est,’ says he, ‘ personalia non magis quam realia territorium statuentis posse excedere, sive directo, sive per conse- quentiam.’* And he goes on to add: ‘Ita nec ratio ulla est, cur 1 See Merlin, Répert. Majorité, s. 5, ed. Brux. 1827, p. 188; Id. Autorisa- tion Maritale, s. 10. I do not find the citations from some of these authors accurately given by Merlin. But I believe that the following will be found to verify his statement: J. Voet, ad Pand. 4, 4, n. 8; ad Pand. 23, 2, n. 60, n. 136; P. Voet, ad Statut. 5.4, c. 3, n. 10, p. 153; Burgundus, Tract. 1,n. 5, 6,7, 8; Peck. de Testam. Conjug. lib. 4, ¢. 28, introd. n. 5, 6, 7; Stockmans, decis. 125, s. 6, 9, p. 262, 263; Christin. tom. 2, decis. 56, s. 12; Livermore, Dissert. s. 47-52, p. 50-54. Immobilia (says P. Voet) statutis loci, ubi sita; mobilia loci statutis, ubi testator habuit domicilium. P. Voet, de Statut. s. 4,c. 3, n. 10, p. 153, ed. 1661. Again, he adds: Quid circa successionem. Spectabitur loci statuta ubi immobilium sita, non ubi testa- . tor moritur. Id. s.9,c. 1, n. 3, p. 805. See 1 Burge’s Col. & For. Law, pt. 1, c. 3, 8. 3, p. 118-129. 2 Merlin, Répert. Autorisation Maritale, s. 10, art. 2. 8 Code Civil of France, art. 3; post, s. 68. * Voet, ad Pand. 1, 4, 7, p. 40. 76 CONFLICT OF LAWS. [s. 54 a-55 a, magis qualitas et habilitas privato per statutum data vel denegata, vires extenderet per ea loca, in quibus diversum quid aut contra- rium circa personarum qualitatem lege cautum est. Quod, si hee cuiquam minus videantur sufficere, is velim mihi rationem modumve expediat, per quem legislator personam, domicilii intuitu sibi suppositam, habilem quem inhabilemve ad actus gerendos declarans, alterius loci legislatorem, potestate parem cogeret, ut is alienis decretis statutisve pareret, aut rata irritave haberet, que judex domicilii talia esse jussit in persona domicilium, illic fovente; maxime, si fateatur (ut fateri necesse est) pari in parem nullam competere cogendi potestatem. Exponat, obsecro, prodigo decla- rato, vel infamia notato, vel legitimato, vel in ipso pubertatis tem- pore habili ad testamentum condendum declarato per magistratum Hollandum, ac Ultrajectum se conferente vel immobilia possidente; exponat, inquam, qua juris via magistratus Ultrajectinus adstringi posset, ut istum ratione bonorum, in Ultrajectino solo sitorum, pro tali agnosceret; adeoque contractus prodigi Hollandici haberet irritos; dignitates Hollando infamato denegaret ; successionem in bona Trajectina ad spurium Hollandum legitimatum pertinentia, tanquam in legitime nati patrimonium, pateretur proximis deferti;. testamentum masculi, ante annum etatis octavum decimentum conditum, juberet ratum esse.” 4 55. Hitherto we have been considering cases of the capacity or incapacity of persons arising from the domicil of origin, where there has been no subsequent change of domicil; as to which, as we have seen, the doctrine of foreign jurists is, that the law of the original domicil is to prevail, as to such capacity or incapacity, some of them holding that it applies to all personal acts whatever, | and to all alienation of property, whether movable or immovable, and others apply it only to personal acts and movable property, where there is a conflict of personal laws. But suppose that a person has had different domicils, a domicil by birth and a subse- quent domicil by choice, when he is sui juris, which is to prevail, as to his capacity or incapacity?? Hertius does not hesitate to say that the law of the new domicil is to prevail. ‘ Hinc status et qualitas person regitur a legibus loci,’ says he, * cui ipsa sese per domicilium subjecit. Atque inde etiam fit, ut quis major hic, 1 Tbid. * See, on this subject, 1 Burge, Col. & For. Law, pt. 1, ¢. 3, 8. 3, p. 102 106; Id. ¢. 4, p. 113-125, CHAP. IV.] CAPACITY OF PERSONS, 77 alibi, mutato scilicet domicilio, incipiat fieri minor.’!_ The like opinion appears to be held both by Paul Voet and by John Voet.2 The former says: ‘ Nullum statutum, sive in rem, sive in perso- nam, si de ratione juris civilis sermo instituatur, sese extendit ultra statuentis territorium.’* The latter holds that the change of domicil of a person gives him the capacity or incapacity of his new domicil, so that if he is of majority by the law of the place of his birth, and he removes to another country, by whose laws he would, according to his age, be a minor, he will acquire the character of his new domicil. ‘Si quis ex lege domicilii derelicti anno forte vicesimo completo major factus fuerit, translato domi- cilio ad locum illum, ubi non nisi absoluto viginti quinque anno- rum curriculo quisque major habetur, non dubitem quin ex novi domicilii jura incipiat iterum minorennis esse.’ 4 55 a. Froland thinks this question cannot be answered univer- sally, and he puts a distinction. ‘If,’ says he, ‘ the question is purely as to the state of the person, abstracted from all consid- eration of property or subject-matter (abstracte ab omni materia reali), in this case the law which first commenced to fix his con- dition (that is, the law of the domicil of his birth) will preserve its force and authority, and follow him wherever he may go. Thus if by the law of the domicil of his origin a person attains his majority at twenty years, and he goes to reside in another place where the age of majority is twenty-five years, he is held to be of the age of majority everywhere ; and, notwithstanding he is under twenty-five years, he may in his new domicil sell, alien, hypothe- cate, and contract as he pleases, and vice versa.’® ‘But,’ he adds, ‘when the question is as to the ability or disability of a person who has changed his domicil, to do a certain thing (a faire une certaine chose), then that which had governed his power (that is, the law of his original domicil) falls, and fails entirely in this respect, and yields its authority to the law of his new domicil. 1 2 Hertii, Opera, s. 4, n. 5, p. 122; Id. n. 8, p. 128; Id. p. 178, 175, ed. 1716. 2 1 Boullenois, App. p. 57; Merlin, Répert. Majorité, s. 4, ed. Brux. 1827, p. 186; Merlin, Rép. Effet Rétroactif, 3.3, art. 9, n. 3; P. Voet, de Stat. s. 4, c. 2,n. 6, p. 187, 188; Rodenburg, de Div. Stat. p. 2, ¢. 1, s. 5, 6; J. Voet, ad Pand. 4, 4, n. 10; 1 Boullenois, obs. 4, p. 58. 8 P. Voet, ad Statut. s. 4, c. 2, n. 7, p. 188, ed. 1661. 41J. Voet, ad Pand. 4, 4, n. 10; ad Pand. 5, 1, n. 101. 5 Froland, Mém. c. 7,8. 18, 14, p. 171; post, s. 188, note. See 2 Boulle- nois, obs. 2, p. 7-11; Bouhier, Cout. de Bourg. c. 22, s. 4-10. 78 CONFLICT OF LAWS. [s. 55 a~57, Thus, if a married woman, by the law of the country of her birth, is not allowed to pass property by will without the consent of her husband, and she acquires a new domicil in another country where no such restriction exists, she has full liberty to dispose of her property in the latter country by will, without the consent of her husband, and vice versa.’!_ This is a very nice, if it be notin many cases an evanescent, distinction ; and Froland admits that a different doctrine is held by many jurists.?- But he is not singular in his opinion of the value and importance of this distinction! Boullenois has given to it a qualified sanction. Bouhier also cites the same distinction with approbation, declaring it to be judicious; and he insists that, in case of a transfer of the domicil, the law of the original domicil ought in all cases to regulate the personal capacity, and he enlarges on the subject with much ability. 56. On the other hand, Burgundus does not hesitate to hold that the law of the new or actual domicil ought to prevail. After citing the opinion of Baldus and Gail and Imbertus, that the state of the person is to be decided by the place of his domicil : ‘ Ideo, si status persone inspici debeat, dumtaxat rationem haberi Baldus existimat, cujus opinionem Andreas Gail et Imbertus amplectun- tur; adeo ego,’ he adds, ‘nisi ex privilegio vel longissimo usu | aliud sit introductum. Proinde ut sciamus uxor in potestate sit mariti necne, qua «tate minor contrahere posset, et ejusmodi, respicere oportet ad legem cujusque domicilii. Heec enim impr- mit qualitatem persone, atque adeo naturam ejus afficit, ut quo- cumque terrarum sit transitura, incapacitatem domi adeptam non aliter quam cicatricam in corpore foras circumferat. Consequenter dicemus ; si mutaverit domicilium persona, novi domicilii condi- tionem induere.’® Rodenburg is of the same opinion upon the 11 Froland, Mém. c. 7, s. 15, p. 172; post, s. 138, note. 2 Ibid. Boullenois remarks on this distinction of Froland, that it contains | some truth mixed up with much obscurity, and embarrassed with ideas liable - to contradiction without being answered. 2 Boullenois, obs. 32, p. 8, % § See Rodenburg, de Div. Stat. tit. 2, c. 1-4; tit. 3, ¢. 1-4; tit. 4, ¢ 14 2 Boullenois, App. p. 1-83} Id. p. 71-79; Id. p. 84-95; 2 Boullenois, ¢. 1, obs 82, p. 1-58; Merlin, Répert. Effet Rétroactif, s. 3, p- 2, art. 5, n. 3, ed. Brux 1827, p. 15-18; Id. Majorité, s. 4, p. 186, 187. 4 2 Boullenois, obs. 32, p. 7-11. 5 Bouhier, Cout.de Bourg. c. 22, s. 4-10; Id. s. 22, cited Merlin, Réperts Autorisation Maritale, s. 10, art. 4, ed. Brux. 1827, p. 243. ® Burgundus, Tract. 2, n. 5-7; post, s. 140 a@. Cited also in Merlin, Ré pert. Effet Rétroactif, s. 3, p. 2, art. 5, p. 14, Brux. ed. 1827, CHAP. IV.] CAPACITY OF PERSONS. 79 ‘ground that the state and condition of the person is wholly governed by the law of his actual domicil, and when that is changed his state and condition change with it: ‘ Persone enim status et conditio cum tota regatur a legibus loci, cui illa sese per domicilium subdiderit, utique mutato domicilio, mutari et necesse est persone conditionem.’! And he applies the rule indiscrimi- nately to the case of minors and to the case of married women.” D’Argentré is also of the same opinion, and says: ‘ Quotiescunque de habilitate aut inhabilitate persone queratur, toties domicilii leges et statuta spectanda. Ratio est, quia hic abstracta de habili- tate persone et universali ejus statu queratur, ideoqué persone a foro domicilii afficiatur. Nam originis locus nusquam in foro con- siderationem habet, cum aliud domicilium proponitur.’ 8 57. Boullenois (whose opinions will be stated more fully here- after) * admits the general principle to be as Rodenburg states it, and asserts that the whole world acknowledges that the state of the person depends on his actual domicil, and that the natural consequence is that if a person changes his domicil, and the law of the new domicil is contrary to that of the old one, the state and condition of the person change accordingly.6 But then he insists that it is necessary to make a distinction between the states _ and conditions of persons which arise from laws (droits) founded in public reasons admitted by all nations, and which have a cause absolutely unconnected with domicil, so that the moment a man is affected with these states and conditions, the original domicil not having any influence upon them, the new domicil ought not to have any, but merely the public reasons, superior to those of domi- cil, to which all nations pay respect, and other subordinate states and conditions which are in truth founded in public laws (droits 1 Rodenburg, de Div. Stat. tit. 2, pt. 2, c. 1, n. 8; 2 Boullenois, obs. 32, p. 2, 5, 7; Id. Appx. p. 56, 57; post, s. 71. 2 Rodenburg, de Div. Stat. tit. 2, pt. 2, c. 1; Id. n. 5, 6; 2 Boullenois, obs. 82, p. 2,.5, 7, 8; Id. Appx. p. 56, 57; post, s. 71. 3 D’Argentré, de Leg. Briton. art. 218, n. 47,°49; 1 Boullenois, obs. 4, p. 58; post, s. 84. Yet, though the language of .D’Argentré is thus explicit, Bouhier seems to suppose that he aided his own opinion, because he has added in another place, ‘* Affecta quocunque modo persona domicilii lege, aut jure, eo perpetuo sic tenetur, ut ne ulla mutatione loci sese possit exercere.’ Bouhier, Cout. de Bourg. c. 22, 8. 9. But it is plain that D’Argentré is here speaking of a mere change of place without a change of domicil. D’Argentré, de Leg. Briton. art. 218, s. 18, p. 608. * Post, s. 71. 5 2 Boullenois, obs. 82, p. 10, 13. 80 CONFLICT OF LAWS. [s. 57-59, publics), but for one nation only, or for certain provinces of that nation.! Among the former class he enumerates interdiction, or prohibition to do acts by reason of insanity, or of prodigality, emancipation by royal authority, legitimacy of birth, nobility, in- famy, &c. These, he contends, are never altered by any change of domicil, but that, having at first fixed the condition of the person, the change of domicil does not cause them to cease? Among the latter class he enumerates the community of property between husband and wife, the state of the husband as to the marital power, the state of the father as to real rights of the pa- ternal power, and other subordinate states. These, he contends, sometimes are affected by a change of domicil, and sometimes are not.. Some of this last class, he adds, affect the person at least in vim conventionis tacite ; and this, according to the opinion of a great number of jurists, is the case in respect to the law of the community of property between husband and wife.* Others of the same class affect the person in vim solius legis; such is the statute or law, Senatus consultum Velleianum, which prohibits married women from making obligatory personal contracts with others. Boullenois himself holds that the capacity of married women is governed by the law of the actual or new domicil ;° but that the capacity of minors is governed by the law of their domi- cil of birth.’ He also holds that the paternal power is regulated by the domicil of birth. But here again he distinguishes be- tween movable property and immovable property, holding that the law of the domicil of birth governs as to the former, and the law of the situation (situs) as to the latter.® 58. Merlin, after citing the opinions of other jurists, formerly — came to the conclusion that the law of the place of birth, and not that of the new domicil, ought to govern equally in all these cases of minority, of paternal power, and of marital power after 1 2 Boullenois, obs. 82, p. 10, 11, 18, 19; post, s. 71. ? 2 Boullenois, obs. 32, p. 11; post, s. 71; 1 Boullenois, obs. 4, p. 50, 64 8 2 Boullenois, obs. 82, p. 11, 12, 18; post, s. 71. , * 2 Boullenois, obs. 32, p. 11; post, s. 143-171. 5 2 Boullenois, obs. 82, p. 11, 18; ante, s. 15; post, s. 71, 425. ® 2 Boullenois, obs. 82, p. 18-19; 1 Boull. obs. 4, p. 61, post, s. 71. 2 2 Boullenois, obs. 82, p. 19-31; 1 Boull. obs. 4, p. 58, 54; Id. Dissert, Mixtes, quest. 2, p. 40-62; Id. quest. 20, p. 406-447. * 2 Boullenois, obs. 82, p. 31-53; 1 Boull. obs. 82, p. 68; post, s. 71. i 1 Boullenois, obs. 82, p. 32, 88-53; Id. Dissert, Mixtes. quest. 20, p. 406- CHAP. Iv.] CAPACITY OF PERSONS. 81 marriage ; and he expressed surprise, and not without reason, that Boullenois should have attempted to distinguish between them.) It is certainly not for me to interfere in such grave con- troversies between these learned jurists, differing from each other, sometimes in leading principles, and sometimes in deductions and distinctions applicable to principles in which they agree. ‘Non nostrum inter vos tantas componere lites.’ Yet Merlin himself, after having advocated this doctrine, as best founded in principle, although involving some inconveniences, still insisted that upon such a removal to a new domicil, the capacity of a person to dis- pose of his movable property by a testament is to be governed by the law of the new domicil, because the state of a person has no influence as to the distribution of his movable property after his death; and the capacity to make a will, resulting from age, has nothing in common with what is properly called the state of the person; which is so true, that his state is governed by the domi- cil, and the situation decides solely concerning the age at which a person may dispose of movable property upon his death. It seems however that Merlin has since, upon further reflection, come to a different conclusion; and he may be now numbered among those who support the doctrine that the law of the new domicil ought to govern in all cases, whether they respect capa- city, or minority, or the paternal power, or the marital power after marriage.? 59. Pothier holds the doctrine in the most unqualified terms, that the law of the new or actual domicil ought in all cases to govern; and that the change of domicil discharges the party from the law of his former domicil, and subjects him to that of his new domicil. ‘ Le changement de domicile delivre les per- sonnes de l’empire des lois du lieu du domicile qu’elles quittent, et les assujettit 4 celles du lien du nouveau domicile qu’elles ac- quiérent.”* Whatever doubts may be suggested of the correct- 1 Merlin, Répert. Autorisation Maritale, s. 10, art. 4, ed. Brux. 1827, p. 248, 244; post, s. 139. * Merlin, Répert. Majorité, s. 4; Id. Effet Rétroactif, s. 3, n. 2, art. 5, n. 3; Id. Autorisation Maritale, s. 10, art. 4, ed. Brux. 1827. ® See Merlin, Répert. Effet Reétroactif, s. 3, n. 2, art. 5, p. 18, &c., ed. Brux. 1827 ; Id. Autorisation Maritale, s. 10, art. 4, p. 248, 244; Id. Majorité, s. 4, p. 187, 188. See also Id. Testament, s. 1, n. 5, art. 1, art. 2, p. 309-324; post, s. 139. * Pothier, Cout. d’Orléans, c. 1, art. 1, n. 18. We shall presently see that 6 82 CONFLICT OF LAWS. [s. 59-61, ness of his opinion in a juridical sense, it must be admitted to possess the strong recommendation of general convenience and certainty of application.' ; 60. Huberus, instead of relying upon the mere quality of laws, as personal, or real, or mixed, lays down the following doctrine, Personal qualities, impressed by the laws of any place, surround and accompany the person wherever he goes, with this effect, that in every place he enjoys and is subject to the same law which such persons elsewhere enjoy or are subject to. ‘ Quali- tates personales certo loco alicui jure impressas, ubique circum- ferri et personam comitari, cum hoc effectu, ut ubique locorum eo jure, quo tales persone alibi gaudent vel subjectae sunt, fruantur et subjiciantur.’ 2. Therefore, he adds, those who with us are under tutelage or guardianship, such as minors, prodigals, and married women, are everywhere deemed to be persons subject to such guardianship, and possess and enjoy the rights which the law of the place attributes to persons under guardianship! Hence, he who in Friesland has obtained the privilege of-age (veniam etatis), contracting in Holland, will not there be en- titled to restitution in integrum, as if he were a minor.* In other words, he who in Friesland has obtained the privilege of an exemption from the disabilities of his minority, will not, if he afterwards contracts in Holland, be deemed entitled to the privi- lege of being there held a minor, so as to exempt him from lia- bility on his contract. (Ibi non restituitur in integrum.)® He Lord Stowell holds the opinion that a change of domicil may change the state and condition of the party; as, for example, if he be a slave. See The Slave Grace, 2 Hagg. Adm. 94, 113; post, s. 96, 96 a. 1 See 1 Burge, Col. & For. Law, pt. 1, ¢. 3, s. 3, p. 118, 119. ° Huberus, de Conflict. Leg. lib. 1, tit. 3, s. 12. 8 Thid. 4 Ibid. Under the Roman Law the praetor by his edict declared that he would grant redress in regard to transactions with minors under twenty-five years of age. ‘Quod cum minore quam viginti-quinque annos natu, gestum esse dicetur, uti queeque res erit, animadvertam.’ Dig. 4,4, 1; Pothier, Pand. 4, 4, ne 1. But those persons who had obtained the privilege of age were not entitled to any such relief. ‘ Eos, qui veniam statis a principali clementia impetraverunt, etiamsi minus idonee rem suam administrare videantur, in in- tegrum restitutionis auxilium impetrare non posse, manifestissimum est, ne hi, qui cum eis contrahunt, principali auctoritate circumscripti esse videantur’ Cod. 2, 45, 1; Pothier, Pand, 4, 4, n. 4. The action thus given to minors was often called Restitutio in integrum. Vicat. Vocab. Voce, Restitutio. 5 The Veniam AGtatis is a privilege granted by the prince or sovereigh whereby the party is entitled to act, and to have all the powers to act sui juris as if he were of full age. See Vicat. Vocabul. Voce, ‘ Veniam Ztatis.’ Cal CHAP. IV.] CAPACITY OF PERSONS. 83 who is declared a prodigal here, cannot enter into a valid contract or be sued in another place. ‘ Hine qui apud nos in tutela curave sunt ut adolescentes, filii-familias, prodigi, mulieres, nupte, ubique pro personis cure subjectis habentur, et jure, quod cura singulis in locis tribuit, utuntur [et] fruuntur. Hine, qui in Frisia veniam etatis impetravit, in Hollandia contrahens, ibi non restituitur in integrum. Qui prodigus hic est declaratus, alibi contrahens valide non obligatur, neque convenitur.’! Again, in some pro- vinces, those who are over twenty-one years of age are deemed of majority, and may alienate their immovable property, and exercise other. rights less important, even in those places where no one is deemed of majority until he has attained twenty-five years; because all other governments give effect by comity to the laws and adjudications of other cities in regard to their sub- jects, so always that there be no prejudice to their own subjects, or their own law.? 61. He goes on to remark, ‘ There are some persons who thus interpret the effect of laws respecting the quality of persons, that he who in a certain place is a major or a minor, in puberty or beyond it, a son subject to paternal power or a father of a family, under or out of guardianship, everywhere enjoys and is subject to the same law which he enjoys, and to-which he is subject, in that place where he first becomes or is deemed such; so that whatever he could do or could not do in his own country, the same is allowed and prohibited to him to do. This seems to me unreasonable, and would occasion too great a confusion of laws, and a burden upon neighboring nations, arising from the laws of others. The importance of this thing will be made plain by a few examples. Thus, an unemancipated son (filius- familias) who cannot in Friesland make a testament, goes into Holland, and there makes a testament ; it is asked whether it has any validity. I suppose it is valid in Holland according to my first and second rule ;® because the laws bind all those who are within any territory ; neither is it proper (civile sit) that Hol- landers, in respect to business done among themselves, should, vinus, Lex. Jurid. c. 5; Cod. 2, 45,1; Rodenburg, de Diversit. Statut. tit. 1, c. 8, 8. 9; 2 Boullenois, App. 9; 1 Burge, Col. and For. Law, pt. 1, c. 3, 8. 3, p. 116. 1 Huberus, de Conflict. Leg. lib. 1, tit. 3, s. 12. 2 Huberns, lib. 1, tit. 3,8. 12; ante, s. 29; post, s. 189, 145. 8 Huberus, lib. 1, tit. 8, s. 12. 4 Ibid. 5 Ante, s. 29. 84 CONFLICT OF LAWS. [s. 61-65, neglecting their own laws, be governed by foreign laws.) But it is true that this testament would not have effect in Friesland according to the third rule; because in that way nothing would be more easy than for our citizens to elude our laws, as they might be evaded every day.? But such a testament would be of validity elsewhere, even where an unemancipated son could not make a will; for there the reason of evading the laws of a country by its own citizens ceases; for in such a case the fact (of evasion) would not be committed.’ * 62. This doctrine of Huberus is not in its full extent main- tainable, and, especially in relation to immovable property, it is universally repudiated by the common law, and in many cases is also denied by foreign jurists. Lord Stowell has expressly said that he does not mean to affirm that Huberus is correct in laying down as universally true, that, being of age in one country, a man is of age in every other country, be the law of majority of the lat- ter what it may.® 63. Without venturing further into the particular opinions maintained by foreign jurists on this subject under all its various aspects (a task, considering the great diversity of judgment among them, which would be almost endless), it may perhaps be useful to place before the reader some of the doctrines maintained by foreign jurists, which appear best established, or, at least, which seem to have the sanction of such authority as has given them a superior weight and recommendation in the jurisprudence of continental Europe.’ 64. In the first place, the acts of a person done in the place of his domicil in regard to property situated therein are to be judged of by the laws of that place, and will not be permitted to have any other legal effect elsewhere than they have in that place.8 There are exceptions to this rule; but they result from some direct or implied provisions of law in the customary or positive code of the 1 Huberus, lib. 1, tit. 3, s. 13, 2 Ante, s. 29. 8 Huberus, lib. 1, tit. 8, s. 13. * Thid. 5 See the authors cited by Merlin, Répert. Majorité, s. 5; post, s. 863-873, 8. 474-479. 6 Ruding v. Smith, 2 Hagg. Cons. 391, 392. : ee 1 Burge, Col. and For. Law, pt. 1, c. 4, p. 118-129. : ¢ ‘Statutum personale,’ says Paul Voet, ‘ ubique locorum personam comits tur, in ordine ad bona intra territorium statuentis sita, ubi persona affecta domicilium habet.’ P. Voet, de Statut,'s. 4, c. 2, s. 6, p. 188, ed. 1661, Se 1 Burge, Col. & For. Law, pt. 1, c. 4, p. 118. CHAP. IV.] CAPACITY OF PERSONS. 85 country in which the act comes in judgment, applying to the very case; for it is competent for a country, if it pleases, to prescribe its own rule for all cases arising out of transactions in foreign countries, whenever any rights under them are brought into con- troversy, or are sought to be enforced in its own tribunals. If therefore a person has a capacity to do any act, or is under an in- capacity to do any act, by the law of the place of his domicil, the act, when done there, will be governed by the same law, when- ever its validity may come into contestation in any other country. Thus, an act done by a minor, in regard to his property, situate in the place of domicil, without the consent of his guardian, if valid by the law of the place of his domicil, where it is done, will be recognized as valid in every other place; if invalid there, it will be held invalid in every other place. So, if a married woman, who is disabled by the law of the place of her domicil from entering into a contract or from transferring any property therein without the consent of her husband, should make a contract, or transfer any property situated therein, the transaction will be held invalid and a nullity in every other country.1_ Thisseems to bea principle generally recognized by all nations in the absence of any positive or implied municipal regulations to the contrary ; according to the maxim ‘quando lex in personam dirigitur, respiciendum est ad leges illius civitatis, quze personam habet subjectam.’? 65. In the next place, another rule directly connected with the former, is, that the personal capacity or incapacity attached to a party by the law of the place of his domicil, is deemed to exist in every other country (qualitas personam, sicut umbra sequitur), so long as his domicil remains unchanged, even in relation to trans- actions in any foreign country where they might otherwise be obligatory. Thus, a minor, a married woman, a prodigal, or a 11 Boullenois, Prin. Gén. 6; 1 Froland, Mém. des Statuts, c. 7, p. 156. 21 Hertii, Opera, de Collis. Leg. s. 4, art. 8, p. 128, ed. 1787; Id. p. 175, ed. 1716. The learned reader is referred for proofs to Huberus, de Conflict. Leg. lib. 1, tit. 8, s. 12, 18, 15; 1 Boullenois, Prin. Gén. 10, 12, 16, 17; Id. obs. 8, tit. 1, c. 3, p. 145, &c.; 2 Boullenois, obs. 82, tit. 2, c. 1, p. 1-53; Rodenburg, de Divers. Statut. c. 3; 2 Boull. Appx. p. 7; Id. tit. 2, ¢. 1; 2 Boull. Appx. p. 10; P. Voet, de Statut, s. 4, c.2; Id. ¢. 3, p. 128, 148, ed. 1661; 1 Hertii Opera, de Collis. Leg. s. 4, 8, p. 128, ed. 1737; Id. p. 175, ed. 1716; Froland Mém. des Statuts, pt. 1, c. 5, 7; Id. pt. 2, c. 33; Bouhier, Cout. de Bourg. ¢. 22-24. 8 : Ergo conditio persone a causa domicilii tota regitur. Nam ut consen- tiunt doctores, idem sunt forum sortiri et statutis subjici; et unusquisque talis 86 CONFLICT OF LAWS. [s. 65-67, spendthrift, a person non compos mentis, or any other person who is deemed incapable of transacting business (sui juris) in the place of his or her domicil, will be deemed incapable everywhere, not only as to transactions in the place of his or her domicil, but as to transactions in every other place. 66. Thus, according to this rule, if an American citizen domi- ciled in an American state, as, for instance, in Massachusetts, where he would be of age at twenty-one years, should order a purchase of goods to be made for him in a foreign country where he would not be of age until twenty-five years old, the contract will nevertheless be obligatory upon him.? On the other hand,a person domiciled in such foreign country of twenty-one years of age only, who should order a like purchase to be made of goods in Massachusetts, will not be bound by his contract ; for he will be deemed a minor and incapable of making such a contract! The same rule will govern in relation to the disposition of per- sonal or movable property by any person who is a minor or a major in the place of his domicil; for it will be valid or not, according esse presumitur, qualis est dispositio statuti sux patrie. Proinde, ut sciamus, uxor in potestate sit mariti necne, qua «tate minor contrahere possit, et ejus- modi respicere oportet ad legem cujusque domicilii.’. Burgundus, Tract. 2, n. 6; 1 Boullenois, obs. 4, p. 53. ‘C’est ainsi,’ says Boullenois, ‘ que la ma- jorité et la minorité du domicile ont lieu partout, méme pour les biens situés ailleurs.’ 1 Boullenois, Prin. Gén. art. 6; Id. obs. 10, 12, and 46. ‘Celui qui est majeur,’ says Froland, ‘ suivant la coutume ow il a pris naissance et sous laquelle il réside, est majeur partout, et peut comme tel, aligner, hypo- théquer, vendre ses biens, sans considérer si, suivant la loi de leur situation, il seroit mineur.’? 1 Froland, Mém. des Statuts, c. 7, p. 156. Rodenburg holds the same doctrine. Rodenburg, de Divers. Stat. tit. 2, ¢. 1. So D’Argentré: ‘ Quotiescunque de habilitate aut de inhabilitate personarum queratur, toties domicilii leges et statuta spectanda.’ D’Argentré, de Briton. Leg. des Dona tions, art. 218, gloss. 7, n. 48, 49. 1 Livermore, Diss. 34. So John Voet: ‘Potius domicilii leges observandas existimem; quoties in queestione, an quis minor vel majorennis, sit, obtinuit, id dijudicandum esse ex lege domicilii; sit ut in loco domicilii minorennis, ubique terrarum pro tali habendus sit, et con tra.’ J. Voet, ad Pand, 4,1, 29. See also, Foelix, Conflit des Lois, Revue Etrang. et Fran. tom. 7, 1840, p. 200-216. 1 1 Boullenois, Prin. Gén. 10, 19, et obs. 4, 12, 16, p.5; 1 Froland, Mém des Stat. c. 7, p. 155, 156; Rodenburg, de Divers. Stat. tit. 2, c. 1; 2 Boule nois, Appx. p. 10. 2 By the law of some commercial countries, the age of twenty-five years is that of majority. This was the old law of France; but the modern code bis changed the age of majority to twenty-one, except as to marriage without the consent of parents. Code Civil of France, art. 488; Id. art. 148. See also, Rodenburg, de Statut. tit. 2, c. 1; 2 Boullenois, Appx. 10. 8 Huberus, de Conflictu Legum, lib. 1, tit. 3, 5. 12. cHaP. IV.] CAPACITY OF PERSONS. 87 to the law of the place of his domicil, wherever such property may be situate. There are exceptions also made to this rule ; but they stand upon peculiar grounds, as expounded by foreign jurists. 66 a. The like rule will apply to the capacity and incapacity of married women. If by the law of the place of the domicil of the husband a married woman has a capacity to sue, or to make a contract, or to ratify an act, her acts so done will be held valid everywhere. On the contrary, if she is deprived of such capacity by the law of the domicil of her husband, that incapacity exists in relation to all the like acts and contracts, even when done in a foreign country, or with reference to property in a foreign country.? 67. The ground upon which this rule has been generally adopted by many eminent Continental jurists doubtless is that suggested by Rodenburg, namely, the extreme inconvenience which would otherwise result to all nations from a perpetual fluc- tuation of capacity, state, and condition upon every accidental change of place of the person, or of his movable property.2 The language of Rodenburg is: ‘ Quid igitur rei in causa est, quod personalia statuta territorium egrediantur? Unicum hoc ipsa rei natura ac necessitas invexit, ut, cum de statu ac conditione homi- num queritur, uni solummodo judici, et quidem domicilii, univer- sum in illa jus sit attributum: cum enim ab uno certoque loco statum hominis legem accipere necesse esset, quod absurdum, ea- rumque rerum naturaliter inter se pugna foret, ut in quot loca quis ita faciens, aut navigans delatus fuerit, totidem ille statum mutaret aut conditionem; ut uno eodemque tempore hic sui juris, illic alieni futurus sit; uxor simul in potestate viri, et extra eandem sit; alio loco habeatur quis prodigus, alio frugi; ac preeterea quod persona certo loco non affigeretur, cum res soli loco fixe citra, in- commodum ejusdem legibus subjaceant, summa providentia consti- tutum est, ut a loco domicilii, cui quis larem fovendo se subdiderit, statum ac conditionem induat: illis legislatoribus, pro soli sui genio, optime omnium compertum habentibus, qua judicii maturi- 11 Froland, des Stat. Mém. c. 7, p. 157, 158; 1 Boullenois, Prine. Gén. 6, 19; Id. obs. 4, 12; Rodenburg, de Divers. Stat. tit. 2, c. 1; 2 Boullenais, Appx. p. 10. 2 Garnier v. Poydras, 13 La. 177. 8 Rodenburg, de Divers. Stat. tit. 1, c. 8, n. 4; 2 Boullenois, Appx. p.. &. See also 1 Boullenois, obs. 4, p. 48, 49. 88 CONFLICT OF LAWS. {s. 67-69, tate polleant subditi, ut possint constituere, qui eorum, ac quando ad sua tuenda negotia indigeant auctoritate. Hac igitur persona- rum qualitas ac conditio, ubi venerit applicanda ad res aut actus alterius territorii, jam indirecte, ac per consequentiam vis illius personalis statuti extra statuentis, pertinget locum: cum et alias non insolitum sit multa indirecte permitti et per conse- quentiam, que directe et expressim non valerent. Nec est, quod quemquam turbet, quod et illa statuta extra territorii limites diximus excurrere, quibus nominatim status hominum in universum non discutitur, que in incertos personales actus a persona exercendos, prohibendo eos aut permittendo, concepta sunt.’ } 68. French Law.— The modern law of France, as it is laid down by Pardessus, is to the same effect.2 ‘ No act, whatsoever may be its nature,’ says he, ‘ can be stipulated, except by persons capable: of binding themselves; and the general consent of civilized na- tions has allowed that whatever concerns the capacity of a person should be regulated by the laws of the country to which he be- longs. A person declared incapable by the law of the country of which he is a subject cannot be relieved of that incapacity, except by the law of that country, as well in regard to the acts which it permits him to do, as to the conditions which it prescribes in doing them. Thus, French minors, incapable of binding themselves by engagements of commerce, unless they are emancipated or autho- rized, cannot bind themselves in commercial transactions in 44): foreign country, even when the law of that country does not. require the like conditions. So French married women who are not public traders are not deemed to have contracted valid en- gagements, even in commerce, unless they should be authorized by their husbands. Their personal incapacity follows them every- where. For the same reason, the French tribunals will not con- sider as valid any commercial engagements entered into in France by minors, or persons of either sex, who, by the law of their own country, are rendered incapable, even though the law to which they are subject should require other conditions than those pre scribed by the law of France. For it is the interest of one go vernment to respect in favor of the subject of another government, purer 1 2 Boullenois, Appx. p. 8; Foelix, Conflit des Lois, Revue Etrang. et Fran. tom. 7, 1840, p. 200-216. ? Pardessus, de Droit Commercial, vol. 5, art. 1482, p. 248. CHAP. IV.] CAPACITY OF PERSONS. 89 when he is cited before its tribunals, the laws upon the faith of which that foreigner has contracted, and not to tolerate him in withdrawing himself, by a mere change of jurisdiction, from the laws which regulate his capacity, and to which he is bound by his allegiance, wherever he may inhabit. Without this, the govern- ment would expose its own subject to be treated with a like injus- tice by what is denominated the right of retaliation or reprisals. So also a foreigner, born under a legislation which does not, require certain formalities like those of France, by which a minor, or other person of either sex, may be authorized to engage in commerce, cannot avail himself of our laws to escape from his engagement. One has no right to invoke for the same object two different legislations ; the law which regulates the capacity of the foreigner, regulates it everywhere. It would be unjust that he should derive from our legislation, to which he is not subjected, an advantage which is not granted to him by his own proper legislation.’ Yet Pardessus is compelled to admit that there may be exceptions to the doctrine. Thus, for example, he says, that certain particular prohibitions, such as the prohibition of persons who are nobles, or possessing a certain dignity, to sign bills of exchange or other engagements, which carry with them a right to arrest the body, ought not to govern transactions of that sort in foreign countries. However the modern Civil Code of France? lays down the general rule in the broadest terms, and declares that the laws concerning the state and capacity of-persons govern Frenchmen even if resident in a foreign country: ‘ Les loix concernant l'état et la capacité des personnes régissent les Frangois méme résidant en pais étranger.’ 8 69. In the third place another rule is, that upon a change of domicil the capacity or incapacity of the person is regulated by the law of the new domicil.4 Pothier lays down this rule, as we have seen, in emphatic terms. ‘The change of domicil,’ says he, ‘delivers persons from the empire of the laws of the place of the domicil they have quitted, and subjects them to those of the new domicil they have acquired.’ ‘Le changement de domicile _ 45 Pardessus, pt. 6, tit. 7, c. 2, s.1, art. 1482; Henry on Foreign Law, Appx. p. 221, 222. See Cochin, Euvres, tom. 1, p. 154, 4to ed. 2 Pardessus, de Droit Commercial, vol. 5, art. 1483, p. 250; post, s. 74. 3 Code Civil of France, art. 8; ante, s. 54. * Consult 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 8, p. 102, 103; Id. pt. 1, c. 4, p. 118-128, where the principal authorities are collected. 90 CONFLICT OF LAWS. [s. 69-71. délivre les personnes de l’empire des lois du lieu du domicile qu’elles quittent, et les assujettit & celles du lieu du nouveau domi- cile qu’elles acquiérent.’! Burgundus adopts the same rule: ‘Consequenter dicemus, si mutaverit domicilium persona, novi domicilii conditionem induere.’? So Rodenburg: ‘Persone enim status et conditio cum tota regatur a legibus loci, cui illa: sese per domicilium subdiderit, utique mutato domicilio mutari et necesse est persone conditionem.’® Froland indeed, as we have already seen, mentions a different doctrine, in which to some extent he is followed by Bouhier and others. The doctrine however which is most generally approved is that which has been maintained by Pothier, although it is contradicted by the modern - Code of France.® 70. Having stated these rules it may be proper to notice a distinction which in many cases may have a material operation. So far as respects the capacity or incapacity of the person, the law of the new domicil would probably prevail in the tribunals of the country of that domicil as to all rights, contracts, and acts, done or litigated there. The same law would probably have a like recognition in every other country, except that of the original ‘or native domicil. The principal difficulty which would arise would be, how far any rights, contracts, and acts would be recognized by the latter where they were dependent upon the law of the new domicil, which should be in conflict with its own law on the same subject. It is precisely under circumstances of this sort that the third axiom of Huberus may be presumed to have a material in- fluence, namely, that a nation is not under any obligation to recog- nize rights, contracts, or acts, which are to its own prejudice, or in opposition to its own settled policy.§ 1 Pothier, Coutum. d’Orléans, c. 1, art. 1, n. 13: ante, s. 51. oe Boullenois, obs. 4, p. 53; ante, s. 51 a, 56; Burgundus, Tract. 2, n. 7, p. 61. ® Rodenburg, de Divers. Stat. tit. 2, p- 2,¢. 1, n. 3; 2 Boullenois, Appx. p- 56; 2 Boullenocis, ce. 1, and obs. 82; ante, s. 51 a. 41 Froland, Mém. c. 7,s. 18-15, p- 171, 172; Id. c. 33, s. 4-7, p. 1575- 1582; ante, s. 55 a; Bouhier, Coutum. de Bourg. c. 22, s. 17-20, 81, p. 419- 421. See also, Henry on Foreign Law, Appendix A, p. 196. See 2 Boulle- nois, p. 1-53; Merlin: Répertoire, Majorité, s.5; Autorisation Maritale, s. 10; Effet Reétroactif, s. 2, art. 5; ante, s. 55, 55 a, 56. 5 Code Civil of France, art. 3. See also Cochin, CEuvres, tom. 1, p. 154, 4to ed.; ante, s. 51 a, 68. 8 See, on this subject, 1 Burge, Col. & For. Law, pt. 1, ¢. 4, p. 129-184. CHAP. IV.] CAPACITY OF PERSONS. 91 71. Boullenois was sensible of this distinction, as we have already seen,! and says: ‘On this point it is necessary to dis- tinguish from others the states and conditions of persons which arise from laws (qui sont des droits) founded upon public reasons, admitted among all nations, and which have a foundation or cause absolutely foreign from the domicil; so that the domicil, from the moment a man is affected with these states or conditions, not influencing it in any manner, the new domicil ought not to influence it, but merely the public reasons, superior to those of the domicil, to which all nations pay respect. Such are inter- diction or incapacity from insanity or from prodigality, emancipa- tion from the paternal power by royal authority, legitimacy of birth, nobility, infamy, &c. These states do not change with the change of domicil; and of these it is properly said that, having at first fixed the condition of the person, the change of domicil does not put an end to them.’ And he adds: ‘ But there are states and conditions more subordinate, and which in truth arise from public laws (qui sont & la vérité, des droits publics), but are for one nation only, or for some provinces of the same nation. Such are the state of community or non-community (of property) among married persons (conjoints) ; the state of the husband as to his marital power; the state of the father as to the rights of property from the paternal power; and these subordinate states are almost infinitely various.’? In regard to these latter states, he admits the embarrassment of laying down any general rules as to the effect of a change of domicil.+_ And he concludes his remarks by saying: ‘In the occurrence of so great.a number of laws (having enumerated several), which have so different an effect, what ought one to do in the decision of the questions which may be presented by them? For myself I do not see any other means than these.’®> He then proceeds to lay down these rules: (1) First, to follow the general principles, which declare that the person should be affected by the state and condition which his domicil gives him. (2) Secondly, not to derogate from these principles, except when the spirit of justice and neces- sity of not injuring the rights of parties requires that it should be departed from. (8) Thirdly, not to impair these principles, 1 Ante, s. 57; 2 Boullenois, obs. 32, p. 10, 11, 18, 19. 2 2 Boullenois, obs. 32, p. 10, 11, 19. 3 Id. p. 11. * Tbid. 5 Td. p. 12. 92 CONFLICT OF LAWS. [s. 71-73. when otherwise the law furnishes the means of remedying any wrong which the change of domicil might cause.1_ Or, in other words, he affirms: first, that the law of the domicil ought gene- rally to be followed as to the state and condition of the persons; secondly, that it ought not to be derogated from, except so far as the spirit of justice, and the necessity of not injuring the rights of parties, require a departure; thirdly, that the general rule ought not to be impaired, when the law will otherwise furnish means to remedy any injury which the change of domicil may occasion.2 He goes on to declare what he supposes to be per- fectly consistent with this doctrine, that when a person in the domicil of his birth (domicilium originis) has arrived at the age of majority, and he afterwards removes to another place, where, at the same years he would still be a minor, the law of the domi- cil of his birth ought to prevail. For instance, if a person who by the law of the domicil of his birth is of age at twenty removes to another place after that age, where the minority extends to twenty-five years, he does not lose his majority, and become a minor, in his new domicil.4 And on the other hand, if the same person is a minor by the law of the place of his birth, and not so by that of his new domicil, his state of minority continues not- withstanding his removal. He deduces the former from the injustice which he supposes would follow from reducing a per- son of majority in the domicil of his birth to a state of minority upon a change of domicil, so that thereby he is not of an age sufficiently mature to contract, or to sell, or to alienate property. The latter he seems to ground upon a like inconvenience of al- lowing a man thus to escape from the disabilities of a minority in the place of his birth by a mere change of. domicil.6 This however is but changing the postures of the case. For Boulle- nois himself does not hesitate to declare the general principle to be incontestable that the law of the actual domicil decides the state and condition of the person; so that a person by changing his domicil changes at the same time his condition.? And he is compelled to admit that while he has Froland and Maillaud in support of his opinion, Lauterback and Burgundus and Roden- burg are against him. Perhaps a better illustration of the 11d. p. 12, 13. ? 2 Boullenois, obs. 32, p. 11-13, 19; ante, s. 57. 3 Id. p. 12. 4 Id. p. 12, 19, 20. 5 Id. 6 Td. 7 2 Boullenois, obs. 32, p. 13 ; ante, s. 57. 8 Id. p. 19, 20. CHAP. IV.] CAPACITY OF PERSONS. 93 intrinsic difficulties of laying down any general rules for all cases could not well be imagined; for Boullenois himself, as we have seen, holds laws respecting the majority and minority of age to be laws affecting the state and condition of persons, and, as such, governed by the law of the domicil; and yet, in this instance, he rejects the natural inference from this doctrine.! 72. The reason given by those civilians who hold the opinion that the law of the domicil of birth ought in all cases to prevail over the law of the place of the actual domicil in fixing the age of majority, and that it remains unalterable by any change of domicil, is, that each state or nation is presumed to be the best capable of judging from the physical circumstances of climate or otherwise, when the faculties of its citizens are morally or civilly perfect, for the purposes of society. And with respect to cases of lunacy, idiocy, and prodigality, it is supported by them upon the general argument from inconvenience, and the great confu- sion and mischief which would arise from the same person being considered as capable to contract in one place, and incapable in another ; so that he might change his civil character and. capacity with every change of his domicil.2 There may perhaps be a solid ground of argument in favor of giving a universal opera- tion in all other countries to certain classes of personal incapa- cities, created by the law of the domicil of the party; but it will be difficult to maintain that the same reasoning does or can apply with equal force in favor of all personal incapacities, or that the law of the domicil of birth ought to prevail over the law of the actual domicil. And even in relation to those personal incapacities which are supposed most easily to admit of a general application, it is by no means so clear that the argument from inconvenience is not equally strong on the other side. 73. The truth however seems to be that there are, properly speaking, no universal rules by which nations are or ought to be morally or politically bound to each other on this subject. Each nation may well adopt for itself such modifications of the 1 1 Boullenois, Princ. Gén. 8, 10, 11, 17, 18; Id. obs. 4, p. 51, 52. : 2 Henry on Foreign Law, p. 5, 6 ; Rodenburg, tit. 1, . 3, n. 4; 2 Boullenois, Appx. p. 8. 3 See 1 Burge, Col. & For. Law, pt. 1, ¢. 4, p. 129-1384. 94 CONFLICT OF LAWS. [s. 73-75. general doctrine as it deems most convenient, and most in har- mény with its own institutions and interests and policy. It may suffer the same rule as to the capacity, state, and condition of foreigners to prevail within its own territory, as does prevail in the place of their own native or acquired domicil; and it may at the same time refuse to allow any other rule than its own law to prevail within its own territory in respect to the capacity, state, and condition of its own subjects, wherever they may reside, at home or abroad. It may adopt a more limited doctrine, and re- cognize the law of the domicil both as to foreigners and as to its own subjects, in respect to transactions and property in that domi- cil, whether native or acquired, and at the same time exclude any operation except of its own law, as to the transactions and property either of foreigners or of its own subjects within its own territory. It may adopt the more general doctrine, and allow the rule of the actual domicil, as to capacity, state, and condition, to prevail under every variety of change of domicil; or, on the other hand, it may adhere to the stricter doctrine that the domicil of birth shall exclusively furnish the rule to govern in all such matters. But whatever rules it may adopt, or whatever it may repudiate, will be alike the dictate of its own policy and sense of justice ; and whatever it may allow or withhold will always be measured by its own opinion of the public convenience and benefit, or of the public prejudice and injury resulting therefrom. Pro- bably the law of the actual domicil (domicilium habitationis) will be found in most cases to furnish the most safe, convenient, and least prejudicial rule, at least in regard to transactions and pro- perty out of the country of the birth of the party (domicilinm originis).! _ As to transactions and property within the country of his birth, the policy of most nations will naturally incline them to hold their own laws conclusive over their own sub- jects, wherever they may be domiciled, so far as regards their minority and majority, and their other capacity or incapacity to do acts. 74, Illustrations may be easily found to confirm these re- marks in the actual jurisprudence of many countries. Thus, as we have seen,? Pardessus, while he contends that the law of France as to personal capacity and incapacity generally, ought to 1 See 1 Burge, Col. & For. Law, pt. 1, ¢. 4, p. 129-184. 2 Ante, s. 68. CHAP, Iv.] CAPACITY OF PERSONS. 95 prevail as to French subjects, wherever they reside, abroad or at home, at the same time admits that it ought not to govern in re- lation to certain particular disabilities. Thus he thinks that the law of France, which forbids nobles or persons of official dignity to sign bills of exchange or other engagements, by which the bo- dies of the parties are liable to an.arrest for a breach of the contract, ought not to extend to the like acts of the same persons done in other countries.’ For although it may be urged that it is a per- sonal law, which follows the person everywhere, as in the case of a minor, or of a married woman under the marital power, and every person is bound to know the state and condition of the person with whom he contracts, yet he contends that the rule ought not to be applied except to the universal state of the per- son, such as that of a minor or a major, or of a woman subject to, or free from, the marital power. For, he adds, all nations agreed in fixing the capacity to contract to a certain age, and in placing women in dependence upon their husbands.2- Every one will at once perceive how exceedingly loose the distinction is for which Pardessus contends, and how unsatisfactory his reasoning by which this exception is attempted to be maintained. The objec- tion to the reasoning is, that, if well founded, the argument from inconvenience would carry it much further ; and persons dealing with others may require proof of their majority, or of their special authority to contract if they are minors, or whether they are mar- ried or not; and in both cases may guard against false statements by requiring a guaranty. On the contrary, these special prohibi- tions, on account of a certain quality or dignity, are more arbitrary. They are founded less in general public utility, and ought not, therefore, to be invoked in aid of the party. At least, the excep- tion ought not to be admitted, except between subjects of the same state, or unless the incapacity of the person, and the nullity of the obligation by the law, were known at the time of the con- tract by the other party. 75. Rule in Louisiana.— Now it so happens that what Par- dessus (and many other jurists are certainly of the same opinion) supposed to be very clear doctrine, has been directly overturned, and the contrary doctrine has been held by the Supreme Court of 1 Pardessus, de Droit Commercial, vol. 5, art. 1483, p. 250. 2 Pardessus, vol. 5, pt. 6, tit. 7, c. 2,s. 1, art. 1483, p. 250; Henry on Foreign Law, Appx. 222. 3 Thid. 96 CONFLICT OF LAWS. [s. 75, 76. Louisiana. That court, in a very learned opinion, have said: ‘The writers on this subject, with scarcely an exception, agree that the laws or statutes which regulate minority and majority, and those which fix the state or condition of man, are personal statutes, and follow and govern him in every country. Now, supposing the case of our law fixing the age of majority at twen- ty-five, and the country in which a man was born and lived previous to his coming here, placing it at twenty-one, no objec- tion could perhaps be made to the rule just stated. And it may be, and, we believe, would be true that a contract, made here at any time between the two periods already mentioned, would bind him. But, reverse the facts of this case ; and suppose, as is the truth, that our law placed the age of majority at twenty-one; that twenty-five was the period at which a man ceased to be a minor in the country where he resided; and that, at the age of twenty-four, he came into this state, and entered into contracts ; would it be permitted that he should in our courts, and to the demand of one of our citizens, plead, as to protection against his engagements, the laws of a foreign country, of which the people of Louisiana had no knowledge? And would we tell them that ignorance of foreign laws in relation to a contract made here was to prevent him from enforcing it, though the agreement was bind- ing by those of their own state? Most assuredly we would not.’ ? 76. The case first put seems founded upon a principle en- tirely repugnant to that upon which the second rests. In the former case, the law of the place of the domicil of the party is allowed to prevail, in respect to a contract made in another coun- try ; in the latter case, the law of the place where the contract is made, is allowed to govern, without any reference whatsoever ? Saul v. His Creditors, 5 Mart. N.S. (La.) 596-598. The opinion of the court was delivered by Mr. Justice Porter. See also Andrews v. His Credi- tors, 11 La. 464, 476. A like doctrine was held by the same court in another case. The court on that occasion said: ‘A foreigner coming into Louisiana, who was twenty-three years old, could not escape from a contract with one of our citizens, by averring that, according to the laws of the country he left, he was not a major until he reached the age of twenty-five.’ Baldwin »v. Gray, 4 Mart. N.S. (La.) 192, 198. See also Fergusson on Divorce, Appx. p. 276- 363; post, s. §2. Hertius, de Collisione, tom. 1, s. 4, n. 5, p. 120, 121; Id. p- 173, 174, ed. 1716. Grotius seems to have been of opinion that the lex loci contractus ought to govern in cases of minority. Grotius, b. 2, ce. 11, 8. 5. CHAP. Iv.] CAPACITY OF PERSONS. 97 to the law of the domicil of the party. Such a course of decision certainly may be adopted by a government if it shall so choose. But then it would seem to stand upon mere arbitrary legislation and positive law, and not upon principle. The difficulty is in seeing how a court, without any such positive legislation, could arrive at both conclusions. General reasoning would lead us to the opinion that both cases ought to be decided in the same way, that is, either by the law of the domicil of the party, or by that of the place where the contract is actually made. Many foreign jurists maintain the former opinion,! some the latter.2 Perhaps 1 See Livermore, Dissert. s. 17, p. 32, tos. 56, p. 57. Mr. Livermore denies this doctrine of the Supreme Court of Louisiana to be correct, and has collected in the place cited the leading authorities in favor of the doctrine, which he contends is the true one, that the law of the domicil of the person ought universally to prevail, as to his personal capacity or incapacity. Among the authorities in its favor, he enumerates D’Argentré, Bartolus, Rodenburg, Jason, and Paolo da Castro, Livermore, Dissert. s. 21, p. 84. D’Argentré, Comm. Leg. Briton. art. 218 (gloss. 6, n. 47, 48), says: ‘ Quotiescunque de habilitate aut infhabilitate personarum queratur, toties domicilii leges et statuta spectanda. Nam de omni personali negotio, judicis ejus cognitionem esse, cui persona subsit, ut quocunque persona abeat, ad jus sit, quod ille sta- tuerit.’? Bartolus putz the case, whether, if a filius-familias (an unemanci- pated son) is allowed by the local law to make a testament, a foreign filius- familias can in the same place make a valid testament; and he answers in the negative. ‘Dico quod non; quia statuta non possunt legitimare personam sibi non subditam, nec circa ipsam personam aliquid disponere.’ Bartolus, ad Cod. 1, 1, 1, n. 25, 26. Da Castro (as cited in D’ Argentré, ubi supra) says, that a statute of Modena, permitting minors to contract at fourteen years of age, will not make valid a contract at Modena by a minor of that age belong- ing to Bologna. ‘ Ratio est, quia hic abstracte de habilitate persone, et uni- versali ejus statu queratur, ideoque persona a statuto doniicilii efficiatur.’ Livermore, Dissert. s. 21, p. 34, 35, s. 25, p. 87. Burgundus, Christineus, Grotius, and De Wesel appear to hold the same opinion. See Voet, ad Pand. 1, 4, pt. 2, n. 7; Burgundus, Tract. 1, n. 8,34. Rodenburg is still more full to the same point. Rodenb. de Diversit. Statut. tit. 2,c. 1, n. 1; 2 Boullenois, Appx. p. 11, cited also Livermore, Dissert. s. 31, p. 40, 41. See also Hertii, Opera, tom. 1, De Collis. s. 4, n. 8. 2 Mr. Livermore says that Huberus alone is in favor of the latter opinion. I draw the conclusion that P. Voet (Voet, de Statut.s. 4, c. 2, n. 6, p. 187, 138, ed. 1661) and J. Voet (Voet, ad Pand. 1, 4, pt. 2,n. 7) entertain the same opinion. There are probably many other jurists who are on the same side. It is very certain that the rule, that either the law of the domicil of origin, or the law of the actual domicil, or even the law of the lex loci con- tractus, is to govern in all cases, has never been adopted in the English courts. The rule of the actual domicil or the place of the contract has been admit- ted generally; but does not, as we shall presently see, universally govern. Mr. Burge has propounded the same doctrine as the Supreme Court of Louisi- ana, and said: “In a conflict between the personal law of the domicil and 7 98 CONFLICT OF LAWS. [s. 76, 77. it is not very easy to decide which rule would, on the whole, be most convenient for any nation to adopt. It may be said that he who contracts with another ought not to be ignorant of his con- dition: ‘Qui cum alio contrahit, vel est, vel esse debet, non igna- rus conditionis ejus.’! But this rule, however reasonable in its application to the condition of a person as fixed by the law of the country where he is domiciled, is not so clear in point of conve- nience or equity when applied to the condition of a person as fixed by the law of a foreign country. How are the inhabitants of any country to ascertain the condition of a stranger dwelling among them, as fixed by the law of a foreign country where he was born or had acquired a new domicil? Even courts of justice do not assume to know what the laws of a foreign country are, but re- quire them to be proved. How then shall private persons be presumed to have better means of knowledge? On the other hand, it may be said with great force that contracts ought to be governed by the law of the country where they are made, as to the competence of the parties to make them, and as to their validity ; because the parties may well be presumed to contract with reference to the laws of the place where the contract is made and is to be executed. Such a rule has certainty and sim- plicity in its application. It ought not therefore to be matter of surprise if the country of the party’s birth should hold such a contract valid or void, according to its own law, and that never- theless the country where it is made and to be executed should the personal law of another place at variance with it, that of the domicil pre- vails. But the preceding rule admits of some qualification. It is not to be applied when it would enable a person to avoid a contract which he was com- petent to make by the personal law of the place in which he made it, although he was incompetent by the personal law of his domicil. Thus, if a person whose domicil of origin was in Spain, where he does not attain his majority until his twenty-fifth year, should, at the age of twenty-three, enter into a contract in England, or any other place where his minority ceases at twenty- one, he would not be pérmitted to avoid his contract by alleging that he was a minor, and incompetent to contract, according to the law of Spain. The maxim, that every man is bound to know the laws of a country in which he enters into a contract is of universal application, and is perfectly just and reasonable because it is in his power to obtain that knowledge; but the maxim, “Qui cum alio contrahit, vel est, vel debet esse non ignarus condi- tionis ejus,’ cannot be applied to those cases in which the condition depends on facts and law to which he is a perfect stranger. 1 Burge, Col. & For. Law, pt. 1, ¢. 4, p. 27, 28. See post, s. 79-82. 1 Dig. 50,17, 19. See Livermore, Dissert. p. 38. CHAP. IV.] CAPACITY OF PERSONS. 99 hold it valid or void, according to its own law. It has been well observed by an eminent judge, that ‘ with respect to any ignorance arising from foreign birth and education, it is an indispensable rule of law, as exercised in all civilized countries, that a man who contracts in a country engages for a competent knowledge of the law of contracts in that country. If he rashly presumes to contract without such knowledge, he must take the incon- veniences resulting from such ignorance upon himself, and not attempt to throw them upon the other party, who has en- gaged under a proper knowledge and sense of the obliga- tion which the law would impose upon him by virtue of that engagement.’ } TT. In another case, decided at an earlier period, the Supreme Court of Louisiana adopted the doctrine that the laws of the domi- cil of origin ought to govern the state and condition of the party, whether as major or as minor, into whatever country the party removes. But the decision may perhaps be thought to rest on its own peculiar circumstances. The case was this. The plaintiff in the suit (a female) was born in Louisiana in 1802, and the laws of the state at that time fixed the age of majority at twenty-five years. In the, year 1808 the period of majority in the state was altered to twenty-one years. The plaintiff in 1827 (when the suit was brought) was, and for several years before had been, a Spanish subject and a resident in Spain, where minority does not cease until twenty-five years, The suit having been brought by her to recover her share in the succession to her grandmother, in the courts of Louisiana, before she was twenty-five, the question arose whether she was competent to maintain the suit; and that turned upon another question, whether she was to be deemed a minor or not, The'court upon that occasion decided that she was to be deemed a major, as she was then over twenty-one years of age, although not twenty-five. Mr. Justice Porter, in delivering the opinion of the court, said: * The general rule is, that the laws of the domicil of origin govern the state and condition of the minor ° into whatever country he removes. The laws of Louisiana there- fore must determine at what period the plaintiff became of age; and by them she was a major at twenty-five. Admitting that her removal into another country, before the alteration of our law, 1 Lord Stowell, in Dalrymple v. Dalrymple, 2 Hagg. Cons. 61; ante, s. 75; post, s. 82. 100 CONFLICT OF LAWS. [s. 77-79. would exempt her from its operation, and that her state and con- dition were fixed by the rules prevailing in the place where she was born at the time she left it, a point by no means free from difficulty, no proof has been given that the plaintiff was taken out of Louisiana before the change made in 1808. And as the defendant, by pleading the minority, assumed the affirmative, it was her duty to establish the fact on which the exception could be sustained’! The question therefore did not here arise as to the effect of any contract made in Louisiana (as in the preceding case), but the simple question of the state of minority or majority, or the competency of the party to maintain a suit in her own name, as being sui juris. The court seem to have acted upon the general doctrine that the capacity of the party did not depend upon her actual domicil, but upon the law of her domicil of origin. But it is difficult to perceive why the same rule should not apply to a case of contract, arising under the like circumstances ; since the capacity or incapacity to contract would depend upon the very point, whether the law of the actual domicil, or that of the domi- cil of origin, or that of the place of the contract, ought to govern in respect to capacity or incapacity. And if the same rule would apply, it is not easy to reconcile this with the preceding doctrine, unless upon the ground that the courts of the native domicil ought to follow their own law as to minority and majority in all cases, in preference to any other. 78. There is an earlier case in the same court, in which it seems to have been incidentally stated that, according to the law of nations, ‘ personal incapacities, communicated by the laws of any particular place, accompany the person wherever he goes. Thus he who is excused from the consequences of contracts for want of age in his country cannot make binding contracts in another.’*(a) This doctrine is certainly at variance with that maintained by the same court at other and later periods. It is somewhat curious that it was avowed in the case of what is calleda runaway marriage, celebrated at Natchez in Mississippi, between a young man and a young woman, a minor of thirteen years of age, 1 Barrera v. Alpuente, 6 Mart. N.S. (La.) 69. 2 Le Breton v. Fouchet, 3 Mart. (La.) 60, 70; post, s. 180. ® Saul v, His Creditors, 5 Mart. N.S. (La.) 597, 598; Baldwin ». Gray, 4 Mart. N.S. (La.) 192, 198. (a) See also Kelly v. Davis, 28 La. An. 773. CHAP. IV.] CAPACITY OF PERSONS. 101 both of them being at the time domiciled in Louisiana, without the consent of her parents; and which marriage would seem to have been void without such consent, by the law of Louisiana, if cele- brated in that state. It was not however the main point in the case; and the decision itself was placed, as we shall hereafter see, upon a far broader foundation.! 19. English Decisions. — Marriage. — In respect to contracts of marriage, the English decisions have established the rule that a foreign marriage valid according to the law of the place where cele- brated, is good everywhere else.2(a) But these decisions have not, e converso, established that marriages of British subjects, not good according to the law of the place where celebrated, are uni- versally, and under all possible circumstances, to be regarded as invalid in England? On the contrary, Lord Stowell has decided that a marriage had under peculiar circumstances at the Cape of Good Hope, during British occupation, was valid, although not in conformity to the Dutch law, which was then in force there.* In that case, the husband (an Englishman) was a person entitled by the laws of his own country to marry without the consent of parents or guardians, he being of the age of twenty-one; but by the Dutch law he could not marry without such consent until he was thirty years of age. The lady (an Englishwoman) was under the age of nineteen, her father was dead, her mother had 1 Post, s. 180. 2 Ryan v. Ryan, 2 Phillim. Ecc. 332; Herbert v. Herbert, 3 Phillim. Ecce. 58; 2 Hagg. Cons. 263, 271; Lacon v. Higgins, 3 Stark. 178; D. & R. N. P. C. 38. See Smith v. Maxwell, Ry. & M. 80. 8 Ruding v. Smith, 2 Hagg. Cons. 390, 391; Hartford v. Morris, 2 Hagg. Cons. 432; post, s. 79, note 1; s. 118, 119. * Ruding v. Smith, 2 Hagg. Cons. 371. valid everywhere. It does not follow however that it is lawful for a man (a) The word marriage signifies sometimes the ceremony of marriage, sometimes the union in matrimony which the ceremony is intended to effect. See Harvey v. Farnie, 6 P. D. p. 47; Campbell v. Crampton, 2 Fed. R. p. 424. The English decisions referred to in this and the succeeding sections of the text relate only to the ceremony of marriage. They esta- blish that if the ceremony is in ac- cordance with the law of the place where it is performed, it is deemed and woman to be united in maitri- mony because it is lawful in the place where the ceremony is performed. The union involves a change of status, and status generally depends on the law of the domicil. Other English decisions establish that the lawfulness of their being united is to be deter- mined by the law of the domicil. See note, s. 124 a, post. 102 CONFLICT OF LAWS. [s. 79, 80. married a second husband, and she had no guardian. (a) Upon that occasion Lord Stowell said: ‘ Suppose the Dutch law had thought fit to fix the age of majority at a still more advanced period than thirty, at which it then stood —at forty —it might surely be a question in an English court, whether a Dutch mar- riage of two British subjects, not absolutely domiciled in Holland, should be invalidated in England upon that account; or, in other words, whether a protection, intended for the rights of Dutch parents, given to them by the Dutch law, should operate to the annulling a marriage of British subjects, upon the ground of pro- tecting rights which do not belong in any such extent to parents living in England, and of which the law of England could take no notice, but for the severe purpose of this disqualification. The Dutch jurists, as represented in this libel, would have no doubt whatever that this law would clearly govern a British court. But a British court might think that a question not unworthy of fur- ther consideration before it adopted such a rule for the subjects of this country. . . . In deciding for Great Britain upon the mar- riages of British subjects, they [the Dutch jurists] are certainly the best and only authority upon the question, whether the mar- riage is conformable to the general Dutch law of Holland ; and they can decide that question definitely for themselves and for other countries. But questions of a wider extent may lie beyond this: whether the marriage be not good in England, although not conformable to the general Dutch law, and whether there are not principles leading to such a conclusion? Of this question, and of those principles, they are not the authorized judges; for this question and those principles belong either to the law of England, of which they are not the authorized expositors at all, or to the jus gentium, upon which the courts of this country may be sup- posed as competent as themselves, and certainly, in the case of British subjects, much more appropriate judges.’ ! 1 Ruding v. Smith, 2 Hagg. Cons. 389, 390; post, s. 118, 119. That there are other cases excepted from the operation of foreign law seems to have been directly held by Sir George Hay, in Harford ». Morris, 2 Hagg. Cons. 423. He there said: “ I do not mean that every domicil is to give jurisdiction toa foreign country, so that the laws of that country are necessarily to obtain and (2) The marriage in this case obtaining any marriage conformable (Ruding v. Smith, 2 Hagg. Cons. to the Dutch law. See Dicey on Do- 371, 391, 394) was held valid on ac- micil, 201, 209-211; Westlake (ed. count of the insuperable difficulties of 1880), 57. : CHAP. IV.] CAPACITY OF PERSONS. 103 80. WSerimshire v. Scrimshire.—In another case, where two British subjects, being minors, and in France, solely for purposes of education, intermarried, it was held by the court that the mar- riage, being void by the law of France, was a mere nullity.! (a) The court (Sir Edward Simpson) said: ‘The question before me is not, whether English subjects are to be bound by the law of France; for undoubtedly no law or statute in France can bind subjects of England who are not under its authority; nor is the consequence of pronouncing for or against the marriage, with respect to civil rights in England, to be considered in determining this case. The only question before me is, whether this be a good or bad marriage by the law of England? and I am inclined to think that it is not good. On this point I apprehend that it.is the law of this country to take notice of the laws of France, or of any foreign country, in determining upon marriages of this kind. The question being in substance this, whether, by the law of this country, marriage contracts are not to be deemed good or bad according to the laws of the country in which they are formed ; and whether they are not to be construed by that law? If such be the law of this country, the rights of English subjects cannot be said to be determined by the laws of France, but by those of their own country, which sanction and adopt this rule of decision. By the general law, all parties contracting gain a forum in the place where the contract is entered into. All our books lay this down for law; it is needless at present to mention more than one. Gayll, lib. 2, obs. 123, says, ‘In contractibus locus contractus considerandus sit. Quoties enim statutum principaliter habilitat, vel inhabilitat contractum, quoad solemnitates, semper attenditur locus, in quo talis contractus celebratur, et obligat etiam non subditum.” And again, lib. 2, obs. 36, “‘ Quis forum in loco con- tractus sortitur, si ibi loci, ubi contraxit, reperiatur; non tamen ratione contractus, aut ratione rei, quis subditus dicitur illius loci, attach upon a marriage solemnized there. For what would become of our factories abroad, at Leghorn or elsewhere, where the marriage is only by the law of England, and might be void by the law of that country? Nothing will be admitted in this court to affect such marriages, so celebrated, even where the parties are so domiciled.’’ Id. 482. 1 Scrimshire v. Scrimshire, 2 Hagg. Cons. 395. (a) This marriage was declared shire v. Scrimshire, 2 Hagg. Cons. void because the ceremony was not 395. according to the French laws. Scrim- 104 CONFLICT OF LAWS. [s. 80, 80 a. ubi contraxit, aut res sita est; quia aliud est forum sortiri, et aliud subditum esse. Constat unumquemque subjici jurisdictioni judicis, in eo loco in quo contraxit.” This is according to the text law, and the opinion of Donellus and other commentators. There can be no doubt, then, but that both the parties in this cause, though they were English subjects, obtained a forum, by virtue of the contract, in France. By entering into the marriage there, they subjected themselves to have the validity of it determined by the laws of that country.’! And he afterwards proceeded to add: ‘This doctrine of trying contracts, especially those of marriage, according to the laws of the country where they were made, is conformable to what is laid down in our books, and what is prac- tised in all civilized countries, and what is agreeable to the law of nations, which is the law of every particular country, and taken notice of as such.’ ? 80 a. The learned judge proceeded to cite the opinions of civilians to the same precise effect ; and he afterwards concluded with these remarks: ‘Why may not this court then take notice of foreign laws, there being nothing illegal in doing it? From the doctrine laid down in our books — the practice of nations — and the mischief and confusion that would arise to the subjects of every country from a contrary doctrine, I may infer that it is the consent of all nations, that it is the jus gentium, that the solemni- ties of the different nations with respect to marriages should be observed, and that contracts of this kind are to be determined by the laws of the country where they are made. If that principle is not to govern such cases, what is to be the rule where one party is domiciled and the other not? The jus gentium is the law of every country, and is obligatory on the subjects of every country. Every country takes notice of it; and this court ob- serving that law in determining upon this case cannot be said to determine English rights by the laws of France, but by the law of England, of which the jus gentium is part. All nations allow marriage contracts; they are “‘juris gentium,” and the subjects of all nations are concerned in them; and from the infinite mischief and confusion that must necessarily arise to the subjects of all nations with respect to legitimacy, successions, and other rights, 1 Scrimshire v. Scrimshire, 2 Hagg. Cons. 407, 408. See Kent v. Burgess, 11 Sim. 361. ? Scrimshire v. Scrimshire, 2 Hagg. Cons. 412. CHAP. IV.] CAPACITY OF PERSONS, 105 if the respective laws of different countries were only to be observed, as to marriages contracted by the subjects of those countries abroad, all nations have consented, or must be presumed to consent, for the common benefit and advantage, that such mar- riages should be good or not, according to the laws of the country where they are made. It is of equal consequence to all that one rule in all these cases should be observed by all countries — that is, the law where the contract is made. By observing this law no inconyenience can arise; but infinite mischief will ensue if it is not.? *Again—If countries do not take notice of the laws of each other with respect to marriages, what would be the conse- quence if two English persons should marry clandestinely in England, and that should not be deemed a marriage in France ? Might not either of them, or both, go into France and marry again, because by the French law such a marriage is not good? And what would be the confusion in such a case? Or again — Suppose two French subjects, not domiciled here, should clandes- tinely marry, and there should be a sentence for the marriage ; undoubtedly the wife, though French, would be entitled to all the tights of a wife by our law. But if no faith should be given to that sentence in France, and the marriage should be declared null, because the man was not domiciled, he might take a second wife in France, and that wife would be entitled to legal rights there, and the children would be bastards in one country, and legitimate in the other. So that, in cases of this kind, the matter of domi- cil makes no sort of difference in determining them, because the inconvenience to society and the public in general is the same, whether the parties contracting are domiciled or not. Neither does it make any difference whether the cause be that of contract or marriage; for if both countries do not observe the same law, the inconveniences to society must be the same in both cases. And as it is of consequence to the subjects of both countries, and to all nations, that there should be one rule of determining in all nations on contracts of this kind, it is to be presumed that all nations do consent to determine on these contracts, by the laws of the country where they are made; as such a rule would prevent all the inconveniences that must necessarily arise from judging by different laws, and is attended by no manner of 1 Scrimshire v. Scrimshire, 2 Hagg. Cons. 416, 417. 106 CONFLICT OF LAWS. [s. 80 a—82 a. inconvenience, but is for the advantage of the subjects of all nations.’ ! ; 81. Dalrymple v. Dalrymple: — Here then we have a doctrine laid down as the rule of the jus gentium, at least, as it is under- stood and recognized in England, in regard to contracts gene- rally, and especially in regard to contracts of marriage, very different from the rule which we have seen laid down by many foreign jurists, that the law of the domicil of origin, or the law of the actual domicil, is of universal obligation as to the capacity, state, and condition of persons.2 The same doctrine has been formally promulgated upon other occasions by the English courts.2 In a grave case of extraordinary interest,* which turned upon the validity of a Scotch marriage, where one of the parties was an English minor, Lord Stowell said: ‘ Being entertained in an English court, it [the case then before him] must be adjudicated according to the principles of English law applicable to such a case. But the only principle applicable to such a case by the law of England is, that the validity of Miss Gordon’s [the plaintiff's] marriage rights must be tried by refe- rence to the law of the country where, if they exist at all, they had their origin.’ ® (a) 82. Contracts of Minors.— Male v. Roberts.—In regard to other contracts made by minors, a similar rule has prevailed. In a case where money had been advanced for a minor during his stay in Scotland, who seems to have had his general domicil in England, it was held by Lord Eldon that the question, whether in an English court a recovery could be had for the money so advanced, de- pended upon the law of Scotland; for the general rule was that the law of the place where the contract is made must govern the contract. This also seems to be a just inference from the doc- ¥ Scrimshire v. Scrimshire, 2 Hagg. Cons. 418, 419. See Lord Meadow- bank’s Opinion, Fergusson on Mar. and Divorce, Appx. p. 361, 362. 2 Ante, s. 51-68. 3 Birtwhistle v. Vardill, 5 B. & C. 488, 452, 453. * Dalrymple v. Dalrymple, 2 Hage. Cons. 54. 5 Id. 58, 59; Kent v. Burgess, 11 Sim. 361. See also Conway v. Beazley, 8 Hagg. Ecc. 639; Middleton v. Janverin, 2 Hagg. Cons. 487, 446. ® Male v. Roberts, 8 Esp. 163. See also, Thompson v. Ketcham, 8 Johns. (a) In this case the marriage was tion was whether the form of contract- contracted in Scotland according to ing marriage was valid. Dalrymple the law of Scotland, without any re- ». Dalrymple, 2 Hagg. Cons. 54. ligious celebration. The only ques- CHAP. IV.] CAPACITY OF PERSONS. 107 trine maintained by Lord Stowell in the case of a contract of marriage.! (a) 82 a. Foreign Jurists. — Upon this point there is a diversity of opinion among foreign jurists? Some of them are strongly in- clined to act upon the doctrine of the Roman law as applicable to this subject. ‘Aut si non appareat, quid actum est, erit con- sequens, ut id sequamur, quod in regione in qua actum est frequentatur.’? Dumoulin is supposed to have adopted this doctrine; but it is far from being certain that he intended by his language to embrace this case. ‘In concernentibus contractibus et emergentibus tempore contractus inspici debet locus, in quo contrahitur.’* Paul Voet puts the doctrine thus: ‘ Quid, si de contractibus proprie dictis, et quidem eorum solemnibus con- tentio; quis locus spectabitur? -An domicilii contrahentis, an loci, ubi quis contrahit. Respondeo affirmate. Posterius. Quia censetur quis semet contrahendo, legibus istius loci, ubi contrahit etiam ratione solemnium subjicere voluisse. Ut quemadmodum loci consuetudo subintrat contractum, ejusque est declarativa ; ita etiam loci statutum.’® From the other known doctrine of Paul Voet, that personal laws have no extra-territorial operation,’ we see at once that he meant to apply his statement to laws of per- sonal capacity and incapacity. It has been supposed that Chris- tinzus and Bartolus entertain a similar opinion. But their language does not necessarily lead to that conclusion, since the place of the contract, spoken of by them, may mean the place also of the domicil of origin of the minor.’ Grotius however is (N. Y.) 189; Grotius, lib. 2, c.11, 8.5. Seealso, Dalrymple v. Dalrymple, 2 Hagg. Cons. 60, 61; ante, s, 21, 25, p. 34, s. 75, note (1) 37. 1 Dalrymple v. Dalrymple, 2 Hagg. Cons. 61; ante, s. 80. 2 Post, s. 368. 2 Dig. 50, 17, 34; post, s. 270. 4 Molin, tom. 1, tit. 1, De feud. s. 12, gloss. 7, s. 37. In another’ place, Dumoulin says, after adverting to the fact, that personal laws affect subjects and not foreigners: ‘ Quamvis is, qui datus est tutor vel curator a suo compe- tenti judice sit inhabilitatus propter tutelam et curam, ubique locorum pro bonis ubicumque sitis. Quia non est in vim statuti solius, sed in vim juris communis, et per passivam interpretationem legis, que locum habet ubique.’ Molin, in Cod. 1,1, tom. 3, p. 556. See 1 Burge, Col. & For. Law, pt. 1,c, 3, 8. 8, p. 129, 180; post, s. 294; 1 Boullenois, obs. 23, p. 463, 464. 5 P, Voet, de Statut., s. 9, c. 2, n. 9, p. 823, ed. 1661; post, s. 261. ® P. Voet, de Statut., s. 4, c. 2, n. 6, p. 187, ed. 1661. 7 See the passages cited from these authors in 1 Burge, pt. 1, ¢. 4, p. 180; (a) See note, s. 102, post. 108 CONFLICT OF LAWS. [s. 82 a—84. more explicit to the purpose. ‘Leges civiles,’ says he, ‘justa ratione mote, quasdam promissiones pupillorum ac minorum irritas pronunciant. Sed hi effectus sunt proprii legis civilis, ac proinde cum jure nature ac gentium nihil habent commune ; nisi quod quibus locis obtinent, ibi eas servare naturale est. Que etiam si peregrinus cum cive paciscatur, tenebitur illis legibus ; quia qui in loco aliquo contrahit, tanquam subditus temporarius legibus loci subjicitur.’! 83. On the other hand, many foreign jurists, as we have seen, entertain a very different opinion on this very point of the capa- city of a person to contract in another country, when he is dis- abled, as a minor, by the law of his own country and domicil.? Thus it has been said by Da Castro, and approved by D’Argentré, that where the law of Modena enabled a minor of fourteen years of age to contract, that would not enable a minor of Bologna of the same age to make a valid contract at Modena. And Roden- burg asserts the same doctrine in the most emphatic terms, in which he is followed by Boullenois.* Christin. Decis. vol. 1, Decis. 183, p. 155; Bartolus, ad Cod. 1, 1,1, n. 13, 20; 2 Boullenois, obs. 46, p. 455, 456; post, s. 299. 1 Grotius, de Jure Belli, lib. 2, c. 11, s. 5. 2 Ante, s. 51-68. 3 D’Argentré, Comm. ad Leges Britonum, art. 218, gloss. 6, n. 47, 48, cited ante, s. 76, note, and also in Liverm. Dissert, p. 42, s. 833-56; 1 Froland, Meém. des Statuts, 112, 156, 159. 4 Rodenburg, de Div. Stat. tit. 2, c. 1, s.1; 2 Boullenois, Appx. p. 11; 1 Id. obs. 16, p. 200, 201, 204, 205; Bouhier, c. 23, n. 92; 1 Froland, Mém. p. 112, 159; 2 Froland, Mém. p. 1576-1582. The language of Rodenburg is: ‘ De quibus et consimilibus id juris est, ut quocunque se transtulerit persona statuto loci domicilii ita affecta, habilitatem aut inhabilitatem ademptam domi, circumferat ubique, ut in universa territoria suum statutum exerceat effectum. Apertius rem intuebimur in exemplis. Ultrajecti sui juris effici- untur qui vigesimum ztatis annum impleverint, apud Hollandos contra, ante vigesimum quintum rebus suis nemo intervenit. Apud utramque populorum nupta citra viri consensum a rebus gerendis arcetur. Jn regionibus, que jure Romanorum hic utuntur, commerciis gaudet uxor liberrime, potestati virili non supposita. Fac autem Ultrajactinum, qui vigesimum quintum ztatis annum necdum habuerit, contrahere in Hollandia: aut e contra Hol- landiz incolam vigesimum jam annum egressum. Ultrajecti: aut nuptam nostratem contrahere in regione juris scripti, aut e contra. Quocumque modo se casus habuerit, contrahentium erit respicere ad suum cujusque domicilii locum, impressamque ibidem persone: qualitatem, aut ademptam domi condi- tionem, cujus ignarus non sit oportet, qui cum alio volet contrahere. Quare Hollandiz incola major Ultrajecti, minor apud suos, contrahit apud nostrates invalide. Contra, Ultrajectinus lege domicilii major contrahit in Hollandia efficaciter, ut maxime ex more regionis istius rerum suarum necdum haberetur compos. Uxores domi sub maritorum potestate ita constitute, ut sine iis nec CHAP. IV.] CAPACITY OF PERSONS. 109 84. Bouhier, as we have seen,! holds to the doctrine that the capacity and incapacity by the law of the domicil extends to every other place,? but yet he is manifestly startled when it is applied to the case of marriages. He admits that in such cases it is commonly held that the law of the place where the marriage is celebrated ought to prevail. But he insists that such a rule ought not to be adopted in regard to persons who are both subjects of the same country, who designedly go to a foreign country and contract marriage there in order to evade the law of the country of their own domicil.t| He applies also similar considerations to the case of an unemancipated son or minor belonging to one country, who, finding a woman of his own country in a foreign country, marries her there, without the knowledge of his parents, holding that under such circumstance the marriage ought not to be held valid.® But he propounds as a case of more difficulty, where such a person going into a foreign country, without any intention of marrying, finds there a woman of his own country to his liking, whom he seeks in marriage and espouses. For if such a marriage is celebrated according to the usual formalities in that country, he deems it valid as being done in good faith, and affirms that the parties are not bound to follow the laws of their own country.6 D’Argentré states the general doctrine in the following manner: ‘ When the question is as to the right or capacity of any person to do civil acts generally, it is to be referred to the judge who exercises judicial functions in the place of his domicil ; that is to say, to whom his person is subject, and who has authority so to pronounce respecting him, so that whatever he shall promulgate, adjudge, or ordain respecting the rights of persons, ought to obtain and be of force in every place to which he may transfer himself, alienent nec contrahant, nullibi locorum hance incapacitatem exuunt. Cum mulieris contra juri scripto obnoxiz contractus, apud nos celebratus, consistat omnimodo. Et quidem si ad personales actus, contractus puta, persone appli- cetur habilitas, Argentrei, Burgundique (quos jure precipui hic semper nomiino), czterorumque scribentium placita sat consentiunt.’ See ante, s. 51. See also, Liverm. Dissert. s. 21, p. 84, to s. 84, p. 43; 2 Boull. Appx. 11. See also, Foelix, Conflit des Lois, Revue Etrangére et Francaise, tom. 7, s. 24, p- 204, to s. 26, p. 216. 1 Ante, s. 57 a. 2 Bouhier, Cout. de Bourg. c. 24, s. 11, p. 463; post, s. 123. 3 Td. c. 28, s. 50, 60, p. 556, 557. 4 Id. c. 28, s. 61, p. 557. 5 Td. c. 28, s. 62, p. 557. 6 Id. c. 28, s, 59-67, p. 558, 557; Id. c. 24, s. 11, p. 463. 110 CONFLICT OF LAWS. [s. 84-86, on account of this authority over the person.’ ‘Quare cum de persone jure aut habilitate queritur ad actus civiles, in universum ea judicis ejus potestas est, qui domicilio judicat, id est, cui. per- sona subjicitur, qui sic de eo statuere potest, ut quod edixerit, judicarit, ordinarit de personarum jure, ubicumque obtineat, co- cumque se persona contulerit, propter afficentium persone.” Froland asserts the same doctrine and expressly extends it to cases of contract. ‘Le statut personnel n’exerce pas seulement son autorité dans le lieu du domicile de la personne, qui sa dispen- sation la suit, et l'accompagne en quelque lieu qu'elle aille con- tracter; et qu’elle influe sur tous les biens sous quelques coutumes qu’ils soient assis.’ Mr. Henry, in his judicial capacity, has given the doctrine a like extent in the English colony of Demerara; for he declares that, in cases of prodigals, minors, idiots, and luna- tics, the law of the domicil accompanies the party everywhere.* Cochin lays down the doctrine with great boldness, that a marriage contracted in a foreign country by French subjects, although con- tracted in the form prescribed by the foreign law, is void if it vio- lates the laws of France. The subjects of the king of France, says he, are always his subjects. And the parties contracting at a place in Brabant have only that capacity to contract which is given by the laws of their own country. It is a personal statute which follows them everywhere5 __ 85. Huberus seems in some places to affirm a doctrine in some respects quite as extensive, although it is liable to be modified in some measure by the local law, while in other places he deems it too broad and indiscriminate, and introduces several exceptions. Thus, as we have seen, he lays it down as a general rule: ‘ Quali- tates personales certo loco alicui jure impressas, ubique circum- ferri et personam comitari, cum hoc effectu, ut ubivis locorum eo jure, quo tales persone alibi gaudent vel subjecti sunt, fruuntur, et subjiciantur.’® So that, according to Huberus, the state or 1 D’Argentré, de Leg. Briton, art. 218, gloss. 6, n. 4, p. 647; ante, s. 56; 1 Froland, Mém. des Statuts, 112; Liverm. Dissert. s. 21, p. 34. 21 Froland, Mém. des Statuts, 156-160; Id. 112; ante, s. 51 a. See also ae Opera, s. 4, n. 8, p. 123; Id. n. 5, p. 122, ed. 1787; Id. p. 171, 172, ed. i . 3 Henry on Foreign Law, p. 88, 89; Odwin v. Forbes, Id. p. 95-97. * Cochin, Euvres, tom. 1, p. 153, 154, 4to ed.; Id. tom. 3, p. 86, 8vo ed. 1821. 5 [bid. ® Huberus, de Conflictu Legum, lib. 1, tit. 8, s. 12, 18. CHAP. IV.] CAPACITY OF PERSONS. 111 condition of the party as to capacity or incapacity in the place of his original domicil accompanies him everywhere, so far and so far only, that the law of the place where he happens to be attaches to him so far as it touches rights or powers growing out of such capacity or incapacity. A minor, for example, in his own coun- try, is subject in every. other country to the laws of minority of the latter country. In regard to the contract of matrimony he holds that it is to be governed by the law of the place where the marriage is celebrated, with the exception however of cases of incest. ‘If,’ says he, ‘the marriage is lawful in the place where it is contracted and celebrated, it will be held valid and have effect everywhere, with this exception, that it does not create a prejudice to others. To which it may be added, if it is not of an evil example, as if it should be a case of incest within the second degree according to the law of nations.’ ‘Si licitum est eo loco, ubi contractum et celebratum est, ubique validum erit, affectum- que habebit sub eadem exceptione, prejudicii aliis non creandi. Cui licet addere, si exempli nimis sit abominandi, ut si incestum juris gentium in secundo gradu contingeret, alicubi esse permis- sum; quod vix est, ut usu venire possit.’! Huberus also puts another exception, where persons belonging to one country go into another to be married, merely to evade the law of their own coun- try, in which case he holds the marriage to be void, although it is good by the law of the place where it is celebrated.? ‘Sape fit, ut adolescentes sub curatoribus agentes, furtivos amores nuptiis conglutinare cupientes, abeant in Frisiam Orientalem, aliave loca, in quibus curatorum consensus ad matrimonium non requiretur, juxta leges Romanos, que apud nos hac parte cessant. Celebrant ibi matrimonium, et mox redeant in patriam. Ego ita existimo, hanc rem manifesto pertinere ad eversionem juris nostri; et ideo non esse magistratus heic obligatos, e jure gentium, .ejusmodi nuptias agnoscere et ratas habere. Multoque magis statuendum est eos contra jus gentium facere videri, qui civibus alieni imperii sua facilitate, jus patriis legibus contrarium, scientes, volentes, impertiuntur.’ ® 86. English law. — Marriage. — This latter doctrine has, upon the most solemn consideration, been overturned in England, as we shall hereafter see,* and such a marriage in evasion of the domestic 1 Huberus, lib. 1, tit. 3, s. 8; post, s. 122. 2 Thid. 8 Thid.; post, s. 123. 4 Post, 5.123, 124. See Kent, Com. 91, 92. 112 CONFLICT OF LAWS. ‘[s. 86-88. laws has been held valid. But we are not therefore to conclude that every marriage by and between British subjects in foreign countries will be held valid, because it is celebrated according to the laws of such countries. On the contrary, where the laws of England create a personal incapacity to contract marriage, that incapacity has, in some cases, been held to have a universal ope- ration, so as to make a subsequent marriage in a foreign country a mere nullity when litigated in a British court. 87. Legitimation per Subsequens Matrimonium.— Indeed the general principle adopted in England in regard to cases of this sort appears to be, that the lex loci contractus shall be permitted to prevail, unless when it works some manifest injustice, or is contra bonos mores, or is repugnant to the settled principles and policy of its own laws. An illustration of the general principle, and of the exception, may be found in the known difference be- tween the Scottish law and the English law on the subject of legitimation of antenuptial offspring. By the law of Scotland, illegitimate children become, by the subsequent marriage of the parents, legitimate, and may inherit as heirs. But the law of England is otherwise, and a subsequent marriage between the parents will not take away the character of illegitimacy. Upona recent occasion the question arose in an English court (the Court of King’s Bench), whether a person, born in Scotland of Scottish parents, who afterwards intermarried there, and thereby became legitimate in Scotland, could inherit real estate as a legitimate heir in England. It was held by the court that he could not2 On that occasion it was admitted by the court that a foreign mar- riage, however solemnized, if good by the foreign local law, ought to be held valid everywhere ; but that it did not follow from this, that all the consequences of such a marriage by such foreign local law. were to be adopted. On the other hand, that it was suf- ficient that all such consequences as follow from a lawful mar riage solemnized in England were admitted to govern in such cases.2 One of the learned judges on that occasion said: ‘The 1 Conway v. Beazley, 8 Hagg. Ecc. 639, 647, 652; Lolley’s Case, Russ. & Ry. 237. It will probably be found very difficult to maintain the doctrine in Lolley’s Case, and in subsequent discussions its authority has certainly been a good deal shaken. See Warrender v. Warrender, 9 Bligh, 89; and post, s. 117, 124, 221-281. ? Birtwhistle v. Vardill, 5 B. & C. 488; 9 Bligh, 32-88, ® Birtwhistle v. Vardill, 5 B. & C. 438; 9 Bligh. 32-88. This case was CHAP. IV.] CAPACITY OF PERSONS. 113 very rule, that a personal status accompanies a man everywhere, is admitted to have this qualification, that it does not militate against the law of the country where the consequences of that status are sought to be enforced.’ } 87a. Yet the law of foreign countries as to legitimacy is so far respected in England, that a person illegitimate by the law of his domicil of birth will be held illegitimate in England? Thus, it has been decided by the House of Lords, as a general doctrine, that the courts of the country where the lands lie, in a question respecting the heirship to these lands, ought to govern themselves as to the question of legitimacy, not by the law of the country where the lands lie, but by that of the country where the marriage of the parents was contracted and the child born; and if he is not the legitimate heir by that foreign law, his claim to the inheritance ought to be rejected.2 The natural conclusion from this doctrine would seem to be, that if he was the legitimate heir by that foreign law, his claim to the inheritance ought to be firmly es- tablished. Yet this conclusion has been pointedly repelled by the learned judges in the case already alluded to,¢ and which we shall have occasion to consider more fully hereafter.5 88. Dissolution of English Marriages. — Another illustration, touching the capacity of persons to contract marriage, may be stated from English jurisprudence. By the law of England mar- riage is an indissoluble contract, except by the transcendent power of parliament. Hence it has been held that a marriage once carried to the House of Lords by a writ of error, and there the question was propounded to the judges, who returned an answer affirming the decision of the King’s Bench. But the question has since been reargued, and the case has not as yet been finally decided by the House of Lords. See post, 8. 93. 1 Per Littledale, J., 5 B. & C. 455. 2 See Munro v. Saunders, 6 Bligh, 468; Shedden ». Patrick, and the Strathmore Peerage, cited in 5 B. & C. 444; in 3 Hagg. Ece. 652; in 6 Bligh, 474, 475, 487; and in 9 Bligh, 51, 52, 75, 76, 80, and reported in 4 Wils. & Shaw, Appx. 89-95. 3 See Shedden v. Patrick, and the case of the Strathmore Peerage, as cited in 9 Bligh, 51, 52, 75, 76, 80, 81. 4 Birtwhistle v. Vardill, 9 Bligh, 52, 53. I confess myself wholly unable to reconcile these latter decisions with the former. The attempt to reconcile them seems to me more ingenious than satisfactory. Lord Brougham’s com- ments on the subject, in Birtwhistle v. Vardill, 9 Bligh, 75, 80, 81, appear to me exceedingly forcible and difficult to be answered. Post, s. 93. 5 Post, 93, n. 8 114 CONFLICT OF LAWS. [s. 88-90. celebrated between British subjects in an English domicil cannot. be dissolved by a divorce obtained under the laws of a foreign country, to which the parties may temporarily remove.’ (2) Thus, for example, that an English marriage cannot be dissolved, under such circumstances, by a Scotch divorce, regularly obtained ac- cording to the law of Scotland by persons going thither for that purpose, who have their domicil in England And a second marriage in Scotland after such divorce will be unlawful, and will subject the parties to the charge of bigamy.* This doctrine however seems open to much controversy, and can scarcely now be held firmly established, if indeed it has not been overthrown by recent adjudications. Perhaps it yet remains an undecided question in the English law, as we shall hereafter see, whether bona fide change of domicil, and a divorce subsequently obtained, would change the legal predicament of the parties in an English tribunal.6 But it has been directly decided that the mere fact that the marriage takes place in England between British subjects will not, if the husband at that time has his domicil in Scotland, take away the right of the courts in Scotland to entertain jurisdiction to decree a divorce founded on such domicil.® But this subject will presently come more fully under consi- deration.’ 89. American Decisions. — Marriage.— In the American courts the dectrine as to capacity or incapacity to marry has been held to depend generally on the law of the place where the mar- riage is celebrated, and not on that of the place of domicil of the parties. (6) An exception would doubtless be applied to cases of incest and polygamy.’ But, in affirmance of the general principle, it has been held that if a person, divorced from his first wife, is rendered by the law of the place of the divorce incapable of con- tracting a second marriage, still, if he contracts marriage in an- other state, where the same disability does not exist, the marriage 1 Lolley’s Case, Russ. & Ry. 237. But see Warrender v. Warrender, 9 Bligh, 89; post, s. 219 a. ? See Rex v. Lolley, Russ. & Ry. 287; Tovey v. Lindsay, 1 Dow, 124; Con- way v. Beazley, 3 Hagg. Ecc. 639. See also, Fergusson on Marr. and Div. App. 269; Warrender v. Warrender, 9 Bligh, 89; post, s. 319 a. ® Ante, s. 88, n. 6. 4 Thid. 5 Tbid. 6 Ibid. 7 Post, c. 7, s. 200-231. 5 Post, s. 118, 114. (a) See post, s. 218-226. tion see the note to s. 102, and the note (0) Upon the subjects of this sec- at the end of s. 124 a, post. CHAP. IV.] CAPACITY OF PERSONS. 115 will be held valid (a) And a marriage, celebrated in a foreign state, to evade the law of the place of domicil, is on the same ac- count held valid? Mr. Chancellor Kent formerly laid down the doctrine in regard to contracts generally in terms which might admit of a different interpretation. He said: ‘The personal in- competency of individuals to contract, as in the case of infancy, and the general capacity of parties to contract, depend, as a gen- eral rule, upon the law of the domicil.’ But he was then to be understood as referring to the law of the domicil only when it is the place where the contract is made; for in the same paragraph he stated that the lex loci contractus governs in relation to the validity of contracts, and he applied it especially to nuptial contracts.* 90. Disabilities imposed by Foreign Laws. —The difficulty of applying any other rule, as to the capacity and incapacity of the person, in respect to the class of nuptial contracts, will become still more clear by attending to the great. extent of the parental 1 2 Kent Com. 91-93, 458, 459, 3d ed.; Putnam v. Putnam, 8 Pick. (Mass.) 433; West Cambridge v. Lexington, 1 Pick. (Mass.) 506; Decouche v. Save- tier, 3 Johns. Ch. (N. ¥.) 190; post, s. 123. 2 Thid. 8 2 Kent Com. 458, 2d ed.; post, s. 123. 4 2 Kent Com. 458, 2d ed.; and Decouche v. Savetier, 3 Johns. Ch. (N. Y.) 190. The English authorities, cited by Mr. Chancellor Kent, justify this con- clusion. One is Male v. Roberts, in 3 Esp. 163, which was a case of a con- tract by a minor in Scotland during his temporary. residence there, and it was held to be governed by the law of Scotland. Another is Ex parte Otto Lewis, 1 Ves. 298, where a lunatic heir of a mortgagee, who had been declared a non compos in Hamburg, and no commission of lunacy had been taken out in Eng- land, was ordered to convey the estate in payment of the mortgage in Hamburg, under statute 4 Geo. 2,c. 10.. Here Lord Hardwicke manifestly acted upon the ground that the mortgage-money was personal property; and the lunatic being domiciled in Hamburg, the court would take notice of his disability to convey there by the law of that place. The remaining authority is Pardessus. His doctrine is certainly more broad. But it could not have been intended by Mr. Chancellor Kent to overrule the English doctrine, and his own prior state- ment, upon the authority of a foreign jurist. The ambiguity is corrected in the third edition; and the words ‘the law of the place of contract’ are sub- stituted for the words ‘the law of the domicil.’ 2 Kent Com. 458, 3d ed. Pardessus is an authority in favor of the limited doctrine that a person inca- pacitated by the law of his domicil cannot contract with validity there; but he carries his doctrine much further. The cases of Saul v. His Creditors, 5 Mart. N.S. (La.) 596, 598, and Baldwin v. Gray, 4 Mart. N.S. (La.) 192, 193, already cited, establish a like limited doctrine, and decide that a contract by a minor is to be governed by the lex loci contractus; ante, s. 75. (a) See note, s. 92, post. 116 CONFLICT OF LAWS. [s. 90-93. power recognized by the continental nations of Europe, and derived by them from the civil law. Parental restraints upon the marriage of minors exist to a very great extent in Germany, Holland, France, and other civil law countries; to so great an extent, indeed, that the marriage of minors without the consent of their parents, or at least of their father, is absolutely void ; and the disability of minority is in these countries carried to a much greater age than it is by the common law.1 In some of these countries majority is not attained until thirty, and until a very recent period, even in France, the age of majority of males was fixed at twenty-five and of females at twenty-one. It is now fixed at twenty-one in all other cases, except for the purpose of contracting marriage, and a marriage cannot even now be con- tracted in France by a man until twenty-five years of age, and by a woman until twenty-one, without the consent of their pareits, or at least of their fathers, if the parents differ in opinion.2 Yet. France has ventured upon the bold doctrine that the marriages of Frenchmen in foreign countries shall not be deemed valid if the parties are not by its own law competent to contract by reason of their being under the parental power? There can be little doubt that foreign countries where such marriages are celebrated, will follow their own law and disregard that of France.* 91. Penal Disabilities. —If we pass from cases of minority to other disabilities, enforced by the law of the native domicil, or that of an after-acquired domicil, there will be still more reason to doubt whether any rule of such law, respecting personal capa- city and incapacity, ought to be declared to be of universal obli- gation and efficacy. Let us take the case of a person declared infamous by the law of the place of his domicil. It is said that under such circumstances he ought to be deemed everywhere infamous. ‘Hine,’ says Hertius, ‘in uno loco infamis, ubique infamis habetur.’ Surely it will not be contended that if a Pro- testant should be declared a heretic in a Catholic country, and there rendered infamous, and inhabilitated thereby, he is to be deemed under the like infamy and disability in all Protestant 12 Kent Com. 86, 3d ed.; 1 Black. Com. 487; Ruding v. Smith, 2 Hagg. Con. 872, 889; Id. 395; 1 Brown, Civ. & Adm. Law, 59. 2 Code Civil of France, art. 148, 488. : 5 2 Kent Com. 98, note, 3d ed.; Code Civil of France, art. 170; Id. art. 148; 1 Toullier, Droit Civil, art. 576, 577. * See post, s. 128, 124. Dh wh bh bh be CHAP. IV.] CAPACITY OF PERSONS. 117 countries. That surely would be pressing the doctrine to a wanton extravagance! Yet certainly many foreign jurists do press it to that extent.? 92. In like manner let us consider the civil disabilities imposed by the English laws. in cases of outlawry, excommunication, civil death, and popish recusancy.2 It would be difficult to main- tain that these accompanied the person to America, where no like disabilities exist, and where they are foreign to the whole genius of our institutions. Yet many foreign jurists strenuously main- tain the doctrine. We have no positive laws declaring that such foreign disabilities shall not be recognized. But an American court would deem them purely local, and incapable of being en- forced here.(a) Even the conviction of a crime in a foreign country, which makes the party infamous there and incapable of being a witness in their courts, has been held not to produce a like effect here.6(b) The capacity or incapacity of any persons to do acts in their own country would undoubtedly, under such circumstances, be judged by their own laws, but not their capa- city or incapacity to do the like acts in any foreign territory where different laws prevail. 93, Legitimacy. — Foreign jurists also generally, although not 1 See 1 Hertii Opera, s. 4, n. 8, p. 124, ed. 1737; Id. 178, ed. 1716; Liverm. Diss. p. 30, 31. 2 See Henry on Foreign Law, p. 30; 1 Boullenois, obs. 4, p. 52-67 ; 1 Voet, ad Pand. 1, 4, n. 7, p. 40. : 8 See 3 Black. Comm. 101, 102, 283; 1 Black. Comm. 182; 4 Black. Comm. 54, 319, 320. 4 1 Boullenois, obs. p. 59-67; 2 Boullenois, p. 9, 10, 19. Voet, de Statut. s. 4, c. 8, n. 17, 18, p. 180, ed. 17387. 5 Commonwealth v. Green, 17 Mass. 515, 540, 541. But see contra, J. (a) The prohibition which exists in 5 Ired. (N.C.) 535. See also note, some states against the marriage of a person from whom a divorce has been obtained by reason of his or her fault, is a penal disability imposed for the offence, and therefore has no effect be- yond the limits of the state. Dick- son v. Dickson, 1 Yerg. (Tenn.) 110; Ponsford v. Johnson, 2 Blatch. C. C. 51, 59; Van Voorhis v. Brintnall, 86 N.Y. 18, 28; Commonwealth v. Lane, 118 Mass. 458, 471; West Cam- bridge v. Lexington, 1 Pick. (Mass.) 506. But see Williams v. Oates, s. 1244, post. Upon the point that effect will not be given to foreign penal laws, see Dicey on Domicil, 161, 162; Lynch v. Government of Paraguay, L. R. 2 P. & M. 268, 272; Jackson v. Rose, 2 Va. Cas. 34. : (b) Sims v. Sims, 75 N.Y. 466; Campbell v. State, 23 Ala. 44; 1 Greenl. Ev. s. 376. The contrary was held in Chase v. Blodgett, 10 N.H. 22; State v. Candler, 8 Hawks. (N. C.) 393. 118 CONFLICT OF LAWS. [s. 938-93 d. universally, maintain that the question of legitimacy or illegiti- macy is to be decided exclusively by the law of the domicil of origin. They assert the general maxim to be of universal obliga- tion, pater est, quem juste nuptize demonstrant, applying it in its broadest sense! They therefore hold that if by the law of a country (as, for example, of Scotland), a man born a bastard becomes legitimate by a subsequent marriage of his parents there, he ought to be deemed legitimate everywhere. And so, on the contrary, if a man would, by the law of the country of his birth, be deemed illegitimate (as, for example, in Eng- land), he ought to be deemed illegitimate everywhere, even in another country, where he would by its law otherwise be deemed legitimate.? 93 a. Doctrines to be considered.— It has been above stated that foreign jurists generally, although not universally, hold this opinion ; for there is some diversity of opinion among them, if not as to the application of the rule ex directo to the persons, at least as to its application to property situate in a foreign country. Considering therefore the importance of the subject, and that it has already undergone a most elaborate discussion in England, in the case already adverted to, and which we shall have occasion to consider more fully hereafter,? it is desirable that doctrines maintained by foreign jurists, as well as the reasoning of the English courts on the subject, should be here brought under review. 93 6. Foreign Jurists. —It seems, then, generally admitted by foreign jurists that, as the validity of the marriage must depend upon the law of the country where it is celebrated, the status, or state, or condition of their offspring, as to legitimacy or illegiti- macy, ought to depend upon the same law. So that, if by the law of the place of the marriage, at all events if the parents were then 1 Post, s. 93 a-93 m. 2 1 Boull. obs. 4, p. 62-64. But see Voet, de Statut. s. 4, c. 8, n. 15, p. 188, ed. 1712; 1 Hertii Opera, s. 4, n. 14, 15, p. 129, ed. 1787. Legitimation by a subsequent marriage is admitted with different modifications by the law of Scotland, France, Spain, Portugal, Germany, and most of the continental nations of Europe. The rule was imported into their jurisprudence from the Roman law. 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 2, p. 92, 93; Cod. 5, 27, 5; Novell. 78, c. 4; Id. 89, c. 8. In some of the American States the same rule prevails. 1 Burge, Col. & For. Law, c. 8, 8. 3, p. 101; Griffith’s Law Register. ® Birtwhistle v. Vardill, 5 B. & C. 488; 9 Bligh, 32; ante, s. 87 a. CHAP. IV.] CAPACITY OF PERSONS. 119 domiciled there, the offspring, although born before the marriage, would be legitimated, they ought to be deemed legitimate in every other country, for all purposes whatsoever, including heir- ship of immovable property.! 93 ¢. This is certainly the doctrine maintained by many, per- haps by a large majority of foreign jurists.2 Vinnius says: ‘ Item, jus persone hic esse quod statum et conditionem persone sequi- tur. Nam status ipse est persone conditio aut qualitas, que efficit, ut hoc vel illo jure utatur, ut esse liberum, esse servum, esse ingenuum, esse libertinum, esse alieni, esse sui juris.” Hu- berus also extends the rule not only to the marriage itself, but also to all rights and effects flowing therefrom. ‘ Porro, non tan- tum ipsi contractus ipseeque nuptie, certis locis rite celebrate, ubique pro justis et validis habentur, sed etiam jura et effecta contractuum et nuptiarum, in iis locis recepta, ubique vim suam obtinebunt.’* Stockmannus says: ‘ Statuta, in personas directa, que certam iis qualitatem affigunt, transeunt quidem cum per- sonis extra territorium statuentum, ut persone ubique sit uni- formis, ejusque unus status.’ 5 93 d. Bouhier adopts the doctrine in its fullest extent, and applies it to the very case of legitimacy. He says that the state of the child, whether legitimate or illegitimate, must be decided by the law of the domicil of his parents, and that this is an invio- lable rule upon every question of his state or condition. And hence he holds that if he is at his birth illegitimate, and he is legitimated by a subsequent marriage in the same country be- tween his parents, he is in all respects to be treated as legitimate everywhere. Hertius holds a similar opinion.’ Froland is of the same opinion.2 Boullenois is very full on the same point. 1 See 1 Burge, Col. & For. Law, pt. 1, ¢. 38, p. 101-106. 2 See 1 Burge, Col. & For. Law, pt. 1, ¢. 3, s. 8, p. 101-106. 8 Vinnius, ad Inst. lib. 1, tit. 3, introd. 4 Huberus, de Conn. Leg. lib. 1, tit. 3, s. 9. 5 Stockman. Decis. 125, s. 6, p. 262; also cited 1 Boullenois, obs. 6, p. 181; Livermore, Dissert. s. 50, p. 52. John Voet in the most explicit terms ad- mits that this rule is held to apply to questions of legitimacy by many jurists, and especially by D’Argentré, Grotius, Christinzus, and Rodenburg. J. Voet, ad Pand. 1, 4, n. 7, p. 40. 6 Bouhier, Cout.de Bourg. c. 24, 8. 122, 123, p. 481. 7 Hertii, de Collis. Leg. tom. 1, s. 4, n. 15, p. 184, ed. 1716; Id. p. 129, ed. 1787. 8 1 Froland, Mém. c. 5, 8.4, p. 89; Id. c. 7,8. 2, p. 156, ed. 1716; ante, s. 5la. 120 CONFLICT OF LAWS. [s. 93 d-93 g. He holds that the general rule is, pater est, quem juste nuptie demonstrant; and that if a person is legitimate or illegitimate by the law of the place of the marriage, he is to be held of the same state and condition wherever he may go, and whatever change of domicil may take place! Hence he declares that if by the law of a country a man born a bastard is legitimated by the subse- quent marriage of his parents, or, € contra, if by the law of the country such subsequent marriage does not legitimate him, he is in every other country affected by his original state or condition ; that is to say, if legitimated by the subsequent marriage, he is legitimate everywhere ; if not so legitimated, he is illegitimate everywhere? Even Burgundus and Stockmannus and Christi- neeus, whose systems are founded upon a different theory, namely, that personal statutes have no extra-territorial effect, admit that, so far as the person is concerned, though not as to immovable property, as we shall presently see,° the original state or condition ought to govern everywhere.t The opinion of Paul Voet and John Voet on the same subject is far more limited and qualified, and will come under our review hereafter.® 93 e. English Rule as to Legitimacy. — The same general doc- trine is avowedly adopted by the courts of England. Lord Stowell on one occasion in effect maintained that by the law of England the status or condition of a claimant must be tried by reference to the law of the country where that status originated. The same doctrine was adopted by the judges of England in giv- ing their opinion to the House of Lords. They admitted in the most solemn form, that the legitimacy or illegitimacy of a person must be decided by the law of the place where the marriage was celebrated ; and that if by the law of that place (for example, Scotland) a son, born before the marriage of his parents, would by a subsequent marriage between them, be legitimated, that status of legitimacy must be deemed equally true and valid everywhere else, where the question might arise.” 1 1 Boullenois, obs. 4, p. 62, 63; post, s. 937. 2 Thid. 3 Post, s. 93%. 4 Ante, s. 52; Burgundus, Tract. 1, s. 3, p. 15; Christineeus, tom. 2, decis. 3, 8. 8, p. 4; Id. decis. 56, s. 12, p. 55; Stockmann. decis. 125, s. 6, 9, p. 262, 263; 1 Boullenois, obs. 4, p. 180, 181. 5 Post, 8. 931. ® Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, 59; 9 Bligh, 45, 46. 7 Birtwhistle v. Vardill, 9 Bligh, 45, 46, 48; Id. 71; post, s. 98n, 98 q. CHAP. IV.] CAPACITY OF PERSONS, 121 93 f. Extent of its Application. Still, however, although the ge- neral doctrine is thus extensively admitted, there is some diversity of opinion as to the true nature and extent of its application in regard to different kinds of property, and also in regard to the circumstances of particular cases.1_ Thus, for example, although its positive application in regard to movable property is generally admitted; yet in regard to immovable property in a foreign coun- try there has been some contrariety of judgment. The circum- stances, also, under which the question of legitimacy or illegitimacy may arise, may be very various and admit of important distinctions in the application of the general doctrine. The birth may be in one country, the marriage be in another, and the domicil of the parents be in a third? 93 g. Illustrations.— Several cases may easily be put to illustrate this suggestion. The question of legitimacy or illegitimacy may arise among others in the following cases. (1) Where a child is born before marriage in the domicil of his parents, who afterwards intermarry there, and by the law of that domicil the child is there- by legitimated. (2) Wherea child is born before marriage in the domicil of his parents, and by the law thereof a subsequent mar- riage would legitimate the child, and the parents are afterwards married in another country, by whose law no such legitimation would follow. (8) Where a child is born before marriage in the domicil of his parents, by whose law no legitimation would follow on their subsequent marriage, and they remove to a new domicil, where the law would, upon such marriage, legitimate the child, and they are there married. (4) Where the child is born before marriage in the domicil of his parents, by whose law no legitima- tion would follow from a subsequent marriage, and they are there married, and subsequently remove to a new domicil, by the law whereof such subsequent marriage would legitimate the child. It is plain that these several cases may admit of, if they do not abso- lutely require, the application of different principles to resolve them, and different questions may be put in respect to them. Ought the law of the place of birth, or that of the place of the mar- riage, or that of the actual domicil of the parents, or that of the actual domicil of the child, to govern ?? 1 See 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 3, p. 105, 106, 109, 110. 2 See Lord Brougham’s remarks in Birtwhistle v- Vardill, 9 Bligh, 79. 8 A case still more complicated is said to be now pending before the House 122 CONFLICT OF LAWS. [s. 93 h-93 hk. 93 h. Inheritance of Land as affected by Legitimation.— The most simple case, and that which has most frequently arisen for discus- sion, is the first stated ; where the birth, domicil, and marriage of the parties took place in the country, by the laws whereof a sub- sequent marriage would legitimate the child. Suppose then the question to arise, whether in such a case the child so legitimated by such marriage could inherit lands in another country by the laws whereof no such legitimation would follow upon such mar- riage. Or, in other words, let us put the very case as it actually occurred in the courts of England, in the case above alluded to,! the case of an illegitimate son born in Scotland, whose parents afterwards intermarried there, and, dying, held lands in England; would such son be entitled to inherit the land as lawful heir un- der the law of England? We have already seen how this ques- tion has been decided by the English courts ;? but as the question is still supposed to be unsettled there, and is also of very gene- ral application and importance, it may be well to give it a fuller consideration. 93 2. Foreign Jurists. —It is plain from what has been already stated, and indeed is directly established by their positive de- clarations, that those of the foreign jurists already mentioned, who affirm the general doctrine of the universality of the rule that capacity and incapacity depend upon the law of the domicil of birth, and that it equally applies to movable property and immo- vable property situate in foreign countries, would hold the same rule applicable to the question of legitimacy and illegitimacy, in regard to the inheritance of real property in all foreign countries. This is certainly maintained by Vinnius, Huberus, Wesel, Froland, Rodenburg, Bouhier, Boullenois, Pothier, and Merlin,3 of Lords on an appeal from Scotland. In effect it is this: A, a Scotchman, domiciled in Scotland, had an illicit connection with B, an Englishwoman, domiciled in England, by whom he had a son born in England. The parents afterwards intermarried in England, the father retaining his Scotch domicil. They then returned to Scotland; and the question before the court was, whether, under these circumstances, the son was legitimated by the subsequent marriage. The Court of Session of Scotland held that he was. From this de- cision appeal is taken. (a) 1 Birtwhistle v. Vardill, 5 B. & C. 488; 9 Bligh, 51, 52; ante, s. 93a, 934; post, 93n. 2 Ante, s. 87a. 8 Ante, s. 51a, 52, 58, 54, 93, 98d. (a) Affirmed: Munro v. Munro, 7 Cl. & F. 842, CHAP. Iv.] CAPACITY OF PERSONS. 123 and probably by Baldus and Grotius.!_ Hertius puts the converse case: ‘An filius, quem pater ante legitimum connubium in Anglia genuerat, succedere possit patri huic naturali in bonis ex Anglia sitis?’ And he holds that he could not; because the son, being illegitimate in England, would be held illegitimate everywhere.? And this naturally flows from one of his rules: ‘Quando lex in personam dirigitur, respiciendum est ad leges illius civitatis, que personam habet subjectam.’? Bouhier states this as the universal rule, as we have seen;* but he admits that if the law of a particular nation should allow the inheri- tance only to a child born in lawful matrimony (only in loyal marriage), then, as to land there situate, it ought to prevail, upon the ground that the law in such a case designated the condition of heirship. And this seems to have been also Dumoulin’s opinion.® Boullenois, as we have seen,® holds the doctrine without any quali- fication whatever. He presses the doctrine further, and insists that if a child is born before marriage in England, and his parents are afterwards naturalized in France, and subsequently intermarry there, the child becomes legitimate to all intents and purposes.’ He adds, that if a child is so born illegitimately in England, and his parents marry there, and then die, and he then takes up his domi- cil in France and is naturalized there, he will be entitled to suc- ceed to their property in France, to the exclusion of collaterals.® 93 k. Burgundus, Christinzus, and Stockmannus may be thought to hold the contrary doctrine, upon the general foundation of their system, that personal laws have no operation as to immovable pro- perty situate elsewhere.? But I am not aware that they have ever directly discussed this question. And it may be, that while they hold that immovable property must, as to heirship, be decided by the lex loci status, they may deem the capacity of legitimacy, as to that heirship, as conclusively established by the law of the 1 J. Voet, ad Pand. 1, 4, n. 7, p. 40; Liverm. Dissert. s. 56, p. 57, s. 109- 114, p. 84-87. 2 | Hertii Opera, de Collis. Leg. s.4,n. 15, p. 183, ed. 1716; Id. p. 129, ed. 1787. 8 Id. s. 4, n. 8, p. 175; Id. p. 123, ed. 1887. 4 Ante, s. 93d. 5 Bouhier, Cout. de Bourg. c. 24, 8.124, p. 481. 6 Ante, s. 93d; 1 Boullenois, obs. 4, p. 62, 63; Id. obs. 6, p. 129, 180, 184-187. 7 1 Boullenois, obs. 4, p. 62, 63; ante, s. 93d. 8 1 Boullenois, obs. 4, p. 63. ® See Burgundus, tract. 1,n. 8, 10, 25, 26; Christinzus, vol. 2, lib. 1, decis. 56; Stockmann. decis. 125, n. 10; Livermore, Dissert. s. 47, p. 50; Id. s. 106, p. 81; ante, s. 93d. : 124 CONFLICT OF LAWS. [s. 93 k-93 0. birth and domicil of the party. The one doctrine is certainly not necessarily inconsistent with the other.’ 93 1. Paul Voet and John Voet are, as far as my researches have gone, the only jurists who contend that the law of legitimacy of the domicil of the party, although a personal statute, is exclu- sively, like all other personal statutes, confined to the territory, and has no operation directly or indirectly beyond it. ‘ Verius est,’ says John Voet, ‘ personalia, non magis quam realia, terri- torium statuentis posse excedere, sive directo, sive per consequen- tiam ;’ and he goes on, as we have seen,” to deny that a bastard who is legitimated by the law of his domicil can inherit by suc- cession property situate in another country where no such legiti- mation would take place. Paul Voet holds the same opinion. ‘Quid autem statuendum erit de legitimato in uno territorio ; cen- sebitur, ne, ratione bonorum alibi jacentium, ubi legitimatus, non erat statutum vires suos excercere ; vel, an illa qualitas, seu habili- tas, eum ubique locorum comitabitur, quoad effectum consequende dignitatis, vel succedendi ab intestato ? Respondeo, etsi per legi- timationem habilitetur persona, ut velient D. D., qualitatem eam comitari ubique locorum, etiam ex comitate id servari possit; quia tamen potissimum illa legitimatio fit ad effectum vel honoris vel hereditatis consequendz ; in quam nihil juris habet is, quia in suo territorio legitimavit ; existimarem illum legitimationem ad_ ho- nores subeundos et hereditatem extra territorium capiendam non sufficere.’ 8 93 m. Weight of Foreign Authority. — The weight of foreign au- thority would therefore, on the whole, seem decidedly to prepon- derate in favor of the rule that an illegitimate person, who by the subsequent marriage of his parents becomes legitimated as heir by the law of his domicil, ought to be deemed such as to the inheritance of land in all other countries, at least where it is not expressly prohibited by the terms of the local law that such a person, born before marriage, should inherit.4 Indeed, the opinion of the Voets is perhaps less fairly maintainable, because it proceeds upon the 1 John Voet seems to have understood that those jurists who hold that le- gitimacy by the law of domicil extended the same capacity everywhere, gave the effect to it here supposed. J. Voet, ad Pand. 1, 4, n. 7, p. 40. ? Ante, s. 54a; Livermore, Dissert. s. 51, 52, p. 54.- ® Paul Voet, de Statut. s. 4, c. 3, s. 15, p. 156, ed. 1661; Livermore, Dis- sert. s. 51, 52, p. 54. 4 Livermore, Dissert. s. 57-59, p. 58, 59. CHAP, IV.] CAPACITY OF PERSONS. 125 ground that the status or condition of the person by the law of his domicil has no operation beyond the territory, either directly or consequentially. To this extent the doctrine has certainly never been carried in England. 93 n. Birtwhistle v. Vardill.— In the case already alluded to (a) in the English courts, where the question was, whether a son, born of Scottish parents in Scotland before marriage, but who afterwards intermarried there, could inherit lands in England, as heir, there was much learned discussion on the point. The Court of King’s Bench decided in the negative, and that opinion was afterwards, upon a writ of error to the House of Lords, held by all the judges of England to be correct. But it not being satisfac- tory, the case has since been ordered to be reargued, and is still pending. (6) Lord Brougham upon this occasion expressed an opinion directly opposed to that of the learned judges. It may therefore be well to present a summary of the reasoning on each side of the question, and thus to exhibit the grounds of difference. 93 0. It was conceded on all sides that the right to inherit lands in England must depend upon the laws of England; in other words, that the right of inheritance follows the law of the rei site, and not that of the domicil of the parties. In every case therefore in which an inheritance is sought in England, the question is, whether the claimant is the heritable heir accord- ing to the law of England. The learned Chief Baron Alexan- der, who delivered the opinion of the judges against the Scottish claimant, though legitimate in Scotland, reasoned to this effect. He admitted that the status or condition of the claimant must be tried by the law of Scotland, where that status originated ; that by the law of Scotland the claimant was clearly legitimate, and must be held so everywhere. But he insisted that the question was not whether the claimant was legitimate or not, but whether he was heir in England; that he might be legiti- mate, and yet might not be heir. By the law of England no person could inherit lands there unless he was born within law- ful wedlock. This was so expressly affirmed by the statute of Merton, which declared that ‘he is a bastard that is born be- fore the marriage of his parents.” In order therefore to see whether the claimant was entitled, it was not sufficient to ascer- 1 Ante, s. 98. (a) Ante, s. 87a. (2) See note at end of s. 93 r, post. 126 CONFLICT OF LAWS. [s. 93 0-93 p. tain whether he was legitimate, but also to ascertain whether he was born in lawful wedlock ; for that circumstance is essential to heirship in England. Lord Coke has indeed said, ‘ Heres, in the legal understanding of the common law, implieth that he is ex justis nuptiis procreatus ; for, Heres legitimus est, quem nuptie demonstrant.’ But his expression would have been more accu- rate if, instead of saying ‘ex justis nuptiis procreatus,’ he had said, ‘ ex justis nuptiis natus.’ As to the argument used for the claimant, that he is deemed born in lawful wedlock, because by a presump- tion of the Scottish law, a presumption juris et de jure, there was a marriage anterior to the procreation, it is a mere fiction of that law, and cannot govern in England, where the actual fact of birth after marriage decides the right. The cases alluded to, where illegitimacy in the place of birth settled the question against the heirship,! are perfectly consistent with this doctrine ; for both facts must concur to establish heirship in England, legitimacy and birth after marriage. In these cases the first fact was en- tirely wanting, and in the first step therefore in the claimant’s title, the ground sunk under him.? 1 Ante, s. 87. 2 His lordship’s opinion deserves here to be cited at large. ‘As to the first of these questions, I believe I express the opinion of the judges, when I say, in the well-considered language of Lord Stowell, in the case of Dalrym- ple v. Dalrymple, ‘‘ The cause, being entertained in an English court, must be adjudicated according to the principle of the English law applicable to such a case; but the only principle applicable to such a case by the law of England is, that the status or condition of the claimant must be tried by reference to the law of the country where the status originated; having furnished this prin- ciple, the law of England withdraws altogether, and leaves the question of status in the case put to the law of Scotland.” Such is the sentiment of that great judge, and such is his language, varied only so far as to apply to a ques- tion of legitimacy what was said of a question respecting the validity of mar- riage. When the question of personal status has been settled upon these principles, when it has been ascertained what the claimant’s character and situation are, it becomes then necessary to inquire what are the rules and maxims of inheritance, which the law of that country where the inheritance is placed, and whose tribunals are to decide upon it, has stamped and impressed upon the land in debate. In order the more distinctly to explain what is meant, I will suppose a case in many circumstances resembling the present. In addition to the circumstances stated in the question, let it be further sup- posed that the father and mother of the claimant had, after their marriage, one or more sons born to them. Suppose then the present claim to be made. The first inquiry having been satisfied, and it being upon that inquiry per- fectly ascertained that the claimant is the eldest legitimate son of his deceased parent, for the purpose of taking land, and for every other purpose, by the law CHAP. Iv.] CAPACITY OF PERSONS. 127 93 p. On the other hand, the reasoning of Lord Brougham was to this effect. The reasoning of the judges admitted the of Scotland, it will next be requisite to inquire what are the rules and maxims of inheritance which the law of England has impressed upon that land which is the subject of the claim.. Let it further be supposed that upon this inquiry it shall turn out that the land claimed is of that description which is called borough-English. This being proved, we think it clear that the claimant’s legitimacy by the law of Scotland, his right to inherit by that law, will give the claimant no right whatever to the land in England held in borough-Eng- lish. The comity between nations is conclusive to give to the claimant the character of the eldest legitimate son of his father, and to give him all the rights which are necessarily consequent upon that character; but what these rights are respecting English land must be left to the law of England, and the comity is totally ineffectual to alter in the slightest degree the rules of in- heritance and descent which the law of England has attached to this Eng- lish land. It would unquestionably descend upon the youngest son. I am anxious to mark clearly the distinction which I have pointed out, because it is upon that distinction that our opinion turns. I will therefore illustrate it by another example. Take the case of Ilderton v. Ilderton (2 H. Bl. 145); that is the case of a claim to dower by a foreign widow; whether she is a widow or not, that is, whether she was the lawful wife of the man who was, during the coverture, seized of the land, is a question which the law of England permits, upon a claim to English land, to be determined by the foreign law, the law of the country where the contract of marriage was made; there the comity stops. When her character of widow shall have been fixed according to these fo- reign rules, the law of England comes into action, and, proceeding inexorably by its own provisions and regulations, decides what are ‘the interests in the .English land which her character of widow has conferred upon her. It in- quires what are the rules which attach upon the particular land in favor of a widow. If, upon that inquiry, it appears that the land is subject to the com- mon law, it will give her a third; if it appears to be gavel-kind, one half, while she remains casta et sola. Ifthe and be customary land of any manor, the custom must be looked into; and she can have only what that custom shall bestow, however strange and capricious that custom may be. The distinction to which I am directing your lordship’s attention is very familiar to foreign jurists, and is noticed by them as the difference between real and personal sta- tus; .the last being those which respect the person, and follow it everywhere; the first being those which are connected with the land, and adhere to it, and are as immovable as the subject to which they are applied. My lords, it ap- pears to us that the answer to the question which your lordships have put, must be founded upon this distinction: while we assume that B is the eldest legitimate son of his father, in England as well as in Scotland, we think that we have also to consider whether that status, that character, entitles him to the land in dispute as the heir of that father; and we think that this question, in- asmuch as it regards real property situated in England, must be decided according to those rules which govern the descent of real property in that country, without the least regard to the rules which govern the descent of real property in Scotland. We have therefore considered whether, by the law of England, a man is the heir of English land merely because he is the eldest legitimate son of his father. We are of opinion that these circumstances are 128 CONFLICT OF LAWS. [s. 93 p. validity of the marriage, and the status of legitimacy of the claimant. But it was said that the question was of heirship. not sufficient of themselves, but that we must look further, and ascertain whether he was born within the state of lawful matrimony; because, by the law of England, that circumstance is essential to heirship; and that this is a rule not of a personal nature, but of that class which, if I may use the expres- sion, is sown in the land, springs out of it, and cannot, according to the law of England, be abrogated or destroyed by any foreign rule or law whatsoever. It is this cireumstance which, in my judgment, dictates the answer we must give to your lordship’s question, viz., that in selecting the heir for English inheritance, we must inquire only who is that heir by the local law. It has appeared to us that the vice of the appellant’s argument consists in treating the question of who shall be heir to English land, as a question of personal status. So it is, no doubt, up to a certain point, but beyond that point it becomes a question to be decided entirely by the local rules relating to real property in the realm of England. That the rule of the English law is what Ihave represented can hardly require proof. If the argument from the comity of nations be shaken off, no man will doubt that a person legitimated per sub- sequens matrimonium is not the heir of English land. What my Lord Coke says, in page 7 of the first Institute, affords the rule: “ Heres, in the legal understanding of the common law, implieth that he is ex justis nuptiis procrea- tus, for Heres legitimus est, quem nuptie demonstrant.’’ Perhaps my Lord Coke’s expression would have been more precise and accurate, if instead of saying ‘‘ ex justis nuptiis procreatus,’’ he had said ‘‘ ex justis nuptiis natus.” But this is what is meant, as all experience shows. Jt would be useless to fol- low this further, but it will be material to recollect that this maxim, which pervades all our books, and which is confirmed by all our practice, though it is in form a description of the person who shall be heir, is in substance, in our opinion, a maxim regarding the land, describes one of its most important qualities, traces out the course in which it shall descend, and is no more liable to be broken in upon by any foreign constitution than are the degree of interest which the heir shall take in the land, the conditions on which he shall hold it, the proportion which a woman shall obtain as a widow, or the limitations and conditions attached to her estate. I have endeavored to state the principles and to show the course of reasoning which has conducted my learned brothers and myself to the conclusion that B, the person designated by your lordships, is not entitled to the property in question as the heir of A. Before I finish I will notice two arguments used on behalf of the appellant, which merit par- ticular attention. It is said for the appellant that, according to the rule we adopt, if he is born in lawful wedlock, he fulfils every condition required of him. Now they say he is born in lawful wedlock because, by a presumption of the Scottish law, a presumption juris et de. jure, there was a marriage ante- rior to his procreation. It is by force of this presumption that he is legiti- mate; by this fiction he is born within the pale of lawful matrimony. We know that this fiction is, by many respectable writers on the Scottish law, represented as accompanying the legitimation per subsequens matrimonium. But we do not concede the consequence deduced trom it as applicable to the present question. “The question is, what the law of England requires, and as we are advised the law of England requires that the claimant should actually, and in fact, be born within the pale of lawful matrimony, we cannot agree CHAP. IV.] CAPACITY OF PERSONS, 129 That was true. But then who was the heir? Why, according to the law of England, the eldest legitimate son. Now, the that the presumption of a foreign jurisprudence, contrary to the acknowledged fact, should abrogate the law of England, and that by such a fiction a princi- ple should be introduced which, upon a great and memorable occasion, the legislature of the kingdom distinctly rejected; your lordships will perceive that I allude to the statute of Merton. It would seem strange to introduce indirectly, and from comity to a foreign nation, a rule of inheritance which may affect every honor and all the real property of the realm; which rule, when proposed directly and positively to the legislature, they directly and positively negatived and refused; a refusal that, in England, has obtained the approbation of every succeeding age. Again, my lords, it is said that two cases have been decided in this House which are nearly in point, and will prove that the claim of B should be supported. These cases are the cases of Shedden wv. Patrick, and the case of Lord Strathmore. These two cases are alike in principle, and establish the same proposition. In the one case the parents lived in a state of concubinage in America, and the other in England. In both children were born to them. Afterwards the parties married in their respective countries; by force of their marriages the American issue claimed Scottish land, and the English issue claimed Scottish honors; in both, your lordships decided against the claimants. Now it is said these authorities are exactly the converse of the present case. They establish the principle that the courts of the country where the lands lie, in a question respecting the heirship to these lands or honors, inform themselves whether the claimant is heir, not by the law of the country where the lands lie, but in the country of the domicil where the marriage of the parents was contracted; and if he is not heir by that foreign law, his claim is rejected; from which they deduce this conse- quence, that if he is heir, his claim should be sustained. This argument pre- sents itself in a very plausible shape, and was pressed at the bar, as it seemed to me, with striking ingenuity and force. But if I have the good fortune suf- ficiently to explain the principles which have conducted my learned brothers and myself to the opinion I have stated, you will soon perceive that these prin- ciples afford a conclusive answer to it. The first step to be taken in every case of this kind, as I have already explained, is to inquire into the status of the claimant. The status, it is argued, is to be determined by the law of the foreign country; with this the lex rei site does not intermeddle, and intermeddles no more when that foreign law establishes the claimant’s bastardy than when it proves his legitimacy. In both the cases the claimants were bastards; the laws of their own country, the laws of their domicil, the laws of the spot where the matrimonial contract was entered into, declared them to be illegitimate; the law which by the acknowledged principles ascertained their personal sta- tus fixed upon these persons a character of illegitimacy fatal to their claims; on the first step the ground sunk under them, and it became impossible for them to advance. It is obvious that if, in the cases to which I am now refer- ting, the claimants had been declared heirs by the Scottish law, the Scottish law, admitting of no heirship without legitimacy, must have been called in aid to bestow upon them that personal character of legitimacy refused to them by their own law; in other words, a law foreign to their birth, to their domicil, and to the marriage of their parents, would have been held to bestow upon them their personal status and character, —a decision certainly contrary to 9 130 CONFLICT OF LAWS. [s. 93 p-93 7. claimant answered to this very character. He was the eldest son, and he was legitimate. In truth, legitimate son means lawful son, and the rule of inheritance is, that the eldest lawful son shall succeed the father. But lawful or not depends upon the law which is to govern ; and no other definition can be given of what is lawful than this, that he is the lawful son whom the law de- clares such. What law? There are two, it is said, in this case: the law of the place of the party's birth and of his parents’ marriage, and the law of place where the land lies. Then, which law is to prevail? The law of the birth-place. Any other rule would involve great inconvenience, and be inconsistent with principle ; for then a man would be legitimate in one place, and illegitimate in another; legitimate as to personal property, and illegitimate as to real property in the same country. And this would not only affect him, but all persons who after his death should claim through him, even purchasers claiming from him or .them. 93 9. Then as to the argument that heir means he who is born in lawful wedlock, ex justis nuptiis. It is true. But what is lawful wedlock? Itis that which is so by the law of the place of marriage; and there is no greater reason for being bound by that law as to marriage, than there is as to legitimacy as conse- quent upon the marriage. Why may not the court look behind the marriage, and ascertain whether the parties were competent to marry by the law of England? It is not correct to say that the law of the place of marriage governs as to that alone, it must govern as to all the effects consequent thereon. So it was held by Huberus. So it was held in the cases of Crawford v. Patrick, and Strathmore v. Bowes, already alluded to.1 In Scotland, the child born before the marriage ceremony has been performed is legitimate, not because of the subsequent act of his parents, but because he is considered as born in lawful wedlock. The mar- the acknowledged principles upon this subject. The character of illegitimacy attached to the persons of the English and American claimants by their own law, accompanied them everywhere, and would prevent their being received as heirs anywhere within the limits of the Christian world. This view in our judgment renders these decisions entirely consistent with the principles I have unfolded, and prevents our considering them as objections to the opinion I entertain, that B is not entitled to the property in question as the heir of A.’ Birtwhistle v. Vardill, 9 Bligh, 45-53. 1 Ante, s. 87. CHAP. IV.] CAPACITY OF PERSONS. 131 riage is held to have preceded his birth, and so he is deemed non legitimatus, sed legitimus ab initio. This is not a mere refinement or fiction, because in Scotland marriage is a consensual contract ; and such consent and marriage before the birth are deemed to be evidenced by the subsequent open ceremony and celebration of the marriage. This is no more a fiction than the English law as to this very point. If, in England, a child is born the day after the marriage, he is deemed legitimate, althongh procreated long before. The law will not inquire into the fact. 93 r, As to the statute of Merton, it has no bearing on the subject. That statute applies only to children born in England. It is no authority for saying that he only can inherit English lands-whom that statute declares legitimate. That statute can in no just sense apply to persons born out of England. Their status, as to legitimacy, depends not on that statute, but on the laws of the country of their birth.! He is legitimate whom the 1 It may be far more ‘satisfactory to the learned reader to have his lord- ship’s reasoning at large in his own words: ‘In approaching this question there are some things not disputed. It is admitted that the validity of a mar- riage must depend on the law of the country where it is had, and that conse- quently the parents of this party were validly married. It seems also to be agreed that, generally speaking, legitimacy is a status, and must be determined by the law of the country to which the party belongs. But it is said by those who support this judgment, that whether the party here is legitimate or not, is no question before us; the only question being, it is alleged, whether or not he is the heir to an English real estate. This distinction, I confess, appears to me founded on an inaccurate view of the subject. It is true that the question here arises upon the claim of an heir as such, and that therefore the only ques- tion may be said to be, whether he is heir or not. But it is also very possible that this question may turn wholly upon another, namely, whether or not the claimant is eldest legitimate son of his father, the person last seised? ‘Nor do I well see how legitimacy can ever come in question in any other way than as connected with the claim to succession, either real or personal, in England, or in Scotland either, unless in the single case of a declarator of bastardy or of legitimacy, — a proceeding unknown in the English law. It is therefore by no_ means sufficient for deciding this case to say that the question touches not legitimacy, but inheritance; not the personal status of the party, but his right to real property. It may touch both those matters, and the latter may wholly depend upon the former. In truth, legitimate son means lawful son; and the tule of inherifance is, that the eldest lawful son shall succeed to the father; but lawful or not depends upon the law which is to govern; and no other definition can be given of what is lawful than this, that he is lawful son whom the law declares to be such. What law? There are two, it is said, in this case, — the law of the place of the party’s birth and of his parents’ marriage, and the law of the place where the land lies. Then which of these two laws shall prevail? The whole inclination of every one’s mind must be towards 132 CONFLICT OF LAWS. [s. 93 7. law of his birth declares to be so. He is lawful heir whom the law of his birth declares to be born in lawful wedlock. We that law which prevails where each person is born, and where his parents were married, supposing the countries to be one and the same; and if they differ, I should then say certainly the Jaw of the birthplace. Nor can anything be more inconvenient or more inconsistent with principle, than the inevitable con- sequence of taking the lex loci rei sitee for the rule; because this makes @ man legitimate or illegitimate, according to the place where his property lies, or rights come in question; legitimate, when he sues for distribution of personal estate; a bastard, when he sues for succession to real; nay, legitimate in one country, where part of his land may lie, and a bastard in some other, where he has the residue. So, in like manner, all who claim through him must have their rights determined by the same vague and uncertain canon, —a circum- stance which I nowhere find adverted to below. All the learned judges pro- ceed upon the case being one of an inheritance claimed by the party himself. But what if he were dead years ago, and another claimed an estate in England, to which he, the alleged bastard, never had been, and never could have been entitled; an estate, for example, descending from a collateral, who took it by purchase after the death of the alleged bastard? Then the pedigree of the claimant must be made out through legitimate persons; and the question of legitimacy is raised as to one who is not himself claiming any land, who never did or could claim any land, and it is not raised in respect of any right in him to inherit, any right to be called the heir to any land. I apprehend this shows strongly the necessity of taking another view than the learned judges seemed to have deemed sufficient for getting over the difficulty of the case, and of ad- mitting that there is a status of legitimacy which is personal, and, travelling about with the individual, must be determined by the law of his country. In the argument for the judgment below, it is thought enough to say that heir means he who is born in lawful wedlock — ex justis nuptiis. Then what is lawful wedlock? Is there any greater reason for being bound by the law of the country where the marriage contract was made, in deciding whether or not the wedlock was lawful, than there is for being governed in ascertaining the legitimacy of the issue of the marriage by the law of the country where that issue was born, more especially when it was also the country where the mar- riage was had? But can the court stop short according to its own principle, at the mere fact of the marriage being according to the lex loci contractus? Do not the principles on which their decision proceeds demand this further in- quiry: Were the parties able to marry by the lex loci rei site? and thus a door is opened to the further examination of how far a preceding divorce of one of the parties was sufficient to dissolve a previous English marriage. All such difficulties are got rid of by holding the lex loci contractus and nativitatis as governing the validity of the contract and legitimacy of its issue; but they are not to be got over in this way by any argument which does not with equal force apply to holding that the legitimacy of the issue is a question equally to be governed by the lex loci contractus and the law of the birthplace. Nor is it correct to say, as the judges below assumed, that the lex loci only influences the validity of the contract, and extends not to its effects. The highest au- thorities have held expressly the reverse. Huber, in the treatise De Conflictu Legum, which forms part of his larger work, and is constantly cited as the greatest authority on this question, says: ‘“Non solum ipsi contractus ipsseque CHAP. IV.] CAPACITY OF PERSONS. 133 are necessarily driven to this conclusion; and we must resort to the foreign law to solve all such questions. If it is said that he nuptie certis locis rite celebrate ubique pro justis et validis habentur, sed etiam jura et effectus contractuum nuptiarumque in iis locis recepta ubique vim suam obtinebunt.’’ I. 3, 9. It would be difficult to state anything more clearly and properly the effect of the matrimonial contract, than the legitimacy of the issue; it is, in fact, the main object, and therefore the principal effect of that contract. But to remove all doubt on this subject, and to extend the same rule also to the lex loci nativitatis, he adds, ‘‘ Qualitates personales certo loco alicui impressas ubique circumferri et personam comitari, cum hoc effectu ut ubivis locorum eo jure quo tales persone alibi gaudent vel subjecti sunt, gaude- antur et subjiciantur.’’ This principle was adopted and acted on in two very remarkable cases by your lordships then proceeding under the advice of Lord Eldon; I mean Crawtford v. Patrick, and Strathmore v. Bowes. In the former, a child having been born before marriage in America, where the English law prevails, claimed a Scotch estate in respect of the subsequent marriage of his parents there, of whom the father was Scotch. He contended that, the question having arisen upon a real estate in Scotland, the Court of Session was bound to administer the law loci rei sit, and that law declared him legitimate. But the court below and your lordships held that legitimacy is a status to be deter- mined by the law of the party’s birthplace, or, at. any rate, by that of the country where the marriage of his parents was had, as well as himself born; and they held him bastard in Scotland, where the land lay, because he was bastard in America, where his birth and his parents’ marriage took place. In Strathmore v. Bowes, a marriage, had in London after the birth of the child, was held not to legitimate the issue either as to Scotch honors or estate on the same grounds; and in both these cases one of the points made for the judg- ment was the absurdity of holding the same person to be bastard in one coun- ‘try and legitimate in another. It is plain that legitimacy has but one meaning, namely, born in lawful wedlock. Now in Scotland the child born before the marriage ceremony has been performed is legitimate, not because of a subse- quent act of his parents, but because he is considered as born in lawful wed- lock. The marriage is held to have preceded his birth, and according to the doctrine and language of the civil law, from which Scotland and other coun- tries have borrowed this principle, he is considered as non legitimatus, sed legitimus ab initio. Nor is this a mere fiction of law and a technical refine- ment. Marriage in Scotland is a consensual contract, and perfected by consent alone. But this may be given, and the contract made in two ways, either per verba de presenti, or by a promise subsequente copula. Now in the latter case, the copula makes the previous promise a consent; it turns the promise concerning the future into a present consent. A child, then, born in the in- terval between the promise and the copula would be legitimate, for the copula would show that consent, and therefore a marriage had preceded his birth. But so does a marriage after the birth, for that raises the legal presumption, that there was a consent before the birth and at the cohabitation. The cohabi- tation is held to have been a consent and a marriage; the ceremony is only held as evidence of that previous consent and contract. So much is this the case, that if either party was married to another at the time of the child’s birth, or during the interval between that birth and the ceremony, no legitimation takes place, because no room exists for the presumption of law that the consent or 134 CONFLICT OF LAWS. [s. 93 7, is the lawful heir in England, who is the eldest son born within lawful wedlock, it is but changing the position of the point; for marriage took place before the birth. All this is certain and clear, but the learned judges in the court below appear not to have taken it into their con- sideration. The judgment is rested entirely upon the statute of Merton, and it is contended that, by that famous act, he is declared a bastard who is born before the marriage of his parents; no doubt so he is in England; and no doubt bastardy, the status of bastardy, is what the English law is there dealing with. But is this an authority for saying that he only shall inherit English lands whom that statute declares legitimate? It is said that the lex loci rei site must govern the succession to real estate; undoubtedly it must; and if that law gives it in Kent to all the sons, and in Brentford to the youngest, and else- where to the eldest, these several sons are the heirs in those several places. But when it is said the lawful issue shall take, I agree; I, too, say only the legitimate son or sons shall inherit; but to find who are the legitimate sons, I must ask the law of the birthplace, which fixes the status of legitimacy; of the personal quality, according to Huber, that travels round everywhere with the party. But the argument assumes a narrower and apparently closer form still, for it is said that the statute declares those only inheritable who are born in marriage, and that Lord Coke accordingly defines the heir to be him who is ex justis nuptiis procreatus. There is in this however a great fallacy: ‘‘ Born in marriage’? or not, ‘‘ ex justis nuptiis procreatus’’ or not, is to be determined by some law or other; it is not a question that answers itself and in one way only. Then what law shall determine? Certainly either the law of the coun- try where the party was born, or where the marriage was had; the law either of the country where the nuptiz were had, or where the procreatio took place. A question might arise, where the events happened in different countries; it might then be doubted which law should govern, which should be resorted to for answer to the question. But where both events happened in the same country, as here, there seems no doubt at all in the matter. Now the law of the country where both the marriage and the birth took place declares that the party was born in lawful wedlock ; that he was ex justis nuptiis procreatus, and wholly denies that he was born before marriage or out of wedlock. But it is said that this is a fiction, and that our law cannot import the fictions of a foreign system, though its principles we are allowed to import. This dis- tinction I do not profess to comprehend; what is a fiction but a principle? It is only one particular view which the law takes, and one doctrine which it lays down. Suppose a Scotch court were to deny the legitimacy of a child who was born on the day after his parents married in England, should we not say that a gross absurdity was committed ? Should we not say the child was born in lawful wedlock, and hold the doctrine absurd which should question his being lawfully begotten? Nay, suppose a gift, in the usual terms, to the heirs of the body lawfully begotten ; we should let the child born the day after marriage take under such a gift, although it was clearly not lawfully begotten in point of fact. This is a fiction exactly analogous to the Scotch fiction. The Scotch law presumes, against the fact, the marriage to have been had before the birth of the child; our law presumes, against the fact, the marriage to have been had before the cohabitation of the parents. The fiction, or rather presump- tion, is parcel of the legal principle in both, and there can be no reason for im- porting the residue of the doctrine, and rejecting the presumption; there can CHAP. IV.] CAPACITY OF PERSONS. 135 we may just as well say that he who is the eldest son born in lawful wedlock (and so the claimant is) is the lawful heir in Eng- be no reason for importing the English law presumption into Scotland, which does not justify and require us to import the Scotch law presumption into England. It must be recollected, too, that the special verdict finds as a fact the legitimacy of the party, and not his legitimation; it finds as a fact, that he is legitimate; that is to say, lawfully born. Now we know this to mean by the Scotch law, born in lawful wedlock; but the finding in the verdict is suffi- cient; for legitimate; as contradistinguished from legitimated, means born in lawful wedlock, and can mean nothing else. So in the civillaw, from whence this doctrine is wholly taken, both in Scotland and Holland and other coun- tries, the child is legitimus, not legitimatus, as in the same system of jurispru- dence, liber is a free man, libertinus, one of the condition of a freed man, ingenuus, one free born. If any person were found to be ingenuus by an inquisition, we should contend that he never had been a slave, though a find- ing of liber might leave it equivocal. In like manner, and by parity of rea- son, a person being found legitimate, or legitimus, and not legitimated or legitimatus, excludes the supposition of his ever having been a bastard, and shows him to be lawfully born and begotten. Suppose a Scotch estate devolved to one born before marriage, as it might by devise, or rather Scotch convey- ance in the nature of devise, to the first son of A, I apprehend that, A marry- ing the mother the day after the devisor’s death, the estate would be vested in the son, because he would become legitimate, though born before the death. But it is unnecessary to argue this, though it illustrates the principle; the fact . found is, that the lessor of the plaintiff was born in Scotland legitimate, or in lawful wedlock. The cases of Crawford v. Patrick, and Strathmore v. Bowes, have been already referred to, but they require another remark. They were decided in this House, by appeal, it is true, from Scotland, and respecting the Scotch real estate, but still by this House, and upon general principles of law. Those cases were the precise converse of this; they decided the bastardy of parties, and on the distinct ground that, as Lord Redesdale said, they were ‘bastard by the law of their birthplace, and therefore bastard in Scotland, where the rights claimed respected real estate.’ It is not more the rule of the English law, that children born out of wedlock shall not inherit, though their parents intermarry, than it is the rule of the Scotch law that such children shall inherit, if their parents do intermarry. It is not more alien to the Eng- lish law to adopt the fiction that such children are born in wedlock, than it is alien to the Scotch law to exclude this principle. The English rule being statutory can make no ditference. A fixed and known principle of common law has exactly the same force with statutory provision. How then can the opposite principle be adopted in two cases identically the same? The court below says that the English law gives not an estate to the bastard eigne, and that it treats him as bastard, although by the law of his birthplace he was legitimate. The Scotch law gives the estate to the bastard eigne, regarding him as legitimate, and this House adjudged, that he should not take that estate, only because he was illegitimate by the law of his birthplace. _ Your lordships decided that the lex loci rei site should not be regarded when it dif- fered from the lex loci contractus et nativitatis; you decided that, when the former law declared for legitimacy, it should yield to the latter, which declared for bastardy. How can you be called upon here to decide that the lex loci rei 136 CONFLICT OF LAWS. [s. 93 7, land. The real point in difficulty was not met nor considered by the learned judges. The very question was, whether the law of site shall not overrule the other law, and that again in favor of bastardy? I profess my inability to understand how these two decisions of the same ques- tion can in any way stand together; nor am I able to perceive that the least attention was paid by the court below to those important decisions of your lordships. I perceive that the whole argument in that court turned upon a question not in dispute here. The learned judges suppose that they decide the question when they prove that the English law is to govern the case, because the question relates to real property situated in England. Now undeniably the English law is to govern the case in one sense; the eldest lawful son is to succeed; but who that son is must be determined by the law of his birthplace, and by the fact found that, under that law, the lessor of the plaintiff is eldest lawful son. Nay, even if we take the English law to be that the lawful son or heir is he who was born in wedlock, then we have here the fact found, and found as a fact, that in the country where he was born, the party was born in wedlock. No one, it must be always borne in mind, pretends to say that the English law can in any way dispose of the whole question. Admitting that the rule cited from Lord Coke in reference to the statute of Merton is to govern us, heres, qui ex justis nuptiis procreatus est, no one contends that the ques- tion, what are juste nuptis, can be determined otherwise than by a reference to the lex loci contractus, or, it may be, loci nativitatis. To that foreign law, then, we must resort; and the only question is, at what period of our inquiry this recourse shall be had. No more need be said to show how very far from decisive of the present question that position is, which alone is argued or defended by the learned judges, namely, that the law of England must govern, It does govern, but with the aid, through the ministry, of the foreign law. The reference made to the dictum of the Master of the Rolls, in Brodie »v. Barry, (2 V. & B. p. 127) does not touch the case. All that his honor there said was, that questions on real rights must follow the law of the country where the land lies. This is not denied; nor was it denied by this House, when it refused to consider W. Sheddon or J. Bowes as legitimate in respect to Scotch estates, although the law of Scotland, where those estates lay, held them both to be so; or rather would so have held, had they been born in Scot- land.’ But while this House and the Court of Session admitted that the ‘Scotch law must decide, they also held that the Scotch law refused estate to bastards, and that it regarded one as a bastard who was so by the law of his birthplace. ‘ That was the same case in principle with this, in every material respect. It is not easy in such a question, a question raised on the conflictus legum, to omit all considerations of convenience; inasmuch as it is principally on views of convenience that the whole doctrine of what is generally called comitas turns. One should say that nothing can be more pregnant with in- convenience, nay, that nothing can lead to consequences more strange in state- ment, than a doctrine which sets out with assuming legitimacy to be nota personal status, but a relation to the several countries in which rights are claimed, and indeed to the nature of different rights. That aman may be bastard in one country, and legitimate in another, seems of itself a strong position to affirm, but more staggering when it is followed up by this other, that in one and the same country he is to be regarded as bastard when he comes into one court to claim an estate in land, and legitimate when he resorts CHAP. IV.] CAPACITY OF PERSONS. 137 England did not take the rule as to legitimacy, the eldest son born within lawful wedlock, from the very status as to the points to another to obtain personal succession; nay, that the same court of equity, when the real estate happens to be impressed with a trust, must view him as both bastard and legitimate, in respect of a succession to the same intestate. Further still, should he happen to be next of kin to his uncle, who had a mort- gage upon the estate, he must be denied his succession to the land of the mortgagor in his quality of bastard, and be allowed to come in as an incum- brancer upon the self-same estate in his capacity of legitimate son to the same mortgagor. All this is assumed to be the law by the learned judges, who have decided below, and advised your lordships here. They have not assumed, what however they cannot deny, that it is another consequence of their doc- trine, to enable a descendant of the same bastard to claim through him as if he were legitimate, while the alleged force of the statute of Merton, and of Lord Coke’s commentary thereupon, excludes him from taking it himself. In the same country, in the same courts, in respect to the same land, he is both bastard and legitimate; bastard for the purpose of his own succession, legiti- mate when the succession of others is concerned. May I be permitted most respectfully to express a doubt, whether or not this question has received all the consideration which it deserves at the hands of those learned judges? I know not that it carries the argument much further, but there is a proceeding, well known to your lordships sitting here as a court of general jurisdiction over the whole United Kingdom, though unknown to the courts of England, —the process of declarator. Suppose a declarator of legitimacy had been brought in the Scotch courts by the lessor of this plaintiff, the judgment would have been, and quite as a matter of course, that he was lawful son of Wm. Birtwhistle; and the present defendant being made a party to this suit, the judgment could be given in evidence before the court where the ejectment now before us was brought. I agree that such a judgment does not conclu- sively bind; yet it would place the conflict of the two laws in a somewhat stronger light, if the English court should pronounce him bastard whom the Scotch court, sitting in the country of his birth, had pronounced lawful son. But if both judgments were brought here by appeal and writ of error, as might easily happen, your lordships would be compelled to affirm the sen- tence of the Scotch court, and yet you are now asked to affirm the opposite judgment of the King’s Bench. Let it be observed, too, that all this anomaly. is in England; it begins and ends here; for the Scotch judges have decided in such cases with perfect consistency, as well as entire uniformity. Those learned persons, whose familiarity with legal principle, in its enlarged sense, is derived from a deep study of the feudal and of the civil law, as well as of the modern jurisprudence of Scotland, have been guided in all their determina- tions of such questions by simple, rational, and intelligible principles. Ifa declarator of legitimacy were brought before them by one born in England before marriage, and whose parents afterwards intermarried, their sentence would be that he was illegitimate; and even were he to claim a Scotch estate the law would be the same. This has been ruled in Scotland in the cases more than once referred to, and affirmed upon appeal here. But you: are now advised to take a different course when the same question arises m _another part of the United Kingdom. It may be observed that, in referring to those Scotch cases, the learned chief justice says, without discussing them, 138 CONFLICT OF LAWS. [s. 93 r-93 s. recognized and held by the law of Scotland. The whole consti- tuted his personal status ; and that personal status travelled with him into England. (a) that it is satisfactory to him that the form of the proceeding, a special verdict, was such as to carry the question before the same tribunal which pronounced those decisions. In the advice, however, which has been given to this tribu- nal by the same learned judges, I do not find that those decisions have been much considered.’ (a) The well-known case of Birt- whistle v. Vardill, referred to in the text, was decided in the King’s Bench in 1826 (5 B. & C. 488; 8D. & R. 185). The point determined was that a child born in Scotland before the marriage of his parents, who were domiciled in that country and after- wards intermarried there, could not inherit land in England as the heir of his father, because by the law of Eng- land the heir must be a person ex jus- tis nuptiis procreatus, although by the law of Scotland a child born of un- married parents is rendered legitimate by their subsequent marriage. The case was an action of ejectment brought by John Birtwhistle, claiming to inherit land in England as the eldest son of the brother of the person last seised. His parents, who were domiciled in Scotland, were not married at the time of his birth, but were married after- wards. Judgment having been given for the defendant, a writ of error was brought in the House of Lords, and in 1830, Alexander, C.B., delivered the opinion of all the judges, which was against the plaintiff’s claim, and is above quoted by the author (ante, s. 93 0.). The further consideration of the case was then adjourned. In 1835, Lord Brougham, who had argued be- fore the House in 1830 in support of the judgment (2 Cl. & F. at p. 582), expressed the doubts concerning its - correctness which have been mentioned by the author. It was then ordered that the case be re-argued. 9 Bligh, 82; 2 Cl. & F. 571. The second ar- gument took place in 1839, and the Birtwhistle v. Vardill, 9 Bligh, 71-86. judges again attended, and their un- animous opinion was that the claimant was not entitled as heir to land in England. Their opinion was delivered by Tindal, C.J., who in 1826 had ar- gued as counsel for the plaintiff in the King’s Bench (5 B. & C. at p. 440; 8 D. & R. at p. 186). The further consideration of the case was again postponed, and in 1840 Lord Brough- am, after acknowledging that the last opinion of the judges had made very valuable additions to the former opin- ion, and after mentioning some doubts which he still felt, declared that he should offer no opposition to judgment for the defendant. The Lord Chan- cellor (Lord Cottenham) expressed his concurrence in the opinion of the judges, and his satisfaction with the ground upon which they put it. Judg- ment was accordingly given for the defendant. 7 Cl. & F. 895; West H. L. 500; 6 Bing. N.C. 385; 1 Scott N. R. 828; 1 Robinson App. Cas. 627. , The grounds of the opinion delivered by Tindal, C.J., upon which the final decision of the case rests, are substan- tially these: That itis a rule or maxim of the law of England with respect to the descent of land in England from father to son, that the son must be born after actual marriage between his father and mother; that this is a rule juris positivi, as are all the laws which regulate succession to real pro- perty, this particular rule having been framed for the direct purpose of ex- cluding, in the descent of land in Eng- land, the application of the rule of the civil and canon law, by which the sub- CHAP. IV.] CAPACITY OF PERSONS. 139 93s. Subsequent Marriage in a different Country from that of the Birth. — Another question also has arisen in England, whether a sequent marriage between the father and mother was held to make the son born before marriage legitimate; and that this rule of descent being a rule of positive law annexed to the land itself, cannot be allowed to be broken in upon or disturbed by the law of the country where the claimant was born, and which may be allowed to govern his personal status as to legitimacy, upon the supposed ground of the comity of nations. To understand the nature and force of this rule, ‘ that the heir must be a person born in actual matrimony in order to enable him to take land in England by descent,’ and to perceive the positive and inflexible quality of this rule, and how closely it is annexed to the land itself, it is ne- cessary to consider the earlier authori- ties both before and subsequently to the statute of Merton, and more par- ticularly the legal construction and operation of that statute. If we take the definition of heir, which Lord Coke adopts from the ancient text-writers, and which is borrowed originally from the Roman law (Co. Lit. 7b.) viz., that he is ‘ex justis nuptiis procreatus,’ the very description points at a mar- riage celebrated according to the rules, requisites, and ritual of the civil or Roman law. But to refer to the Mir- ror of Justices, perhaps the very ear- liest of our text-books, — it is there laid down (p. 70) as an admitted prin- ciple, ‘that the common law only taketh him to be a son whom the marriage proveth tobe so.’ Glanville, who wrote in the reign of Henry II. (probably about half a century before the statute of Merton) states (b. 7,. ¢. 18) that ‘neither a bastard nor any person not born in lawful wedlock can be, in the legal sense of the word, an heir; but if any one claims an inheri- tance in the character of heir, and the other party object to him that he can- not be heir because he was not born .King or his justices.’ in lawful wedlock, then indeed the plea shall cease in the King’s Court, and the archbishop, or bishop of the place, shall be commanded to inquire concerning such marriage, and to make known his decision either to the In chapter 14 he gives the form of the writ, viz., ‘ The King to the Archbishop: Health. W. appearing before me in my Court, has demanded against R., his brother, certain land, and in which the said R. has no right, as W. says, because he is a bastard born before the marriage of their mother; and since it does not be- long to my Court to inquire concern- ing bastardy, I send these unto you, commanding you that you do, in the Court Christian, that which belongs to you; and when the suit is brought to its proper end before you, inform me by your letter what has been done be- fore you concerning it. Witness,’ &c. This writ puts the objection against the heir’s title upon the very rule of the English law, ‘ that he was born before the marriage of his mother.’ If the question had been put generally . on the fact whether any marriage had taken place, or upon the legality of such marriage as had taken place, to such a question of general bastardy, as it is called, the bishop would have found no difficulty in answering. But as the canon law, on the one hand, held that the subsequent marriage of the parents made the antenatus legiti- mate, and as the common law of Eng- land, on the other hand, held that such antenatus was not legitimate for the purpose of inheriting land in Eng- land, if the question had gone in the general form, the answer of the bishop would have certified such antenatus to have been legitimate. The law there- fore framed the question in the pre- cise form contained in the writ, name- ly, a question of special bastardy. The bishops being placed in the difficulty 140 CONFLICT OF LAWS. [s. 93s. child born before marriage in one country, of parents domiciled in that country, by whose laws a subsequent marriage would not of this conflictus legum, at length the statute of Merton was framed in the 20th of Henry III. That statute has not upon the original roll the title pre- fixed thereto, [viz. ‘He is a bastard who is born before the marriage of his parents.’ 7 Ol. & F. 945], upon which observations were made at the bar, that it showed the intention of the law to have been no more than to de- clare the personal status of those who are described in such statute. In the edition of the statutes published under the commission from the crown, there is no other than the general title ‘ Pro- visiones de Merton;’ and no more ar- gument can justly be built upon the title prefixed in some editions of the statutes, than upon the marginal notes against its different sections. That statute or provision of Merton runs thus, viz., ‘To the King’s writ of bas- tardy, whether any one being born before matrimony may inherit in like manner as he that is born after matri- mony, all the bishops answered that they would not nor could not make auswer to that writ, because it was directly against the common order of the church, and all the bishops in- stanted the lords that they would con- sent that all such as were born afore matrimony should be legitimate, as well as they that be born within ma- trimony, as to the succession to inheri- tance, forasmuch as the church accept- eth such as legitimate. And all the earls and barons, with one voice, an- swered that they would not change the laws of the realm which hitherto had been used and approved.’ It is manifest from Bracton, who lived and wrote in the time of Henry III., that shortly after the statute of Merton this question of special bastardy ceased to be sent to the bishop, and became the subject of inquiry and determina- tion in the King’s Court (b. 5, c. 19). At the time of the passing of the sta- tute of Merton, the dominions of the crown included Normandy, Aquitaine, and Anjou, where the rule of the civil and’ canon law prevailed, by which the subsequent marriage makes the ante- natus legitimate for all purposes and to all intents. Yet there is not the slightest allusion to any exception as to those born in the foreign dominions of the crown. There seems no reason- able or probable ground for the sur- mise of any intention in the law- makers of that day, that, with the general refusal and repudiation of this rule of the civil and canon law as to the hereditary succession to land in England, there should be a tacit ex- ception in favor of a claimant born beyond the seas. And it would be singular indeed, if any such exception existed, that neither Bracton, who wrote with so much diffuseness on this very question at the time of this nota- ble refusal of parliament to alter the law, nor the authority of Fleta, nor of any of the other early writers, should have left the slightest vestige of an al- lusion to such exception in the rule. It therefore appears to be the just con- clusion from these premises that the rule of descent to English land is, that the heir must be born after actual marriage of his father and mother, in order to enable him to inherit; and that thisis a rule of a positive inflex- ible nature, applying to and inherent in the land itself, which is the subject of descent, of the same nature and character as that rule which prohibited the descent of land to any but those who were of the whole blood to the last taker, or like the custom of gavel- kind or borough-English, which causes the land to descend, in the one case, to all the sons together, in the other, to the younger son alone. The broad proposition contended for on the part of the plaintiff is, that legitimacy is a personal, status to be determined by CHAP. IV.] CAPACITY OF PERSONS. 141 legitimate him, would, by a marriage of his parents in another country, by whose laws such subsequent marriage would legiti- mate him, become legitimate, so as to inherit lands in the latter country. It has been held by the House of Lords that the mere fact of marriage in such country, where there was no change of the domicil of the parents, would not give him such a capacity to inherit land, and that the stain of illegitimacy by his birth was not wiped away by such a marriage.! And it was intimated that, 1 Munro v. Saunders, 6 Bligh, 468; Rose v. Ross, 4 Wils. & Shaw, 289. See Id. App. p. 33-89, where the opinions of the Scotch judges are also given at large. the law of the country which gives the party birth, and that, when the law of that country has once pronounced him to be legitimate, he is, by. the comity of international law, to be con- sidered as legitimate in every other country also, and for every purpose. Now there can be no doubt but that the marriage, which is a personal con- tract, when entered into according to the rites of the country where the par- ties are domiciled and the marriage celebrated, would be considered and treated as a perfect and complete mar- riage throughout the whole of Chris- tendom. But it does not therefore follow that, with the adoption of the marriage contract, the foreign law adopts also all the conclusions and consequences which hold good in the country where the marriage was cele- brated. But admitting, for the sake of argument, that B, legitimate in Scotland, is to be taken to be legiti- mate all over the world, the question still recurs, whether, for the purpose of constituting an heir to land in Eng- land, something more is not necessary to be proved on his part than such legitimacy; and, if the grounds are right upon which the first point was rested, one other step is necessary, namely, to prove that he was born after an actual marriage between his parents; and if this be so, then, upon the distinction admitted by all the writers on international law, the lex loci rei site must prevail, not the law of the place of birth. In the course of the discussion some stress appears to have been placed on the arguinent that, if the claimant had died before the intestate, leaving a child, such child might have inherited to the in- testate, tracing through his legitimate parent; and then it was asked, if the child might inherit, why might not the parent himself inherit? But the answer to the supposed case appears to be, that if the parent be not capable of inheriting himself, he has no heri- table blood which he can transmit to his child; so that the child could not, under the assumed facts, have inherit- ed, and the question therefore be- comes, in truth, the same as that be- foreus. 7 Cl. & F. 925-938. In Re Don’s Estate, 4 Drew. 194, it was held that the provision of the In- heritance Act (3 & 4 Will. 4, c. 106, s. 6), that the lineal ancestor should be heir to his issue, in preference to cer- tain collaterals, made the ancestor heir only to such of his issue as were capa- ble of inheriting from him; conse- quently a domiciled Scotchman could not inherit land in England from his son who was born in Scotland before the marriage of his parents, and was legitimated by their subsequent mar- riage. See note on Legitimation and Adop- tion at the end of s. 93s, post. [s. 938, 934. 142 CONFLICT OF LAWS. under the like circumstances in other respects, the change of domicil of the parents to the country where the marriage was celebrated, would not have given any better title to inherit, as the stain of the illegitimacy would be indelible! The converse case has been decided in France, where it has been held that if a child is born in a country (France) where he would become legitimate by a subsequent marriage, he will become legitimate by such subsequent marriage, although the marriage should take place in a country (England) where a different law prevails, and where a subsequent marriage would not have the effect of rendering him legitimate.2 The result of these two cases seems to be, that the law of the place of birth of the child, and not the law of the place of the marriage of the parents, is to decide whether a subsequent marriage will legitimate the child or not.? (a) 1 Munro v. Saunders, 6 Bligh, 468; Rose v. Ross, 4 Wils. & Shaw, 289; Id. Appx. p. 38-89. See 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 2, p. 108-110. 2 The case of De Conty, 1668, cited by Lord Brougham in Munro »v. Saun- ders, 6 Bligh, 478, and in Rose v. Ross, 4 Wils. & Shaw, 299. The same case is reported in Merlin, Quest. de Droit, art. Légitimation, s. 2, note (1), p. 151, 4to ed., Paris, 1828, who corrects the error into which Boullenois had fallen in stating the facts of the same case. See also 1 Burge, Col. & For. Law, pt. 1, ¢. 1, 8. 2, p. 102, 106, 107. May there not be room for a distinction in such a case, as to the state of the party or property in the country of his birth, and that of the party or the property in the country of the marriage, each country adhering to its own laws in regard to the property situate there? 3 But see the elaborate opinions of the Scottish judges on the same questions, in Rose v. Ross, 4 Wils. & Shaw, Appx. p. 33-89. The House of Lords re- versed their judgment. (a) Legitimation and Adoption. — When a person claims a right of succes- sion to property in a character acquired by a foreign law, it is necessary to ascer- tain that the character thus acquired is, not only in name, but in fact, the one which gives him that right accord- ing to the law which governs the succes- sion. It makes no difference whether the property is movable or immovable. Succession to the former depends on the law of the owner’s domicil (s. 481, post). The latter devolves according to the law of the situs (s. 483, post). For example, if the owner be a person domiciled in England, both his im- movable property in England and the whole of his movable property, where- ever it may be, devolve at his death upon the persons designated by the law of England to succeed to it. Whoever claims to succeed to either must answer the description contained in the common law or the statute law of England. When the common law declares that the real estate shall de- scend to the eldest son, or when the statute provides that the personal es- tate shall be distributed among child- ren, the heir must be the son, and the persons entitled to share in the distribution must be children, in the sense in which those words are used in the English law. This is not merely a question of status; it is a question of, description. With regard to persons CHAP. Iv.] CAPACITY OF PERSONS, 143 93 t. Foreign Jurists.— We have already seen that the same doctrine upon these very points is maintained by Hertius, by whose personal status is governed by English law, the word son or child always means a son or child born in wedlock. Legitimation per subsequens matrimonium and adoption do not ex- ist by that law. Consequently no one whose status is governed by Eng- lish law answers the description of a son or child unless he was born in wed- lock. But the right of succession may be claimed by a person whose status is governed by the law of a foreign country, and by that law he may have the status of a child, although not born in wedlock. He may have been legiti- mated by the subsequent marriage of his parents, or by an act of the legis- lature without any such marriage, or he may have been adopted as the child of a person not related to him by blood. The question still remains whether he is what is meant in the English law by child. When the word is used in a law regulating the succession to real estate in Eng- land, or the personal estate of a person domiciled in England at his decease, does it mean what it does when it is applied to an English child, or has it whatever meaning may be given to it by the law of any foreign country where the claimant may be domiciled? If the latter be its meaning, then a word used in the English law cannot be defined except as meaning what- ever may in any country be called by that name. It is difficult to believe that words are used in that way in the laws of any country. Before mention- ing the cases upon the subject, it may be remarked that the presumption which seems the natural one is, that the words of an English law are used in the English sense, and that when the word child is used, it always has the meaning which it has when it is applied to English people. If this be 80, @ person cannot succeed to pro- perty by virtue of an English law as the son or child of another, unless he is a child of that person born in wed- lock, notwithstanding he may be his son or child by the law of the domicil. It is upon a similar principle that a marriage contracted in a polygamous country between parties belonging to it is not in other countries con- sidered asa marriage. Hyde v. Hyde, L. R. 1 P. & M. 180; Harvey v. Far- nie, 6 P. D. p. 53; Ross v. Ross, 129 Mass. p. 247. The reason is that the union of a man and a woman in a polygamous country is in its nature a different relation from that which is called marriage in other countries. The latter is defined as the ‘ union for life of one man and one woman, to the exclusion of all others.’ The very terms of the former allow a plurality of wives. And ‘ the use of a common term to express these two separate re- lations will not make them one and the same, though it may tend to confuse them to a superficial observer.’ Hyde v. Hyde, L. R. 1 P. & M. 180. In a country where legitimation per subsequens matrimonium is allowed by law, a child legitimated in another country by such a marriage would be a child in the sense in which the term is used in the former. Soa child by adoption would be recognized as a child in a country where adoption ex- ists, and gives to an adopted child the status of a child. But it is necessary that legitimation per subsequens ma- trimonium in the one case, and adop- tion in the other, should be allowed by the laws of both countries. If it is not allowed in the country of the domicil, by the law of which his status is governed, the subsequent marriage does not legitimate him, and he does not by the adoption acquire the status of a child of the person who adopts him. If it is not allowed in the coun- 144 CONFLICT OF LAWS. [s. 93 t. Bouhier, and by Boullenois.1 The latter puts the very case of a child born in England in concubinage, and whose parents after- 1 Ante, s. 93 d, 98 7. try by the law of which he claims the right of succession, he is not, as it would seem, what is called a child in that country, although in the country of his domicil he may have the status to which that term is there applied. None of the difficulties that have been mentioned arise when the right of succession to movables is claimed by virtue of a status acquired in a foreign country in which the owner was domiciled at his decease. The succession is governed by the law of the owner’s domicil, and the only in- quiry open is whether that law gives the claimant the right he asserts. In Birtwhistle v. Vardill (supra, s. 93r, note; 7 Cl. & F. 895) the plaintiff was a Scotchman who was born before the marriage of his parents, but was le- gitimated according to the law of Scot- land by their subsequent marriage. His father’s brother died seised of land in England, and the plaintiff claimed it as his heir. It was contended in his behalf that his legitimacy was a question of status to be determined by the law of Scotland, and by that law he was the eldest legitimate son of his father. This was not disputed; but it was answered, and the decision was put upon the ground, that it was a rule of English law with respect to the de- scent of land, that a person claiming to inherit land in England as the son of another must be a son born after actual marriage between his father and mother. Although this rule was laid down in respect only of the descent of land, which was the subject of the case, yet it is difficult not to think that the real foundation of the rule was in the meaning which the law of England attaches to the word son, and that the reason of the rule is that a person is not what is called a son in Eng- lish law unless he was born in wedlock. It is to be noticed that the Mirror of Justices, p. 70, the earliest authority cited by Tindal, C.J., in the opinion delivered to the House of Lords (7 Cl. & F. 926) states the prin- ciple in these words: ‘that the common law only taketh him to be a son whom the marriage proveth to be so.’ The rule applied in Birtwhistle v. Vardill seems ‘to be nothing else than this principle stated solely with reference to the de- scent of land. The decision is some- times supposed to have depended upon the statute of Merton, which related only to inheritance of land. But Tin- dal, C.J., showed, by authorities be- fore that statute, that the rule had an earlier existence. The statute was in terms nothing but a refusal by the barons to change an existing rule of law. Lord Brougham, who alone op- posed the decision in Birtwhistle v. Vardill, said in Fenton v. Livingstone, 3 Macq. p. 532, that the former case, ‘in some of the opinions of the learned judges below is supposed to have been decided in consequence of a statutory provision; but the statute of Merton is only declaratory of the common law, or rather it is a refusal to alter that law.’ In Pennsylvania and Alabama, Birt- whistle ». Vardill was followed, in Smith v. Derr, 34 Pa. St. 126; Lingen v. Lingen, 45 Ala. 410; and was cited with approval in Maryland, in Barnum v. Barnum, 42 Md. 251, 307. In Boyes v. Bedale, 1 H. & M. 798, an illegitimate daughter, who was born in France, and whose parents were domiciled there, was legitimated according to the French law upon their subsequent marriage. Her father’s uncle, a domiciled Englishman, had bequeathed a sum of money to her father’s ‘children.’ Wood, V.C., held that she could not take under the will CHAP. IV.] CAPACITY OF PERSONS. 145 wards become residents in France and there intermarry without being naturalized, and says that the child is not legitimated by as achild. He said: ‘ When the tes- tator speaks of the children of his nephew, he does so simpliciter, and he Must mean such persons as the law of England would regard as the nephew’s children. The testator cannot be as- sumed to know that there is any other kind of child extant.’ He added: ‘I take it that the language of the statute of distributions would be dealt with in the same way. If an intestate dies domiciled in England, the di- vision of his property is governed throughout by English law, and no person could take by representation under that statute unless legitimate by the law of England.’ In In re Wilson’s Trusts, L. R. 1 Eq. 247, 263, Kindersley, V.C., stated the rule in these words: ‘ Now, the will, being a will made in England by an Englishman domiciled in Eng- land, must be construed according to the lawof England. Every term in it must receive that interpretation which belongs to it according to English law. What is the interpretation which the law of England gives to the word children. Undoubtedly children law- fully begotten, ex justis nuptiis pro- creatos; unless indeed there be some- thing in the context which satisfies the court that the testator meant to use the expression in a different sense.’ The case of In re Goodman’s Trusts, 14 Ch. D. 619; 17 Ch. D. 266, raised the same question under the statute of distributions. _A daughter of unmar- ried parents domiciled in Holland, who was legitimated according to the Dutch law upon their subsequent marriage, claimed a share of the personal estate of her father’s sister, who had died in- testate domiciled in England. The words of the statute under which she claimed were brothers’ -and sisters’ children. Jessel, M.R., held that the word children in the statute meant exactly what Wood, V.C., said it meant in the will of a domiciled Eng- lishman (Boyes v. Bedale, supra), that is, children according to the English law, and he therefore decided that she was not entitled to a share. He re- ferred to the dictum of Wood, V.C., with regard to the statute of distri- butions, and said: ‘ If I had any doubt upon the subject in this case, I should follow the dictum; but in fact I feel no doubt whatever.’ He also quoted with approval the remarks of Kinders- ley, V.C., in In re Wilson’s Trusts (supra). This decision of Jessel, M.R., in In re Goodman’s Trusts, was reversed on appeal by James and Cotton, L.JJ., Lush, L.J., dissenting (17 Ch. D. 266). Cotton, L.J., said in delivering judg- ment: ‘It was urged in support of the decision of the Master of the Rolls that the law of England recognizes as legitimate those children only who are born in wedlock. ‘This is correct as regards the children of persons who at the time of the children’s birth are do- miciledin England. But the question as to legitimacy is one of status, and in my opinion by the law of England questions of status depend on the law of domicil.’ Further on he said: ‘I am of opinion that, if a child is legiti- mate by the law of the country where at the time of its birth its parents were domiciled, the law of England, except in the case of succession to real estate in England, recognizes and acts on the status thus declared by the law of the domicil. In fact the respondents wish to use the proposition, that ‘‘in an English act of parliament those only are next of kin or children of a de- ceased brother whom the law of Eng- land recognizes as legitimate,” as if it were ‘* whom the law of England would recognize as legitimate if, at the time of their birth, their domicil, that is, 10 146 CONFLICT OF LAWS. [s. 934, such subsequent marriage, but remains illegitimate, as he was by the law of the country of his the domicil of their parents, had been English.’”’?’ James, L.J., concurred in the judgment of Cotton, LJ., ‘both in the conclusion and reason- ing.’ The above extracts show that it placed the decision upon the ques- tion of legitimacy. Legitimacy means lawfulness; and the law which it suggests is the law that governs the status, that is, the law of their domi- cil. By that law it must be deter- mined whether the status was lawfully established or not. But it is clear that one may be the lawful child of another by the law of their domicil, and yet not be his child at all in the sense attached to the word in another country. It would be so if in an act of the legislature of the latter, in which the word child was used, an interpretation clause should provide, ‘the word child in this act means a son or daughter. born in wedlock.’ And, without any statutory definition, this may be its meaning in both the common and statute law of a country. Wood, V.C., Kindersley, V.C., Jes- sel, M.R., and Lush, L.J., decided that it had that meaning in the law of England. Jessel, M.R., decided this case upon the word child. The judgment of Cotton, L.J., places the decision upon the word legitimate. Its effect however is, that whenever a per- son is the legitimate child of another by the law of the country where he was domiciled at his birth, he will be deemed a child of that person in the sense attached to the word in the law of England, except in cases of succession to real estate. According to this decision, the word child as used in the English law cannot be defined more precisely than as mean- ing whoever may be called a child according to the law of the country of the domicil. I£ legitimated child- ren are entitled as children to share birth. The converse case of a in a distribution under the English statute, it seems to follow that the offspring of a connection that would not be treated as a marriage — for ex- ample, a polygamous marriage — would also be entitled as children, and that adopted children would have the same right. It will thus be in the power of any country, by adoption or decree or otherwise, to confer on any one domi- ciled there at his birth the status of a child, which will give him the right to succeed to property under the law of England, although that kind of child- ren is unknown to English law. Although Cotton, L.J., says that the question as to legitimacy is one of status, and that questions of status depend on the law of the domicil, yet it will be noticed that he afterwards says that the question whether a per- son is legitimate depends on the law of the place where his domicil was at the time of his birth. As a child born out of wedlock is not legitimate at the time of his birth, it is difficult to see why the law of the place where he was domiciled then should determine whe- ther he is legitimated by an act done after his status has become subject to a different law. This point is dis- . cussed in the latter part of this note. The decision of the Court of Appeal in In re Goodman’s Trusts must be taken as the expression of the law of England until questioned before the House of Lords, but it leaves that law in a most unsatisfactory state. It is the decision of two Lords Justices op- posed to the opinion of the other. Lord Justice and the Master of the Rolls. The four judges, who heard the case in the first instance and on appeal were thus equally divided. The two whose opinion did not prevail were supported in their opinion by the pre- vious decisions of Wood, V.C., and Kindersley, V.C. CHAP. IV.] CAPACITY OF PERSONS. 147 child born in France, and the parents subsequently intermarrying in England, he holds equally clear, and that thereby the child In a previous case of Goodman v. Goodman, 3 Giff. 643, the same legiti- mated daughter was held to be entitled, as one of her father’s children, to a share of her grandfather’s estate. But the only question raised in this case was whether her father was domiciled in Holland at the time of her birth. It was assumed that if he was domi- ciled there, she would be entitled as a child, but the question was not raised or decided. This was pointed out by Kindersley, V.C., in In re Wilson’s Trusts, L. R. 1 Eq. 265, and by Jessel, M.R., in In re Goodman’s Trusts, 14 Ch. D. 622. Skottowe v. Young, L. R. 11 Eq. 474, was a case of legacy duty. An Englishman domiciled in France de- vised his real estate in England to trustees to sell and to divide the pro- ceeds among his daughters. They were born in France and had been legitimated according to the French law upon the subsequent marriage of their parents. The question was whether they were to be considered, in fixing the amount of legacy duty, as his children or as strangers in blood. Itwas admitted that the sub- ject of the gift was liable to legacy duty, presumably because it was the proceeds of land in England, as the personal estate of a person domiciled in a foreign country is not liable to legacy duty or succession duty. Thom- son v. Adv.-Gen., 12 Cl. & F.1; Wal- lace v. Att.-Gen., L. R. 1 Ch. 1. Stuart, V.C., held that they were to be considered as children. He said, ‘If, as seems clear, the daughters of the testator are legitimate by the law of France, and must therefore in this country be considered as having the status of children, it is difficult to see how, in any sense, they can be strangers in blood.’ This decision is right if that of the Court of Appeal in In re Goodman’s Trusts is right, but not otherwise. The words child- ven and strangers in blood, were those of an English statute, and unless they had any meaning that might be given to them in a foreign country, the daughters were strangers in blood and not children. It has since been held that natural children whose parents were never married, were strangers in blood to their father, although their parents were domiciled in Italy when the children were born, and after- wards recognized them as their child- ren, and by the law of Italy natural children who have been recognized are entitled as such to a right of succession. Atkinson v. Anderson, 21 Ch. D. 100. In Maryland, in Barnum v. Barnum, 42 Md. 251, 306, an illegitimate child of a son of a testator domiciled in Maryland claimed a share of property which the testator had given by his will, after the decease of his children, to their children or descendants. The child was born in Arkansas, and by an act of the legislature of that state it was enacted that he was thereby con- stituted the heir of his father. The Maryland court held that this act had no operation out of Arkansas, and added that, even if it had professed to legitimate the child without reference to previous marriage, no rights under the testator’s will could be affected by it, and that this seemed clear both upon reason and authority. In Illinois, where the laws provide for the adoption of children, a child adopted in another state is treated, for the purpose of inheritance, as a child of his parents by adoption so far only as a child adopted in Illinois would be so treated, whatever may be the law of the state where he was adopted. A child adopted in Illinois is, for the pur- pose of inheritance from his parents by adoption, their child. But the 148 CONFLICT OF LAWS. [s. 934. will become legitimate. Boullenois has, as we have also seen, pushed his doctrine much further, further indeed than seems 1 Ibid.; 1 Boullenois, obs. 4, p. 62, 63. adoption creates no relation between him and their kindred. Accordingly a daughter adopted in another state cannot succeed to real estate in Illinois as the sister of a daughter born in wed- lock to the father by adoption. Keegan v. Geraghty, 101 Ill. 26. This is strictly in accordance with what is above suggested as the true principle. If adoption didnot exist in Illinois, a child adopted in another state would not be a child at all within the mean- ing of the laws of Illinois concern- ing the succession to property. So if legitimation per subsequens matri- monium did not exist there, a child legitimated elsewhere by a subsequent marriage would not be a child within the meaning of such laws. In Louisiana a different principle was acted upon in Scott v. Key, 11 La. An. 232. Achild, whose parents were never married, had been legitimated by an act of the legislature of Arkan- sas, where he and his putative father resided. A majority of the court held that the personal status thus acquired’ gave him the right to inherit real es- tate in Louisiana, although legitimate children only could inherit, and that mode of legitimation was unknown in Louisiana. Merrick, C.J., dissented, and expressed the opinion that if they allowed such an act to have extra- territorial effect, they would allow another state to provide a new class of heirs for immovables and succes- sions in Louisiana; but he thought that they ought to give effect to a fo- reign legitimation ‘where our own statute recognizes a mode of legitima- tion by acknowledgment by notarial act and subsequent marriage, although the form in which it has been done in another state differs from our own.’ See Succession of Caballero, 24 La. An. 573. In the cases that have thus far been mentioned, a child who has been legiti- mated or adopted according to the law of his domicil, has claimed to succeed to property in the character of a child, under the laws of a country where le- gitimation or adoption does not prevail or does not confer the same rights as in the place of his domicil. There is another class of cases in which legiti- mation per subsequens matrimonium prevails in the country where the right of succession is claimed, but not in the country of the domicil. In these cases a subsequent marriage does not legiti- mate a child born before marriage, for the law of his domicil governs his status. Therefore he cannot claim to be recognized as a child even where legitimated children answer the de- scription of children. Shedden v. Patrick, Morison Dict. Dec. Foreign, . Appx. no. 6; 5 Paton, 194; Strathmore Peerage Case, 4 Wils. & S. Appx. 89; 6 Paton, 645; Rose v. Ross or Munro v. Saunders, 4 Wils. & S. 289; 6 Bligh, 468; Smith v. Kelly, 23 Miss. 167. It is sometimes contended that it follows from this class of cases, that if a child is legitimated according to the law ot the domicil, he must be recognized as a child in every country. He will be recognized as a child wherever le- gitimation per subsequens matrimo- nium prevails. But it by no means follows that in a country where such legitimation is unknown to the law, @ legitimated child will answer the de- scription of child in the laws giving a right of succession to children. The Indiana case of Harvey v. Ball, 82 Ind. 98, should be mentioned, though it does not touch the general question under consideration, since it turned entirely on the construction of a sta- tute. The court held that by the Indi- ana statute of descent an illegitimate CHAP. IV.] CAPACITY OF PERSONS. 149 consistent with any just principle, especially in giving a retro- active effect to a subsequent naturalization in another country. 1 Ibid.; Merlin, in his Quest. de Droit, art. Légitimation, s. 2, n. 1, com- bats this dactrine of Boullenois. child, ‘acknowledged by his father after marriage with the mother, inherited land in Indiana as heir to his father, although by the law of his own state he was not legitimated. The interpre- tation of the statute is alone open to criticism. When adoption prevails in the coun- try of the domicil and in the country where a right of succession is claimed by virtue of it, and the adoption has a similar effect in both, the status of an adopted child acquired in the for- mer is recognized in the latter. It was accordingly held in Massachusetts, that a child adopted in Pennsylvania was entitled to inherit land in Massa- chusetts as a child of his father by adoption. Ross v. Ross, 129 Mass. 243. Gray, C.J., in delivering judg- ment says, ‘It is a general principle that the status or condition of a per- son, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other’s property, is fixed by the law of the domicil; and that this status and capacity are to be recognized and upheld in every other state, so far as they are not inconsis- tent with its own laws and policy.’ In Keegan v. Geraghty, 101 Hl. 26, which is mentioned above, the court said that they were not disposed to question the general principle, so announced, with its limitation, but held that, according to this princi- ple, a child adopted in the place of the domicil could not take under the Illinois statute of descent if a child adopted in Illinois could not have taken under similar circumstances. When the law of a country recog- nizes as children those who have been legitimated according to the law of a foreign country, there is a question whether their legitimation depends upon the law of the domicil at the time of their birth, or upon that of the domicil at the time of the act con- stituting the legitimation, or upon both. The opinion of Savigny and of Bar is that legitimation depends on the law of the domicil at the time of the act constituting the legitimation. Sa- vigny, Priv. Int. Law, s. 380 (Guth- rie’s trans.) 250, 260. See also In re Goodman’s Trusts, 14 Ch. 'D. p. 623; Ross v. Ross, 129 Mass. p. 256. But Wood, V.C., held, in In re Wright’s Trusts, 2 K. & J. 595, that there could be no legitimation except when it’ could be effected in the country where the father was domiciled at the time of the child’s birth. The same judge, in Udny v. Udny, L. R. 1 H. L. Se. p. 447, said that he saw no reason to retract that opinion. The judgments of James and Cotton, L.JJ., in In re Goodman’s Trusts, 17 Ch. D. 266, con- tain dicta to the same effect. The reasons for this doctrine are not clear. The principle stated by Cotton, L. J., in the case last mentioned seems to be opposed to it. He says (p. 291) that the question as to legitimacy is one of status, and that questions of status depend on the law of the domicil. He states (p. 292), as the opinion of Lord Stowell, that ‘ the status, or con- dition of a claimant must be tried by reference to the law of the country where that status originated.’ In cases of legitimation by a subsequent marriage, the status of legitimacy originates at the time of the marriage, and does not relate back to the birth. Shedden v. Patrick, 1 Macq. 535, 623, 641. It would seem to follow that the status should be ascertained by a reference to the law of the domicil at the time of the marriage, and that the 150 CONFLICT OF LAWS. [s. 93 w. 98 u. Merlin supports the same general doctrine, holding that it is impossible to consider as legitimate in France a natural law of England should withdraw alto- gether and leave the question of status to that law. Jessel, M.R., said in In re Goodman’s Trusts, 14 Ch. D. p. 623, that if the daughter who was born after her parents had become domiciled in Holland, and who was legitimated according to the Dutch law upon their subsequent marriage, was entitled to share in the distribution, he did not sée on what ground the other children were excluded, who were born when their parents had an English domicil, and who were also legitimated by the Dutch law upon the marriage of their parents, which took place after the domicil in Holland had been ac- quired. The decision of Wood, V.C., in In re Wright’s Trusts, 2 K. & J. 595, seems to have proceeded upon the theory that the law of the father’s domicil fastened on the child, and could not be shaken off upon a change of domicil. In other cases where the law of the domicil determines the validity or effect of an act, the domicil referred to is that which exists at the time of the act, and it is not easy to see why it should not be so in ques- tions of legitimation. Wood, V.C., considered that Munro v. Munro (infra) was a conclusive authority for his decision. In Munro v. Munro, 7 Cl. & F. 842; 1 Rob. App. 492; 16 Shaw, 18; and Dalhousie »v. M‘Douall, 7 Cl, & F. 817; 1 Rob. App. 475; 16 Shaw, 6, it was held that an illegitimate child of a Scotchman whose domicil was Scotch at the time of the birth, and continued to be so at the timeof his sub- sequent marriage with the mother, was legitimated by the marriage, and so was entitled to succeed to Scotch estates as heir to the father, although the child was born in England, and the marriage was celebrated in England, and the mother had an English domicil. Lord Cottenham, L.C., said that, ‘as the laws of every country generally affect all those who have their domicil in such country, it would appear that, in order to bring any particular case within this rule of the law of Scot- land [as to legitimation], it could only be necessary to show that the domicil of the parties was Scotch. ... It can hardly be contended that the country in which the mar- riage takes place is material... . But if the place of the marriage be not material, still less can the place of the birth be so considered. The law of Scotland assumes that what in that country is considered as equivalent to a marriage took place before the birth or conception of the child. If that be assumed, how can it be material in what country the child was born? . .. It has been assumed in argu- ment that any of such children born in a country which allowed legitima- tion per subsequens matrimonium would be legitimate in Scotland, but not if born in England, or in any other country which did not recognize such legitimation. This argument is founded upon the supposed indelibility of bastardy, and seems to have its ori- gin in the circumstance of some very learned persons having used expres-. sions applicable to English law upon a question of purely Scotch law. If English parents have a child born in another country, could the legitimacy of such child in England be affected by any law of such country? The effect of a Scotch marriage must be judged of with reference to Scotch law, and that law not only does not admit the doctrine of the indelibility of bastardy, but, on the contrary, holds that no bastardy is indelible, unless the parents were at the time of the birth incapable of marrying. If there- CHAP. IV.] CAPACITY OF PERSONS. 151 child, born in England of English parents who afterwards inter- marry in England ;! but that a natural child, born in France of French parents who should afterwards remove to England and there intermarry without being naturalized, would by such sub- sequent marriage be made legitimate.? In each case he holds that 1 Merlin, Quest. de Droit, art. Légitimation, s. 1, n. 1. 2 Ibid. s. 2, n. 1, 2. fore the law of England be imported into the consideration, the effect of the Scotch marriage is judged of, not by the law of Scotland, but by the law of England.’ He came to the con- clusion (p. 874) ‘that the child of a Scotchman, though born in England, would become legitimate for all civil purposes in Scotland by a subsequent marriage of the parents in England, if the domicil of the father was and continued throughout to be Scotch.’ At the end of his judgment he said that the claimant, ‘being the child of a domiciled Scotchman, had, at the moment of her birth, a capacity for being legitimated by the subsequent marriage,’ and that she accordingly by the subsequent marriage became legitimate and capable of succeeding to the property. Lord Cottenham’s opinion was that the child became legitimate if the domicil of the father was at the birth, and continued to be till the marriage, Scotch. He did not say or imply that it would not be so if the domicil was English at the time of the birth and Scotch at the time of the marriage. The principles stated by him seem to lead to the conclusion that the result would be the same in both cases. As the domicil of the father at the time of the marriage was Scotch, the marriage was a Scotch marriage, and the effects of it must be judged of with reference to Scotch law. Lord Brougham, who delivered the only other judgment in the case, placed the decision entirely upon the domicil at the time of the marriage. He stated the question to be (p. 882), ‘whether, supposing the domicil of the parties at the time of the marriage to have been in Scotland, that mar- riage had the effect of legitimatizing issue born in England before the mar- riage.’ It should be noticed that in this case, although the father was through- out domiciled in Scotland, the domicil of the mother at the birth and until the marriage was English. As the child was illegitimate until the mar- riage, its domicil was the same as the mother’s. Ante, s. 46; Dicey on Domi- cil, 69, 97. At the time of the mar- riage therefore, the status of the child was governed by the English law. The Scotch law could not affect the status of the child, unless its domicil, following that of the mother, became Scotch upon the marriage. The mar- riage then must have had the effect of changing the domicil of the child, and of giving it a status which it could not have acquired by the law of its former domicil. The child was five years old at the time of the marriage. Tf the child had attained her majority at that time, so that her domicil would not have been affected by a change of her mother’s domicil, perhaps the re- sult might have been different. There was no such difficulty as this in In re Wright’s Trusts, supra. The mother and child were domiciled in France until the marriage. The father was domiciled in England at the birth, but had become domiciled in France at the time of the marriage. The parties were consequently all domiciled in France, and it would seem that the effect of the marriage upon their status should have depended on the French law. 152 CONFLICT OF LAWS. [s. 93 u-96. the law of the place of the birth of the child gives the rule as to legitimacy by a subsequent marriage. 93 v. Merlin supposes that Hertius holds a different doctrine, and affirms that the law of the place of marriage gives the rule as to legitimacy, and not that of the place of the birth of the child. I do not so understand Hertius. To me it seems clear that Hertius was only contemplating the case of a marriage and birth both in England. ‘In Anglia,’ says he, ‘ legitimationi per subsequens matrimonium locus non est. Questio est igitur, An filius, quem pater ante legitimum connubium in Anglia genuerat, succedere possit patri huic naturali in bonis extra Anglia sitis ? Affirmatum hoc in Auditorio Parisiensi.1 Rectius negatur, nisi lex alterius populi etiam illegitimos ad successionem admittat ; neque enim lex illa Anglorum pugnat cum equitate naturali.’? It is highly probable that Hertius understood the case referred to, as Boullenois had, by mistake, as a case where the child was born in England, whereas he was born in France.® 94, Marriages of Priests and Nuns. — These cases may suffice in relation to the question of legitimacy or illegitimacy. We may now pass to another class of disabilities imposed by foreign laws, in order to illustrate the difficulty of maintaining the doctrine as a universal rule obligatory upon all countries under all circum- stances, that the capacity or incapacity of a person is to be governed solely by the laws of his birth and domicil, and that is the class of persons whose marriages are void or voidable by rea- son of their profession. Thus, by the law of England, until after the Reformation, monks and nuns were deemed incapable of contracting marriage (as they still are in many parts of the conti- nent of Europe), and their contracts for this purpose were held nullities. The marriages of priests are also in some countries voidable in law, as contrary to their office, at any time during their lives.# And to this very day in Catholic countries mar- Tlages are prohibited to the priesthood and to persons in monastic orders. Yet it would be extremely difficult to maintain that the 1 Ante, s. 89s. The case of De Conty, in 1668. mero oas Opera, de Collis. Leg. s. 4, n. 15, p- 129; Id. p. 188, 184, ed. i 5 Merlin, Quest. de Droit, s. 2, n. 2, p. 151 i ; ee dos a ; ,?P , 4to ed., Paris, 1828; ante, ‘ Inst. 686, 687; Com. Dig. Baron and Feme, B. 2; 1 Wooddes. Lect. 16, CHAP. Iv.] CAPACITY OF PERSONS. 153 marriage of a nun, or a monk, or a priest, celebrated in America, where no such prohibition exists, ought, causa professionis, to be held a mere nullity on account of such foreign prohibitions, especially where the other party is at the time of the marriage domiciled here, and as such is entitled to the protection of our laws. (a) 95. Other Prohibited Marriages. —By the laws of some countries the subjects thereof are prohibited from intermarrying with foreigners, or with persons of another religious sect; and some civilians have held that such laws are of universal obligation, and accompany the person everywhere! But it can hardly be sup- posed that any other nation would suffer a marriage celebrated in its own dominions, according to its own laws, between such per- sons, and especially where one of them was a citizen or subject thereof, to be deemed a nullity in itsown courts. Such a narrow prohibition would justly be deemed odious and be rejected. 96. Status of Slaves.— Another case may be put of even a more striking character. Suppose a person to be a slave in his own country, having no personal capacity to contract there, is he, upon his removal to a foreign country, where slavery is not tole- rated, to be still deemed a slave? If so, then a Greek or Asiatic held in slavery in Turkey would, upon his arrival in England or in Massachusetts, be deemed a slave, and be there subject to be treated as mere property, and be under the uncontrollable des- potic power of his master. The same rule would exist as to Africans and others held in slavery in foreign countries. But we know that no such general effect has in practice ever been attri- buted to the state of slavery. There is a uniformity of opinion among foreign jurists and foreign tribunals in giving no effect to the state of slavery of a party, whatever it might have been in the country of his birth or of that in which he had been pre- 1 See P. Voet, de Statut, s. 5, c. 2, n. 1, p. 178, 179, ed. 1661; Vattel, b. 2, c. 8, s. 115. (a) Westlake says in the last edition (1880) of his book (p. 55), ‘ Although there is no decided case on the point, I think it may be stated with confidence that an incapacity to marry imposed by the personal law in virtue of reli- gious vows or orders would equally be disregarded, in the case of a person subject to it seeking to marry in Eng- land. The reservation in favor of any stringent domestic policy, with which all rules for giving effect to foreign laws must be understood, would there operate. No principle of English po- licy can be deemed to be more stringent than that which would refuse to ex- clude a whole class of the population from the possibility of marriage.’ 154 CONFLICT OF LAWS. [s. 96, 96 a. viously domiciled, unless it is also recognized by the laws of the country of his actual domicil, and where he is found, and it is sought to be enforced. Christinzeus states this is a clear rule, affirmed by judicial decisions, ‘propter libertatis personarum usum hic per aliquot secula continue observatum.’! Groene- wegen, speaking of slavery, says: ‘Ejusque nomen hodie apud nos exolevit. Adeo quidem, ut servi, qui aliunde huc addu- cuntur, simul ac imperii nostri fines intrarunt, invitis tpsis dominis, ad libertatem proclamare possint. Id, quod et aliorum Christianorum gentium moribus receptum est.’ In Scotland the like doctrine has been solemnly adjudged.? The tribunals of France have adopted the same rule, even in relation to slaves coming from and belonging to their own colonies. This is also the undisputed law of England.* It has been solemnly decided that the law of England abhors, and will not endure, the exis- tence of slavery within the nation ; and consequently, as soon as a slave lands in England, he becomes ipso facto a freeman, and discharged from the state of servitude. Independent of the provisions of the constitution of the United States for the pro- tection of the rights of masters in regard to domestic fugitive slaves, there is no doubt that the same principle pervades the common law of the non-slaveholding states in America; that is to say, foreign slaves would no longer be deemed such after their removal thither. (a) 1 Christineus, vol. 4, decis. 80, p. 114, 115, n. 4; 1 Burge, Col. & For. Law, c. 10, p. 739. 2 Groenewegen ad Instit. lib. 1, tit. 8, n. 8, p. 5; cited also in 1 Burge, Col. & For. Law, c. 10, p. 789. Groenewegen cites many authorities in support of his opinion. : 8 Knight v. Wedderbern, 1778, 20 Howell, State Trials, 1-15, note. 4 See cases cited 20 Howell, State Trials, 12-14, note; and Causes Céldbres, vol. 13, p. 492, ed. 1747; 1 Burge, Col. & For. Law, c. 10, p. 739, 740. ° Somerset’s Case, Lofft, 1; 11 State Trials (Hargrave ed.) 339; 20 Howell, State Trials, 1-79; Co. Lit. 79, Harg. note 44; 1 Black. Com. 424, 425, Christian’s note, and Coleridge’s note; Forbes ». Cochrane, 2 B. & C. 448; The Amedie, Acton, 240; 1 Dodson, 84; Id. 91,95; Le Louis, 2 Dodson, 210; The Slave Grace, 2 Hagg. Adm. 94, 104-107, 109-111, 118; 1 Burge, Col. ‘& For. Law, pt. 1, ¢, 10. p. 734-752. ° See the opinion of the court delivered by Mr. Justice Porter, in Saul v. His Creditors, 5 Mart. N.S. (La.) 598; In re Francisco, 9 Amer. Jurist, 490; Butler v. Hopper, 1 Wash. C. C. 499; Ex parte Simmons, 4 Wash. C. C. 390. (a) Lemmon v. People, 20 N. Y. dore v. Prince, 1 Ware, 402; Jackson 562; 5 Sandf. 681; 26 Barb. 270; Poly- v. Bulloch, 12 Conn. 38. CHAP. IV.] CAPACITY OF PERSONS. 155 96 a. It is quite a different question, how far rights acquired and wrongs done to slave property, or contracts made respecting See also Butler v. Delaplaine, 7 Serg. & R. (Pa.) 878; Commonwealth v. Hol- loway, 6 Binn. (Pa.) 213; 2 Serg. & R. 305; Lunsford ». Coquillon, 2 Mart. N.S. (La.) 401; Louis ». Cabarrus, 7 La. 170, 172; 1 Burge, Col. & For. Law, pt. 1, c. 10, p. 744-749; Prigg v. Commonwealth, 16 Pet. 541, 611, 612. In the recent case of Commonwealth v. Aves (1886), 18 Pick. 193, before Mr. Chief Justice Shaw, in Massachusetts, it was expressly held that a slave brought into Massachusetts voluntarily by his master from a slave state of the United States, was free here, and could not be recovered or carried back as a slave. Upon that occasion the learned judge said: ‘The question now before the court arises upon a return to a habeas corpus, originally issued in vacation by Mr. Justice Wilde, for the purpose of bringing up the person of a colored child named Med, and instituting a legal inquiry into the fact of her deten- tion, and the causes for which she was detained. By the provisions of the revised code, the practice upon habeas corpus is somewhat altered. In case the party complaining, or in behalf of whom complaint is made, on the ground of unlawful imprisonment, is not in the custody of an officer, as of a sheriff or deputy, or corresponding officer of the United States, the writ is directed to the sheriff, requiring him or his deputy to take the body of the person thus com- plaining, or in behalf of whom complaint is thus made, and have him before’ the court or magistrate issuing the writ, and to summon the party alleged to have or claim the custody of such person, to appear at the same time, and show the cause of the detention. The person thus summoned is to make a statement under oath, setting forth all the facts fully and particularly; and in case he claims the custody of such party, the ground of such claim must be fully set forth. The statement is in the nature of a return to the writ, as made under the former practice, and will usually present the material facts upon which the questions arise. Such return, however, is not conclusive of the facts stated in it, but the court is to proceed and inquire into all the alleged causes.of deten- tion, and decide upon them in a summary manner. But the court may, if occasion require it, adjourn the examination, and in the meantime bail the party, or commit him to a general or special custody, as the age, health, sex, and other circumstances of the case may require. It is further provided that, when the writ is issued by one judge of the court in vacation, and in the mean- time, before a final decision, the court shall meet in the same county, the pro- ceedings may be adjourned into the court, and there be conducted to a final issue, in the same manner as if they had been originally commenced by a writ issued from the court. I have stated these provisions the more minutely because there have been as yet but few proceedings under the Revised Statutes, and the practice is yet to be established. Upon the return of this writ before Mr. Justice Wilde, a statement was made by Aves, the respondent; the case was then postponed. It has since been fully and very ably argued before all the judges, and is now transferred to and entered in court, and stands here for judgment, in the same manner as if the writ had been originally returnable in court. The statement on oath is now to be considered in the same aspect as if made by Mr. Slater. It is made, in fact, by Aves, claiming the custody of the slave in right of Slater, and that claim is sanctioned by Slater, who appears by his attorney to maintain and enforce it. He claims to have the child as master, and carry her back to New Orleans, and whether the claim 156 CONFLICT OF LAWS. [s. 96 a, such property in countries where slavery is permitted, may be allowed to be redressed or recognized in the judicial tribunals of has been made in terms or not, to hold and return her as a slave, that intent is manifest, and the argument has very properly placed the claim upon that ground. ‘The case presents an extremely interesting question, not 80 much on account of any doubt or difficulty attending it, as on account of its important consequences to those who may be affected by it, either as masters or slaves. The precise question presented by the claim of the respondent is, whether a citizen of any one of the United States where negro slavery is established by law, coming into this state for any temporary purpose of business or pleasure, staying some time, but not acquiring a domicil here, who brings a slave with him as a personal attendant, may restrain such slave of his liberty during his continuance here, and convey him out of this state on his return, against his consent. It is not contended that a master can exercise here any other of the rights of a slave-owner than such as may be necessary to retain the custody of the slave during his residence, and to remove him on his return. Until this discussion, I had supposed that there had been adjudged cases on this subject in this commonwealth; and it is believed to have been a prevalent opinion among lawyers, that if a slave is brought voluntarily and unnecessarily within the limits of this state, he becomes free, if he chooses to avail himself of the provisions of our laws; not so much, because his coming within our territorial limits, breathing our air, or treading on our soil, works any alteration in his status or condition, as settled by the law of his domicil, as because, by the operation of our laws, there is no authority on the part of the master, either to restrain the slave of his liberty whilst here, or forcibly to take him into cus- tody in order to his removal. There seems however to be no decided case on the subject reported. It is now to be considered as an established rule, that by the constitution and laws of this commonwealth, before the adoption of the constitution of the United States in 1789, slavery was abolished, as being contrary to the principles of justice and of nature, and repugnant to the pro- visions of the Declaration of Rights, which is a component part of the consti- tution of the state. It is not easy, without more time for historical research than I now have, to show the course of slavery in Massachusetts. By a very early colonial ordinance (1641) it was ordered that there should be no bond slavery, villenage, or captivity amongst us, with the exception of lawful captives taken in just wars, or those judicially sentenced to’ servitude as a punishment for crime. And by an act a few years after (1646), manifestly alluding to some transaction then recent, the General Court, conceiving themselves bound to bear witness against the heinous and erying sin of man-stealing, &c., ordered that certain negroes be sent back to their native country (Guinea) at the charge of the country, with a letter from the governor expressive of the indignation of the court thereabouts. See Ancient Charters, &c., 52, c. 12, s. 2,3. But notwithstanding these strong expressions in the acts of the colo- nial government, slavery to a certain extent seems to have crept in; not pro- bably by force of any law, for none such is found or known to exist ; but rather, it may be presumed, from that universal custom, prevailing through the Enro- pean colonies, in the West Indies, and on the continent of America, and which was fostered and encouraged by the commercial policy of the parent state. That it was so established is shortly shown by this, that by several provincial acts, passed at various times in the early part of the last century, slavery was CHAP. Iv.] CAPACITY OF PERSONS. 157 governments which prohibit slavery.! And it is also a very diffe- rent question, how far the original state of slavery might reattach 1 Madrazo v. Willes, 3 B. & A. 853; Forbes v. Cochrane, 2 B. & C. 448; Le Louis, 2 Dodson, 210: The Antelope, 10 Wheat. 66; Wharton, Digest, Ser- vants and Slaves, A.D. See 1 Burge, Col. & For. Law, pt. 1, c. 10, p. 735- 752. 7 recognized as existing in fact, and various regulations were prescribed in reference to it. The act passed June, 1703, imposed certain restrictions upon manumission, and subjected the master to the relief and support of the slaves, notwithstanding such manumission, if the regulations were not com- plied with. The act of October, 1705, Anc. Charters, &c., 748, 749, levied a duty and imposed various restrictions upon the importation of negroes, and allowed a drawback upon any negro, thus imported, and for whom the duty had been paid, if exported within the space of twelve months, and bona fide sold in any other plantation. How, or by what act particularly, slavery was abolished in Massachusetts, whether by the adoption of an opi- nion in Somerset’s Case, as a declaration and modification of the common law, or by the Declaration of Independence, or by the constitution of 1780, it is not now very easy to determine, and it is rather a matter of curiosity than of utility; it being agreed on all hands that, if not abolished before, it was so by the Declaration of Rights. In the case of Winchendon »v. Hatfield, 4 Mass. 123, which was a case between two towns respecting the support of a pauper, Chief Justice Parsons, in giving the opinion of the court, states that in the first action which came before the court after the establishment of the constitution, the judges declared that, by virtue of the Declaration of Rights, slavery in this state was no more. And he mentions another case, Littleton v. Tuttle, 4 Mass, 128, note, in which it was stated, as the unanimous opinion of the court, that a negro born within the state before the constitu- tion, was born free, though born of a female slave. The chief justice however states that the general practice and common usage have been opposed to this opinion. It has recently been stated as a fact, that there were judicial deci- sions in this state, prior to the adoption of the present constitution, holding that negroes, born here of slave parents, were free. A fact is stated in the above opinion of Chief Justice Parsons which may account for this suggestion. He states that several negroes, born in this country of imported slaves, had demanded their freedom of their masters by suits of law, and obtained it by a judgment of court. The defence of the master, he says, was faintly made, for such was the temper of the times that a restless, discontented slave was worth little, and when his freedom was obtained in a course of legal proceedings, his master was not holden for his support if he became poor. It is very probable therefore that this surmise is correct, and that records of judgments to this effect may be found; but they would throw very little light on the subject. Without pursuing this inquiry farther, it is sufficient for the purposes of the case before us, that, by the constitution adopted in 1780, slavery was abolished in Massachusetts, upon the ground that it is contrary to natural right and the plain principles of justice. The terms of the first article of the declaration of rights are plain and explicit. ‘+ All men are born free and equal, and have cer- tain natural, essential, and unalienable rights, among which are the right of enjoying and defending their lives and liberties, that of acquiring, possessing, 158 CONFLICT OF LAWS. [s. 96 a. upon the party, if he should return to the country by whose laws he was declared to be, and was held as, a slave. Lord Stowell, and protecting property.” It would be difficult to select words more precisely adapted to the abolition of negro slavery. According to the laws prevailing in all the states where slavery is upheld, the child of a slave is not deemed to be bor free, a slave has no right to enjoy and defend his own liberty, or to acquire, possess, or protect property. That the description was broad enough in its terms to embrace negroes, and that it was intended by the framers of the constitution to embrace them, is proved by the earliest contemporaneous con- struction, by an unbroken series of judicial decisions, and by a uniform prac- tice from the adoption of the constitution to the present time. The whole tenor of our policy, of our legislation and jurisprudence, from that time to the present, has been consistent with this construction, and with no other. Such being the general rule of law, it becomes necessary to inquire how far it is modified or controlled in its operation either, (1) By the law of other nations and states, as admitted by the comity of nations to have a limited operation within a particular state; or, (2) By the constitution and laws of the United States. In considering the first, we may assume that the law of this state is analogous to the law of England in this respect; that, while slavery is considered as. unlawful and inadmissible in both, and this because contrary to natural right and to laws designed for the security of personal liberty, yet in both the existence of slavery in other countries is recognized, and the claims of foreigners g:owing out of that condition are to a certain extent respected. Almost the only reason assigned by Lord Mansfield in Somerset’s case was, that slavery is of such a nature that it is incapable of being introduced on any reasons moral or political, but only by positive law; and it is so odious that nothing can be suffered to support it but positive law. The same doctrine is clearly stated in the full and able opinion of Marshall, C. J., in the case of The Antelope, 10 Wheat. 120. He is speaking of the slave-trade, but the remark itself shows that it applies to the state of slavery. ‘‘That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightly deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of the admission.”? But although slavery and the slave-trade are deemed contrary to natural right, yet it is settled by the judi- cial decisions of this country and of England that it is not contrary to the law of nations. The authorities are cited in the case of The Antelope, and that case is itself an authority directly in point. The consequence is, that each independent community, in its intercourse with every other, is bound to act on the principle that such other country has a full and perfect authority to make such laws for the government of its own subjects as its own judg- ment shall dictate and its own conscience approve, provided the same are consistent with the law of nations; and no independent community has any right to interfere with the acts or conduct of another state, within the ter- ritories of such state, or on the high seas, which each has an equal right to use and occupy; and that each sovereign state governed by its own laws, although competent and well authorized to make such laws as it may think most expedient to the extent of its own territorial limits, and for the govern- ment of its own subjects, yet beyond those limits, and over those who are not its own subjects, has no authority to enforce its own laws, or to treat the laws CHAP. IV.] CAPACITY OF PERSONS, 159 in a case of this sort, held that, upon such a return of the slave to his original domicil, the state of slavery would reattach upon of other states as void, although contrary to its own views of morality. This view seems consistent with most of the leading cases on the subject. Somer- set’s Case, 20 Howell’s State Trials, 1, as already cited, decides that slavery, being odious and against natural right, cannot exist except by force of positive law. But it clearly admits that it may exist by force of positive law. And it may be remarked that by positive law, in this connection, may be as well understood customary law, as the enactment of a statute; and the word is used to designate rules established by tacit acquiescence, or by the legislative act of any state, and which derive their force and authority from acquiescence or enactment, and not because they are the dictates of natural justice, and as such of universal obligation. Le Louis, 2 Dodson, 236. This was an elabo- rate opinion of Sir William Scott. It was the case of a French vessel seized by an English vessel in time of peace, whilst engaged in the slave-trade. It proceeded upon the ground that a right of visitation by the’ vessels of one nation of the vessels of another, could only be exercised in time of war, or against pirates, and that the slave-trade was not piracy by the laws of nations, except against those by whose governments it has been so declared by law or by treaty. And the vessel was delivered up. The Amedie, 1 Acton, 240. The judgment of Sir William Grant in this case upon the point on which the case was decided, that of the burden of proof, has been doubted. But upon the point now under discussion he says: ‘* But we do now lay down as a principle that this is a trade which cannot, abstractedly speaking, be said to have a le- gitimate existence; I say, abstractedly speaking, because we cannot legislate for other countries; nor has this country a right to control any foreign legisla- _ture that may give permission to its subjects to prosecute this trade.’? He however considered, in consequence of the principles declared by the British go- vernment, that he was bound to hold prima facie that the traffic was unlawful, and threw on the claimant the burden of proof that the traffic was permitted by the law of his own country. The Diana, 1 Dodson, 95. This case strongly corroborates the general principle that, though the slave-trade is contrary to the principles of justice and humanity, it cannot with truth be said that it is. contrary to the laws of all civilized nations; and that courts will respect the property of persons engaged in it under the sanction of the laws of their own country. Two cases are cited from the decisions of courts of common law which throw much light upon the subject. Madrazo v. Willes, 3B. & A. 353. It was an action brought by a Spaniard against a British subject who had unlawfully, and without justifiable cause, captured a ship with three hundred slaves on board. The only question was, the amount of damages. Abbott, C. J., who tried the cause, in reference to the very strong language of the acts of parliament declaring the traffic in slaves a violation of right, and contrary to the first principles of justice and humanity, doubted whether the owner could recover damages in an English court of justice for the value of the slaves as property, and directed the ship and the slaves to be separately valued. On further consideration he and the whole court were of opinion that the plaintiff was entitled to recover for the value of the slaves. ‘That opinion went upon the ground that the traffic in slaves, however wrong in itself, if prosecuted by a Spaniard between Spain and the coast of Africa, and if permitted by the laws of Spain, and not restrained by treaty, could not be lawfully interrupted 160 CONFLICT OF LAWS. [s. 96 a. him. (a) On that occasion he said: ‘The entire change of the legal character of individuals, produced by the change of local by a British subject on the high seas, the common highway of nations. And Mr. Justice Bayley in his opinion, after stating the general rule, that a fo- reigner is entitled in a British court of justice to compensation for a wrongful act, added, that, although the language used by the statutes was very strong, yet it could only apply to British subjects. It is true, he further says, that if this were a trade contrary to the laws of nations, a foreigner could not maintain this action. And Best, J., spoke strongly to the same effect, adding that the statutes ‘‘ speak in just terms of indignation of ‘the horrible traffic in human beings, but they speak only in the name of the British nation. If a ship be acting contrary to the general law of nations, she is thereby subject to confis- cation; but it is impossible to say that the slave-trade is contrary to whal may be called the common law of nations.’’ Forbes v. Cochrane, 2 B. & C. 448; 3D. & R. 679. This case has been supposed to conflict, with the one last cited; but I apprehend, in considering the principles upon which they were decided, they will be found to be perfectly reconcilable.. The plaintiff, a British subject domiciled in East Florida, where slavery was established by law, was the owner of a plantation and of certain slaves, who escaped thence and got on board a British ship of war on the high seas. It was held that he could not maintain an action against the master of the ship for harboring the slaves after notice and demand of them. Some of the opinions given in this case are extremely instructive and applicable to the present. Holroyd, J., in giving his opinion, said that the plaintiff could not found his claim to the slaves upon any general right, because by the English law such a right cannot be considered as warranted by the general law of nature; that if the plaintiff could claim at all, it must be in virtue of some right which he had acquired by the law of the country where he was domiciled; that where such rights are recognized by law, they must be considered as founded, not upon a law of nature, but upon the particular law of that country, and must be co-extensive with the territories of that state; that if such right were violated by a British subject within such territory, the party grieved would be entitled to a remedy; but that the law of slavery is a law in invitum, and when a party gets out of the territory where it prevails, and under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the place only, does not continue. So, in speaking of the effect of bringing aslave into England, he says, he ceases to be a slave in England only because there is no law which sanctions his detention in slavery. Best, J., declared his opinion to the same effect. ‘* Slavery is a local law, and therefore if a man wishes to preserve his slaves, let him attach them to him by affection, or make fast the bars of their prison, or rivet well their chains, for the instant they get beyond the limits where slavery is recognized by the local law, they have broken their chains, they have escaped from their prison, and are free.’’? That slavery is a relation founded in force, not in right, existing, where it does exist, by force of positive law, and not recognized as founded in natural right, is intimated by a defini- tion of slavery in the civil law: “ Servitus est constitutio juris gentium, qua (a) Liza v, Puissant, 7 La. An. 80; Lewis v. Fullerton, 1 Rand. (Va.) 15; Maria v. Kirby, 12 B. Mon. (Ky.) 542; Hunter v. Fulcher, 1 Leigh (Va.) 172. CHAP. IV.] CAPACITY OF PERSONS. 161 situation, is far from being a novelty in the law. A residence in a new country often introduces a change of legal condition, which quis dominio alieno contra naturam subjicitur.”’? Upon a general review of the authorities, and upon an application of the well-established principles upon this subject, we think they fully maintain the point stated, that though slavery is contrary to natural right, and to the principles of justice, humanity, and sound policy, as we adopt them and found our own laws upon them, yet not being contrary to the laws of nations, if any other state or community see fit to establish and continue slavery by law, so far as the legislative power of that country extends, we are bound to take notice of the existence of those laws, and we are not at liberty to declare and hold an act done within those limits unlaw- ful and void, upon our views of morality and policy, which the sovereign and legislative power of the place has pronounced to be lawful. If therefore an unwarranted interference and wrong is done by our citizens to a foreigner act- ing under the sanction of such laws, and within their proper limits, that is, within the local limits of the power by whom they are thus established, or on the high seas, which each and every nation hasaright in common with all others to occupy, our laws would no doubt afford a remedy against the wrong done. So in pursuance of a well-known maxim, that, in the construction of contracts, the lex loci contractus shall govern, if a person, having in other respects a right to sue in our courts, shall bring an action against another, liable in other respects to be sued in our courts, upon a contract made upon the subject of slavery in a state where slavery is allowed by law, the law would here give it effect. As if a note of hand made in New Orleans were sued on here, and the defence should be that it was a bad consideration, or without consideration, because given for the price of a slave sold, it may well be admit- ted that such a defence could not prevail, because the contract was a legal one by the law of the place where it was made.1| This view of the law applicable to slavery marks strongly the distinction between the relation of master and slave as established by the local law of particular states, and in virtue of that sovereign power and independent authority which each independent state con- cedes to every other, and those natural and social relations which are every- where and by all people recognized, and which, though they may be modified and regulated by municipal law, are not founded upon it, such as the relation of parent and child, and husband and wife. Such also is the principle upon which the general right of property is founded, being in some form univer- sally recognized as a natural right, independently of municipal law. This affords an answer to the argument drawn from the maxim that the right of personal property follows the person, and therefore, where by the law of a place a person there domiciled acquires personal property, by the comity of nations the same must be deemed his property everywhere. It is obvious that if this were true, in the extent in which the argument employs it, if slavery exists anywhere, and if by the laws of any place a property can be acquired in slaves, the law of slavery must extend to every place where such slaves may be carried. The maxim therefore, and the argument, can apply only to those commodities which are everywhere and by all nations treated and deemed subjects of property. But it is not speaking with strict accuracy to say that a property can be acquired in human beings by local laws. Each state may, for 1 But see post, s. 259. 11 162 CONFLICT OF LAWS. [s. 96 a. imposes rights and obligations totally inconsistent with the former rights and obligations of the same persons. Persons bound by its own convenience, declare that slaves shall be deemed property, and that the relations and Jaws of personal chattels shall be deemed to apply to them; as, for instance, that they may be bought and sold, delivered, attached, levied upon, that trespass will lie for an injury done to them, or trover for converting them. But it would be a perversion of terms to say that such local laws doin fact make them personal property generally; they can only determine that the same rules of law shall apply to them as are applicable to property, and this effect will follow only so far as such laws proprio vigore can operate. The same doctrine is recognized in Louisiana. In the case of Lunsford v. Coquil- lon, 2 Mart. N.S. (La.) 404, it is thus stated: ‘‘ The relation of owner and slave is, in the states of this union in which it has a legal existence, a creature of the municipal law.’? See Story’s Conflict of Laws, 92, 97 [1st ed. s. 96, 104]. The same principle is declared by the court in Kentucky, in the case of Rankin v. Lydia, 2 A. K. Marsh. 470. They say, slavery is sanctioned by the laws of this state; but we consider this as a right existing by positive law of a municipal character, without foundation in the law of natnre. The con- clusion to which we come with this view of the law, is this: That by the gene- ral and now well-established law of this commonwealth bond slavery cannot exist, because it is contrary to natural right, and repugnant to numerous pro- visions of the constitution and laws, designed to secure the liberty and per- sonal rights of all persons within its limits, and entitled to the protection of its laws. That though by the laws of a foreign state, meaning by foreign, in this connection, a state governed by its own laws, and between which and our own there is no dependence one upon the other, but which in this respect are as independent as foreign states, a person may acquire a property ina slave, such acquisition, being contrary to natural right and affected by local law, is dependent upon such local law for its existence and efficacy, and being contrary to the fundamental law of the state, such general right of property cannot be exercised or recognized here. That, as a general rule, all persons coming within the limits of a state become subject to all its municipal laws, civil and criminal, and entitled to the privileges which those laws confer; that this rule applies as well to blacks as whites, except the case of fugitives to be afterwards considered; that if such persons have been slaves they become free, not so much because any alteration is made in their status, or condition, as because there is no law which will warrant. but there are laws, if they choose to avail themselves of them, which prohibit, their forcible detention or forcible removal. That the law arising from the comity of nations cannot apply, because if it did it would follow as a necessary consequence that all those per- sons who, by force of local laws and within all foreign places where slavery is permitted, have acquired slaves as property, might bring their slaves here and exercise over them the rights and power which an owner of property might exercise, and for any length of time, short of acquiring a domicil; that such an application of the law would be wholly repugnant to our laws, entirely inconsistent with our policy and our fundamental principles, and is therefore inadmissible. Whether if aslave voluntarily brought here, and with his own consent returning with his master, would resume his condition as a slave, is a question which was incidentally raised in the argument, but is one on which we are not called on to give an opinion in this case, and we give none. From CHAP. IV.] CAPACITY OF PERSONS. 163 particular contracts which restrain their liberty, debtors, appren- tices, and others, lose their character and condition for the time, the principle above stated, on which a slave brought here becomes free, to wit, that he becomes entitled to the protection of our laws, and there is no law to warrant his forcible arrest and removal, it would seem to follow, as a necessary conclusion, that if the slave waives the protection of those laws, and returns to the state where he is held as a slave, his condition is not changed. In the case of The Slave Grace, 2 Hagg. Adm. 94, this question was fully considered by Sir William Scott in the case of a slave brought from the West Indies to England, and afterwards voluntarily returning to the West Indies; and he held that she was reinstated in her condition of slavery. A different decision I believe has been made of the question in some of the United States; but for the reasons already given it is not necessary to consider it further here. The question has thus far been considered as a general one, and applicable to cases of slaves brought from any foreign state or country; and it now becomes neces- sary to consider how far this result differs, where the person is claimed as a slave by a citizen of another state of this Union. As the several states, in all matters of local and domestic jurisdiction, are sovereign and independent of each other, and regulate their policy by their own laws, the same rule of comity applies to them on these subjects as to foreign states, except so far as the respective rights and duties of the several states and their respec- tive citizens are affected and modified by the constitution and laws of the United States. In art. 4,8. 2, the constitution declares that no person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. The law of congress made in pursuance of this article provides that when any person held to labor in any of the United States, &c., shall escape into any other of the said states or territories, the per- son entitled, &c., is empowered to arrest the fugitive, and upon proof made that the person so seized, under the law of the state from which he or she fled, owes service, &e. Act of February 12, 1793, c. 7,s.3. In regard to these provisions the court are of opinion that as, by the general law of this common- wealth, slavery cannot exist, and the rights and powers of slave-owners cannot be exercised therein, the effect of this provision in the constitution and laws of the United States is to limit and restrain the operation of this general rule, so far as it is done by the plain meaning and obvious intent and import of the language used, and no further. The constitution and law manifestly refer to the case of a slave escaping from a state, where he owes service or labor, into another state or territory. He is termed a fugitive from labor; the proof to be made is, that he owed service or labor under the laws of the state or terri- tory from which he fled, and the authority given is to remove such fugitive to the State from which he fled. This language can by no reasonable construction be applied to the case of a slave who has not fled from the state, but who has been brought into this state by his master. The same conclusion will result from a consideration of the well-known circumstances under which this con- stitution was formed. Before the adoption of the constitution the states were to a certain extent sovereign and independent, and were in a condition to set- tle the terms upon which they would form a more perfect union. It has been contended by some over-zealous philanthropists that such an article in the 164 CONFLICT OF LAWS. [s. 96 a._ when they reside in another country, and are entitled as persons totally free, although they return to their original servitude and constitution could be of no binding force or validity because it was a stipula- tion contrary to natural right. But it is difficult to perceive the force of this objection. It has already been shown that slavery is not contrary to the laws of nations. It would then be the proper subject of treaties among sovereign and independent powers. Suppose, instead of forming the present constitu- tion or any other confederation, the several states had become in all respects sovereign and independent, would it not have been competent for them to stipu- late that fugitive slaves should be mutually restored, and to frame suitable regulations under which such a stipulation should be carried into effect? Such a stipulation would be highly important and necessary to secure peace and harmony between adjoining nations, and to prevent perpetual collisions and border wars. It would be no encroachment on the rights of the fugitive; for no stranger has a just claim to the protection of a foreign state against its will, especially where a claim to such protection would be likely to involve the state in war; and each independent state has a right to determine by its own laws and treaties who may come to reside or seek shelter within its limits, and to prescribe the terms. Now the constitution of the United States partakes both of the nature of a treaty‘and of a form of government. It regards the states to a certain extent as sovereign and independent communities, with full power to make their own laws and regulate their own domestic policy, and fixes the terms upon which their intercourse with each other shall be conducted. In respect to foreign relations it regards the people of the states as one commu- nity, and constitutes a form of government for them. It is well known that, when this constitution was formed, some of the states permitted slavery and the slave-trade, and considered them highly essential to their interest, and that some other states had abolished slavery within their own limits, and, from the principles deduced and policy avowed by them, might be presumed to desire to extend such abolition further. It was therefore manifestly the intent and the object of one party to this compact to enlarge, extend, and secure as far as possible, the rights and powers of the owners of slaves within their own limits, as well as in other states, and of the other party to limit and restrain them. Under these circumstances the clause in question was agreed on and introduced into the constitution; and, as it was well considered, as it was intended to secure peace and harmony, and to fix as precisely as language could do it, the limit to which the rights of one party should be exercised within the territory of the other, it is to be presumed that they selected terms intended to express their exact and their whole meaning; and it would be a departure from the purpose and spirit of the compact to put any other construction upon it than that to be derived from the plain and natural import of the language used. Besides, this construction of the provision in the constitution gives to it a lati- tude sufficient to afford effectual security to the owners of slaves. The states have a plenary power to make all laws necessary for the regulation of slavery and the rights of the slave-owners whilst the slaves remain within their terri- torial limits; and it is only when they escape without the consent of their owners into other states that they require the aid of other states to enable them to regain their dominion over the fugitives. But this point is supported by most respectable and unexceptionable authorities. In the case of Butler p. Hopper, 1 Wash. C.C. 499, it was held by Mr. Justice Washington, in terms, CHAP. IV.] CAPACITY OF PERSONS. 165 obligations upon coming back to the country they had quitted; and even in the case of slavery, slaves themselves possess rights that the provision in the constitution which we are now considering does not ‘extend to the case of a slave voluntarily carried by his master into another state, and there leaving him under the protection of some law declaring him free.” In this case however the master claimed to hold the slave in virtue of a law of Pennsylvania which permitted members of congress and sojourners to retain their domestic slaves, and it was held that he did not bring himself within either branch of the exception, because he had for two years of the period ceased to be a member of congress, and so lost the privilege; and by having become a resident could not claim as a sojourner. The case is an authority to this point, that the claimant of a slave, to avail himself of the provisions of the constitution and laws of the United States, must bring him- self within their plain and obvious meaning, and they will not be extended by construction; and that the clause in the constitution is confined to the case of a slave escaping from‘one state and fleeing to another. But in a more recent case the point was decided by the same eminent judge. Ex parte Simmons, 4 Wash. C.C. 396. It was an application for a certificate under s. 3 of the act of Feb. 12, 1798. He held that both the constitution and the laws of the United States apply only to fugitives escaping from one state and fleeing to another, and not to the case of a slave voluntarily brought by his master. Another question was made in that case whether the slave was free by the laws of Pennsylvania, which, like our own in effect, liberate slaves voluntarily brought within the state; but there is an exception in favor of members of Congress, foreign ministers and consuls, and sojourners; but this provision is qualified as to sojourners and persons passing through the state in such manner as to exclude them from the benefit of the exception, if the slave was retained in the state longer than six months. The slave in that case having been de- tained in the state more than six months was therefore held free. This case is an authority to this point, — the general rule being that, if a slave is brought into a state where the laws do not admit slavery, he will be held free, the per- son who claims him as a slave under any exception or limitation of the general rule must show clearly that the case was within such exception. The same principle was substantially decided by the state court of the same state in the case of Commonwealth v. Holloway, 2 Serg. & R. 305. It was the case of a child of a fugitive slave born in Pennsylvania. It was held that the constitu- tion of the United States was not inconsistent with the law of Pennsylvania; that as the law and constitution of the United States did not include the issue of fugitive slaves in terms, it did not embrace them by construction or impli- cation. The court considers the law as applying only to those who escape. ° Yet by the operation of the maxim which obtains in all the states wherein slavery is permitted by law, partus sequitur ventrem, the offspring would fol- low the condition of the mother, if either the rule of comity contended for applied, or if the law of the United States could be extended by construction. The same decision has been made in Indiana, 8 Amer. Jurist, 404. In Louisi- ana it had been held, that if a person with a slave goes into a state to reside where it is declared that slavery shall not exist, for ever so short a time, the slave ipso facto becomes free, and will be so adjudged and considered after- wards in all other states; and a person moving from Kentucky to Ohio to reside, his slaves thereby became free, and were so held in Louisiana. This 166 CONFLICT OF LAWS. [s. 96 a, 97, and privileges in one character which they are not entitled to in another. The domestic slave may, in that character, by law ac- case also fully recognizes the authority of states to make laws dissolving the relation of master and slave; and considers the special limitation of the general power by the federal constitution as a forcible implication in proof of the ex- istence of such general powers. Lunsford v. Coquillon, 2 Mart. N.S. 401. And in the above-cited case from Louisiana it is very significantly remarked that such a construction of the constitution and law of the United States can work injury to no one, for the principle acts only on the willing, and volenti non fit injuria. The same rule of construction is adopted in analogous cases in other countries, that is, where an institution is forbidden, but where, for special reasons and to a limited extent, such prohibition is relaxed, the exemp- tion is to be construed strictly, and whoever claims the exemption must show himself clearly within it, and where the facts do not bring the case within the exemption, the general rule has its effect. By a general law of France, all persons inhabiting or being within the territorial limits of France are free. An edict was passed by Louis XIV. called Le Code Noir, respecting slavery in the colonies. In 1716 an edict was published by Louis XV. concerning slavery in the colonies, and reciting, among other things, that many of the colonists were desirous of bringing ‘their slaves into France to have them con- firmed in the principles of religion, and to be instructed in various arts and handicrafts, from which the colonists would derive much benefit on the return of the slaves, but that many of the colonists feared that their slaves would pre- tend to be free on their arrival in France, from which their owners would sus- tain considerable loss, and be deterred from pursuing an object at once so pious and useful. The edict then provides a series of minute regulations, to be observed both before their departure from the West Indies and on their arrival in France, and if all these regulations are strictly complied with, the negroes so brought over to France shall not thereby acquire any right to their freedom, but shall be compellable to return; but if the owners shall neglect to comply with the prescribed regulations, the negroes shall become free, and the owners shall lose all property in them. 20 Howell’s State Trials, 15, note. The constitution and laws of the United States, then, are confined to cases of slaves escaping from other states and coming within the limits of this state without the consent and against the will of their masters, and cannot by any sound construction extend to a case where the slave does not escape and does not come within the limits of this state against the will of the master, but by his own act and permission. This provision is to be construed according to its plain terms and import, and cannot be extended beyond this, and where the case is not that of an escape, the general rule shall have its effect. It is upon these grounds we are of opinion that an owner of a slave in another state where slavery is warranted by law, voluntarily bringing such slave into this state, has no authority to detain him against his will, or to carry him out of the state against his consent, for the purpose of being held in slavery. This opinion is not to be considered as extending to a case where the owner of a fugitive slave, having produced a certificate according to the law of the United States, is bona fide removing such slave to his own domicil, and in so doing passes through a free state ; where the law confers a right or favor, by neces- sary implication it gives the means of enjoying it. Nor do we give any Opinion upon the case where an owner of a slave in one state is bona fide re- CHAP. IV,] CAPACITY OF PERSONS. 167 company his master or mistress to any part of the world. But that privilege exists no longer than his character of domestic slave attaches to him ; for should the owner deprive him of the charac- ter of being a domestic slave by employing him as a field slave, he would be deprived of the right of accompanying his master out of the colony.’ 4 97. Scotch Law as to Capacity. — Struck with the inconveniences of the doctrine of the ubiquity of the law of the domicil, as to the capacity, state, and condition of persons, as an absolute and gen- eral doctrine, a learned judge in the Scottish courts? has not hesi- tated to hold that no such doctrine is recognized as of universal obligation in Scotland. ‘Would a marriage here,’ says he, ‘be declared void because the parties were domiciled in England and were minors when they married here, and of course incapable, by the law of that country, of contracting marriage? This category of law does not affect the contracting individuals only, but the public, and that in various ways. And the consequences would prove not a little inconvenient, embarrassing, and probably even inextricable, if the personal incapacities of individuals, as of majors and minors, the competency to contract marriages, and infringe matrimonial engagements, the rights of domestic authority and service, and the like, were to be qualified and regulated by foreign laws and customs, with which the mass of the population must be moving to another state where slavery is allowed, and in so doing necessarily passes through a free state, or, arriving by accident or necessity, he is com- pelled to touch or land therein, remaining no longer than necessary. Our geographical position exempts us from the probable necessity of considering such a case, and we give no opinion respecting it. The child who is the subject. of this habeas corpus, being of too tender years to have’ any will or give any consent to be removed, and her mother being a slave and having no will of her own and no power to act for her child, she is neces- sarily left in the custody of the law. The respondent having claimed the custody of the child, in behalf of Mr. and Mrs. Slater, who claim the right to carry her back to Louisiana, to be held in a state of slavery, we are of opinion that his custody is not to be deemed by the court a proper and lawful custody. Under a suggestion made in the outset of this inquiry, that a pro- bate guardian would probably be appointed, we shall for the present order the child into a temporary custody, to give time for an application to be made to the judge of probate.’ oe 1 The Slave Grace, 2 Hagg. Adm. 94,113, 114. It seems that Christinzeus and Gudelin held the same opinion as Lord Stowell. See Christinzus, vol. 4, decis. 80, n. 4, p. 115; cited also, 1 Burge, Col. & For. Law, pt. 1, ¢. 10, p. 749. 2 Lord Meadowbank: Fergusson on Mar. and Divorce, Appx. 361, 362. 168 CONFLICT OF LAWS. [s. 97-99, utterly unacquainted. Accordingly, the laws of this description seem nowhere to yield to those of foreign countries ; and accord- ingly, it is believed, no nation has hitherto thought of conferring powers and forms on its courts of justice, adequate for enabling them to execute over foreigners regular authority for enforcing the observance by them of the laws of their own country when expatriated. In fact, the very same principles which prescribe to nations the administration of their own criminal. law appear to require a like exclusive administration of law relative to the do- mestic relations. Hence, both in England and Scotland, the most regular constitution abroad of domestic slavery was held to afford no claim to domestic service in this country, though restricted for only such service, and under such domestic authority, as our laws recognized. The whole order of society would be disjointed, were the positive institutions of foreign nations concerning the domestic relations, and the capacities of persons regarding them, admitted to operate universally, and form privileged castes, living each un- der separate laws, like the barbarous nations during many cen- turies after their settlement in the Roman empire.’ ! 98. Conclusions.—These diversities in the practical jurisprudence of different countries, as to the effect of personal ability and dis- ability, and personal capacity or incapacity, abundantly establish, in the first place, that there is no general rule on the subject, which is admitted by all nations; and, in the next place, that the very exceptions introduced or conceded by those who most strenu- ously contend for the universal operation of the law of the domicil of the party, either native or acquired, in cases of this nature, as satisfactorily establish that no general rules have been or can be established, which may not work serious inconvenience to the interests or institutions of some particular countries, or to some particular classes of capacities or incapacities. The proper con- clusion, then, to be drawn from this review of the subject is, that the rule of Huberus is correct, that no nation is under any obli- gation to give effect to the laws of any other nation which are prejudicial to itself or to its own citizens; that in all cases every nation must judge for itself what foreign laws are so prejudicial or not; and that, in cases not so prejudicial, a spirit of comity and » a sense of mutual utility ought to induce every nation to allow full force and effect to the laws of every other nation. This is the doc- ' 1 Lord Meadowbank: Fergusson on Mar. and Divorce, Appx. 361, 362. CHAP. IV.] CAPACITY OF PERSONS. 169 trine asserted by Mr. Chancellor Kent; and it certainly has a most solid foundation in the actual practice of nations. ‘There is no doubt,’ says he, ‘of the truth of the general proposition that the laws of a country have no binding force beyond its own territorial limits; and their authority is admitted in other states, not ex proprio vigore, but ex comitate; or, in the language of Huberus, *quatenus sine prejudicio indulgentium fieri potest.” Every in- dependent community will judge for itself how far the comitas inter communitates is to be permitted to interfere with its domes- tic interests and policy, &c; the maxim is, that locus contractus regit actum, unless the intention of the parties to the contrary be clearly shown. . . . It is however a necessary exception to the universality of the rule, that no people are bound or ought to en- force or hold valid in their courts of justice, any contract which is injurious to their public rights, or offends their morals, or contra- venes their policy, or violates a public law.’! 99. Recognition of Foreign Incapacities.—In discussing this subject, our attention has been more particularly drawn to the common cases of incapacity resulting from minority, and mar- riage, and legitimacy. But the principles which apply to them are not materially different from those which apply to cases of idiocy, insanity, and prodigality. The extent of the rights and authori- ties of guardians, curators, parents, and masters: over persons subjected to their control, or committed to their charge, may, in a general sense, be said to depend, so far as they are to be recog- nized or enforced by and in foreign nations, upon the same common ground of international jurisprudence, that is to say, upon a general comity, founded in the sense of mutual interests, mutual benefits, and mutual obligations to cultivate peace and harmony. It was said on a recent occasion, with great force and propriety, by Mr. Chief Justice Taney, in delivering the opinion of the Supreme Court: ‘The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when 12 Kent Com. 457, 458; post, s. 244-259. See also Greenwood v. Curtis, 6 Mass. 378, 879. This subject is a good deal discussed in the able work of Mr. Fergusson on Marriage and Divorce; and the opinions of the judges in the case of Gordon v. Pye, in 1815, and that of Edmonstone and others in 1816, before the Scottish courts, are particularly worthy of examination, from their comprehensive learning and ability. Fergusson, Appx. p. 276-363. See also Id. p. 884-422. [s. 99-102, 170 CONFLICT OF LAWS. contrary to its policy or prejudicial to its interests. But it con- tributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereiguties to which they belong, that courts of justice have constantly acted upon it as a part of the voluntary law of nations.’ 100. Rules. —In concluding this discussion as to the operation of foreign laws on questions relating to the capacity, state, and condition of persons, it may be useful to bring together some of those rules which seem best established in the jurisprudence of England and America, leaving others of a more doubtful character and extent to be decided, as they may arise, in the proper forum, 101. Acts in the Country of Domicil.— First: The capacity, state, and condition of persons according to the law of their domi- cil will generally be regarded as to acts done, rights acquired, and contracts made in the place of their domicil, touching property situate therein. If these acts, rights, and contracts have validity there, they will be held equally valid everywhere. If invalid there, they will be held invalid everywhere.? 102. Acts in other Countries.— Secondly: As to acts done, and rights acquired, and contracts made in other countries, touching property therein, the law of the country where the acts are done, the rights are acquired, or the contracts are made, will generally govern in respect to the capacity, state, and condition of per- sons.2(a) In affirmance of this doctrine the Supreme Court of 1 Bank of Augusta v. Earle, 18 Pet. 589. 2 See Male v. Roberts, 3 Esp. 163; Thompson v. Ketcham, 8 Johns. (N. Y.) 189; ante, s. 64-68; s. 87. See Foelix, Conflit des Lois Revue Ktrang. et Frang. tom. 7, 1840, s. 38, p. 342-844. 8 Ante, s. 69, 70-74; s. 80-82, 87. (a) Capacity to contract. — There is a remarkable absence of decisions upon the question by what law capa- city to contract is to be determined. The only English case is Male v. Ro- berts, 3 Esp. 163, a decision of Lord Eldon’s at nisi prius in 1790. The action was brought to recover money advanced in Scotland to pay a debt of the defendant’s when both parties were in Scotland. The defence was infancy. Lord Eldon said that, as the cause of action arose in Scotland, the contract must be governed by the law of that country, and that if, by the law of Scotland, such a contract could not be enforced against the in- fant, that should have been given in evidence. See Dicey on Domicil, 177. The same rule was laid down in New York in 1811 in Thompson v. Ketcham, 8 Johns. 189, in which the judgment was delivered by Kent, C.J. In more recent American cases, it has been held: that the capacity of a married woman to contract depends on the law of the place where the contract is made. Pearl v, Hansborough, 9 Humph. CHAP. Iv.] CAPACITY OF PERSONS. 171 Louisiana, in a case where the direct question came before them, expressly stated that they had no difficulty in assenting to the proposition that contracts entered into in other states, as it relates to their validity and the capacity ofthe contracting parties, are to be tried in Louisiana by the lex loci celebrati contractus. And that if a contract was entered into in another state in conformity to the local law to have its effects and execution there, the courts of Louisiana cannot declare it a nullity on the ground that it would not be valid according to the system of jurisprudence of that state, even if one or both the contracting parties were not citizens of such foreign state. 1 Mr. Justice Bullard, in Andrews v. note 3, s. 96a. (Tenn,) 426; Milliken v. Pratt, 125 Mass. 374; Bell v. Packard, 69 Me. 105. See Dicey on Domicil, 193. In none of these cases was any place specially appointed for the perform- ance of the contract. The decisions were placed upon the ground that the validity of the contract depended on the law of the place where it was made. This is the principle which determines the validity of a contract when the place for its performance is not speci- fied. But when it is to be performed in a particular place, the contract is not valid if it is prohibited by the law of the place of performance. Post, s. 242, 280, 299, 299 a. If therefore capacity depends upon the principle which governs the validity of con- tracts in other matters of substance, as the cases seem to indicate, a con- tract is not valid unless the parties have capacity by the law of the place of performance. Story says that, in transfers of immovables, the lex situs, which governs the transfer in other re- spects, determines also capacity. Post, 8. 430, 431. It may be that capacity to contract will be regarded as a mat- ter to be governed by the law of the place to which: the contract is deemed to belong. See Westlake (ed. 1880), 234-237; Foote, Priv. Int. Law, 297; Akers v. Demond, 103 Mass. 318, 323. The case of Sottomayor v. De Barros, His Creditors, 11 La. 464; ante, s. 95, 3 P. D. 1, 5, contains this dictum by Cotton, L.J., viz., ‘But it is a well- recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicil,’ and, ‘as in other contracts, so in that of marriage, per- sonal capacity must depend on the law of domicil.’ The point decided was that the law of Portugal which pro- hibited marriages between first cousins as incestuous, made persons so related and domiciled in Portugal incapable of marrying one another, wherever the marriage might be solemnized. No authority is referred to for the general proposition that capacity to enter into any contract depends on the law of the domicil, but if the proposition had been limited to contracts of marriage, there would have been authority for it. Brook v. Brook, 9 H. L. C. 1938. Marriage ‘creates a status, and ques- tions of status depend upon the law of the domicil. Ante, s. 50, note. In contracts of marriage, too, the matri- monial domicil is the place with re- ference to which the contract is made and in which its obligations are to be performed; consequently, if the prin- ciple that governs other contracts be applied, the contract is not valid un- less it is lawful by the law of the ma- trimonial domicil. See note, s. 124 a, post. 172 . CONFLICT OF LAWS. [s. 102 a-105 a, 1024. It has been well remarked by Mr. Burge: ‘ This doc- trine promotes, whilst that to which it is opposed As inconsistent with, those principles of mutual convenience which induce the recognition of foreign laws. The obstacles to commercial inter- course between the subjects of foreign states would be almost insurmountable, if a party must pause to ascertain, not by the means within his reach, but by recourse to the law of the domicil of the person with whom he is dealing, whether the latter has attained the age of majority, and, consequently, whether he is competent to enter into a valid and binding contract. If the country in which the contract was litigated was also that in which it had been entered into, and if the party enforcing it were the subject of that country, it would be unjust, as well as unreasona- ble, to invoke the law of a foreign state for the benefit of the foreigner, and to. deprive its own subject of the benefit of the law of his own state.’ ? 1028. He adds: ‘It has been hitherto assumed that, according to the law of the domicil, the person was a minor, and incapable of contracting, although he had attained the age which, in loco contractus, constituted majority, and where, according to that law, he was competent to contract. In such a case it has been sub- mitted that the lex loci contractus ought to be followed. It ought also to be followed if the converse of that case occurred, and he had attained majority according to the law of his domicil, but was a minor according to that which prevailed in loco contractus. It is true, in the latter case, the party was subject to no greater liability than he would have incurred in the place of his domicil. But if the principle be correct, that the lex loci contractus ought to determine the validity of a contract when that validity depends on the capacity of the contracting party, it must be uniformly ap- plied, whether the law -prevailing in the domicil be that which capacitates or incapacitates. For it would not be reasonable that two different laws should be applied to one and the same contract, and. that the liability of one of the parties should be decided by the lex loci contractus, and that of the other by the lex loci domicilii.’ ? 103. Lex Loci Actus.— Thirdly: Hence we may deduce, as a corollary, that in regard to questions of minority or majority, 1 1 Burge, Col. & For, Law, pt. 1, ch. 4, p. 182. 2 Id. p. 133. CHAP. Iv.] CAPACITY OF PERSONS. 173 competency or incompetency to marry, incapacities incident to coverture, guardianship, emancipation, and other personal quali- ties and disabilities, the law of the domicil of birth, or the law of any other acquired and fixed domicil, is not generally to govern, but the lex loci contractus aut actus, the law of the place where the contract is made or the act done.(@) Therefore a person who is a minor until he is of the age of twenty-five years by the law of his domicil, and incapable, as such, of making a valid contract there, may nevertheless, in another country where he would be of age at twenty-one years, generally make a valid contract at that age, even a contract of marriage.! 104. Penal Disabilities. — Fourthly : Personal disqualifications, not arising from the law of nature, but from the principles of the customary or positive law of a foreign country, and especially such as are of a penal nature, are not generally regarded in other countries, where the like disqualifications do not exist.2. Hence, the disqualifications resulting from heresy, excommunication, po- pish recusancy, infamy, and other penal disabilities, are not en- forced in any other country, except that in which they originate. They are strictly territorial. So, the state of slavery will not be recognized in any country whose institutions and policy prohibit slavery.* 105. Legitimacy. — Fifthly: In questions of legitimacy or il- legitimacy, the law of the place of the marriage will generally govern as to the issue subsequently born. If the marriage is valid by the law of that place, it will generally be held valid in every other country, for the purpose of ascertaining legitimacy and heirship. If invalid there, it will generally (if not universally) be held invalid in every other country.® 105 a. Legitimation per Subsequens Matrimonium.— Sixthly : As to issue born before the marriage, if, by the law of the country where they are born, they would be legitimated by the subse- 1 Ante, s. 75, 79, 80, 81, 82. 2 Ante, s. 91-96. 8 Ante, s. 91, 92, 94, 95. 4 Co. Lit. 79 b, Harg. n. 44; ante, s. 96. 5 Ante, s. 79, 80, 81, 86. (a) In re Hellmann’s Will, L. R. of their domicil, whichever first hap- 2 Eq. 368, it was held that legacies pened. The legatees were domiciled bequeathed by an English will might at Hamburg, where girls became of be paid to legatees domiciled abroad age at eighteen, and boys at twenty- when they became of age according to two. English Jaw or according to the law 174 CONFLICT OF LAWS. [s. 105 a, 106. quent marriage of their parents, they will by such subsequent marriage (perhaps in any country, but at all events in the same country) become legitimate, so that this character of legitimacy will be recognized in every other country. If illegitimate there, the same character will belong to them in every other country. 106. Evasion of Laws of the Domicil. — Seventhly: No nation being under any obligation to yield up its own laws in regard to its own subjects, to the laws of other nations, it will not suffer its own subjects to evade the operation of its own fundamental policy or laws, or to commit frauds in violation of them, by any acts or contracts made with that design in a foreign country ; and it will judge for itself how far it will adopt, and how far it will reject, any such acts or contracts. Hence the acts of prodi- gals, of minors, of idiots, of lunatics, and of married women, escaping into foreign countries, are not to be deemed as of course absolutely obligatory, even if sanctioned by the foreign law, unless the laws of their own country adopt such foreign law as a rule to govern:in such cases.2 Hence, too, a person born before wedlock, who in the country of his birth is deemed illegitimate, may not, by a subsequent marriage of his parents in another country, by whose laws such a marriage would make him legiti- mate, cease to be illegitimate in the country of bis birth? Hence, also, if a marriage is by the laws of a country indissoluble when 1 Ante, s. 87, 87 a; Munro »v. Saunders, 6 Bligh, 468. 2 An apt illustration of this rule may be found in the present law of France. By that law, a marriage contracted in a foreign country between Frenchmen, or a Frenchman and a stranger, is valid if celebrated according to the forms used in that country, provided it is preceded by a proper publication of banns, and the Frenchman does not contravene the other provisions of the French law. Upon this law Toullier remarks that the conditions required to be com- plied with are those of the code respecting the contract of marriage; for, as the laws respecting a person follow a Frenchman everywhere, it results that even in a foreign country he is held to conform to the French laws relative to the age of the contracting parties, their family, and the impediments to marriage. 1 Toullier, Droit Civil Frangais, art. 575, p. 484. So that French minors, who are incapable of contracting a marriage in France, are disabled everywhere, hae ee even though the marriage would be good by the law of the place where the — marriage is celebrated. The English and American courts would hold such 4 marriage good. Code Civil, art. 144, 148, 170; Merlin Répert. tit. Loi, s. 6, n. 1. See also 2 Kent Com. 93, note. The doctrine of France, in this respect, is but an illustration of the general rule prescribed by the Civil Code of France (art. 3), that the laws respecting the state and condition of Frenchmen govern them, even when resident in a foreign country. Ante, s. 54. 8 Ante, s. 79, 87, 87 a, 105 a. CHAP. IV.] CAPACITY OF PERSONS. 175 once contracted between its own subjects, they may not, by a mere removal into another country, at least without a change of .domicil, be deemed capable of contracting a new marriage after a divorce, lawful by the law of the place to which they have re- moved.! In short, every nation, in these and the like cases, will govern itself by such rules and principles as are best adapted in its own judgment to subserve its own substantial interests and fixed policy, and to uphold its own institutions, as well as to promote a liberal intercourse, and a spirit of confidence and re- ciprocal comity with all other nations. But this subject will be more fully considered in the succeeding chapters. (a) 1 See Rex v. Lolley, Russ. & Ry. 237; Tovey v. Lindsay, 1 Dow, 124; Conway v. Beazley, 8 Hagg. Ecc. 639; M’Carthy v. Decaix, 1831, 2 Russ. & My. 620. But see Warrender v. Warrender, 9 Bligh, 89; post, s. 215- 231. (a) Corporations. — A corporation created under the laws of one country js recognized as such in other coun- tries. The powers vested in it by its incorporation, when there is no re- striction as to the place where it may act, may be exercised in any place the laws of which do not pro- hibit its acting there. Bateman v. Service, 6 App. Cas. 3886 (P. C.); Bank of Augusta v. Earle, 13 Pet. 519; Merrick v. Van Santvoord, 34 N. Y. 208; Dicey on Domicil, 198; 2 Lindley, Partn. (4th ed.) 1484. It has long been settled that a corpora- tion may sue and be sued in other coun- tries than that in which it originated. Dutch West India Co. v. Moses, 1 Str. 612; Henriques v. Dutch West India Co., 2 Ld. Raym. 15382; Newby v. Colt’s Firearms Co., L. R. 7 Q. B. 293; British American Land Co. v. Ames, 6 Met. (Mass.) 391; Smith »v. Weed Sewing-Machine Co., 26 Ohio St. 562; Farnsworth v. Terre Haute Rid. Co., 29 Mo. 75; St. Louis v. Wiggins Ferry Co., 40 Mo. 580. Itis now generally established that it may also transact business and enter into contracts. Bank of Augusta v. Earle, 13 Pet. 519; Cowell v. Springs Co., 100 U. S. 55; Bateman »v. Service, 6 App. Cas. 386 (P. C.) ; Kennebec Co. v. Augusta Ins. Co., 6 Gray (Mass.) 204; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343; Bank of Cin- cinnati v. Hall, 35 Ohio St. 158; Howe Machine Co. v. Walker, 35 U. C. Q. B. 87. It may hold land. Runyan »v. Coster, 14 Pet. 122; Chris- tian Union v. Yount, 101 U. S. 352. It may take real or personal estate by will. White v. Howard, 88 Conn. 342; Thompson v. Swoope, 24 Pa. St. 474; American Bible Society v. Mar- shall, 15 Ohio St. 587; Sherwood v. American Bible Society, 4 Abb. App. Dec. (N. Y.) 227. The power of a corporation to act in a foreign country depends both on the law of the country where it was created, and on the law of the country where it assumes to act. It has only such powers as were given to it by the authority which created it. It cannot do any act by virtue of those powers in any country where the laws forbid it so to act. It follows that every country may impose conditions and restric- tions upon foreign corporations which transact business within its limits. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Att.-Gen. v. Bay State Mining Co., 99 Mass. 148; Bard ». 176 Poole, 12 N. Y. 495; Phoenix Ins. Co. v. Commonwealth, 5 Bush (Ky.) 68. In Canada, it was intimated in some early cases that, although a foreign corporation might sue, yet it could not transact business or en- ter into a valid contract out of its own country. Bank of Montreal v. Bethune, 4 U. C. K. B., O.S. 341; Genesee Ins. Co. v. Westman, 8 U. C. Q. B. 487. The point actually de- cided in these cases was, that the fo- reign corporation had not, by its char- ter, authority to transact business in other countries than its own. See 2 Lindley, Partn. (4th ed.) 1484, In the later case of Howe Machine Co. v. Walker, 85 U. C. Q. B. 387, it was held that a foreign corporation could enforce a promissory note payable to it, made and delivered in Canada, and it was strongly intimated that such corporations could carry on their busi- ness and make contracts in Canada. In Kansas it was held that a cor- poration, constituted in Pennsylvania with power to do business anywhere except in Pennsylvania, could not act in Kansas, though it could have acted there if it had not been excluded from Pennsylvania. Land Grant Ry. v. Coffey County, 6 Kans. 245. The rea- soning by which this result was reached is not satisfactory. It was not sugested that any law of Kansas prohibited such a corporation from acting there. As it was conceded that Pennsylvania might give it general power to act anywhere, it is difficult to see why that state might not limit the operations of the corporation to any place within or without Pennsylvania. It is sometimes a question of diffi- culty whether a-foreign association is to be deemed a corporation or not. It is considered a corporation if the shareholders are not individually liable in respect of causes of action against the association. General Steam Navi- gation Co. v. Guillou, 11M. & W. 877, 895. In Liverpool Ins. Co. v. Massa- chusetts, 10 Wall. 566, the Supreme CONFLICT OF LAWS. {s. 106. Court of the United States held that an association might be a corporation, although the members were individu- ally liable, and’ the statutes from which its powers were derived ex- pressly provided that it should not be deemed to be incorporated. The question in this case was whether the association was an ‘insurance com- pany incorporated or associated under the laws of’ a foreign state, in the sense of a statute which imposed a tax upon every such company. It was held to be a corporation, because it had these qualities of a corporation, viz., a distinctive name, the power to sue and be sued in the name of one of its officers as the representative of the whole body, perpetual succession of members by transfer and transmission of its shares, and an existence apart from its shareholders which enabled it to sue them and be sued by them. Bradley, J. agreed with the rest of the court in holding that the company was liable to the tax; he thought however that it was not a corporation, and could not maintain an action or be sued as a corporation in this country; but that it was a company associated under the laws of a foreign country, and so came within the scope of the statute. The Massachusetts court had decided in the same case (nom. Oliver v. Liverpool Ins. Co., 100 Mass. 531) that the company was liable to the tax on the ground that although it was not a corporation in the full sense of the term as defined by the com- mon law, yet it was an association formed by legislative authority, and so far clothed with corporate powers that it might be treated, for the pur- poses of taxation, as an artificial body. In other cases it has been held that a company is a mere partnership, and not a corporation, where the members are individually liable, although the statutes under which the company was formed provide that it may sue and be sued in the name of its presi- dent or treasurer, and that no action CHAP. IV.] CAPACITY shall be brought against the members until after execution against the com- pany shall have been returned unsatis- fied, and the interests of the members are held in shares assignable like those ofacorporation ; the provisions concern- ing actions have been deemed to have no operation beyond the limits of the state that enacted them, and actions were maintained in other states directly against the members. Taft v. Ward, 106 Mass. 518; Gott ». Dinsmore, 111 Mass. 45; Boston & Albany Rid. Co. v. Pearson, 128 Mass. 445; Frost v. Walker, 60 Me. 468. The question whether an association, formed under foreign law, not strictly a corporation; may be regarded as an artificial body or quasi’ corporation so far as to en- able it to sue and be sued as such, seems not to have been directly de- cided. See Alivon v. Furnival, 1 C. M. & R. 277, 296; Westcott v. Fargo, 61 N. Y. 542. Residence of a Corporation. — As a corporation is an artificial and incor- poreal being, it cannot strictly have any locality. Carron Iron Co. »v. Maclaren, 5 H. L. C. p. 441. It cannot be said to reside or to be pre- sent anywhere in the sense in which a natural person resides at place or is present there. But as the rights and obligations of natural persons often depend upon their residence, and cor- porations frequently have the same rights and obligations, it becomes necessary to attribute to a corporation a residence by analogy to a natural person. The only way in which a corporation can manifest its presence in a place is by transacting its busi- ness there. The place where the business of the corporation is carried on is therefore deemed the residence of the corporation. But the business which determines its residence is not the trading or manufacturing which the corporation does, but the manage- ment and direction of the affairs of the corporation. Cesena Sulphur Co. v. Nicholson, 1 Ex. D. 428. As a cor- OF PERSONS. 177 poration can carry on its business in a foreign country as well in that where it was constituted, subject to the limi- tation that it is not prohibited by either country, there seems to be no reason why a corporation may not be said to reside in a different country from that by which it was incorpo- rated. In Cesena Sulphur Co. »v. Nicholson, 1 Ex. D. 428, 453, in which a company incorporated in England under the Companies’ Acts, was held to reside in England and consequently to be liable to income tax, because the real business was carried on there, although the trading and the property were in Italy, Hud- dleston, B., said, ‘The attorney- general advanced a proposition to which I cannot assent. He suggested that the registration of a company was conclusive of its residence, that if a company was registered in Eng- land, it must be held to reside in England. I think the answer which was given during the argument is a good one. It is this: Registration, like the birth of an individual, is a fact which must be taken into con- sideration in determining the question of residence. It may be a strong cir- cumstance, but it is only a circum- stance. It would be idle to say that in the case of an individual the birth was conclusive of the residence: So, drawing an analogy between a natural and an artificial person, you may say that in the case of a corporation the place of its registration is the place of its birth, and is a fact to bé consi- dered with all the others. If you find that a company which is registered in a particular country, acts in. that country, has its office and receives dividends in that country, you may say that those facts, coupled with the registration, lead you to the conclu- sion that its residence isin that coun- try.’ The case of the Bank of Augusta v. Earle, 13 Pet, 519, 588, contains a dic- tum by Taney, C.J., to the effect that 12 178 CONFLICT a corporation can have no existence out of the state by which it was created. The point decided in this case was that a corporation could make con- tracts in other states. It was urged in the argument that a corporation was incapable of making a contract out of the state, because it was the mere creature of the law of the state, and could have no existence beyond the limits in which that law operated. Taney C.J., referred to this argument and said, ‘It is very true that a cor- poration can have no legal existence out of the boundaries of the sovereign- ty by which it is created. It exists only in contemplation of law, and by force of the law; and where that law ceases to operate, and is no longer ob- ligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty. But although it must live and have its being in that state only, yet it does not by any means follow that its existence there will not be recognized in other places; aud its residence in one state creates no insuperable objection to its power of contracting in another.’ These dicta are open to this further observation, which always weakens the force of any judi- cial dicta, that they were made in the way of concession to the party against whom they were about to decide. James, L.J., in Occleston v. Fullalove, L. R. 9 Ch. p. 160. The dicta have often been quoted as if they were the expression of a self-evident truth, yet it is difficult to find any sufficient ground for the proposition contained in them. Why cannot a corporation exist in a place where the laws of the state that created it do not operate? The status of marriage created by the laws of one state does not cease to exist when the husband and wife go into another state. A contract con- tinues to bind the parties although they depart from the state the laws of which created the obligation of the contract. Rights of property in a chat- OF LAWS. [s. 106. tel, which have been created by the laws of one state, do not cease to exist upon the removal of the chattel into another state. In these cases the law that created the status, the obligation, and the rights of property, does not operate in the other state, yet that furnishes no reason why the effect pro- duced by that law in the state where it did operate should not be recognized in other states as a fact. There seems also to be no reason why the existence of a corporation should be necessarily confined within the state where it ori- ginated. The court decided in the case before it that a corporation could exercise its powers in another state through agents. . But the powers of the corporation were derived entirely from the laws of the state where it was created, and the court, in deciding that the powers might be exercised elsewhere, admitted that the effect of the laws which granted the powers was not confined to that state. In fact the decision that a corporation could sue in another state established the principle that the corporation was not incapable of exercising its powers there by reason that the laws of the state which created it had no force or effect in the other state. That reason could not afterwards be alleged as a valid reason why the corporation could not transact business, or make contracts, or establish its place of business or ‘residence’ out of the state of its origin. Jurisdiction. — A court may exercise jurisdiction over a defendant who is present, when process is served upon him, within the country to which the court belongs, although he is not do- miciled there, nor in any way subject to the jurisdiction except by reason of his presence. Schibsby v. Westenholz, L. R. 6 Q. B. 155, 161; Peabody ». Hamilton, 106 Mass. 217; post, s. 541, 554. A corporation may, by its presence or residence in a foreign coun- try, make itself subject to the jurisdic- tion of its courts. Newby v. Colt’s CHAP. IV.] Firearms Co., L. R. 7 Q. B. 2938; Car- ron Iron Co. v. Maclaren, 5 H. L. C. p. 449, 450, 459; Bank of Commerce v. Huntington, 129 Mass. 444; March v. Eastern Rid. Co., 40 N. H. 548, 577; St. Louis v. Wiggins Ferry Co., 40 Mo. 580; McNichol v. United States Reporting Agency, 74 Mo. 457; Han- nibal & St. Joseph Rid. Co. v. Crane, 102 Ill. 249; Fithian v. New York & Erie Rid. Co., 31 Pa. St. 114; Brauser v. New England Ins. Co., 21 Wis. 506; Moulin v. Insurance Co., 24 N. J. L. 222; Moch »v. Virginia Ins. Co., 10 Fed. R. 696. If the corporation mere- ly employs an agent in the foreign country, or transacts only a subordi- nate part of its business there, it will not therefore be considered as resident in that country. Newby v. Colt’s Fire- arms Co., L.R. 7 Q. B. 298, 295; Mac- kereth v. Glasgow & South-Western Ry. Co., L. R. 8 Ex. 149. But it will be held to reside in the foreign coun- try, and to be subject to the jurisdic- tion of the courts, if it has a principal place of business or head office there, from which the business of the corpo- ration or a branch of it is managed and directed. See the two cases last cited, and Bank of Commerce v. Hun- tington, 129 Mass. 444; Cesena Sul- phur Co. v. Nicholson, 1 Ex. D. 428. A corporation may thus reside in seve- ral countries. The same point has been decided under the statutes of the United States regulating the jurisdiction of the fe- deral courts. These statutes provide that no civil suit shall be brought against an inhabitant of the United States except in the district ‘ of which he is an inhabitant or in which he is found at the time of serving the writ.’ The Supreme Court has held that a corporation of one state is found in another, when it has appointed an agent there to receive service of pro- cess in accordance with the laws of the latter state making such appoint- ment a condition of its doing business there, or when it has exercised its CAPACITY OF PERSONS. e 179 powers in another state with the ex- press consent of the legislature of that state, it being considered: an implied condition of the consent that the cor- poration may be sued there. Ex parte Schollenberger, 96 U. S. 369; Railroad Co. v. Harris, 12 Wall. 65. See also Mohr v. Insurance Cos., 12 Fed. R. 474; M’Coy v. Cincinnati Rid. Co., 18 Fed. R. 8; Wilson Packing Co. v. Hunter, 7 Reporter, 455; 8 Cent. L. J. 333. In Hayden v. Androscoggin Mills 1 Fed. R. 93; 9 Reporter, 270, a manu- facturing corporation chartered in Maine had a principal place of busi- ness in Massachusetts, where most of the business except the actual manu- facture was done, and from which the manufacture itself was controlled and directed; and it-was held that the cor- poration was found in Massachusetts. Lowell, J., said, ‘I think a trading corporation may be said to be perso- nally present for the purposes of an action wherever it has an established place of trade.’ These decisions seem seriously to impair the metaphysical doctrine that a corporation cannot ex- ist out of the state where it origi- nated. Westlake says (ed. 1880, p. 296) ‘The English court will not interfere in the internal disputes of foreign corpora- tions.’ It did interfere in Pickering v. Stephenson, L.R. 14 Eq. 322, where a shareholder of a Turkish railway corporation filed a bill, on behalf of himself and the other shareholders, against the directors and the corpora- tion, to prevent the misapplication of the funds of the corporation. West- lake says that ‘it does not seem to have been strenuously argued that the Turkish courts had exclusive jurisdic- tion,’ and that ‘for the credit of the company it may not have been desir- able to take such a line.’ The point however does seem from the report to have been strongly urged (L. R. 14 Eq. p. 384), and the report gives no indi- cation that the defendants omitted, out of regard to the credit of the com- 180 = CONFLICT pany, to avail themselves of any point in their favor. See also Lewis v. Bald- win, 11 Beay. 153. In Sudlow v. Dutch Rhenish Ry. Co., 21 Beav. 48, the case cited by Westlake in support of his proposition, a shareholder of a Dutch corporation filed a bill against the cor- poration, the directors, and the secre- tary at the London office, to prevent the forfeiture of his shares. The go- verning body was in Holland, and there’ was a secretary and office in Lon- don, where a copy of the register of shares was kept, the original register being in Holland. The plaintiff in- sisted that by the company’s articles his shares were not forfeited, but the defendants proved that, according to the decision of the Dutch courts in a similar case, the shares were forfeited. Romilly, M.R., said, during the argu- . ment, that he felt great difficulty in seeing how the plaintiff could have any decree, as the case was that of a Dutch contract, and the Dutch courts had given to it a construction opposite to that insisted on by the plaintiff. It was admitted, he said, that all the plaintiff could have would be ‘a de- claration in favor of the plaintiff (which, in point of fact, would be op- posite to the decision of the Dutch courts), and then to make a declara- tion that the register of shareholders here shall not be varied by the omis- sion of the name of the plaintiff; although it is admitted that the regis- ter of shareholders here is only a copy of the original register in Holland, and that it is the duty of the secretary here to keep the copy conformable with the original register.’ The counsel for the plaintiff declining to argue the point further, the bill was dismissed. The case therefore appears to have gone off on the point that the Dutch law which controlled the case was against the plaintiff. It is difficult, too, to see how the court had any jurisdiction of the corporation, or of any of the di- rectors except one who resided in England. Lindley (Partn. (4th ed.) OF LAWS. [s. 106. 1486) cites the case simply as an authority for the proposition that, if disputes between the members haye arisen and been adjudicated upon by a foreign court of competent jurisdic- tion, its decision will not be reviewed in England at the instance of a share- holder resident there, and not a party to the proceedings abroad. In Smith v. Mutual Ins. Co., 14 Allen (Mass.) 336, the Massachusetts court declined to entertain a bill in equity by a non-resident against a mutual life insurance company, in- corporated in another state, to prevent the forfeiture of his policy. Process had been served upon an agent in Massachusetts appointed by the com- pany, in compliance with a statute, to receive service of process against it. The court expressed the opinion that jurisdiction of the defendant obtained by service of process did not warrant it in assuming authority over the sub- ject-matter. It doubted whether ju- risdiction could be acquired by service upon the agent, when the residence of the plaintiff, the place of the con- tract, and the property or life insured were out of the state; but this doubt has since been overruled in Johnston v. Trade Ins. Co., 182 Mass, 482. The court, too, appears to have been influenced by the opinion that juris- diction of a foreign corporation could not be obtained except by an attach- ment of its property, which was afterwards more distinctly stated in Andrews v. Michigan Rid. Co., 99 Mass. 534, but was disapproved in Bank of Commerce »v. Huntington, 129 Mass. 446, 450. The decision seems really to have been placed upon the ground that, aside from the ques- tion of jurisdiction, it was within the province of the court in its discretion to decline to exercise jurisdiction in such cases. It was expressly said that the court did not define the jurisdic- tion of the court in a case where the contract was made within the state, with a citizen thereof, and insuring 4 CHAP. IV.] life or property therein. It can hardly be said that the court committed it- self to anything except that under the particular circumstances of that case jt would not exercise jurisdiction. In the earlier case of Williston v. Michi- gan Rid. Co., 13 Allen (Mass.) 400, the court refused to allow the owner of guaranteed shares to change an action at law for not declaring and paying dividends, into a suit in equity, under a statute authorizing such changes. In this case the court had acquired no jurisdiction of the corporation, except to the extent of certain property in the state which had been attached, and that was the ground of the decision. It is difficult to understand how the jurisdiction of the court over a fo- reign corporation can be limited to any particular classes of cases, if it has acquired jurisdiction over the corpora- tion itself. See Handy v. Insurance Co., 87 Ohio St. 866; Johnston v. Trade Ins. Co., 182 Mass. 482. There seems to be no practical difficulty in the exercise of the jurisdiction. The objection that the corporation may, before judgment or decree, withdraw from the juris- diction, and that it may be impossible to enforce the decision, may be alleged in any case where security has not been taken for the defendants abiding the decision of the court. There is no reason why a corporation may not be subject to the bankruptcy or insol- vency laws of a foreign state. In re Commercial Bank, L. R. 6 Eq. 517; Smith v. St. Louis Ins. Co., 6 Lea (Tenn.) 564. Proceedings under such laws are only a mode of execution given to the creditor against a corporation unable to pay its debts. In re General Land Credit Co., L. R. 5 Ch. at p. 380. But the courts of one country can have no power to dissolve a corporation created by the laws of another country. See 2 Lindley, Partn. (4th ed.) 1486. A penal liability imposed by sta- tute upon the officers or shareholders of a corporation will not be enforced in another state. Halsey v. McLean, CAPACITY OF PERSONS. 181 12 Allen (Mass.) 438; Derrickson v. Smith, 27 N. J. L. 166; First Na- tional Bank v. Price, 83 Md. 487; Woods v. Wicks, 7 Lea (Tenn.) 40. See ante, s. 92; post, s.620. Where the laws make shareholders individually liable in-certain-cases for the debts of the corporation, the liability will not be enforced in another state, if it is impracticable to proceed in the manner prescribed by the laws creating the liability. Erickson v. Nesmith, 4 Allen (Mass.) 233. A corporation is not considered a citizen or subject of a state or coun- try in the sense of the provisions of the constitution and laws of the United States which define the juris- diction of the federal courts. The jurisdiction depends upon the citizen- ship of the members of the corpo- ration. But, by a fiction of law for the purposes of jurisdiction, the mem- bers are presumed to be citizens or subjects of the state or country where the corporation originated, and no averment to the contrary is admitted. Ohio & Mississippi Rid. Co. ». Wheeler, 1 Black, 286, 296; Steam- ship Co. v. Tugman, 106 U. S. 118. Statute of Limitations.—In New York it is held that a corporation created in another state is necessarily a non-resident, and therefore cannot avail itself of the statute of limita- tions. Olcott v. Tioga Rid. Co., 20 N.Y. 210. This decision has been followed in Nevada. Robinson v. Im- perial Silver Mining Co., 5 Nev. 44, 74. It was also followed by the Su- preme Court of the United States in a case deperiding upon the New York statute of limitations, the court con- sidering itself bound by the coustruc- tion put upon the statute by the state courts. Tioga Rid. v. Bloss- burg & Corning Rid., 20 Wall. 187. Bradley, J., in delivering the judg- ment of the court, intimates that the decision of the state court was un- sound, and Miller and Strong, JJ., who dissented, denied its authority 182 CONFLICT and correctness. In M‘Cabe ». Iili- nois Central Rld. Co., 13 Fed. R. 827, and Lawrence v. Ballou, 50 Cal. 258, it was held the statute of limitations was a defence to a foreign corporation that was subject to the jurisdiction of the courts. - Meetings of Shareholders and Di- rectors. — An important question is, whether the members of a corpora- tion, or the directors, may meet out of the state where the corporation was created. There would seem to be no doubt that they could do so were it not for the decisions of some of the Ameri- can state courts. In Princess of Reuss v. Bos, L. R. 5 H. L. 176, the ques- tion was whether a company, the ob- jects of which were principally foreign, was properly incorporated under the Companies Acts; the articles of asso- ciation provided, among other things, that the first general meeting should be held at a time and place on the continent of Europe, or at London, to be appointed by the directors, and subséquent general meetings were to be held at such time and place as might be appointed by the directors. Lord Hatherley noticed this provision, and said that, although London was pointed at in this clause, the meetings might be held in London or in any other place the directors might think fit. Lord Cairns said that the articles of association were regular in all re- spects but one, which was that certain shares might be made payable to bearer. The company was held to be regularly incorporated. In Att.-Gen. v. Alexander, L. R. 10 Ex. 20, the question was whether a banking cor- poration created by Turkish law was a ‘person residing within the United Kingdom’ so as to be liable to income tax upon its whole profits; the cir- cumstance that the annual general meetings of shareholders had always been held in London was mentioned by one of the judges as pointing in the direction that the whole busi- ness was carried on in London, and OF LAWS. [s. 106. that the corporation resided there. Tts residence was held to be at Con- stantinople, because by its charter its ‘seat’? was fixed there. No doubt whatever was suggested as to the pro- priety of the meetings being held in London. In Connecticut, Vermont, Missouri, and Indiana it has been held that directors may meet out of the state in which the corporation origi- nated. McCall v. Byram Mfg. Co., 6 Conn. 428; .Ohio & Mississippi Rid. Co. 3. McPherson, 35 Mo. 13; Arms vy. Conant, 36 Vt. 744; Wright ». Bundy, 11 Ind. 404. See also Coe v. Midland Ry. Co., 31 N. J. Eq. 105, 117. In Maine it has been held that, though the directors can meet out of the state, the share- holders cannot. Miller v. Ewer, 27 Me. 509. There is a similar decision in Indiana (Aspinwall v. Ohio & Mis- sissippi Rld. Co., 20 Ind. 492, 497), and a dictum to the same effect in New Jersey (Hilles v. Parrish, 14 N. J. Eq. 383). In New York it has been held that neither the directors nor the shareholders can meet out of the state. Ormsby v. Vermont Cop- per Co., 56 N. Y. 623, 625. In the case last mentioned no judgment is reported. The report states only that it was ‘held that, according to the settled law of corporations, neither stockholders nor directors can do a corporate act out of the jurisdiction creating the corporation, which shall have any force to bind those who do not participate in it.’ This seems to be the first case in which it has been held that directors cannot meet out of the state. The case however seems right in putting directors’ meetings upon the same ground as shareholders’ meetings, for any reason why share- holders cannot meet out of the state would seem to apply equally to di- rectors. But if the shareholders and directors cannot do ‘a corporate act’ out of the state, it is difficult to under- stand how any one else can; yet it probably was not intended that a cor- CHAP. IV.] poration could not contract and trans- act business in another state. The doctrine that the shareholders cannot meet out of the state was first asserted in Miller v. Ewer, 27 Me. 509, both as to a first meeting to organize the cor- poration under its charter, and.as to.a subsequent meeting. The court held that the charter only conferred upon the persons named in it an authority to bring the corporation into exis- tence, and that an authority con- ferred by law cannot be exercised beyond the bounds of the sovereignty which confers it. It was also held that if the corporation could be con- sidered as having existence, a subse- quent meeting could not be held out of the state, because the corpora- tion could not have any existence or presence without its limits. Neither of these reasons will bear examination. An agithority conferred by law is exer- cised beyond the bounds of the sove- reignty every time that a corporation makes a contract or transacts business out of the state. Admitting that a corporation cannot exist or be present in another state, that does not apply to the shareholders. The shareholders CAPACITY: OF PERSONS. 183 are not the artificial being which ex- ists only in contemplation of law; and there is no principle upon which it can be said that the artificial being must be present in order that there may be a valid meeting of the shareholders, As this decision was based upon the impossibility of the existence of a cor- poration or of the exercise of an autho- rity conferred by law beyond the limits of the state, a meeting of shareholders out of the state would not be valid, according to the decision, even if the charter gave express authority for holding meetings out of the state. In Bridge Co. v. Mayer, 31 Ohio St. 317, it was held that where a corporation was chartered in two states, the share- holders might meet in either state, and that the acts done at such a meeting in one would be valid in both. Yet, ac- cording to the decisions of the Supreme Court of the United States (Railway Co. v. Whitton, 138 Wall. 270, 283; Muller v. Dows, 94 U. S. 444, 447), a corporation created by the laws of two or more states is in. each state a cor- poration existing under the laws of that state alone. [s. 107-109. 184 CONFLICT OF LAWS. CHAPTER V. MARRIAGE. 107. Subject of the Chapter.— Having treated of the capacity and incapacity of persons, as affected by’ foreign law, and espe- cially in relation to their capacity or incapacity to contract mar- riage in a foreign country,! we shall next proceed to consider more fully the nature and effect of the relation of marriage con- tracted by and between persons who are admitted to be sui juris, and to possess competent capacity everywhere.? We shall then discuss the manner in which that relation may be dissolved, and the effect of such dissolution. 108: Legal Aspect of Marriage. — Marriage is treated by all civilized nations as a peculiar and favored contract. (a) It is in its origin a contract of natural law. It may exist between two 1 Ante, s. 79-90. 2 On this subject consult 1 Burge, Col. & For. Law, pt. 1, ¢. 5; s. 1-8, p. 135-201. 8 T have throughout treated marriage as a contract in the common sense of the word, because this is the light in which it is ordinarily viewed by jurists, (a) Marriage, as understood in Christendom, means ‘the voluntary’ union for life of one man and one woman, to the exclusion of all others.’ The term is therefore not applicable to the union of a man and a woman as practised among the Mormons, by whose faith polygamy is lawful. Per- sons so united will not be considered husband and wife, although both were single at the time of their union, and they are not entitled to the benefit of the laws providing for the dissolution of marriage or the enforcement of its duties in a country where polygamy is not lawful. Hyde v. Hyde, L. R. 1 P. & M. 180; Harvey v. Farnie, 6 P. D. p. 538; Warrender v. Warren- der, 2 Cl. & F. p. 581, 582; Ross v. Ross, 129 Mass. p. 247. See Wall v. Williamson, 8 Ala. 51. ‘It may be, and probably is, the case that the women [in polygamous countries] there pass by some word or name which corresponds to our word wife. But there is no magic in a namé; and if the relation there existing between men and women is not the relation which in Christendom we recognize and intend by the words husband or wife, but another and alto- gether different relation, the use of a common term to express these two separate relations will not make them one and the same, though it may tend to confuse them to a superficial ob- server.’ Hyde v. Hyde, L. R. 1 P. & M. p. 134. CHAP. V.] MARRIAGE, 185 individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent and not the child of society; princi- pium urbis et quasi seminarium reipublice. In civil society it becomes a civil contract regulated and prescribed by law, and endowed with civil consequences. In many civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded. It then becomes a reli- gious, as well as a natural and civil, contract; for it is a great mis- take to suppose that, because it is the one, therefore it may not likewise be the other! The common law of England (and the like law exists in America) considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to ecclesiastical and religious scrutiny.? In the Catholic countries, and in some of the Protestant countries, of Europe, it is treated as a sacrament.? 109. There are some remarks on this subject, made by a dis- tinguished Scottish judge, so striking that they deserve to be quoted at large.* ‘ Marriage being entirely a personal, consensual contract, it may be thought that the lex loci must be resorted to in expounding every question that ariSes relative to it. But it will be observed that marriage is a contract sui generis, and differing in some respects from all other contracts; so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The contract of marriage is the most im- portant of all human transactions. It,is the very basis of the whole fabric of civilized society. |The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of parties. But it differs from other contracts in this, that the rights, obligations, or duties arising from it are not left entirely to be regulated by the agreements of parties, but domestic as well as foreign. But it appears to me to be something more than a mere contract. It is rather to be deemed an institution of society, founded upon the eonsent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation different from what belong to ordinary contracts. 1 Dalrymple v. Dalrymple, 2 Hagg. Cons. 63; Lindo v. Belisario, 1 Hagg. Cons. 231. 21 Black. Com. 433. 5 Dalrymple v. Dalrymple, 2 Hagg. Cons. 63-65. 4 Lord Robertson, in Fergusson on Mar. and Divorce, 397-399. 186 CONFLICT OF LAWS. [s. 109-113. are, to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will. It confers the status of legitimacy on children born in wedlock, with all the consequential rights, duties, and privileges thence arising ; it gives rise to the relations of consanguinity and affinity ; in short, it pervades the whole system of civil society. Unlike other contracts, it cannot, in general, amongst civilized nations, be dissolved by mutual consent, and it subsists in full force, even although one of the parties should be forever rendered incapable, as in the case of incurable insanity, or the like, from performing his part of the mutual contract. 110. ‘No wonder that the rights, duties, and obligations, arising from so important a contract, should not be left to the discretion or caprice of the contracting parties, but should be regulated in many important particulars by the laws of every civilized country. And such laws must be considered as form- ing a most essential part of the public law of the country. As to the constitution of the marriage, as it is merely a personal, consensual contract, it must be valid everywhere, if celebrated according to the lex loci; but, with regard to the rights, du- ties, and obligations thencé arising, the law of the domicil must be looked to. It must be admitted that in every coun- try the laws relative to divorce are considered as of the ut- most importance, as public laws affecting the dearest interest of society. 111. ‘It is said that in every contract the parties bind them- selves, not only to what is expressly stipulated, but also to what is implied in the nature of the contract, and that these stipula- tions, whether express or implied, are not’ affected by any sub- sequent change of domicil. This may be true in the general case, but, as already noticed, marriage is a contract sui generis, and the rights, duties, and obligations which arise out of it, are matters of so much importance to the well-being of the state, that they are regulated, not by the private contract, but by the public laws of the state, which are imperative on all who are domiciled within its territory. Ifa man in this country were to confine his wife in an iron cage, or to beat her with a rod of the thickness of the judge’s finger, would it be a justification in any court, to allege that these were powers which the law of England conferred on a husband, and that he was entitled to the exer- CHAP. V.] MARRIAGE. 187 cise of them, because his marriage had been celebrated in that country ? 112. ‘In short, although a marriage which is contracted ac- cording to the lex loci will be valid all the world over, and although many of the obligations incident to it are left to be regulated solely by the agreement of the parties, yet many of the rights, duties, and obligations arising from it are so important to the best interests of morality and good government that the parties have no control over them, but they are regulated and enforced by the public law, which is imperative on all who are domiciled within its jurisdiction, and which cannot be controlled or affected by the circumstance that the marriage was celebrated in a country where the law is different. In expounding or en- forcing a contract entered into in a foreign country, and executed according to the laws of that country, regard will be paid to the lex loci, as the contract is evidence that the parties had in view the law of the country, and meant to be bound byit. But a party who is domiciled here cannot be permitted to import into this country a law peculiar to his own case, and which is in oppo- sition to those great and important public laws which our legisla- ture has held to be essentially connected with the best interests of society.’ } 118. Validity of Marriage. — The general principle certainly is, as we have already seen, that between persons sui juris, mar- riage is to be decided by the law of the place where it is cele- brated.2 If valid there, it is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere.? The grounds of this doctrine we shall have occa- sion presently to consider. It is only necessary here to state 1 Lord Robertson, in Fergusson on Mar. and Divorce, 397-399. ; 2. Ante, s. 80, 81. See Kent v. Burgess, 11 Sim. 361; Patterson v. Gaines, 6 How. 550. 8 Ryan v. Ryan, 2 Phillim. Ecc. 882; Herbert v. Herbert, 3 Phillim. Ecc. 58; Dalrymple v. Dalrymple, 2 Hagg. Cons. 54; Ruding v. Smith, 2 Hagg. Cons. 390, 391; Scrimshire v. Scrimshire, 2 Hagg. Cons. 395; Munro v. Saunders, 6 Bligh, 473, 474; Ilderton v. Ilderton, 2 H. Bl. 145; Middleton v. Janverin, 2 Hage. Cons. 437; Lacon v. Higgins, 3 Stark. 178; 2 Kent Com. 91-93; Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick. 433; West Cambridge v. Lexington, 1 Pick. 506; 1 Burge, Col. & For. Law, c. 5, s. 3, p- 184-201; 2 Kames on Eq. b. 3, c. 8, 8. 1; Kent v. Burgess, 11 Sim. 361. 4 Post, s. 121: See also ante, s. 80. [s. 113-114. 188 CONFLICT OF LAWS. that it has received the most deliberate sanction of the English and American courts.! (a) 118 a. Polygamous, Incestuous, and Prohibited Marriages. — The most prominent, if not the only known exceptions to the rule, are those marriages involving polygamy and incest, those positively prohibited by the public law of a country from motives of policy, and those celebrated in foreign countries by subjects, entitling themselves, under special circumstances, to the benefit of the laws of their own country.? Cases illustrative of each of these exceptions have been already alluded to.’ 114. Polygamy and Incest.—In respect to the first exception, that of marriages involving polygamy and incest, Christianity is understood to prohibit polygamy and incest, and therefore no Christian country would recognize polygamy or incestuous mar- riages.1(b) But when we speak of incestuous marriages, care must be taken to confine the doctrine to such cases as by the general consent of all Christendom are deemed incestuous. (¢) 1 See cases cited supra, s. 118, note 1; post, s. 122-124. 2 1 Burge, Col. & For. Law, ¢. 5, s. 3, p. 188. 8 Ante, s. 89. 4 Paley on Moral Phil. b. 3, c. 6; 2 Kent Com. 81; 1 Black. Com. 436. See Grotius, b. 2, c. 5, s. 9; Greenwood v. Curtis, 6 Mass. 378; 1 Burge, Col. & For. Law, pt. 1, c. 5,8. 3, p. 188, 189, 190; Huberus, lib. 1, tit. 3, s. 8. See Swift v. Kelly, 8 Knapp, 257, 279. (a) The principle is established that the validity of a marriage, the word marriage being used in the sense of ceremony of marriage, de- pends upon the law of the place where the ceremony is performed. When the question is whether it is lawful for the two persons to be united in wed- lock, there is a difference of opinion as to the law by which the validity of the marriage (the word being used to designate the union in wedlock which the ceremony is intended to effect) is to be determined. See note, s. 124 a, post. / (b) Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 489. See Wall v. William- son, 8 Ala. 48, 50, 51. (ce) In Brook v. Brook, 9 H. L. C. p. 227, Lord Cranworth said, ‘I can- not however refrain from expressing my dissent from that part of Sir Cress- well Cresswell’s able opinion, in which he repudiates a part of what is said by Mr. Justice Story as to marriages which are to be held void on the ground of incest. That very learned writer after stating (s. 118) that marriages valid where they are contracted are, in general, to be held valid everywhere, proceeds thus: ‘‘ The most prominent, if not the only known exceptions to the rule, are marriages involving poly- gamy or incest; those positively prohi- bited by the public law of a country from motives of policy, and those cele- brated in foreign countries by subjects entitling themselves, under special cir- cumstances, to the laws of their own country.”? And then he adds that, “as to the first exception, Christianity is understood to prohibit polygamy and incest, and therefore no Christian country would recognize polygamy or CHAP. V.] MARRIAGE. 189 It is difficult to ascertain exactly the point at which the law of nature or the authority of Christianity ceases to prohibit mar- riages between kindred, and Christian nations are by no means generally agreed on this subject... In most of the countries of Europe in which the canon law has had any authority or in- fluence, marriages are prohibited between near relations by blood or by marriage, or, in other words, by consanguinity or by affinity ; and the canon and the common law seem to have made no dis- tinction on this point between consanguinity or relation by blood, and affinity or relation by marriage, although there certainly is a very material difference in the cases.2 Marriages between rela- tions by blood in the lineal ascending or descending line are uni- versally held by the common law, the canon law, and the civil law, to be unnatural and unlawful.? So are marriages between 1 Grotius, b. 2, ¢. 5, s. 12-14. See 1 Brown, Civ. Law, 61-65; 1 Burge, Col. & For. Law, c. 5, s. 8, p. 188. 22 Kent Com. 81, 82; 1 Black.. Com. 434. See, on this subject, The London Quarterly Law Magazine for May, 1839, vol. 21, p. 371-382; The Lon- don Monthly Law Magazine for May, 1840, vol. 7, p. 380, 3832, and the London Legal Observer for January, 1840. 8 Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343; 2 Kent Com. 81-84 ; Harrison v. Burwell, Vaughan, 206; 2 Vent. 9; Grotius, b. 2, c. 5, s. 12, n.1, incestuous marriages; but when we speak of incestuous marriages, care must be taken to confine the doctrine to such cases as, by the general con- sent of all Christendom, are deemed incestuous.’’ With the latter portion of the doctrine of Mr. Justice Story, Sir Cresswell Cresswell does not agree. But I believe that this passage, when correctly interpreted, is strictly con- sonant to the law of nations. Story, there, is not speaking of marriages prohibited as incestuous by the muni- cipal law of the country. If so pro- hibited, they would be void under his second class of exceptional cases; no inquiry would be open as to the ge- neral opinion of Christendom. But suppose the case of a Christian coun- try, in which there are no laws prohi- biting marriages within any specified degrees of consanguinity or affinity, or declaring or defining what is incest; still, even there, incestuous marriages would be held void, as polygamy would be held void, being forbidden by the Christian religion. But then, to ascer- tain what marriages are, within that rule, incestuous, a rule not depending on municipal laws, but extending ge- nerally to all Christian countries, re- course must be had to what is deemed incestuous by the general consent of Christendom. It could never be held that the subjects of such a country were guilty of incest in contracting a marriage allowed and approved by a large portion of Christendom, merely because, in the contemplation of other Christian countries, it would be con- sidered to be against God’s laws. I have thought it right to enter into this explanation, because it is important that a writer so highly and justly re- spected as Mr. Justice Story should not be misunderstood, as, with all de- ference, I think he has been in the passage under consideration.’ e 190 CONFLICT OF LAWS. [s. 114, brother and sister in the collateral line, whether of the whole blood or of the half-blood ;1 and, indeed, such marriages seem repugnant to the first principles of social order and morality. It has been well remarked by Mr. Chancellor Kent that it will be found difficult to carry the prohibition further in the collateral line than the first degree (that is, beyond brother and sister), un- less where the legislature have expressly provided such a prohibi- tion.2 Grotius has expressed an equally strong opinion upon the 2: Id. s. 13, n. 4; Id. s. 14, n. 1; 2 Heinecc. Elem. Juris. Natur. b. 2, c. 2, s. 40, by Turnbull; 1 Burge, Col. & For. Law, pt. 1, ¢. 5, s. 1, p. 187, 146, 147; Com. Dig. Baron and Feme, B. 4; 2 Inst. 693. Lord Brougham, in Warrender v. Warrender, 9 Bligh, 112, 113, speaking on this subject, said: ‘ But this rule extends, I apprehend, no further than to the ascertaining of the validity of the contract and the meaning of the parties, that is, the existence of the contract and its construction. If, indeed, there go two things under one and the same name in different countries, if that which is called marriage is of a different nature in each, there may be some room for holding that we are to consider the thing to which the parties have bound themselves, according to: its legal acceptation in the country where the obligation was contracted. But marriage is one and the same thing substantially all the Christian world over. Our whole law of marriage assumes this; and it is important to observe that we regard it as a wholly different thing, a different status, from Turkish or other marriages among infidel nations, because we clearly never should recog- nize the plurality of wives, and consequent validity of second marriages, stand- ing the first, which second marriages the laws of those countries authorize and validate. This cannot be put upon any rational ground, except our holding the infidel marriage to be something different from the Christian, and our also holding the Christian marriage to be the same everywhere. Therefore, all that the courts of one country have to determine, is, whether or not the thing called marriage, that known relation of persons, that relation which those courts are acquainted with, and know how to deal with, has been validly con- tracted in the other country where the parties professed to bind themselves. If the question is answered in the affirmative, a marriage has been had; the relation has been constituted; and those courts will deal with the rights of the parties under it, according to the principles of the municipal law which they administer.’ See also Id. 114. 12 Kent Com. 83, 84. See also Butler v. Gastrill, Gilb. Eq. 156; 1 Burge, Col. & For. Law, pt. 1, c. 6,5. 1, p. 127; Id. s. 3, p. 188; Grotius, de Jure Belli, lib. 2, c. 5, s. 12, n. 2; Id. s. 18, n. 3-7. ? Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 348. The whole remarks of the learned Chancellor on this occasion deserve to be cited at large. ‘ Be- sides the case of lunacy now before me, I have hypothetically mentioned the case of a marriage between persons in the direct lineal line of consanguinity as clearly unlawful by the law of the land, independent of any church canon, or of any statute prohibition. That such a marriage is criminal and void by the law of nature is a point universally conceded. And by the law of nature I understand those fit and just rules of conduct which the Creator has prescribed to man as a dependent and social being, and which are to be ascertained from CHAP. V.] MARRIAGE, 191 intrinsic difficulty of the subject. ‘De conjugiis eorum qui san- guine aut affinitate satis gravis est questio, et non raro magnis the deductions of right reason, though they may be more precisely known, and more explicitly declared by divine revelation. There is one other case in which the marriage would be equally void, causa consanguinitatis, and that is the case of brother and sister; and since it naturally arises in the consideration of this subject, I will venture to add a few incidental observations. I am aware that, when we leave the lineal line, and come to the relation by blood or affinity in the collateral line, it is not so easy to ascertain the exact point at which the natural law has ceased to discountenance the union. Though there may be some difference in the theories of different writers on the law of nature, in regard to this subject, yet the general current of authority and the practice of civilized nations, and certainly of the whole Christian world, have con- demned the connection in the second case which has been supposed, as grossly indecent, immoral, and incestuous, and inimical to the purity and happiness of families, and as forbidden by the law of nature.’ Grotius, de Jure, &c. lib. 2, c. 5, s. 18; Puffend. de Jure Gent. lib. 6, c. 1, s. 834; Id. de Off. Hom. lib. 2, c. 2, s. 8; Heinecc. Oper. tom. 8, pars 2, p. 203; Taylor’s Elem. Civ. Law, 326; Montesq. Esp. des Lois, liv. 26, c. 14; Paley’s Moral Philosophy, b. 3, p. 3, ¢.5, We accordingly find such connections expressly prohibited in diffe- rent codes. Dig. 23,2, 18; 23, 2,14, 2; 45,1, 35,1; Just. Inst. 1,10; De Nup- tiis, Vinnius, h.t.; Heinecc. ubi supra; Code Civil de France, n. 161-164; Inst. of Menu, by Sir William Jones, c. 3, s. 5; Staunton, Ta-Tsing-Leu-Lee, s. 107, 108; Sale’s Koran, c. 4; Marsden’s Sumatra, p. 194, 221. And whatever may have been the practice of some ancient nations, originating, as Montesquieu observes, in the madness of superstition, the objection to such marriages is, undoubtedly, founded in reason and nature. It grows out of the institutions of families, and the rights and duties, habits and affections, flowing from that relation, and which may justly be considered as part of the law of our nature as rational and social beings. Marriages among such near relations would not only lead to domestic licentiousness; but, by blending in one object duties and feelings incompatible with each other, would perplex and confound the duties, habits, and affections proceeding from the family state, impair the perception, and corrupt the purity of moral taste, and do violence to the moral sentiments of mankind. Indeed we might infer the sense of mankind, and the dictates of reason and nature, from the language of horror and detestation in which such incestuous connections have been reprobated and condemned in all ages. Plato de Leg. lib. 8; Cic. Orat. pro Mil. 27; Hermion. in Eurip. Androm. v. 175; Byblis. Ovid. Met. lib. 9; Tacit. Ann. lib. 12, c. 4; Vel. Paterc. Hist. lib. 2, c. 45; Corn. Nep. Excel. Imp. Prefat. The general usage of mankind is sufficient to settle the question, if it were possible to have any doubt on the subject; and it must have proceeded from some strong uniform and natural principle. Prohibitions of the natural law are of absolute, uniform, and uni- versal obligation. They become rules of common law, which is founded in the common reason and acknowledged duty of mankind, sanctioned by imme- morial usage, and, as such, are clearly binding. To this extent, then, I appre- hend it to be within the power and within the duty of this court to enforce the prohibition. Such marriages should be declared void, as contra bonos mores. But as to the other collateral degrees beyond brother and sister, I should in- cline to the intimation of the judges in Harrison v. Buswell, Vaugh. 206; 2 192 CONFLICT OF LAWS. [s. 114, 114 a. motibus agitata. Nam causas certas ac naturales, cur talia con- jugia, ita ut legibus aut moribus vetantur, illicitata sint, assignare, qui voluerit, experiendo discet, quam, id sit difficile, imo prestari non possit.”’ 1 114 a. At all events, in other cases of consanguinity not in the lineal line, or in the first degree of the collateral line, there is much room for diversity of opinion and judgment among jurists, and of practice among nations. Grotius has taken notice of this distinction, and says: ‘Qua manifesta expressio ostendere videtur discrimen, quod est inter hos et alios remotiores gradus.’? Thus, he says that it is forbidden to marry an aunt on the father’s side, but not the daughter of a brother, who is of the same de- gree. ‘Nam ducere amitam agnatam vetitum est. At filiam fra- tris, qui par est gradus, ducere vetitum non est.’® In England it has been declared by statute that all persons may lawfully marry but such as are prohibited by God’s law, that is, such as are within the Levitical degrees. Under this general provision it Vent. 9, already cited, that as we have no statute on the subject, and no train of common-law decisions independent of any statute authority, the Levitical degrees are not binding as a rule of municipal obedience. Marriages out of the lineal line, and in the collateral line, beyond the degree of brothers and sisters, could not well be declared void as against the first principles of society. The laws or usages of all the nations to whom I have referred do, indeed, ex- tend the prohibition to remoter degrees; but this is stepping out of the family circle; and I cannot put the prohibition on any other ground than positive in- stitution. There is a great diversity of usage on this subject. Neque teneo, neque dicta refello. The limitation must be left, until the legislature thinks proper to make some provision in the case, to the injunctions of religion, and to the control of manners and opinion.’ See also, 2 Kent Com. 83, 84; 1 Burge, Col. & For. Law, pt. 1, ¢. 5, s. 1, p. 188. 1 Grotius, de Jure Belli, lib. 2, c. 5, s. 12. 2 Grotius, de Jure Belli, lib. 2,¢. 5, s. 14, n. 1. 8 Tbid. 4 Com. Dig. Baron-and Feme, B 2, B 4; 1 Black. Com. 435; Leviticus, c. 18. Mr. Burge states the prohibitions in England arising from the Levitical law in the following terms: ‘ Cognatio, consanguinity, or relationship by blood, and affinitas, affinity, or relationship by marriage, constitute impediments to a lawful marriage. Marriages between parties related by blood or by affinity in the direct ascending or descending line, in infinitum, are prohibited by the civil and canon law. This prohibition prevents that confusion of civil duties which would be the necessary results of such marriages. The codes of Europe concur in this prohibition. In the collateral line the prohibition is confined to those who stand in certain degrees of consanguinity or affinity to each other. In the computation of these degrees there is a difference between the civil and canon law. Thus, those who according to the civil law are in the second de- gree, are placed by the canon law in the first degree; and those who are placed by the civil law in the fourth degree, are by the canon law placed in the second CHAP. V.] MARRIAGE. 193 has been held that a marriage between an uncle and a niece by blood is incestuous (it being in the third degree), upon the ground that it is against the law of God and sound morals, that it would tend to endless confusion, and that the sanctity of pri- vate life would be polluted, and the proper freedom of intercourse in families would be destroyed, if such practices were not dis- couraged in the strongest manner.! Yet Grotius not only deems such a marriage perfectly unexceptionable, but adds that there are examples of it among the ‘Hebrews.? (a) But marriages between first cousins by blood, or cousins-german, being in the fourth degree, are, according to English jurisprudence, lawful ; so that the prohibitions in the collateral line stop at the third degree.2 The same rule, as to the marriage of first cousins, has been adopted by the Protestant countries of Europe. But the canon law prohibited such marriages, although a dispensation might be obtained thereof.4 Incestuous marriages by the English law are not however deemed by the common law absolutely degree. The degrees prohibited by the Levitical law are all within the fourth degree of consanguinity, according to the computation of the civil law; all collaterals therefore in that degree, or beyond it, may marry. First cousins are in the fourth degree by the civil law, and therefore may marry. Nephew and great-aunt, or niece and great-uncle, are also in the fourth degree, and may intermarry; and though a man may not marry his grandmother, it is cer- tainly true that he may marry her sister. All these fourth degrees in the civil law are second degrees in the canon law. By the civil law, persons in the fourth degree might intermarry with each other. Such is the law of England, Scotland, Ireland, and the colonies.’ 1 Burge, Col. & For. Law, pt. 1, c. 5, 8. 1, p. 146, 147. There seems to be a mistake of the press in one part of the passage of Mr. Burge’s remarks, as to the difference between the civil law and the canon law. The latter counted the degrees only up to the common ances- tor; the former also down to the propositus. So that the first degree in the canon law was the second in the civil law, and the second in the canon law was the fourth in the civil law. 2 Black. Com. 224; Ersk. Inst. b.1, tit. 6, s. 8; 2 Burn, Eccles. Law, tit. Marriage, I. See also the London Monthly Law Magazine for Feb. 1840, vol. 7, p. 4446. Mr. Burge’s text reverses the state- ment. 1 Burge, Col. & For. Law, pt. 1, c. 5, s. 1, p. 147. 1 Burgess v. Burgess, 1 Hagg. Cons. 384, 386; 1 Bl. Com. 485; Butler v. Gastrill, Gilb. Eq. 156, 158; 2 Kent Com. 84; Com. Dig. Baron and Feme, B4. 2 Grotius, de Jure Belli, lib. 2, c. 5, 8. 14, n. 1. ® 1 Biack. Com. 435; Burn, Eccles. Lay, tit. Marriage, I.; Harrison v. Burwell, Vaughan, 219; 2 Vent. 9; 2 Inst. 684. * Burn, Eccles. Law, tit. Marriage, I.; 1 Burge, Col. & For. Law, pt. 1, c. 5, 8. 1, p. 147, 148. (a) See Bonham v. Badgley, 2 Gilman (IIl.) 622. 13 194 CONFLICT OF LAWS. [s. 114 2-116, ‘void; but they are voidable only during the lives of the parties; and if not so avoided during their lives, they are deemed valid to all intents and purposes.! (a) 115. Afinity.— Hitherto we have been speaking of cases of relation by consanguinity, between which and cases of relation by affinity there seems to be a clear and just moral difference. The English law however has treated both classes of cases as falling within the same predicament of prohibition by the Leviti- cal law. Hence it has been there held that a marriage between a father-in-law and the daughter of his first wife by a former mar- riage is incestuous and unlawful;? and, indeed, there seems something repugnant to social feelings in such marriages. The prohibition has also been extended in England to the marriages between a man and the sister of his former deceased wife, but upon what ground of Scriptural authority it has been thought very difficult to affirm.2(6) In many, and indeed in most, of the American states, a different rule prevails, and marriages 11 Black. Com. 434, 435. By a recent act of Parliament, Act of 5&6 Will. 4, c. 54 (1835), all future incestuous marriages are declared to be utterly void, and not merely voidable. 2 Blackmore v. Brider, 1 Hagg. Cons. 393, note; 2 Phillim. Ecc. 359. 3 Burn, Eccles. Law, tit. Marriage, I.; 1 Black. Com. 484, 485, Chris- tian’s note (2), citing Gibson’s Codex, 412; Harris v. Hicks, Salk. 548; Hill v. Good, Vaughan, 3802, 312; Faremouth v. Watson, 1 Phillim. Ecc. 355; Chick v. Ramsdale, 1 Curteis, 34; Com. Dig. Baron and Feme, B 2, B 4; 2 Inst. 683;.Bac. Abridg. Marriage, A. Lord Chief Justice Vaughan, in de- livering the opinion of the court in Harrison v. Burwell, Vaughan, 206; 2 Vent. 9, says that a man is prohibited by the statute 32 Hen. 8, c. 38, to marry his wife’s sister. But within the meaning of Leviticus (c. 18, v. 14), and the constant practice of the commonwealth of the Jews, a man was pro- hibited to marry his wife’s sister only during her life; after he might. So the text is. Vaughan, 241; 2 Vent. 17. There seems a discrepancy between what is here said, and his judgment in the subsequent case of Hill v. Good, Vaughan, 302, 312, 820. The opinion of Lord Chief Justice Vaughan, in both cases, and the case of Butler v. Gastrill, Gilb. Eq. 156, are full of learning and instruction on the subject of the canonical and ecclesiastical prohibitions of marriage. Dr. John H. Livingston, of New Jersey, has written an elaborate dissertation upon.the subject of the marriage of a man with his sister-in-law (wife’s sister), which was printed at New Brunswick, N. J., in 1816. It holds the doctrine that such marriages are scripturally incestuous. The opposite doctrine has been maintained by many able writers. See also 2 Kent Com. (2) See Fenton v. Livingstone, 8 prohibiting marriages on the ground Macq. 497. of consanguinity or affinity. Reg. ». (6.) Megitimacy makes no diffe- Brighton, 1 B. & S. 447; Reg. ». St rence in the application of the rules Giles-in-the-Fields, 11 Q. B. 173. CHAP, V.] MARRIAGE. 195 between a man and the sister of his former deceased wife are not only deemed in a civil sense lawful; but are deemed in a moral, religious, and Christian sense lawful, and exceed- ingly praiseworthy. In some few of the states the English rule is adopted. Upon the continent of Europe most of the Protestant countries adopt the doctrine that such marriages are lawful.! 116. It would be a strong point to put, that a marriage, per- fectly valid between a man and the sister of his former deceased wife in New England, should be held invalid in Virginia, or in England, even though the parties originally belonged to or were born in the latter country or state. But as to persons not so born or belonging, it would be of the most dangerous consequence to suppose that the courts of either of them would assume the liberty to hold such marriages a nullity, merely because their own jurisprudence would not, in a local celebration of marriage therein, uphold it. This distinction between marriages incestu- ous by the law of nature, and such as are incestuous by the posi- tive code or customary law of a state, has been fully recognized by one of our most learned American courts. ‘If,’ say the court, ‘a foreign state allows of marriages incestuous by the law of nature, as between parent and child, such marriage would not be allowed to have any validity here. But marriages not natu- tally unlawful, but prohibited by the law of one state and not 85, note. There are some very able articles on this subject in the London Quarterly Law Magazine for May, 1839, vol. 21, p. 371; in the London Legal Observer for January, 1840; and in the London Monthly Law Magazine for May, 1840. All these articles are designed to show that the most learned writers have differed upon this subject, and to establish that the doctrine is ill founded, and ought to be abolished. Grotius maintains in strong terms that there is no foundation for the prohibition. ‘Certe canonibus antiquissimis, qui apostolici dicuntur, qui duas sorores alteram post alteram duxisset aut adeAquides, id est, fratris aut sororis filiam, tantum a clero arcetur. > Grotius, de Jure Belli, lib. 2, c. 5, s. 14, n. 2. 1 This is certainly the law in all the New England States and in New York. Greenwood v. Curtis, 6 Mass. 378, 879. In Virginia the English rule prevails. Commonwealth v. Perryman, 2 Leigh, 717; 2 Kent Com. 85, note (a.) | Dr. Jeremy Taylor and Sir William Jones both contend that the Levitical degrees do not by any law of God bind Christians to their observation. See London Quart. Law Magazine, vol. 21, p. 378, 374. In Prussia, Saxony, Hanover, Baden, Mecklenburg, Hamburg, Denmark, and in most other of the Protes- tant states of Europe, the rule prevails that a man may lawfully marry the sister of his former wife. Id. p. 376. It is otherwise in Scotland. Ersk. Inst. b. 1, tit. 6, s. 9. 196 CONFLICT OF LAWS. [s. 116-117, of another, if celebrated where they are not prohibited, would be holden valid in a state where they are not allowed. As in this state, a marriage between a man and his deceased wife’s sister is lawful; but it is not so in some states. Such a nmarriage cele- brated here would be held valid in any other state, and the par- ties entitled to the benefits of the matrimonial contract.’! (a) Indeed, in the diversity of religious opinions in Christian coun- tries, a large space must be allowed for interpretation, as to re- ligious duties, rights, and solemnities.? In the Catholic countries of continental Europe there are many prohibitions of marriage which are connected with religious canons and establishments; and in most countries there are some positive or customary pro- hibitions which involve peculiarities of religious opinion or of conscientious doubt. It would be most inconvenient to hold all marriages celebrated elsewhere void, which are not in scrupulous accordance with the local institutions of a particular country. 116 a. In the cases of incest hitherto discussed, it has been supposed that the parties marrying were either natives of, or ac- tually and bona fide domiciled in, the country where the marriage was celebrated. But suppose the case of a marriage incestuous by the law of the country where the parties are born or are bona fide domiciled, and, without changing their domicil, for the pur- pose of evading that law, they go to a foreign country where a different rule prevails, and the marriage, which would not be in- cestuous by its laws, is there celebrated, and the parties after- wards return to their own country. Ought such a marriage to be held valid in such country? Huberus has put the very case, and held that it ought not there to be held valid. ‘If,’ says he, ‘a Brabanter, who should marry within the prohibited degrees. | under a dispensation from the pope, should remove here (into Holland), the marriage would be considered valid. Yet if a ' 1 Greenwood v. Curtis, 6 Mass. 378, 379; Medway v. Needham, 16 Mass. 157, 161; Sutton v. Warren, 10 Met. (Mass.) 451. But see Huberus, lib. 1, tit. 3, s. 8; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343. 2 See on this point, 2 Kent Com. 85; Harrison v. Burwell, Vaugh. 206; 2 Vent. 9; Co. Litt. 149; Grotius, lib. 2, c. 5, s. 12, 13, 14; Rutherf. Inst. b. 1, c. 15,s. 10; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343. (a) See the remarks of Lords Camp- (Va.) 858, 867; State v. Kennedy, 76 bell and Cranworth upon these cases N. C. 251; Commonwealth v. Lane, in Brook v. Brook, 9 H. L. C. 218, 113 Mass. 458. See also note, s. 124 a, 229; also Kinney’s Case, 30 Grat. post. CHAP. V.] MARRIAGE, 197 Frisian should marry the daughter of his brother in Brabant, and celebrate the nuptials there, returning here, he would not be acknowledged as a married man, because in this way our laws might be evaded by the worst examples.’ ‘Brabantus uxore ducta dispensatione Pontificis, in gradu prohibito, si huc migret tolerabitur. Attamen, si Frisius cum fratris filia se conferat in Brabantiam, ibique nuptias celebret, huc reversus non videtur tolerandus ; quia sic jus nostrum pessimis exemplis eluderetur.” } 117. Other Prohibitions. — In respect to the second exception, that of prohibitions depending upon positive law of a particular country,” they of course can apply strictly only to the subjects of that country. An illustration of this nature may be found in the Civil Code of France, which annuls marriages by Frenchmen in foreign countries who are under an incapacity by the laws of France.2 A law of a similar nature may be found in the act of 12 Geo. 3, c. 11, respecting the royal family, by which they are prohibited from contracting marriage unless under special circum- stances pointed out in the act ;4 and the provisions of that act have been actually applied to the case of a foreign marriage contracted by one of the royal princes. The doctrine of the English courts, already alluded to,® in regard to the indissolubility of English 1 Huberus, lib. 1, tit. 3, 8. 8; post, s. 128; 1 Burge, Col. & For. Law, pt. 1, ¢. 5, 8.1, p. 147; Id. s. 8, p. 188-291. Mr. Burge maintains this to be the true doctrine, and says: ‘The law which prohibits persons related to each other in a certain degree from intermarrying, and declares their inter- marriage to be null, imposes on them a personal incapacity quoad that act; and that incapacity must continue to affect them so long as they retain their domicil in the country in which that law prevails. The resort to another country where there was no such prohibitory law for the mere purpose of evad- ing the law of their own country, and with the intention of returning thither when their marriage had taken place, cannot be considered a change of their former domicil or the acquisition of a domicil in the country to which they had resorted. They must therefore be regarded as still subject to the per- sonal incapacity imposed by the law of their real domicil.’ See post, s. 123, 124. There are certain parts of the opinion of Sir George Hay, in Harford v. Morris, 2 Hagg. Cons. 481, 432, 435, from which it may fairly be deduced as his opinion that the law of the place of marriage was the rule only when the parties were domiciled there; and that if they went from their own country merely to celebrate the marriage in a foreign country, and immediately to re- turn home, the law of such country would not govern, but the law of the country of their domicil. Post, s. 124, note. 2 Ante, s. 113 a. i Kent Com. 93; Code Civil of France, art. 170; Merlin, Répert. Loi, 8. 6, n. 1. 41 Black. Com. 226. 5 Ante, s. 88. 198 CONFLICT OF LAWS. [s. 117-119. marriages celebrated in England, notwithstanding a subsequent divorce in a foreign country, affords a still more striking illustra- tion, as, in its practical effects, it may render the issue of a second marriage illegitimate, so that a son, the issue of the second marriage in Scotland, may be legitimate there and illegitimate in England; he may be a lawful Scotch peer, and yet lose the English estates which support his peerage.? 118. Other Cases.—In respect to the third exception, that of marriages contracted and celebrated in foreign countries by sub- jects under peculiar circumstances,” it has been deemed to arise in cases of a sort of moral necessity, and it has been held to apply to persons residing in foreign factories, in conquered places, and in desert or barbarous countries, or in countries of an opposite reli- gion, who are therefore permitted from necessity to contract mar- riage there according to the laws of their own country. In short, wherever there is a local necessity from the absence of laws, or from the presence of prohibitions or obstructions in a foreign country, not binding upon other countries, or from peculiarities of religious opinion aud conscientious scruples, or from circum- stances of exemption from the local jurisdiction, marriages will be allowed to be valid according to the law of the native or of fixed actual domicile.’ (a) 119. The doctrine upon which this exception from necessity is founded will be best explained by a quotation from the opi- nion of Lord Stowell in a case already referred to, in which the question of the validity of a marriage celebrated at the Cape of Good Hope between English subjects, by a chaplain of the British forces then occupying that settlement under a capitula- tion recently made, came before him for decision.t After citing 1 See Conway v. Beazley, 3 Hagg. Ecc. 639; Rex v. Lolley, Russ. & Ry. 237; Tovey v. Lindsay, 1 Dow, 117; M’Carthy v. Decaix, cited 3 Hagg. Ecc. 642, note; 2 Russ. & M. 620. 2 Ante, s. 118 a. 8 See Ruding v. Smith, 2 Hagg. Cons. 871, 384-386; ante, s. 79; Lautour v. Teesdale, 8’ Taunt. 830; 2 Marsh. 248; Rex v. Brampton, 10 East, 282. See also Harford v. Morris, 2 Hagg. Cons. 432, where Sir George Hay, in delivering judgment, spoke of this exception of foreign English factories. Ante, s. 79, and Id. p. 79, note 1. 4 Ante, s. 79, (a) See Hynes v. McDermott, 82 the acts constituting the marriage were N. Y. 41, in which there was no evi- done. dence of the law of the country where CHAP. V.] MARRIAGE. 199 the rule that the law and legislative government of every domi- nion equally affected all persons and all property within the limits thereof, and remarking that to such a proposition expressed in very general terms only general truth can be ascribed (for it is undoubtedly subject to exceptions), he proceeded to say that even the native and resident inhabitants are not all brought strictly within the pale of the general law. And in illustration of this remark he referred to the fact that even in England there is a numerous and respectable body (referring to the Jews) dis- tinguished by great singularity of usages, who, though native subjects under the protection of the general law, are in many re- spects governed by institutions of their own, and particularly in their marriages. For it being the practice of mankind to conse- crate their marriages by religious ceremonies, the differences of religion in all countries that admit residents professing religions essentially different, unavoidably introduce exceptions in that matter to the universality of the rule which makes mere domicil the constituent of an unlimited subjection to the ordinary law of the country. He then added: ‘ What is the law of marriage in all foreign establishments settled in countries professing a reli- gion essentially different? in the English factories at Lisbon, Leghorn, Oporto, Cadiz, and in the factories in the East, Smyrna, Aleppo, and others? in all of which (some of these establish- ments existing by authority under treaties, and others under in- dulgence and toleration) marriages are regulated by the law of the original country to which they are still considered to belong. An English resident at St. Petersburg does not look to the ritual of the Greek Church, but to the rubric of the Church of Eng- land, when he contracts a marriage with an English woman. Nobody can suppose that, whilst the Mogul empire existed, an Englishman was bound to consult the Koran for the celebra- tion of his marriage. Even where no foreign connection can he ascribed, a respect is shown to the opinions and practice of a dis- tinct people. The validity of a Greek marriage in the extensive dominions of Turkey is left to depend, I presume, upon their own canons, without any reference to Mahometan ceremonies. There is a jus gentium upon this matter, a comity which treats with tenderness, or at least with toleration, the opinion and usages of a distinct people in this transaction of marriage. It may be difficult to say, a priori, how far the general law should 200 CONFLICT OF LAWS. [s. 119-122, circumscribe its own authority in this matter. But practice has established the principle in several instances, and where the practice is admitted it is entitled to acceptance and respect, It has sanctioned the marriages of foreign subjects in the houses of the ambassadors of the foreign country to which they belong. I am not aware of any judicial regulation upon this point. But the reputation which the validity of such marriages has acquired makes. such a recognition by no means improbable if such a ques- tion was brought to judgment.’? And again: ‘It is true indeed that English decisions have established this rule, that a foreign marriage, valid according to the law of the place where cele- brated, is good everywhere else. But they have not, e converso, established that marriages of British subjects, not good according to the law of the place where celebrated, are universally and under all possible circumstances to be regarded as invalid in England. It is therefore certainly to be advised that the safest course is always to be married according to the law of the coun- try, for then no question can be stirred. But if this cannot be done on account of legal or religious difficulties, the law of this country does not say that its subjects shall not marry abroad.’ And he accordingly held the marriage valid, on the distinct British character of the parties, on their independence of the Dutch law in their own British transactions, on the insuperable obstacles of obtaining any marriage conformable to the Dutch law, on the countenance given by British authority and British administration to this transaction, and upon the whole country being under British dominion.4 120. In regard to marriages by British subjects in their own foreign settlements, the general rule is, that marriages good by the laws of England will be valid there; for they carry those laws with them into such settlements, and are not to be governed by the laws or customs of the natives. Thus it has been held that a marriage between British subjects at Madras is good, if con- formable to the British laws, and not to the laws of the natives of India.5 121. The ground however upon which the general rule of 1 See Pertreis v. Tondear, 1 Hagg. Cons. 136. ? Ruding v. Smith, 2 Hagg. Cons. 385, 886. 5 Thid. 4 Id. p. 371; ante, s. 79. 5 Lautour v. Teesdale, 8 Taunt. 880; 2 Marsh. 243. _ CHAP. V.] MARRIAGE. 201 the validity of marriages, according to the lex loci contractus, is maintained, is easily vindicated. It cannot be better expressed than in the language of Sir Edward Simpson, already cited.! All civilized nations allow marriage contracts. They are juris gen- tium, and the subjects of all nations are equally concerned in them. Infinite mischief and confusion must necessarily arise to the subjects of all nations with respect to legitimacy, successions, and other rights, if the respective laws of different countries were only to be observed as to marriages contracted by the subjects of those countries abroad ; and therefore all nations have consented, or are presumed to consent, for the common benefit and advan- tage, that such marriages shall be good or not according to the laws of the country where they are celebrated. By observing this rule few, if any, inconveniences can arise. By disregarding it infinite mischiefs must ensue.? Suppose, for instance, a mar- riage celebrated in France according to the law of that country, should be held void in England, what would be the conse- quences? Each party might marry anew in the other country. In one country the issue would be deemed legitimate, in the other illegitimate. The French wife would in France be held the only wife, and entitled as such to all the rights of property appertaining to that relation. In England the English wife would hold the same exclusive rights and character. What then would be the confusion in regard to the personal property of the parties, in its own nature transitory, passing alternately from one country to the other! Suppose there should be issue of both marriages, and then all the parties should become domiciled in England or France, what confusion of rights, what embarrass- ments of personal and conjugal relations must necessarily be created !8 122. Foreign Jurists. — Foreign jurists in general as strenuously support the general rule, as the tribunals sitting to administer the common law, and undoubtedly from a common sense of the pernicious consequences which would flow from a different doc- trine.t This subject is much discussed by Sanchez to the follow- ing effect. As to the maxim or general rule, ‘ ut non teneantur 1 Ante, s. 80 a. 2 Scrimshire v. Scrimshire, 2 Hagg. Cons. 417, 418, and ante, s. 79, 80, 80 a. 8 Scrimshire v. Scrimshire, 2 Hagg. Cons. 417, 418; ante, s. 80 a. *1 Burge, Col. & For. Law, pt. 1, c. 5, 8. 3, p. 184-188. 202 CONFLICT OF LAWS. [s. 122-122 d. peregrini legibus et consuetudinibus loci per quem transeunt,’ this rule has exceptions: (1) ‘Quoad contractuum solemnita- tem; nam quicunque forenses, et peregrini tenentur servare solemnitates in contractu requisitas legibus et consuetudinibus oppidi in quo contrahunt. Ratione enim contractus quilibet forum sortitur in loco contractus, hinc est contractum absolute initum, censeri celebratum juxta consuetudines et statuta loci, in quo initur. Quod ita provenit, quia contractus sequitur con- suetudines et statuta loci in quo celebratur.’! And a case is put as to inhabitants of a place where the decree of the Council of Trent for avoiding clandestine marriages is not received. Suppose they go from England to places per modum transitus, ubi obligat decretum, and marry there according to the laws of their own domicil. Some think that such marriage is good in the case of strangers, as agreeable to their own laws, to the law of their country in which they are domiciled, though not to the law of the place where they are married. But Sanchez holds that a marriage is void where it wants the solemnities prescribed by the local law. ‘ What,’ says he, ‘the law of the place requires where the contract is made, and what are to be followed in con- tracts, are to be decided solely by the laws of the place in which the contract is celebrated:’ ‘Qua petunt leges loci, ubi contractus initur, et quoad solemnitatem adhibendam in con- tractibus, sole leges loci in quo contractus celebratur inspici- untur.2. Locus autem, ubi hoc matrimonium initur, non petit eam parochi et testium solemnitatem ad matrimonii valorem, cum ibi decretum Tridentini non obliget.8 Ea solemnitas adhi- benda est quam petunt leges loci, ubi contractus initur; cum ergo locus, ubi celebratur matrimonium, ab his peregrinis exe- gat solemnitatem Tridentini in eo vigentis; aliter contractum nullum erit.’4 122 a. John Voet seems to affirm the same doctrine to be generally, but not universally, true, and liable to exceptions. He puts the case of the marriage of an inhabitant of Holland with a female of Flanders or Brabant, in Flanders or Brabant, accord- 1 Post, s. 260. 2I cite this whole passage from the case of Scrimshire v. Scrimshire, 2 Hagg. Cons. 412, 418. See also 1 Burge, Col. & For. Law, pt. 1, ¢. 5,8 3; p. 185, 186; Sanchez De Matrim. lib. 3, disput. 18, s. 10, n. 26, 28. 8 Cited in Burge, ubi supra, p. 185, 186. 4 Cited ibid. CHAP. Y.] MARRIAGE. 203 ing to the laws of the latter, but not according to the laws of Holland, and asks if it would be valid in Holland. To which he answers that prima facie it should seem that such marriages ought in Holland to be held valid, ‘ because,’ says he, ‘it is suffi- cient in contracts to follow the solemnities of the place in which the contract is celebrated, although the solemnities are not observed which are prescribed in the place of the domicil of the parties, or of the situation of the property in executing the act.’ ‘Prima quidem specie videri posset, nuptias tales etiam in ipsa Hollandia ratas habendas esse. Eo quod sufficit in contrahendo adhiberi solemnia loci illius, in quo contractus celebratur, etsi non inveniantur observata solemnia que in loco domicilii contra- hentium, aut rei site, actui gerendo prescripta sunt.’! He adds that there had been different opinions given in Holland on this point. But he expresses his own opinion to be that such mar- riage, so celebrated out of Holland, ought to be pronounced in- valid in Holland, upon the very terms of the edict of Holland, by which marriages by Hollanders, without proper notifications thereof published in the place of their domicil, are declared to be void: that the general rule, that it is sufficient in negotiations and contracts to follow the solemnities required by the law of the place where the business is transacted, does not apply in such a case; for that rule has its proper place only where the business is. not so transacted in fraud of the law, or whére no statute has positively declared that the act shall be void when done by a subject according to the foreign solemnities. ‘Sed, eo non ob- stante, magis est, ut matrimonia, eo modo extra Hollandiam ab Hollando celebrata, infirma per judicem Hollandicum pronun- ciari debeant, propter edicti verba, quibus nuptiz, per Hollandum sine denunciationibus publicis in domicilii loco interpositis con- tracte, irrite esse jusse sunt. Nihil in contrarium faciente illo axiomate, quod sufficiat in negotiis contrahendis adhiberi solem- nia loci, in quo actus geritur: cum ista regula locum inveniat si non in fraudem statuti quis alio se contulerit ad actum celebran- dum, aut statutum nominatim irritum declaraverit actum, a suo subjecto peregrina solemnitate gestum.’? 122 6. Paul Voet holds an opinion decidedly in favor of the 1J. Voet, ad Pand. 28, 2, 4, tom. 2, p. 20; cited also in Scrimshire v. Scrimshire, 2 Hagg. Cons. 415. See also Voet, ad Pand. 28, 2, 85, p. 55. 2J. Voet, ad Pand. 23, 2, 4, p. 20. 204 CONFLICT OF LAWS. [s. 122 d, 123° general rule. ‘Quid si de contractibus proprie dictis, et quidem eorum solemnibus contentio; Quis locus spectabitur ; an domi- cilii contrahentis, an loci, ubi quis contrahit? Respondeo affir- manter. Posterius. Quia, censetur quis semet contrahendo, legibus istius loci, ubi contrahit, etiam ratione solemnium sub- jicere voluisse.’1_ Huberus admits that a marriage, valid by the law of the place where it is celebrated, is binding everywhere, under the exception, which he generally applies, that it is not prejudicial to others, or that it is not incestuous. ‘ Matrimonium pertinet etiam ad has regulas. Si licitum est eo loco, ubi con- tractum et celebratum est, ubique validum erit, effectumque habebit, sub eadem exceptione prejudicii aliis non creandi; cui licet addere, si exempli nimis sit abominandi; ut si incestum juris gentium in secundo gradu contigerit alicubi esse permissum.’? Bouhier adopts the general rule, hesitating as to the nature and extent of the exceptions. Hertius lays down the following axiom: If the law prescribes a form for the act, the place of the act, and not of the domicil of the parties, or of the situation of the property, is to be considered. ‘Si lex actui formam dat, inspiciendus est locus actus, non domicilii, non rei site.’* And he puts the following as an example. A marriage contracted according to the solemnities of any place where the married couple are commorant, cannot be rescinded upon the pretext that, in the domicil or country of the husband, other solemnities are required. ‘Matrimonium juxta solennitates loci alicujus, ubi sponsus et sponsa commorabantur, contractum non potest pretextu illo rescindi, quod in domicilio aut patria mariti alie solennitates observentur.’® He afterwards puts exceptions to this general axiom; one of which is, that a contract between foreigners, both belonging to a foreign country, is to be governed by the law of their own country, and not by that of the lex loci contractus.® In this exception he has to encounter many distinguished adver- 1Voet, de Statut. s. 9, c. 2, n. 9, p. 267, ed. 1715; Id. 828, ed. 1661; post, s. 261. ? Huberus, lib. 1, tit. 3, 5. 8; ante, s. 85. 8 Bouhier, Cout. de Bourg. c. 27, s. 59-66. * Post, 8. 242, 260; Hertii Opera, tom. 1, de Collis. Leg. s. 4, art. 10, p. 126, ed. 1737; Id. p. 179, ed. 1716. 5 1 Hertii Opera, de Collis. Leg. s. 4, art. 10, ed. 1887, p. 126; Id. p. 179, ed. 1716. Id. art. 10, p. 128, ed. 1737; Id. p. 182, ed. 1716. 6 Id. p. 128, s. 10, ed. 1737; Non Valet (6). CHAP. V.] MARRIAGE, 205 saries.' The French jurists seem generally to support the doc- trine that marriage is to be held valid or not, according to the law of the place of celebration, except in cases postively pro- hibited by their own laws to their own subjects, or where it is in fraud of those laws.2, And Merlin says that it is a contract so completely of natural and moral law that, when celebrated by savages in places where there are no established laws, it will be recognized as good in other countries.® 123. A question has been much discussed, how far a marriage regularly celebrated in a foreign country between persons belong- ing to another country, who have gone thither from their own country for that purpose, is to be deemed valid, if it is not cele- brated according to the law of their own country. Huberus, as we have seen,’ has put the very question, and has applied it as well to cases of minority as of incest ; and he does not hesitate to pronounce such marriages invalid, because they are an invasion or fraud upon the law of the country to which the parties belong, and in which they are domiciled.® Bouhier has advocated the same opinion ;° and it is also maintained by Paul Voet. He states it as an exception to the general rule, that the law of the place of the contract ought to govern. ‘Nisi quis, quo in loco domicilii evitaret molestam aliquam vel sumptuosam solemnitatem ; adeoque in fraudem sui statuti nulla necessitate cogente alio proficiscatur, et mox ad eorum domicilium, gesto alibi negotio, revertatur.’? John Voet, as we have seen, holds the same opinion. Pothier puts the very case in the strongest terms. He says that the condi- tions and ceremonies prescribed by the French laws for the validity of marriages between French subjects, are obligatory, even when the marriage has been celebrated between them in a foreign coun- try, whenever it appears that they have gone thither in fraud of those laws, and that the marriage, under such circumstances, will 1 Ibid. 2 Post, 8. 123. 8 Merlin, Répert. Mariage, s. 1, p. 343. See also 2 Boullenois, obs. 46, p- 458; 1 Froland, Mém. p. 177, c. 1; Pardessus, vol. 5, pt. 6, tit. 7,¢. 2, art. 1481-1495; Pothier, Traité du Mariage, n. 263; Journal des Audiences, tom. 1, c. 24; 8. c. cited Scrimshire v. Scrimshire, 2 Hagg. Cons. 418, 414. 4 Ante, s. 85, 116 a. 5 Huberus, lib. 1, tit. 8,5.9. See ante, s. 85,116 a, where the passages are cited at large. ® Bouhier, Cout. de Bourg. c. 28, s. 60-62, p. 557; ante, s. 84. 7 P. Voet, de Statut. s. 9, c. 2, p. 268, ed. 1715; Id. p. 828, 324, ed. 1661. ® Ante, s. 122 a; 1 Burge, Col. & For. Law, pt. 1, c. 5,8. 3, p. 196. 206 CONFLICT OF LAWS. [s. 123-124. beanullity.1 This doctrine turns upon the general principle that an act done designedly in fraud or evasion of the law, by a mere change of locality, is utterly void. 123 a. English and: American Rule.— In opposition to this doc- trine it has however been settled after some struggle, both in England and America, that such a marriage is good. The ques- tion in England was first solemnly decided by the High Court of Delegates in 1768;? and having been subsequently recognized, notwithstanding the doubts of Lord Mansfield, it may now be deemed settled there beyond controversy. Lord Mansfield, on the occasion alluded to, arguendo, said: ‘It has been laid down at the bar, that a marriage in a foreign country must be governed by the law of the country where the marriage was had, which in general is true. But the marriages in Scotland of persons going from hence for that purpose were instanced by way of example. They may come under a very different consideration, according to the opinion of Huberus and other writers.’* This is mani- festly no more than the expression of a doubt upon a point not directly before the court. 123 6. In Massachusetts, upon full discussion, the doctrine has been firmly established.6 It was admitted on that occasion by the court that the doctrine is repugnant to the general principles of law relating to contracts ; for a fraudulent evasion of or fraud upon the laws of the country where the parties have their domicil 1 Pothier, Traité du Mariage, n. 263. * Compton v. Bearcroft, cited in Bull. N. P. 114, and in Harford ». Mor- ris, 2 Hage. Cons. 429, 430, 448, 444. It has been said that this decision may be explained upon the ground that the English marriage act, under which that question arose, contained an express exception of marriages in Scotland; and that the marriage of the parties in that case, who were English, and had gone from England for the express purpose of celebrating the marriage in Scotland, was therefore good, as it was according to the law of Scotland. Admitting this to be the true construction of the English marriage act, yet the question directly raised by the libel was, whether a marriage in a foreign country by British subjects domiciled in England, and not changing their domicil, who had gone there expressly to avoid and evade the laws of Eng- land, was good or not; and there is strong reason to believe that this point was deemed a material ingredient in the ultimate judgment of the case. See the case of Compton v. Bearcroft, as commented on in 2 Hagg. Cons. 443, 444, and the reporter’s note in p. 444. 8 See Harford v. Morris, 2 Hagg. Cons. 423; Robinson v. Bland, 2 Burr. 1077-1080; Fergusson on Marr. & Divorce, 63-65. 4 Robinson v. Bland, 2 Burr. 1079, 1080; Huber. lib. 1, tit. 8, s. 8. 5 Medway v. Needham, 16 Mass. 157,161; Putnam »v. Putnam, 8 Pick. 433. CHAP. V.] MARRIAGE. 207 would not, except in the contract of marriage, be protected under the general ‘principle! But the exception in favor of marriages is maintained upon principles of public policy, with a view to prevent the disastrous consequences to the issue of such a mar- riage, which would result from the loose state in which persons so situated would live? The doctrine has been carried even further, so as to admit the legitimacy of the issue of a person who had been divorced a vinculo for adultery, and had been declared by the local law incompetent to marry again, but who had gone into a neighboring state, and there contracted a new marriage, and had issue by that marriage.2 The like rule has been applied in favor of the widow by such second marriage, so as to entitle her to dower in the real estate of her deceased husband, situate in Massachusetts.* 124. The English doctrine in relation to Scotch marriages by parties domiciled in England and going to Scotland to marry, though a plain violation of the real object and intent, even if not of the words, of the English marriage act, seems to have pro- ceeded mainly upon the ground of public policy.’ It is the least 1Tbid. The court put. the following case: Thus, parties intending to make an usurious bargain, cannot give validity to a contract in which more than the lawful interest of their country is secured, by passing into another territory where there may be no restriction of interest, or where itis established at a higher rate, and there executing a contract before agreed on. Medway v. Needham, 16 Mass. 160. . 2 Medway v. Needham, 16 Mass. 160, 161. 8 West Cambridge v. Lexington, 1 Pick. (Mass.) 506; 2 Kent Com. 92, 93,3d ed. See Fergusson on Marr. & Divorce, note R, p. 469; ante, s. 89. 4 Putnam v. Putnam, 8 Pick. 433. 5 Mr. Burge does not deem it to be in fraud of the English laws, because the English marriage act does not in fact prohibit such Scottish marriages. This is true in terms; and if it did prohibit, the question of the conflict of laws in relation to such marriages would never have arisen in England; for the statute would have directly decided the matter. Nevertheless, the whole object of the parties in this class of marriages plainly is to evade the law of their own country by a marriage valid by the law of the country where it is celebrated, without changing their own domicil, and thus getting rid of all the anxious provisions of the statute against ill-advised and clandestine mar- riages. In short, all the Gretna Green marriages in Scotland, as they are called, are intended by the parties to get rid of the solemnities of the English law. Mr. Burge says: ‘The decisions of the courts in England, which have declared valid a marriage contracted in Scotland by English persons who had resorted thither for the sole purpose of evading the prohibitions of the English marriage act, are perfectly consistent with the admission of this exception. Such a marriage is valid because it is not prohibited by the English marriage 208 CONFLICT OF LAWS. [s. 124, of two evils, in a political sense, 2 civil serise, and a moral sense. We have already seen that the positive code of France has pro- act. Jt is a misapplication of terms to describe it as an evasion, or in fraud of the act; for, in fact, it is not prohibited. There is an express provision that nothing in that act shall extend to marriages in Scotland, or to any marriages beyond sea. The act therefore left English subjects at perfect liberty to resort to any country for the purpose of contracting and celebrating their marriage, So far from the act containing a general and absolute prohibition, and a declaration of the nullity of all marriages contracted otherwise than in con- formity to its provisions, it confines such prohibition and declaration to mar- riages contracted in England. These decisions therefore are founded upon the right of the parties, consistently with the marriage act, to resort to the fo- reign country for the purpose of contracting their marriage, and upon the act itself containing no provision which renders void a marriage so contracted. It is upon this ground, and to this extent, that the argument of Sanchez must be understood, when he contends that a marriage is not void because the parties have resorted to a country in which they have contracted it for the purpose of avoiding ceremonies which are required in their own country. ‘‘ Displicet mihi hee limitatio, et credo, licet adirent eo fine, ut possent libere absque parocho et testibus contrahere, esse ratum matrimonium. Nam qui jure suo utitur non potest dici fraudem committere, ut ea ratione effectus im- pediatur.”” ‘* Nullus videtur dolo facere, qui jure suo utitur.”? ‘Est enim fraus licita, cum contrahentes utantur jure suo; ergo cum adeuntes locum, ubi non viget Trident, animo contrahendi absque parocho et testibus, utuntur jure suo, habet enim jus sic ibi contrahendi, erit fraus licita, nec ea ratione effec- tus ac valor matrimonii impedietur.”” The same jurist, in a subsequent pas- sage, admits the distinction between a personal incapacity imposed by the law of the domicil, which would accompany the party in whatever country he con- tracted, and a law which attached to the act only in respect of its taking place in the country in which that law prevailed. “ Dic quando inhabilitas est constituta absolute et simpliciter, sequi personam quocumque euntem; secus quando est constituta per modum legis, sicut enim lex illa non obligat in illis locis, ita inhabilitas, et annullatio actus non obligat ibi, nec sequitur personam, nisi dum est in locis, in quibus ea lex vim obligandi habet ... non enim ligatur lege ecclesiastica in loco, ubi ex voluntate ac dispositione ejusdem ecclesie non habet robur eadem lex; ut contingit in locis, ubi aut non recepta aut non publicata fuit.’”? 1 Burge, Col. & For. Law, pt. 1, ¢. 5, s. 3, p. 192, 193. The decisions in the Supreme Court of Massachusetts, as they are stated in the commentaries on American Law, carry the doctrine, much further, and reject any exception founded on the purpose for which the parties resorted to the country where they contracted the marriage. The par- ties in the case referred to had left the state on purpose to evade its statute law, and to marry in opposition to it, and, being married, they returned again; yet their marriage was held valid, if it were valid according to the laws of the place where it was contracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own.’ Ibid. In these re- marks Mr. Burge is mainly borne out as to the effect of the English marriage act, by the language of Sir George Hay, in Harford v. Morris, 2 Hagg. Cons. p. 428-482. He there said: ‘The next question is, whether by the law of England this marriage is valid? It is stated throughout that it is a marriage CHAP. V.] MARRIAGE. 209 mulgated an opposite doctrine with unrelenting severity.1 The wisdom of such a course remains to be established ; and it will without the consent of the natural mother of the party, and of the testamentary guardians and the Lord Chancellor; and that the parties went into a foreign country to evade the laws of this realm. Whether upon that account, or any of the accounts already mentioned, it is void by the law of England, is the first question. Parties may go out of England and marry by necessity or choice; in either way a foreign marriage is not void upon that acconnt by the laws of England. But it is said they go in violation of the order of the Chancellor and without the consent of parents and guardians. What is the law of Eng- land that requires the consent of parents and.guardians? It is the marriage act. One of the greatest magistrates that ever appeared ‘in this country explains it, that the view of that act was to restrain the abuse that was so scandalous in this country from clandestine marriages, and to get proof of marriages which otherwise might become uncertain; as it is wherever you cannot have evidence of the fact of the marriage being rightly performed, the legitimacy becomes uncertain. The principal view of that law was to affect such marriages. ‘The law does indeed, in one respect, put a restraint which was not known to the common law upon the marriage of minors without the consent of parents: but it does not make all the marriages of minors even in England void. Marriages by licence only are void for want of consent of parents and guardians. If this marriage had been in England, and if instead of going abroad the parties had been married in any great parish of this town or country by banns, would that marriage have been good or not by the laws of England? No law says that it shall be void. It is a marriage by licence only, that is void by the law of England for want of consent of the parents or guardians. Jt is observed also that the act makes particular exceptions without which the purpose of the marriage act, though an exceeding good act, might have been questioned before this time if there had not been so many ways to avoid the restraint put upon the marriage of minors. It is pro- vided that nothing in this act shall extend to marriages in Scotland, nor to any marriages solemnized beyond sea. Then marriages in Scotland and beyond sea by the law of England remain in the same state as if the statute had not passed. Marriage in Scotland, if not contrary to the law of England, is good, and it has been so determined. That determination passed, not on the ground that the marriage was valid in Scotland, and that therefore it was good, — nothing was laid before the court to show that the marriage was valid in Scotland, — but because the act of parliament did not put any restraint upon English subjects being married in Scotland, with respect to the consent of parents. On that ground it is that those marriages are held good, not being contrary to the law of England. The same holds as to marriages beyond sea. For English subjects going abroad or to Scotland to marry English sub- jects have an exemption from that restraint in the act. What was the case before the marriage act? Will anybody say that before the act a marriage solemnized by persons going over to Calais, or happening to be there, ‘was void in this country, because such a marriage might be void by the laws of France, as perhaps it was, if solemnized by a Protestant priest, whom they do not acknowledge, or if any way clandestine, or without consent; and that there- 1 Ante, s. 84, 90, 123, and note. 14 210 CONFLICT OF LAWS. * [s. 124, be no matter of surprise if hereafter we shall find a Frenchman with two lawful wives, one according to the law of the place of fore it should be set aside by a court in England upon account of its being void by the law of France? No. The laws of the state to which the parties are subject must determine the marriage, unless you can show that the law of the other country is that by which its validity is to be decided. That brings me to the other great consideration in this case, whether the validity of these marriages, being solemnized in Ypres and Denmark, are to be tried by the laws of those countries. If they are, the laws of those countries must be laid before the court, and proved in the best manner pos- sible; not by the opinions of lawyers, which is the most uncertain way in the world, but by certificates, laying the ordinances of those countries before the court. Without considering how far that law is capable of being proved in the present case, the previous question arises with respect to jurisdiction, whether the laws of that country in which the marriage is celebrated should operate merely because it was celebrated there. I conceive the law to be clear that it is not the transient residence, by coming one morning and going away the next day, which constitutes a residence to which the lex loci tan be applied, so as to give a jurisdiction to the law, and cause it to take cognizance of a mar- riage celebrated there. It is certain that domicil, or established residence, that is, such a kind of residence as makes the party subject to the Jaws of that ‘ country, may have that effect; and, with respect to persons so domiciled, the laws of the country must be adhered to in contracts made there. This was the case of Scrimshire. All the proceedings of the court of France were laid before the court. I remember it, though it was a long time ago; and I was counsel for the lady. The mother of the young man was at Boulogne, where they had gone animo morandi. It was stated in all the proceedings that they were domiciled in France; he went there to reside for purposes of education, and did reside there; and the mother continued to reside there till she obtained the sentence that was pleaded in the Consistory Court. I do not in the least call in question that determination in the Consistory Court. Every man has allowed the great and extensive knowledge of the judge; but he founded his. judgment upon the sentence given in that court which had assumed jurisdic- tion, and had a right to assume it; he paid all respect to the judgment; and upon that he gave his opinion, that the party suing should be dismissed.’ A somewhat different account of the case of Compton v. Bearcroft, here referred to, is given by Sir W. Wynne, in Middleton v. Janverin, 2 Hagg. Cons. 443, 444, On that occasion he said: ‘It is however contended that admitting the law to invalidate the marriage in those countries, yet that is not the law by which this case is to be decided in this court. It is not the lex loci where the marriage ceremony is performed which is to determine the question; but you must find out some other law, and that is declared by the counsel for Mrs. Janverin to be the law of England. Now, in respect to the lex loci having been adopted as a rule, I think the case of Compton v. Bearcroft proves it very strongly. In that case the Court of Delegates affirmed the rejection of the libel which was given in against the marriage, on different grounds, as I have understood, from those which were taken in the Court of Arches, and because the. marriage was a good marriage in Scotland, and if all the facts pleaded in the libel were proved, the marriage could not be pronounced void under the marriage act, in which it is expressly declared that it shall not CHAP. V.] MARRIAGE. 211 the marriage, and the other according to that of his domicil of origin.) The doctrine in England has indeed stopped short extend to Scotland. On those grounds it was, as I have understood, that the delegates rejected the libel. The case of that marriage was therefore deter- mined ‘by the lex loci. Those persons having gone to Scotland, and been married in a way not good in England, but good in Scotland, and not affected by the marriage act, were considered to have contracted a valid marriage.’ The learned reporter has added a very important note to 2 Hagg. Cons. 444, note (*), on this point. It is certain that foreign jurists do not take any dis- tinctions between a violation of the positive prohibition by the words of the laws, and the case of a mere evasion or fraud upon the known policy of the laws by a marriage in another country, without any change of domicil by the parties. See also Fergusson on Marr. & Divorce, 417; Id. 223, 461. It has always appeared to me that the true doctrine of international policy is, that a foreign marriage, valid by the law of the place of marriage is valid everywhere, not- withstanding the parties may be domiciled in another country, where the marriage, if celebrated there, would, by the laws thereof, be void, and the parties have gone thither for the express purpose of evading the requisitions of the law of their domicil. A learned writer in the London Legal Observer for January, 1840, has commented on this subject with great acuteness and ability. The following extract may be gratifying to the learned reader, as it constitutes an opposite view to that of Mr. Burge: ‘ The idea of fraud on the law of a country is rather a favorite one with jurists. When examined how- ever we think it will be found to have a very narrow foundation for the sup- posed countenance afforded to it by ourlaw. By the courts of several American states it has been repeatedly overruled. It is principally grounded on an opinion of the jurist Huber (Hub. de Confi. Leg. lib. 1, tit. 8, s. 8), supported by a dictum of Lord Mansfield, in Robinson v. Bland, 1 W. Bl. 234, 256; 2 Burr. 1077. In the first place it is at once met by the difficulty that it has been over and over again decided that Scotch and foreign marriages (between minors and others who could not have contracted marriage here) undertaken, expressly and admittedly, to evade our law, are good, if good per legem loci, and vice versa. But then, say the advocates of the in fraudem legis doctrine, these decisions are consistent; because the marriage act in terms excepts Scotch and foreign marriages. In this view however they at once throw over Lord Mansfield's authority, because, as Sir W. Blackstone, who was counsel in the case, notes it in the margin of his report, he threw out a “ quere, whether stolen marriages in Scotland are valid.’? However, as this case is really the only one in which, as far as we are aware, the idea of evasion of our law is set up, we must go more fully into it. The case was argued in 1760. The question was whether a bill of exchange given in France by one English subject to another, but made payable in England, the consideration of which was a gambling debt, should be held recoverable in an English court. It was found not to be recoverable in France; but Lord Mansfield (though, on this plain ground, he afterwards said the case had after all come to nothing) had it argued twice as bearing on international Jaw. In his judgment he touched on the rules appli- cable to foreign personal contracts. He lays down the general rule as to the 1 1 Toullier, Droit Civil, art. 576; Code Civil, art. 144, 148, 170; Merlin, Répert. tit. Loi, s. 6, n. 1; and ante, note, s. 84, 117. 212 CONFLICT OF LAWS. "Ys. 124, of the moral mischief, if the decision promulgated in its courts can be maintained (of which doubts may justly be entertained), lex loci prevailing. But then he says: ‘‘ This rule admits of an exception, where the parties had a view to a different kingdom. Contracts are to be considered according to the place where they are to be executed.’’ And Mr. Justice Wilmot said: “The place where the money is to be paid must govern the law. This was determined as to usury on contracts in Ireland.’? From this it is evident that there is no ground in the decision for the wide principle contended for. The quere thrown out, merely in answer to an illustrative argument used by counsel, comes more to the point, but is plainly overruled, Burrows, in his report, says that, Lord Mansfield referred to a case before Lord Hardwicke of a minor’s stolen marriage at Ostend; the validity of which Lord Hardwicke doubted, and ordered to be tried before an ecclesiastical court; but the trial was stopped by the minor’s marrying again on coming of age. We have looked carefully for this case, and have no doubt Butler and Freeman, Ambl. 302, is the one referred to. It had been decided in 1756, four years before. It was the case of a ward married at Antwerp. Lord Hardwicke said: ‘‘ This is the first case under the late marriage act. As to such a marriage — I was going to call it a robbery — there is a door open in the statute as to marriages beyond seas and in Scotland.”” He afterwards goes on to question the validity of the marriage: ‘It is said by a witness that he saw them married according to the rites and ceremonies of the Church of England. But it will not be valid here, unless it was so by the laws of the country where it was had.’? The father, it appears, instituted a suit in the ecclesiastical court to try the validity according to the foreign law. This case therefore, so far from supporting Lord Mansfield’s doubt, as stated in the margin of Blackstone’s report, expressly overrules it. It is more mate- rial for our present purpose, as being the first case under the marriage act. The marriage act was passed in 1753. If Lord Hardwicke had thought that before that act there was a principle of law in operation that a party going abroad to evade our Jaws could not set up the lex loci contractus, but that the new act had altered this, he could hardly have failed to have said so. He treats it that the new statute, by leaving the old principle of lex loci con- tractus untouched, had left the door open to evade its new provisions of banns, rites, consent for minors, &c.; not had opened a new door. We find but one other case before Lord Hardwicke bearing on the subject. It is Roach v. Garvan, decided in 1748 (1 Ves. 159). It is material as showing the principles of law as to foreign marriages clearly laid down before the marriage act passed. It was the case of a ward of court, aged only eleven, married in France to a boy of seventeen, the son of a Frenchman. Lord Hardwicke laid down that the infant, being a natural-born subject, could not renounce her allegiance. He said; ‘‘ The most material consideration is the validity of the marriage. It has been argued to be valid from being established by the sentence of a court in France having proper jurisdiction. And it is true that, if so, it is conclu- sive, whether a foreign court or not, from the laws of nations in such cases; otherwise the rights of mankind would be very precarious and uncertain.” Now here, if Mr. Burge is right, Lord Hardwicke was called upon to fall back on the general principle Mr. Burge contends for, that the subject, though abroad, unless bona fide domiciled there (which, in Mr. Burge’s sense of domicil, was not the case), could not avail himself of the lex loci to avoid the CHAP. V.] MARRIAGE. 213 that a second marriage, after a divorce in Scotland from a mar- riage originally celebrated in England between English subjects, operation of our law. The girl here was only eleven years old. By our com- mon law, as stated by Mr. Burge, a female under twelve could not contract matrimony. Indeed, according to Sir Matthew Hale, the attempt would have subjected the party to a conviction for rape. 1 Hale P. C. 630, and 4 Black. Com. 212. So far from doing this, in committing unreservedly the jurisdic- tion as to validity to a foreign court, he lays down a principle quite destruc- tive of all Mr. Burge’s doctrines as to bona fide domicil; because, as we shall presently remark further, if that principle only means bona fide, so far as required by the foreign law, it amounts to nothing, and there is nobody who doubts it. It would then be, by common consent, one of the incidents bearing on the validity of the marriage according to the lex loci contractus. There are few opinions which command higher respect than Mr. Jacob’s. In his very learned notes appended to his edition of Roper’s Husband and Wife he takes the same view. He says, as to the objection that an intention to evade our law may affect the validity of the foreign contract, that, though apparently sanctioned by Lord Mansfield, it has not prevailed, either with respect to mar- riages in Scotland, or with respect to marriages in other places out of England, and there does not appear any exception to the rule that a foreign marriage, valid according to the law of the place where celebrated, is good. everywhere else.’? 2 Roper, Husb. & Wife, ed. by Jacob, p. 495. It must be observed that Mr. Jacob does not specifically advert to objections arising ‘from affinity or from any prohibitory rules not being in the marriage act. The rule how- ever is evidently older than the marriage act, and is always found without a limitation from the first. Except the case of legal personal disqualification . against marrying at all, such as Lolley’s, to which we shall soon advert, we know but of one country (France) where the validity of a foreign marriage between its own subjects is tried by its own, and not the foreign law. French subjects who are required at home to obtain the consent of parents, &c., are required so equally, if they marry out of France. Did such a broad personal rule obtain here, there would have been no room for the present article; and it is to such a result that we are addressing ourselves, unless the rules of restriction can be so narrowed as to approve themselves to the moral approba- tion of all the community, minority as well as majority; i. e., to those cases of affinity which, by the common consent of the country, would be discounte- nanced, namely, affinities in one degree, as step-father and step-daughter. We will now go on to examine the supposed second rule, as to a foreign bona fide domicil being required. Our English supposed limitation of the general rule is not, as we have seen, treated by such of the civilians as have espoused these views as an absolute personal rule, but one merely in fraudem legis; and they there- fore attach to the limitation this sub-limitation, that the qualification will be removed by a sufficient domicil abroad. But sufficient by what law? The sufficiency according to the requirements of the foreign law is admitted on all sides. Our law as to domicil proceeds on quite different grounds. But sup- Posing our law required a year’s residence to make a domicil in ‘any place, and the law of that place required two years, and also required domicil to ratify the contract of marriage within it, itis evident that we here, trying the validity of such a marriage, should require the two years’residence to be proved. These civilians admit this, and require us to fulfil the foreign law in all cases. But 214 CONFLICT OF LAWS. [s. 124. is void, although such divorce and second marriage would be unquestionably good by the law of Scotland So that here there may be two lawful wives of the party living at the same time in different countries, and two families of children, one of which may be deemed legitimate by the law of the one country, and illegitimate by the law of the other.2 It is easy to see what various difficulties may grow out of such a state of things. A son by the second marriage may be entitled to the whole real and personal estate of the father in Scotland, and incapable of touch- ing either in England. The Massachusetts doctrine escapes from then they require a sufficient domicil by our law as well. They would split the unity of the contract, and determine it partly by one law and partly by the other. They require two sorts of domicil to make up the marriage contract, —the one by the law abroad, to get over the lex loci; the one by our law, not as essential to the contract, but as evidence of the bona fides of the contract, and to get over the quasi personal disability they suppose; i. e., the suspicion of intention to evade our supposed prohibitory law. It is clear the bona fide domicil they would exact must be by way of evidence, and evidence only, But if so, how can it be an essential? Parties may marry without any intended fraud on their own law, where not domiciled to the satisfaction of the civilians; or, what is more likely, may become so domiciled with a positive intention to evade their own law. They may get naturalized abroad, move their property there, do everything which would show a domicil with regard to the laws abott personal estate, and yet all the while it may be capable of clear proof that they did this only because they chose to be married, and were not per- mitted to be married here, and that they intended and did all for evasion. They may intend a permanent residence also, and merely because they do not like the English law as to affinity. What would the civilians, who counte- nance these refinements, say to this case? Their notion seems to have arisen from viewing the law as an individual whose honor is to be vindicated, and who is to be treated with at least outward show of observance and respect. They make it, let it be observed, not a principle of English law merely, but of general law; though they can find no instance in any one country to support it, except Lord Mansfield’s manifestly erroneous dictum in a bill of exchange case. To us the whole scheme seems altogether insupportable. A law, we should think, is either local or it is personal, and anything between we can- not comprehend. If it were the case of a foreigner’s marriage here, would they ask if he came here in evasion of his own law? or would they not rather say with Fergusson, ‘* A party domiciled here cannot be permitted to import a law peculiar to his own case.’? Ferg. on Mar. & Div. 399.’ See also Huberus, lib: 1, tit. 8, de Confl. Leg. s. 18; Paul Voet, de Statut. s. 9, c 2 n. 4, p. 268, ed. 1715; Id. p. 819, ed. 1661. Lord Brougham, in Warrender v. Warrender, 9 Bligh, 129, 180, manifestly considered that the doctrine that a marriage in a foreign country was void, if it was a fraud upon the law of the domicil of the parties, was not maintainable in point of law. + Lolley’s Case, Russ. & R. 237. See Warrender v. Warrender, 9 Bligh, 89; ante, s. 86, 88; post, s. 215-226. : * Conway v, Beazley, 8 Hagg. Ecc. 689; Rex v. Lolley, Russ. & Ry. 287. CHAP. V.] MARRIAGE. 215 these incongruities ; and appears to be founded upon a liberal basis of international policy, which deems it far better to support mar- riages celebrated in a foreign country as valid, when in con- formity with the laws of that country, although the rule may produce some minor inconveniences, than, by introducing distinc- tions as to the designs and objects and motives of the parties, to shake the general confidence in such marriages, to subject the innocent issue to constant doubts as to their own legitimacy, and to leave the parents themselves to cut adrift from their solemn obligations when they may become discontented with their lot. 124 a. It is no answer to this reasoning to say that every nation has a right, at its pleasure, to impose any restraints and prohibitions upon the marriages of its own subjects whether they marry within or without its own territory. Admitting this to be true in the fullest extent to which it can justly be claimed in virtue of national sovereignty, it must be quite as true, and quite as obvious, that no other nation is bound to recognize those re- straints and those prohibitions as obligatory upon such subjects while they are domiciled within its own territory, or when they have contracted marriages there according to the laws thereof. All such local municipal restraints and prohibitions must, under such circumstances, necessarily tend to mutual embarrassment and confusion in the intercourse between such nations. The very object of the rule, arising from the comity of nations, and a sense of the importance and public policy of giving to marriages every- where the most solemn and binding obligation, is to secure all nations against such a conflict of laws. If France has chosen to declare that all marriages celebrated by its subjects in foreign countries, in conformity with their laws, but not according to its own laws, shall be utterly void, every other country has an equal right to declare that such marriages shall be deemed valid, and refuse to submit to the dictation of France. France may at home enforce such laws upon her own subjects and their property when found within its territory. But every other nation, by whose laws the marriages celebrated therein would be valid, would sustain such marriages, and treat the claims of France as an usurpation, founded in injustice and a disregard of the true duty and policy of all civilized nations in their intercourse with each other. (@) (a) Validity of Marriages. —In con- marriages, it is important to keep sidering the cases upon the validity of in mind that the word marriage has 216 two meanings: one is, the ceremony by which the parties are united in wedlock; the other is, the union in wedlock which the ceremony is in- tended to effect. Much confusion has arisen from the distinction between the two not having been observed; and the rules that have been laid down for determining the validity of a mar- riage, where the ceremony was alone in question, have sometimes been used in determining whether it was lawful for the parties to intermarry, as if the subject was the same in both cases, instead of there being two different subjects, to each of which the term marriage was properly applied. See Harvey v. Farnie, 6 P. D. p. 47; Camp- bell v. Crampton, 2 Fed. R. p. 424. It is an established rule in England and America that the ceremony by which the parties are joined in wed- lock, including all the forms to be observed, depends upon the law of the country where the ceremony is per- formed. Scrimshire v. Scrimstlire,. 2 Hagg. Cons. 895; Dalrymple v. Dal- rymple, Id. 54: Herbert v. Herbert, Id. 263, 271; 3 Phillim. Ecc. 58; Mid- dleton v. Janverin, 2 Hagg. Cons. 437; Swift v. Kelly, 3 Knapp, 257; Kent v. Burgess, 11 Sim. 361; Lacon v. Higgins, 8 Stark. 178; D. & R. N. P. C. 38; Butler v. Freeman, Amb. p- 803 (by Lord Hardwicke); Patter- son v. Gaines, 6 How. 550, 587-589; Phillips v. Gregg, 10 Watts (Pa.) 158; Hutchins v. Kimmell, 31 Mich. 126; Morgan v. McGhee, 5 Humph. (Tenn.) 18; Dumaresly v. Fishly, 3 A. K. Marsh. (Ky.) 868; Wall v. William- son, 8 Ala. 48; Loring v. Thorndike, 5 Allen (Mass.) 257, 269; Johnson v. Johnson, 30 Mo. 72. The formali- ties of contracting marriage are thus governed by the same rule as the for- malities of other contracts (s. 260, post). When a certain consent (as that of a father or guardian) is required to make a marriage valid, the consent is considered one of the formalities if it CONFLICT OF LAWS. [s. 1244, appears upon the interpretation of the law that its intention was, not to render the person incapable of marrying with- out the consent, but only to make the consent essential to a valid ceremony. In every case the question is one of construction. Brook v. Brook, 9 H. L. C. 215-218, 228-229; Compton ». Bearcroft, Bull. N. P. 114; 2 Hage. Cons. 444; Steele v. Braddell, Milw. (Ir.) 1, 19; Simonin v. Mallac, 2 Sw. & Tr. 67; Sottomayor v. De Barros, 3 P. D. 7. Compton v. Bearcroft (Bull. N. P. 114; 2 Hagg. Cons. 444) was the case which established the validity of the Gretna Green marriages, notwith- standing Lord Hardwicke’s Marriage Act (26 Geo. 2, c. 33). By this act a marriage without publication of banns or licence was void, and a marriage by licence without the consent of the father or guardian, where either party, not being a widower or widow, was under twenty-one, was also void. The consent was necessary only in cases of marriage by licence, and a marriage by banns was valid without consent. It was accordingly held that the pro- vision as to consent applied only to such marriages as must be celebrated either by banns or by licence, that is, to marriages solemnized in England. Therefore persons married out of Eng- land were not affected by the provision, even if they left England for the pur- pose of being married where they could do so without complying with its requirements. In Steele v. Brad- dell, Milw. 1, the question arose upon the Irish act of 9 Geo. 2, c. 11, which enacted that all marriages, when either party was under twenty-one, and en- titled to a certain fortune, had without the consent of the father or guardian in writing first obtained, should be void, provided that the father or guar- dian should within one year commence a suit to annul the marriage, and if no such suit were commenced within that time, the marriage should be good and valid. Dr. Radcliff held CHAP. V.] that the effect of the statute was only to make certain marriages voidable by suit under conditions, and not to create a personal incapacity, and that it applied only to marriages celebrated in Jreland. In Simonin v. Mallac, 2 Sw. & Tr. 67, the consent was one of the formalities required by the French code, which did not absolutely pro- hibit marriage without consent, but only postponed it, and allowed the celebration of the marriage after a certain time had elapsed, if the con- sent were asked for and refused. A marriage solemnized in England be- tween persons domiciled in France was held valid, notwithstanding the consent was not obtained or asked for. These cases were referred to and ex- plained by Lord Campbell in Brook v. Brook, 9 H. L. C. 214-218. On the other hand, in the Sussex Peerage Case, 11 Cl. & F. 85, 142, it was held that a personal incapacity to contract marriage anywhere was cre- ated by the Royal Marriage Act (12 Geo. 8, ec. 11), which enacted that no descendant of George II. (other than the issue of princesses married into foreign families) should be capable of contracting matrimony without the previous consent of the sovereign in council, and that every marriage of any such descendant without such con- sent should be null and void. Lord Brougham said in this case (p. 151) that if Lord Hardwicke’s Marriage Act ‘had used the same phraseology as this, and had rendered the parties incapable of contracting matrimony, we should never have heard of Comp- ton v. Bearcroft (supra) and Ilderton v. Iderton (2 H. Bl. 145).’ In Sotto- mayor v. De Barros, 3 P. D. 1, it ap- peared that by the law of Portugal a marriage between first cousins was deemed incestuous, and therefore null and void, but this impediment could be removed by a papal dispensation. It was held that the dispensation could not be regarded as a matter of form affecting only the sufficiency of the MARRIAGE. 217 ceremony, and that a marriage without dispensation between parties so related and domiciled in Portugal was illegal and void wherever it was contracted. When the question is, not whether the ceremony or form was sufficient, but whether it was lawful for the par- ties to intermarry, the rule to be de- duced from the English authorities seems to be that the validity of their union must be determined by the law of the matrimonial domicil. Brook v. Brook, 9 H. L. C. 193; Sottomayor v. De Barros, 3 P. D. 1 (C. A.); Mette v. Mette, 1 Sw. & Tr. 416. And in Vir- ginia, North Carolina, and Louisiana, a marriage between parties domiciled there is void, although it be solemnized out of the state, if the law of the state prohibits their intermarriage. Kin- ney’s Case, 30 Grat. (Va.) 858; State v. Kennedy, 76 N. C. 251; Dupre »v. Boulard, 10 La. An. 411. In Massachusetts and Kentucky a marriage is valid, although it is forbid- den by the laws of the state and ‘the parties are domiciled there, if it is solemnized in a place where it is law- ful. Medway v. Needham, 16 Mass. 157; Dannelli v. Dannelli, 4 Bush (Ky.) 51. See also Commonwealth v. Lane, 118 Mass. p. 462-471; Ross ». Ross, 129 Mass. p. 247-248; Steven- son v. Gray, 17 B. Mon. (Ky.) 193. Dicta to the same effect are to be found in Ponsford v. Johnson, 2 Blatch. C. C. 51; Van Voorhis v. Brintnall, 86 N. Y. 18 (ante, s. 92, note). The principle that questions of per- sonal status depend upon the law of the domicil is generally established. Udny v. Udny, L. R. 1 H. L. Se. p. 457; Shaw v. Gould, L. R. 3 H. L. p. 83; Ross v. Ross, 129 Mass. p. 246, 248; ante, s. 50, note. It seems to follow from this principle that the lawfulness of the union of two persons in wedlock, that is, the validity of a marriage in essentials or matters of substance as distinguished from the formalities of contracting it, should be determined by the law of the matri- 218 CONFLICT monial domicil. Lord Westbury said in Udny v. Udny, L. R. 1 H. L. Se. p- 457, ‘ The civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the per- sonal rights of the party, that is to say, the law which determines his majority or minority, his marriage, “ succession, testacy or intestacy, must depend.’ Marriage creates a status or relation between the parties. Ni- boyet v. Niboyet, 4 P. D. p. 11. If they have different domicils before the marriage, the domicil of the hus- band becomes upon the marriage the domicil of both. This is the matri- monial domicil, by the law of which the effects and incidents of the mar- riage and its dissolution are governed. The same principle seems properly to govern the formation of the relation. This is also Savigny’s opinion. Priv. Int. Law, Guthrie’s trans., s. 879, p. 240, 241. See also Id. 248, note A. In support of the theory that the validity of the union should be deter- mined by the law of the place where the marriage is solemnized, it is said that the status of marriage is based upon the contract of the parties, and that the validity of the contract is governed by the law of the place where the contract is made. This rule go- verns contracts when no particular place is appointed for their fulfilment. But when a contract is made in one place to be performed in another, its obligations and effects are go- verned by the law of the place of per- formance. Post, s. 280, 299, 299 a, 30la. See Westlake (ed. 1880) p. 234, 237. ‘The obligations of the con- tract of marriage are to be performed in the place where the parties are domiciled as husband and wife, and its effect is to create a status which is governed by the law of that place. The law of the matrimonial domicil consequently should determine the va- OF LAWS. [s. 124. lidity of the contract of marriage. Thus the principle that governs the validity of contracts would lead to the same result as the principle that governs personal status. See War- render v. Warrender, 2 Cl. & F. at p. 585, 536; Shreck v. Shreck, 32 Tex. at p. 587; Campbell v. Cramp- ton, 2 Fed. R. at p. 425. In the last-mentioned case, an agreement to marry, which was made between rela- tions whose marriage was forbidden by the law of the man’s domicil, and by- which the marriage was to be solemnized in a state where it was not forbidden, was held void, on the ground that the place where the parties were to be domiciled, that is, the man’s domicil, and not the place where the marriage was to be solemnized, was the place of performance. It seems to be a matter of doubt whether a marriage is valid when the union is one which is lawful by the law of the domicil of the parties and un- lawful by the law of the country where the marriage is celebrated. Mr. West- lake thinks that the marriage would be invalid, and that it is indispensable that each party have capacity to con- tract the marriage both by the law of his or her domicil and by the law of the place where it is celebrated. West- lake (ed. 1880) p. 52-54. Mr. Dicey however thinks that the invalidity of the marriage is not free from doubt, and adds that recent decisions (Sottomayor v. De Barros, 3 P. D. 1(C. A.); Brook v. Brook, 9 H. L. C. 193) suggest the conclusion that its validity is governed by the law of the domicil (Dicey on Domicil, p. 216). The principle that questions of status depend upon the law of the domicil seems certainly to lead to that conclusion. The law of any country may of course make it unlawful to solemnize certain mar- riages in that country. But the natural construction of a law which creates an incapacity to marry or forbids mar- riage between certain races or between persons related in certain degrees, seems CHAP. V.] to be that which limits its application to persons whose status of marriage is governed by the laws of that country. In Brook v. Brook, which was de- cided in the House of Lords in 1861 @ H. L. C. 198; 7 Jur. N.S. 422; 9 W. R. 461; 4 L. T. 93), a widower and the sister of his deceased wife were married in Denmark, where such a marriage was lawful. They were both domiciled in England, and, by an act of parliament, marriage between a widower and lis wife’s sister was pro- hibited and declared void on the ground of its being contrary to God’s law. The House of Lords, affirming the decision (3 Sm. & G. 481) of Stuart, V. C.,and Cresswell, J., held that the marriage was void. Lord Campbell, the Lord Chancellor, in delivering his opinion, said, ‘ There can be no doubt of the general rule that ‘‘a foreign marriage, valid according to the law of a country where it is celebrated, is good everywhere.’? But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the coun- try in which it is celebrated, the essen- tials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicil, the marriage may be good everywhere. But if the contract of marriage is such in essentials as to be contrary to the law of the country of domicil, and it is declared void by that law, it is to be regarded as void in the coun- try of domicil, though not contrary to the law of the country in which it was celebrated. This qualification upon the rule that ‘‘a marriage valid where celebrated is good everywhere” is to be found in the writings of many eminent jurists who have discussed the subject.’ ‘Lord Campbell referred to Warrender MARRIAGE, 219 v. Warrender, 2 Cl. & F. 488, and added, ‘The doctrine being esta- blished that the incidents of the con- tract of marriage celebrated in a foreign country are to be determined according to the law of the country in which the parties are domiciled and mean to reside, the consequence seems to follow that by this law must its validity or invalidity be determined.’ Lord Cranworth said, ‘The conclu- sion at which I have arrived is the same as that which my noble and learned friend on the woolsack has come to, namely, that though in the case of marriages celebrated abroad, the lex loci contractus must, quoad solennitates, determine the validity of the contract, yet no law but our own can decide whether the contract is or is not one which the parties to it, be- ing subjects of her majesty domiciled in this country, might lawfully make.’ In Mette v. Mette, 1 Sw. & Tr. 416, which was decided while the appeal in Brook v. Brook was pending, a Ger- man, who had been naturalized and was domiciled in England, married the sister of his deceased wife in Ger- many, where she was domiciled, and where marriage between a widower and his deceased wife’s sister was lawful. Cresswell, J., held that the marriage was void on the same ground as the marriage in Brook v. Brook, and that the husband, being domiciled and naturalized in England, could not contract a marriage contrary to the act of parliament, although he was not a natural-born subject; and as he was incapacitated from contracting such a marriage, the fact that the wife was a native of Germany and, until the marriage, was domiciled there, could not have any effect. In Sottomayor v. De Barros, 2 P. D. 81; 3 P. D.1(C.A.), a marriage was contracted in England between two first cousins, both of whom, as it ap- peared, were domiciled in Portugal. By the law of Portugal first cousins were incapable of contracting mar- 220 CONFLICT riage on account of consanguinity, and such marriage would be considered incestuous; but this impediment could be removed by papal dispensation. Sir R. Phillimore said that, although it was established that when parties were by the law of their domicil in- capable of contracting marriage, the court of the domicil recognized the incapacity as invalidating their mar- riage, even if it was contracted in-a place where no such incapacity ex- isted, and although it might appear to be a consequence of that doctrine that the court of the place of the con- tract was also bound to recognize the incapacity, yet having regard to some decisions which he mentioned, espe- cially Simonin v. Mallac, 2 Sw. & Tr. 67, he did not think that sitting as a single judge he ought to pronounce the marriage void on that ground. 2 P. D. 81. On appeal, the court (James, Baggallay, and Cotton, L.JJ.) held that the marriage was null and void on the ground that the law of. Portugal imposed on its. subjects an incapacity which affected them so long as they were domiciled there, and rendered invalid a marriage be- tween persons within the prohibited degrees domiciled in that country at the time of the marriage, wherever such marriage might be solemnized. 3 P. D. 1. Cotton, L.J., in deliver- ing the judgment of the court, said, ‘If the parties had been subjects of her majesty domiciled in England, the marriage would undoubtedly have been valid. But it is a well-recog- nized principle of law that the ques- tion of personal capacity to enter into any contract is to be decided by the law of domicil.... The law of a country where a marriage is solem- nized must alone decide all questions relating to the validity of the cere- mony by which the marriage is al- leged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must de- pend on the law of domicil; and if the OF LAWS. [s. 1244. laws of any country prohibit its sub- jects within certain degrees of con- sanguinity from contracting marriage, and stamp a marriage between per- sons within the prohibited degrees as incestuous, this, in our opinion, im- poses on the subjects of that country a personal incapacity which continues to affect them so long as they are do- miciled in the country where this law prevails, and renders invalid a mar- riage between persons both at the time of their marriage subjects of and domiciled in the country which imposes this restriction, wherever such marriage may have been solemnized. . . . Our opinion on this appeal is confined to the case where both the contracting parties are, at the time of their marriage, domiciled in a country the laws of which prohibit their mar- riage. All persons are legally bound to take notice of the laws of the country where they are domiciled. No country is bound to recognize the laws of a foreign state when they work injustice to its own subjects, and this principle would prevent the judgment in the present case being relied on as an authority for setting aside a marriage between a foreigner and an English subject domiciled in England, on the ground of any per- sonal incapacity not recognized by the law of this country.’ As regards Simonin v. Mallac, 2 Sw. & Tr. 67, by which Sir R. Phillimore had con- sidered himself bound, and in which the marriage was held to be valid, he said, ‘The objection to the validity of the marriage in that case, which was solemnized in England, was the want of the consent of parents re- | quired by the law of France, but not under the circumstances by that of this country. In our opinion, this consent must be considered a part of the ceremony of marriage, and not a matter affecting the personal capacity of the parties to contract marriage.’ 3 P. D. 5-7, Sottomayor v. De Barros was tried CHAP. V.] again before Sir J. Hannen (5 P. D. 94), and upon this trial the judge found that at the time of the marriage the husband was domiciled in Eng- land and the wife in Portugal. He referred to the statement in the judg- ment of the Court of Appeal that their opinion was confined to the case where both parties were domiciled in a country the laws of which prohi- bited their marriage, and said, ‘ This passage leaves me free to consider whether the marriage of a domiciled Englishman in England, with a wo- man subject by the law of her do- micil to a personal incapacity not re- cognized by English law, must be declared invalid by the tribunals of this country. Before entering upon this inquiry I must observe that the Lords Justices appear to have laid down, as a principle of law, a proposi- tion which was much wider in its terms than was necessary for the de- termination of the case before them. It is thus expressed: ‘It is a well- recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicil;’’ and again, ‘+ As in other contracts, so in that of mar- riage, personal capacity must depend on the law of domicil.’’ It is of course competent for.the Court of Ap- peal to lay down a principle which, if it formed the basis of a judgment of that court, must, unless it should be disclaimed by the House of Lords, be binding in all future cases. But I trust that I may be permitted without disrespect to say that the doctrine thus laid down has not hitherto been “well-reeognized.’? On the contrary, it appears to me to be a novel princi- ple, for which up to the present time there has been no English authority. What authority there is seems to me to be the other way.’ He then re- ferred to Male v..Roberts, 3 Esp. 163; Scrimshire v. Scrimshire, 2 Hagg. Cons. at p. 412, 413; 1 Burge, Col. & For. Law, 182; Story, Conflict of Laws, MARRIAGE, 221 s. 108; Simonin v. Mallac, 2 Sw. & Tr. at p. 77, as authorities for the proposition that the validity of a con- tract of marriage as well as of other con- tracts, depends upon the law of the place where the contract is entered into. He considered that the effect of the decision of the Court of Appeal was only to declare a further condition im- posed by English law, namely, that the parties do not both belong by do- micil to a country the laws of which prohibit their marriage. But as the decision expressly left altogether un- touched the case of the marriage of a British subject in England, where the marriage was lawful, with a person domiciled in a country where the mar- riage was prohibited, he held that in such a case the marriage, being good by the law of the country where solemnized, must be deemed by the tribunals of that country to be valid, irrespective of the law of the domicil of the parties. It will thus be seen that, although the decision of the Couwt of Appeal did not extend to the case as it ap- peared at the second trial, the rea- sons given by Sir J. Hannen for his decision directly contradict the prin- ciple of law laid down by the Court of Appeal. Simonin v. Mallac, 2 Sw. & Tr. 67, to which he attached so much weight, and which was ex- plained by the Court of Appeal as relating only to the ceremony of mar- riage, had received the same explana- tion in the House of Lords in Brook v. Brook, 9 H. L. C. 198. Scrim- shire v. Scrimshire, 2 Hagg. Cons. 395, from which he quoted, was clearly a case involving only the forms of marriage. He quoted this language from the judgment of Sir E. Simpson in this case: ‘ This doctrine of trying contracts, especially those of marriage, according to the laws of the country where they are made, is conformable to what is laid down in our books, and what is practised in all civilized coun- tries,’ and ‘These authorities fully 222 CONFLICT show that all contracts are to be con- sidered according to the laws of the country where they are made. And the practice of civilized countries has been conformable to this doctrine, and by the common consent of nations has been so received.’ (2 Hagg. Cons. 412, 418). The context and the authorities cited, as well as the facts of the case before him, show that Sir E. Simpson was speaking of the vali- dity of contracts as regards forms and solemnities only. The passage in his judgment in which the above remarks occur is as follows (the original is not italicized): ‘This doctrine of trying contracts, especially those of marriage, according to the laws of the country where they, were made, is con- formable to what is laid down in our books, and what is practised in all civilized countries, and what is agree- able to the law of nations, which is the law of every particular country, and taken notice of as such. This subject is much discussed by Sanchez, to the following effect, that as to the maxim or general rule, ‘Ut non teneantur peregrini legibus et consuetudinibus loci per quem transeunt,’’ this rule has exceptions; ‘1st. Quoad contractuum solemnitatem; nam quicunque foren- ses et peregrini tenentur servare solem- nitates in contractu requisitas legibus et consuetudinibus oppidi in quo con- trahunt; ratione enim contractus qui- libet forum sortitur in loco contractus; hinc est contractum absolute initum, censeri celebratum, juxta consuetu- dines et statuta loci in quo initur. Quod ita provenit, quia contractus sequitur consuetudines et statuta loci in quo celebratur.’? And a case is put, as to inhabitants of a place where the decree of the Council of Trent, for avoiding clandestine marriages, is not received; suppose from England they go ‘‘per modum transitus, ubi obligat decretum,’’ and marry there accord- ing to the laws of their own domicil. Some think that such marriage is good in the case of strangers, as agreeable OF LAWS. [s. 124 a. to their own laws, to the law of the country in which they are domiciled, though not to the law of the place where they are married. But San- chez thinks the marriage void, be- cause it wants the solemnities, ‘‘ que petunt leges loci ubi contractus ini- tur; et quoad solemniiatem adhiben- dam in contractibus, sole leges loci in quo contractus celebratur inspiciun- tur.’? These authorities fully show that all contracts are to be considered according to the laws of the country where they are made. And the prac- tice of civilized countries has been conformable to this doctrine, and by the common consent of nations has been so received.’ See also his cita- tions from Gayll and Voet at p. 408, 414, 415. Further on (p. 416) Sir E. Simpson said: ‘From the doctrine laid down in our books — the practice of nations —and the mischief and con- fusion that would arise to the subjects of every country, from a contrary doc- trine, I may infer that it is the con- sent of all nations, that it is the jus gentium, that the solemnities of the dif- ferent nations with respect to mar- riages should be observed, and that contracts of this kind are to be deter- mined by the laws of the country where they are made.’ The case of Male v. Roberts, 3 Esp. 163, which was also referred to by Sir J. Hannen, did not relate to marriage; the question was, whether a debt incurred in Scotland could be enforced against an infant, and it was held that, ‘ the law of the country where the contract arose must govern the contract ’ (see note, s. 102, ante). Sir J. Hannen’s rea- soning that marriage, like other con- tracts, should be governed by the law of the place where the contract was made, is answered by this passage from his own judgment, ‘In truth, very many and serious difficulties arise if marriage be regarded only in the light of acontract. It is indeed based upon the contract of the parties, but it is a status arising out of a con- CHAP. V.] tract to which each country is entitled to attach its own conditions, both as to its creation and duration ’ (p. 101). Although, as the same judge says, there was no previous English autho- rity for the principle that personal capacity to enter into any contract is to be decided by the law of domicil, there was sufficient authority in the opinions of Lords Campbell and Cran- worth in Brook v. Brook (supra), for the principle that the lawfulness of contracts of marriage was to be de- cided by the law of the domicil. As to Mette v. Mette (supra), where a marriage in Germany was held to be void because it was contrary to the law of the man’s domicil, which was England, Sir J. Hannen distinguished the case on the ground that it was not a controversy arising in the country where the marriage was celebrated. According to this doctrine, if a fo- reigner is married in England, the validity of his marriage depends upon the law of the place where it is cele- brated; but if a person domiciled in England is married in another coun- try, the validity of the marriage is governed by the law of his domicil. With regard to the decision of the Court of Appeal that the dispensation of the pope could not be considered a matter of form affecting only the suf- ficiency of the ceremony, Sir J. Han- nen says (p. 106), ‘I would ask what is the distinction between the prohi- bition of a marriage unless the con- sent of a parent be obtained as in Simonin v. Mallac [supra], and the prohibition of a marriage, unless the dispensation of the pope be granted, as in this case? And if there be a distinction, which I am unable to perceive, why is greater value to be attached by the tribunals of this coun- try to the permission of the pope than to that of a father?’ The distinction is, that in Simonin v. Mallac, mar- riage without the consent of the pa- rent was not absolutely prohibited by the French code, but was permitted MARRIAGE. 223 if certain other formalities were ob- served, while by the law of Portu-. gal, marriage between first cousins, as in Sottomayor v. De Barros, was held to be incestuous, and therefore null and void, though the impediment might be removed by papal dispensa- tion. 2 P.D. 84; 3 P. D. 4. Itseems to be a right interpretation of the Portuguese law, that, when it declares a marriage null and void because incestuous, it makes the parties inca- pable of contracting that marriage, even though it admit the power of the pope to remove the impediment by a dispensation. The reason why greater value is attached by the English tri- bunals to the dispensation of the pope than to the consent of the father is, that the Portuguese law attaches greater value to the former than the French law does to the latter, and the English tribunals are dealing in one case with Portuguese law and in the other with French law. Although the opinions of the Court of Appeal and of Sir J. Hannen in Sottomayor v. De Barros, 3 P. D.1; 5 P. D. 94, are directly opposed to one another, yet the actual decisions of both are in accordance with the princi- ple that, as marriage is a status, its validity depends upon the law of the matrimonial domicil, and they are likewise consistent with the decisions in Brook v. Brook, 9 H. L. C. 193, and Mette v. Mette, 1 Sw. & Tr. 416. The marriage of the parties was abso- ‘lutely forbidden by the law of the domicil of both parties in Brook v. Brook, and in Sottomayor v. De Barros, as the facts appeared in the Court of Appeal, and by the: law of the man’s domicil in Mette v. Mette; but the marriage ‘was lawful by the law of the man’s domicil, which was the ma- trimonial domicil, in Sottomayor v. De Barros, as the facts appeared before Sir J. Hannen. The Court of Appeal said in Sotto- mayor v. De Barros, 3 P. D. 1, 6, ‘ Our opinion on this appeal is confined to e 224. CONFLICT the case where both the contracting _parties are, at the time of their mar- riage, domiciled in a country the laws of which prohibit their marriage.’ Mr. Dicey (Domicil, p. 221) says: ‘The suggested limitation, however, to the application of the principle that capacity to marry depends upon a person’s lex domicilii, cannot, it is conceived, be permanently maintained. The introduction of the proposed limi- tation is not necessitated by any de- cided cases, is illogical, and does away with the great advantage derived from basing the validity of a marriage on a broad and clear ground.’ Mr. Dicey however states the fol- lowing as an exception (p. 223): ‘A mariage celebrated in England is not invalid on account ‘of any incapacity of either of the parties which, though imposed by the law of his or her domicil, is of a kind to which our courts refuse recognition.” One ex- ample which he mentions is a mar- riage celebrated in England between a black man and a white woman, who are both domiciled in a country where marriages between blacks and whites are prohibited. The reason he gives for this exception in this case, is, ‘that the incapacity constitutes a penal or privative status, to which our courts will not give extra-territorial effect,’ and he refers to the rule that a status, unknown to English law, like slavery, is not recognized in England. It seems however to be incorrect to say that a prohibition of a marriage on account of a difference of race is penal or privative in its nature. It is no more so than a prohibition on account of consanguinity or affinity. It bears no resemblance to slavery. It applies to both races alike. It is difficult to perceive on what ground the English courts should not recog- nize this kind of prohibition. I cannot be on the ground that the English law does not prohibit such marriages, for the English courts recognize the prohibition imposed by OF LAWS. [s. 124 a, Portuguese law upon the marriage of first cousins, which the English law permits. The exceptions in the cases of penal disabilities and of in- capacities imposed upon monks and nuns have been mentioned (s. 91, 92, 94, ante), and depend upon different principles. In Medway v. Needham, 16 Mass. 157, which was decided in 1819, a mar- riage between a mulatto and a white woman, celebrated in Rhode Island, where such marriages were lawful, was held valid in Massachusetts, al- though the parties were domiciled in Massachusetts, by the laws of which the marriage was forbidden, and had gone to Rhode Island to be married in evasion of the laws of their domicil, Parker, C. J., in delivering judgment said, ‘ The celebrated jurist and ci- vilian Huberus strongly contests this doctrine, as may be seen in the pas- sage cited by Hargrave in the note re- ferred to by the counsel for the defen- dants; and he puts strong cases, to show the grounds of his opinion. But his objections have been overcome in England by the consideration of the extreme inconveniences and cruelty of applying the principle he contends for. . . According to the case settled in England by the ecclesiastical court, and recognized by the courts of com- mon law, the marriage is to be held valid or otherwise, according to the , laws of the place where it is con- tracted, although the parties went to the foreign country with an intention to evade the laws of their own. This doctrine is repugnant to the general principles of law relating to contracts; for a fraudulent evasion of the laws of the country where the parties have their domicil could not, except in the contract of marriage, be protected under the general principle. . . . The exception in favor of marriages so contracted must be founded on prin- ciples of policy, with a view to prevent the disastrous consequences to the issue of such marriages, as well as to avoid CHAP. V.] the public mischief which would re- sult from the loose state in which people so situated would live.’ The ‘case in the ecclesiastical court referred to in this judgment was Compton v. Bearcroft, which is mentioned above. The consequences of the decision in Medway v. Needham were in part averted by a subsequent statute (Rev. Sts. 1836, c. 75, s. 6; Pub. Sts. c. 145, s. 10), which provided that a mar- riage should be deemed void when persons resident in the state, in order to evade the provisions of law prohi- biting their marriage, and with an in- tention of returning to reside, go into another state or country and there have their marriage solemnized, and afterwards return and reside in the state. The Revised Statutes Com- missioners, one of whom was Judge Jackson, in recommending this pro- vision in 1834, said (Report, pt. 2, p. 118), ‘There have been different opinions on the subject of this section; and it is desirable that the law should be settled. . . . It will be observed that the provisions referred to in this section, and which it is proposed to extend to marriages solemnized with- out this commonwealth, are of a per- sonal nature, founded on the relation subsisting between the parties, or on some other disqualification; and these personal disqualifications exist with equal force in whatever place, or in whatever form, the marriage is solem- nized. These provisions do not in- clude the publication of the banns, or any of the forms of proceeding ; all which are left to be regulated by the laws of the place where the cere- mony is performed. But an inces- tuous marriage, for example, or one between a white person and a negro, is not rendered innoxious here, merely because the parties go to celebrate it a few miles beyond our boundary.’ Thus the principle upon which Brook v. Brook was decided by the House of Lords in 1861 (9 H. L. C. 193), was stated twenty-seven years previously MARRIAGE. 225 in this report to the governor of Massa- chusetts. See the remarks of Parker, C.J., in Putnam v. Putnam, 8 Pick. at p. 485, upon the question whether the rule he had laid down in Med- way v. Needham should be changed. In Brook v. Brook, 9 H. L. C. p. 219,* Lord Campbell mentioned the case of Medway +. Needham, and said, ‘But I cannot think that it is entitled to much weight, for the learned judge admitted that he was overruling the doctrine of Hu- berus and other eminent jurists; he relied on decisions in which the forms only of celebrating the marriage in the country of celebration and in the country of domicil were different ; and he took a distinction between cases where the absolute prohibition of the marriage is forbidden [founded ?] on mere motives of policy, and where the marriage is prohibited as being contrary to religion on the ground of incest. I myself must deny the distinction. If a marriage is. abso- lutely prohibited in any country as being contrary to public policy and leading to social evils, I think that the domiciled inhabitants of that coun- try cannot be permitted, by passing the frontier and entering another state in which this marriage is not prohibited, to celebrate a marriage for- bidden by their own state, and, imme- diately returning to their own state, to insist on their marriage being recog- nized as lawful.’ Lord Cranworth said (p. 229): ‘I also concur entirely with my noble and learned friend that the American decision of Medway v. Needham cannot be treated as pro* ceeding on sound principles of law. The state or province of Massachu- setts positively prohibited by its laws, as contrary to public policy, the mar- riage of a mulatto with a white woman; and on one of the grounds of distinc- tion pointed out by Mr. Justice Story [s. 113 a, supra], such a marriage cer- tainly ought to have been held void in Massachusetts, though celebrated in 15 226 CONFLICT another province where such marriages were lawful.’ In Commonwealth v. Lane, 113 Mass. 458, the point de- cided in which has already been men- tioned (ante s. 92, note), the decision of the House of Lords in Brook v. Brook was examined and disapproved by Gray, C.J. In the still*more re- cent decision of Kinney’s Case, 30 Grat. (Va.) 858, in which the point was the same as in Medway v. Need- ham, 16 Mass. 157, Christian, J., in delivering the judgment of the Vir- ginia Court of Appeals, quoted the OF LAWS. [s. 124 a-126, above remarks of Lords Campbell and Cranworth, and then added with re- gard to the case of Medway v. Need- ham, ‘ With such condemnation, from so high a source, of this decision as authority, and when it is opposed by the decisions of our sister southern states above referred to, and contrary to sound principles of law, I think, though a case exactly in point upon its facts, it can have but little weight in forming our judicial determination of the question before us in this case.’ See also State v. Kennedy, 76 N.C. 251. CHAP. VI] INCIDENTS TO MARRIAGES. 227 CHAPTER VI. INCIDENTS TO MARRIAGES. 125. Subject to be considered.— Having considered how far the validity of marriages is to be decided by the law of the place where they are celebrated, we are next led to consider the opera- tion of foreign law upon the incidents of marriage. These may respect either the personal capacity and powers of the husband and wife, or the rights of each in regard to the property, personal or real, acquired or held by both or either of them during the coverture.? 126. Diversities of Law.—The jurisprudence of different na- tions contains almost infinitely diversified regulations upon the subject of the mutual obligations and duties of husband and wife, their personal capacities and powers, and their mutual rights and interests in the property belonging to or acquired by each during the existence of the marriage; and the task of enu- merating all of them would be as hopeless as it would be useless. Before the Revolution there were in France a multitude of such diversities in the local and customary law of her own provinces, and in Germany and the states of Holland and Italy and the vast domains of Austria and Russia, the like diversities existed, and probably still continue to exist. Froland has enumerated a few of these diversities, by way of illustrating the endless embarrass- ments arising from the conflict of laws of different provinces and nations ;? and his ample work is mainly devoted to a considera- tion of the mixed questions arising from the conjugal relation, as affected by different laws in different provinces and nations. In some of the French provinces before the Revolution a married woman had a separate power to contract ; in others she had not.? 1 See on the subject of this chapter, 1 Burge, Col. & For. Law, pt. 1, c. 6, 8. 1, 2, p. 201-262; Id. c. 7, s. 1, p. 262-276. 2 Froland, Mémoires, c. 1, s. 7, 8. 8 Ibid.; Henry on Foreign Law, 31. See also 1 Boullenois, c. 1, p. 421; Id. p. 467, 468; Merlin, Répert. Autoris. Maritale, s. 10. 228 CONFLICT OF LAWS. [s. 126-130, In Holland, under the old laws thereof (for it is unnecessary to consider whether they have undergone any substantial alteration in more recent times), the husband had the sole power to dispose of all the property of his wife; and she was entirely deprived of any power over it! In Utrecht her consent was necessary if there were not children by the marriage; and in some other places whether there were or were not children. In Utrecht the husband and wife were disabled from making donations to each other; in Holland they may, or might, make them.? In some states there is a community of property between husband and wife; in others none; and in others again, mixed rights and qualified claims.’ 127. Foreign Law.—Boullenois has put several cases showing the practical difficulties of this conflict of laws. Suppose a hus- band domiciled in a place where he cannot bind his wife, if he contracts alone and without her, although she is under his marital power and authority, and the husband should go to and contract in a place where, by reason of this authority, he can bind his wife by binding himself, will the latter contract bind her? He an- swers in the negative, because the obligation of the wife does not spring from the nature of the contract, nor from the place of the contract, but from the marital authority, which has no such effect in the place of his domicil.4 In Brittany, formerly, when a hus- band and wife were each bound in solido for the same contract or debt, payment was to be first sought out of the effects of the husband. But in Paris, upon a like contract, the effects of the 1 1 Burge, Col. & For. Law, pt. 1, ¢. 7, s. 2, p. 276, 302. 2 Rodenburg, de Divers. Stat. tit. 2, c. 5, s. 9; 2 Boullenois, Appx. p. 39. It may be useful here to state, once for all, that in referring to the laws of different countries, I generally state them as they formerly were, without any attention to the changes which they may actually have undergone. The:rea- soning of the foreign jurists upon this subject would be rendered exceedingly obscure, and sometimes incorrect, in any other way; and the object of this work is not so much to show what particular conflicts of Jaws may now arise from the present jurisprudence of a particular country, as to illustrate the principles which different jurists have adopted in solving questions relating to the conflicts of laws generally. See 1 Burge, Col. & For. Law, pt. 1, c. 7,8.2 p. 276-332, where there will be found a summary of the laws of Holland on the subject of this chapter. 3 1 Burge, Col. & For. Law, e. 7, s. 1-8, p. 262-561; Henry on For. Law, ce. 1,8. 3, p. 10, 36, note; Id. 95; 1 Boullenois, obs. 15, p. 198; Id. Prine. Gén. 8, p. 8. 4 1 Boullenois, obs. 46, p. 467. CHAP. VI.] INCIDENTS TO MARRIAGES. 229 husband and wife were formerly indiscriminately bound. Sup- pose then that at that period married persons domiciled in Brit- tany had gone to Paris and there contracted, or that married persons domiciled in Paris had gone to Brittany and there con- tracted, in what manner should the creditor seek payment? Boullenois seems to have held that in such a case the Jaws were to be followed which regulate the estate and condition of the wife ; that is to say, the laws of her domicil.} 128. It is hardly possible to enumerate the different rules adopted in the customary law or in the positive law of different provinces of the same empire, upon the subject of the rights of husband and wife. In some places the laws which place the wife under the authority of her husband, extend to all her acts, as well to acts inter vivos as to acts testamentary ; in others the former only are prohibited. In some places the consent of the husband is necessary to give effect to the contracts of the wife; in others the contract is valid, but is suspended in its execution during the life of the husband. In some places the wife has no power over the administration of her own property; in others the prohibition is confined to property merely dotal, and she has the free disposal of her own property, which is called paraphernal2 129. But not to perplex ourselves with cases of a provincial and unusual nature, let us attend to the differences on this subject in the existing jurisprudence of two of the most polished and commercial states of Europe, in order to realize the variety of questions which may spring up and embarrass the administration of justice in the tribunals of those countries. 130. The present code of France does not undertake to regu- late the conjugal association as to property, except in the absence of any special contract, which special contract the husband and wife may under certain limitations make as they shall judge proper. When no special stipulations exist, the case is governed by what is denominated the rule of community, le régime de la communauté. This community, or nuptial partnership, generally extends to all the movable property of the husband and wife, and 1 1 Boullenois, p. 468, 469. 2 2 Boullenois. obs. 82, p. 11; 1 Domat, b. 1, tit. 9, p. 166, 167; Id. 8. 4, p. 179, 180, &c. See also 1 Froland, Mém. per tot; Merlin, Répert, Autoris. Maritale, s. 10; 1 Burge, Col. & For. Law, pt. 1, c. 6,8. 1, p. 201-244; Id. ¢. 7, 8. 1-7, p. 262-561. ‘ 230 CONFLICT OF LAWS. [s. 180-133. to the fruits, income, and revenues thereof, whether it is in pos- session or in action at the time of the marriage, or is subse- quently acquired. It extends also to all immovable property of the husband and wife acquired during the marriage, but not to such immovable property as either was possessed at the time of marriage, or came to them afterwards by title of succession, or by gift! The property thus acquired by this nuptial partnership is liable to the debts of the parties existing at the time of the marriage, to the debts contracted by the husband during the com- munity, or by the wife during the community with the consent of the husband, and to debts contracted for the maintenance of the family, and other charges of the marriage. As in common cases of partnership, recompense may be claimed and had for any charges which ought to be borne exclusively by either party. The husband alone is entitled to administer the property of the community, and he may alien, sell, and mortgage it without the concurrence of the wife. He cannot however dispose inter vivos by gratuitous title of the immovables of the community, or of the movables, except under particular circumstances, and testamen- tary dispositions made by him cannot exceed his share in the com- munity The community is dissolved by natural death, by civil death, by divorce, by separation of body, or by separation of pro- perty. Upon separation of body or of property, the wife resumes her free administration of her movable property, and may alien it. But she cannot alien her immovable property without the consent of her husband, or without being authorized by law upon his refu- sal. Dissolution of the marriage by divorce gives no right of survivorship to the wife, but that right may occur on the civil death or the natural death of the husband. Upon the death of either party, the community being dissolved, the property belongs equally to the surviving party, and to the heirs of the deceased, in equal moieties, after the due adjustment of all debts, and the payment of all charges and claims on the fund.3 131. Such is a very brief outline of some of the more impor- tant particulars of the French Code, in regard to the property of married persons in cases of community. The parties may vary these rights by special contract, or they may marry under what is called the dotal rule, le régime dotal. But it would carry us 1 Code Civil of France, art. 1887-1408; Id. art. 1497-1541. . 7? Id. art. 1409-1440. 8 Code Civil of France, art. 1441-1496. CHAP. VI.] INCIDENTS TO MARRIAGES, 231 too far to enter upon the consideration of these peculiarities, as our object is only to point out some of the broader distinctions between the English and the French law as to the effects of marriage. 132. In regard to the personal rights, and capacities, and dis- abilities of the parties, it may be stated that, independently of the ordinary rights and duties of conjugal fidelity, succor, and assistance, the husband becomes the head of the family, and the wife can do no act in law without the authority of her husband. She cannot therefore, without his consent, give, alien, sell, mort- gage, or acquire property. No general authority, even though stipulated by a marriage contract, is valid, except as to the ad- ministration of the property of the wife. But the wife may make a will without the authority of her husband. If the wife is a public trader, she may, without the authority of her husband, bind herself in whatever concerns her business ; and in such case she also binds her husband if there is a community between them.! 183. Contrast between English and Foreign Law. —If we com- pare this nuptial jurisprudence, brief and imperfect as the out- line necessarily is, with that of England, it presents, upon the most superficial examination, very striking differences. In the first place, as to personal rights, capacities, and disabilities, the law of England, with few exceptions (which it is unnecessary here to mention), places the wife completely under the guar- dianship and coverture of the husband. The husband and wife are, in contemplation of law, one pérson. He possesses the sole power and authority over the person and acts of the wife; so that, as Mr. Justice Blackstone has well observed, the very be- ing or legal existence of the wife is suspended during the mar- riage, or, at least, is incorporated and consolidated into that of the husband.2 For this reason a man cannot grant anything to his wife, or enter into a covenant with her during his life, though he may devise to her by will. She is incapable of entering into any contract, executing any deed, or doing any other valid act in her own name. ll suits, even for personal injuries to her, must be brought in the name of her husband and herself, and with his 1 Code Civil of France, art. 212-226, art. 1426; 2 Toullier, Droit Civ. art. 618-655. 2 1 Black. Com. 441; 2 Story, Eq. Jur. s. 1366-1429. 232 CONFLICT OF LAWS. [s. 133-137. concurrence. Upon the marriage the husband becomes liable to all her debts, but neither the wife nor her property is liable for any of his debts. In the Roman law, and (as we have seen) in the French law, the husband and wife are for many purposes considered as distinct persons, and may have separate estates, contracts, rights, and injuries.? 134. In respect to property, in England the husband, by the marriage, independently of any marriage settlement, becomes ipso facto entitled to all her personal or movable property of every description, in posesssion and in action, and may dispose of it at his pleasure. He has also a freehold in her real estate during their joint lives ; and if he has issue by her, and survives her, he has a freehold also during his own life.in her real estate, and an exclusive right to the whole profits of it during the same period. There is not any community between them in regard to property, as in the French law. Upon his death she is simply entitled to dower of one third of his real estate during her life, and he may, at his pleasure, by a testamentary disposition, deprive her of all right and interest in his personal or movable estate, although the whole of it came to him from her by the marriage. During the coverture she is also incapable of changing, transferring, or in any manner disposing of her real estate, except with his concur- rence; and she is incapable of making an effectual will or tes- tament.? 135. Now these differences (which are by no means all that exist), exemplified in the French laws and in the English laws, are, for the most part, the very same as exist in America between the states settled under the common law, and those settled under the civil law ; between those deriving their origin from Spain or France, and those deriving their origin from England. We may see at once then upon a change of domicil, or even of tempo- rary residence, from a State or country governed by the one law to another governed by the other law, what various questions of an interesting and practical nature may — nay, must — grow up from this conflict of local and municipal jurisprudence. 1 1 Black. Com. 441; 2 Story, Eq. Jur. s. 1866-1429; 1 Brown, Civ. Law, 82; 2 Kent Com. 129, &c. 2 2 Kent Com. 129, &c.; 2 Black. Com. 433. ® 2 Kent Com. 183, and note. See 1 Domat, b. 1, tit. 9; Id. tit. 10. See Christy, Louisiana Digest, art. Husband and Wife, and Louisiana Code, art. 121-133. CHAP. V1] INCIDENTS TO MARRIAGES. 233 135 a. Division of Subject.— The subject naturally divides itself into two heads: first, the effect of the marriage upon the per-. sonal capacities and incapacities of the wife, or, in other words, her disabilities and her powers, consequent upon the marriage ; and secondly, the effect of the marriage upon the rights and interests of the husband or wife, or of both of them, in the pro- perty belonging to them at the time of the marriage, or subse- quently acquired by them. We will examine them under these two separate heads, although (as we shall presently see) some of the considerations applicable to them mutually run into each other. 136. Capacity and Disability of Wife.— And in the first place as to the capacities and disabilities of the wife. It is extremely difficult upon the subject of the personal capacities and disabili- ties of the wife to lay down any satisfactory rule as to the extent to which they are or ought to be recognized by foreign nations. In general she is deemed to have the same domicil as her hus- band ; and she can during the coverture acquire none other, suo jure! Her acts done in the place of her domicil will have validity or not, as they are or are not valid there. But as to her acts done elsewhere there is much room for diversity of opinion and practice among nations. We have seen that many of the civilians and jurists of continental Europe hold that the capacity and incapacity of married women, as in other cases of the per- sonality of laws, accompany them everywhere and govern their acts.2, And Mr. Chancellor Kent has said that as personal quali- ties and civil relations of a universal nature, such as infancy and coverture, are fixed by the law of the domicil, it becomes the interest of all nations mutually to respect and sustain that law.® This is true.in a general sense. But every nation will judge for itself what its own interest requires, and in framing its own jurisprudence will often hold acts valid within its own territories which the laws of a foreign domicil might prohibit or might disable the parties from doing. 137. Change of Domicil.—In considering this subject it is 1 Ante, s. 46. . See, on this subject, 1 Burge, Col. & For. Law, pt. 1, ¢. 6, 8. 2, p. 244-962. 2 See ante, s. 51, 55, 56, 57, 58, 60; Henry on Foreign Law, p. 50; Fer- gusson on Marr. and Diy. 334-336; Merlin, Répert. Autoris. Maritale, s. 10. 8 2 Kent Com. 419. 234 CONFLICT OF LAWS. [s. 137-139. material, at least so far as foreign jurists are concerned, to dis- _tinguish between cases where there has been a change of domicil of the parties, and where there has not been any such change of domicil. Where the domicil of marriage remains unchanged, the acts of the wife and her power over her property in a foreign country are held by many foreign jurists to be exclusively go- verned by the law of her domicil; in other words, her acts are valid or not, as the law of her domicil gives her capacity or in- capacity to do them.! And the rule is applied to her immovable property, as well as to her movable property. Thus if by the law of her domicil she cannot alien property or cannot contract, except with the consent of her husband, she cannot alien her property, and cannot contract without such consent, in a foreign country where no such restriction exists. But suppose that the parties afterwards remove to a new domicil where the consent of the husband is not necessary, is the law of the new domicil, as to the capacity of the wife, to prevail, or that of the matrimo- nial domicil? This is a question upon which foreign - jurists have been greatly divided in opinion? 138. We may illustrate this distinction by a few examples, Thus, for example, the law of England disables a married woman from making a will in favor of her husband or any other person; the law of France allows it. Suppose a husband and wife, mar- ried in and subjects of England, should temporarily or perma- nently become domiciled in France, would a will of the wife in France, in regard to her property in England, made in favor of her husband or others, be held valid in England? Many foreign jurists, among whom may be enumerated Hertius, Paul Voet, John Voet, Burgundus, Rodenburg, Pothier, and Merlin, hold the opinion that the law of the new domicil must, in all cases of a change of domicil, govern the capacities and rights of property of married women, as well as their obligations, acts, and duties. 1 Ante, s. 51-55, 57, 64, 65; post, s. 141. 2 Merlin, Répert. Autoris. Maritale, s. 10, art. 2; Pothier, Cout. d’Or- ei c. 1, n. 7, 15; ante, s. 51-54, 64, 65, 69; Le Breton v. Miles, 8 Paige, 5 See Merlin, Répert. Effet Rétroactif, s. 2, 3, art. 5; Autoris. Mari- tale, s. 10; ante, s. 55-62. See also 1 Burge, Col. & For. Law, pt. 1, ¢. 5, 8.2, p. 244-262. , * See Merlin, Répert. Testament, s. 1, 5, art. 1, 2, p- 309-319. 5 Ante, s. 55-62; post, s. 140,141. See also 1 Burge, Col. & For. Law, pt. 1, c. 6, 8. 2, p. 253-261. CHAP. VI.] INCIDENTS TO MARRIAGES. 235 Froland, it should seem, would answer this particular question upon principle in the affirmative, as a mere question of capacity. or incapacity or status of the wife; for he holds that the capacity or incapacity of married women to do things changes with their domicil, and that acts, valid by the law of their original domicil, if done in a new domicil by whose laws they are void, are to be deemed nullities.1_ Thus he says that a married woman, who is incapable by the law of her domicil, where the Roman law (Droit Ecrit) prevails, of entering into a suretyship for another, by the Senatus consultum Velleianum, or of contracting with her hus- band, as in Normandy, if she goes to reside at Paris, where no such law exists, is there deprived of that exception. And, on the other hand, a woman married and living at Paris, and after- wards going to reside in Normandy, or in any other country where the Roman law prevails (Droit Ecrit), loses her capacity to enter into any such contract, which she previously possessed.2 Yet Froland has in some other places made distinctions, and insisted on a different rule as applicable to the rights of married women in the property of their husbands, holding that those rights are governed by the law of the place of the marriage, rather than by that of the subsequent actual domicil.® 139. Foreign Jurists.— Other foreign jurists however have given a different response to the general question; for we have already seen that, in regard to personal laws, there is much con- flict of opinion among them, how far these laws are affected by any change of domicil.* Huberus (as we have seen) holds a 11 Froland, Mém. 172; ante, s. 55. 2] Froland, Mém. 172; 1 Boullenois, obs. 4, p. 61; 2 Boullenois, obs. 32, p. 7,18. Froland has some subtile distinctions on this subject, which, to say the least of them, are not in a practical sense very clear. Lest I should mis- state the purport of his remarks, I will quote them in the original, having already referred to them in another place. ‘ Quand ils’agit de I’état universel de la personne, abstraction faite de toute matiere réelle, abstracte ab omni materia reali, en ce cas le statut, quia commencé & fixer sa condition, con- serve sa force et son autorité, et la suit partout en quelque endroit qu’elle aille. Mais quand il est question de I’habilité ou inhabilité de la personne, qui a changé de domicile, & faire une certaine chose, alors le statut, qui avait réglé son pouvoir, tombe entiérement & son égard, et céde tout son empire a celui dans le territoire duquel elle va demeurer.’ 1 Froland, Mém. 171, 172; ante, s, 55. See 2 Boullenois, obs. 82, p. 7-10; Bouhier, Cout. de Bourg. c. 22, s. 6-14; Id. s. 30-38; Id. s. 148, 149. 8 1 Froland, Mém. pt. 2, ¢. 4, p. 8340-408; 2 Boullenois, obs. 32, p. 22, 23, 29. 4 See ante, s. 55-62; 1 Boullenois, obs. 18, p. 187-196; Id. p. 200; 2 236 CONFLICT OF LAWS. [s. 139-141. somewhat modified opinion.! Bouhier maintains the opinion in the broadest terms, that, in respect to the rights derived from the marital power (puissance maritale), the law of the matrimonial domicil determines the state or condition of the wife, and by con- sequence the extent of the marital authority; and this state or condition of the wife being once fixed, cannot be afterwards changed by any change of domicil.2_ Dumoulin seems to have entertained the same opinion. Merlin also at one time bent the whole strength of his acknowledged ability to establish the doc- trine that the law of the matrimonial domicil, and not of the new domicil, as to the capacity and: incapacity of the wife, ought to prevail. He reasoned it out principally in his examination of the subject of the marital power, or the incapacity of the wife, according to certain local laws, to do any valid act, make any conveyance, or engage in any contract, without the consent and authorization of her husband. And he then held that this inca- pacity is not changed by a change of domicil to a place in whose laws it has no existence. After maintaining: this opinion, as he himself says, for forty years, he has recently changed it, and ad- hered to the doctrine that the law of the new domicil ought to ,govern.® Jn discussing the nature and extent of the parental authority conferred by the domicil of birth, in regard to foreign property he seems to have been aware of the difficulties of his early doctrine, and he has said, with great truth, that to put an end to all the difficulties of such cases, it is necessary to make a uniform law, not for France only, but for the world; for the settlement of a foreigner in France, or of a Frenchman in a foreign country, would at once raise them anew, notwithstanding Boullenois, obs. 32, p. 2; Id. obs. 32, p. 14, 15, 17, 19 to id. obs. 37, p. 204; Rodenburg, de Div. Stat. tit. 2, c. 1,8. 3; Id. pt. 2, ¢. 1,8. 1, 2 Boullenois, Appx. p. 12; Id. 55, 56, and 2 Boullenois, obs. 32, p. 22-28; Henry on For. Law, p. 50, 51; Merlin, Répert. Autoris. Maritale, s. 10; Id. Effet Rétroac- tif, s. 3, n. 2, art. 3; Bouhier, Cout. de Bourg. c. 22, s. 4-108, and especially 8. 67 and 68; 1 Burge, Col. & For. Law, pt. 1, c. 6,8. 2, p. 253-262. ? Ante, s. 60, 61; post, s. 145; Huberus, lib. 1, tit. 83, de Conflict. Leg. 8. 12, 13; Id. s. 9. 2 Bouhier, Cout. de Bourg. c. 22, s. 22-27; Id. s. 45-47; Id. s. 48-66; Id. 8. 69, 70; Id. s. 79, 80, 82, 83; Id. s. 89, 90; Id. s. 147. * Molin. Oper. Comment. ad Cod. lib. 1, tit. 1, 1. 1; Conclus. de Statutis, tom. 3, p. 555, ed. 1681. 4 Bouhier, Cout. de Bourg. c. 22, 8." 22-82, s. 45. ; 5 Merlin, Répert. Effet Reétroactif, s. 3, n. 2, art. 5, p. 15; Id. Autorisa- tion Maritale, s. 10, art. 4, p. 248, 244; Id. Majorité, s. 5; ante, s. 58, 59. CHAP. VI.] INCIDENTS TO MARRIAGES. 237 all the regulations of the present Civil Code of France.! His reasoning upon the testamentary power, and the manner in which it is affected by the situs of the property, also affords very strong proof of the intrinsic infirmity of all general speculations on this subject.? 140. It has been already intimated that the opposite opinion has been maintained by many jurists. Let us briefly refer to the opinions of a few of them. Hertius has put the following case. By the law of Utrecht married persons are incapable of making a will of property in favor of each other; not so in Holland. Is such a will of property in Utrecht, made by married persons in Holland, valid? Or e contra is such a will, made by married persons in Utrecht of property in Holland, valid? He an- swers the former question in the negative, and the latter in the affirmative.’ 140 a. The language of Burgundus is still more direct, he affirming in every case of this sort as to the rights and powers of the husband and wife, that they are regulated by the law of the new domicil. ‘Proinde, ut sciamus, uxor in potestate sit mariti, necne, qua tate minor contrahere possit, et ejusmodi, respicere oportet ad legem cujusque domicilii. Hzeec enim imprimit qualita- tem persone, atque adeo naturam ejus afficit, ut quocunque terra- Tum sit transitura, incapacitatem domi adeptam, non aliter quam cicatricem in corpore foras circumferat. Consequenter dicemus, si mutaverit domicilium persona, novi domicilii conditionem induere.’ 4 141. Rodenburg has distinguished the cases on this subject into two sorts: (1) those in which there is no change of domicil of the married parties ; (2) and those in which there is a change of domicil. In the former case he holds that the capacity and inca- pacity by the law of the domicil extends everywhere. In the latter case, that the capacity and incapacity of the new domicil attach.5 So that, according to him, the disabilities of a wife by the law of her domicil attach to all her acts, wherever done, at 1 Merlin, Répert. Puissance Paternelle, s. 7, art. 1, 2, 3. 2 Id. Testament, s. 1, s. v. art. 1, 2, p. 809-319. 8 Hertii Opera, de Collis.-Leg. s. 4, p. 142, s. 42, 43, ed. 1737; Id. p. 201, ed. 1716. * Burgundus, tract. 2, n. 7, p. 61. 5 Rodenburg, de Div. Stat. tit. 2, c. 1,8. 1; Id. pt. 2,¢. 1, s. 1; Id.c. 4, 8. 1; 2 Boullenois, Appx. p. 10, 11; Id. p. 55, 56; Id. p. 68. 238 CONFLICT OF LAWS. [s.:141, 142, home or abroad, as long as the domicil exists.1_ But upon a bona fide change of domicil by her husband, she loses all disabilities not existing by the law of the new domicil, and acquires all the capacities allowed by the latter.2 Hence if a husband, who by the law of his domicil has his wife subject to his marital authority, changes his domicil to a place where no such law exists, or e con- tra if he changes his domicil from a place where the wife is ex- empt from the marital power to one where it exists ; in each case the wife has the capacity or incapacity of the new domicil. ‘Fac igitur virum, qui per leges loci, ubi degit, uxorem habeat in potes- tate, collocare domicilium alio, ubi in potestate virorum uxores non sunt’ vel vice versa. Dicendumne erit, induere uxorem potestatem qua prius liberata, et exuere, cui alligata est? In affirmationem sententiam deduci videmur per tradita Burgundi. Et recte; persone enim status et conditio, cum tota regatur a legibus loci, cui illa sese per domicilium subdiderit, utique mutato domicilio, mutari necesse est persone conditionem.’* Boullenois holds on this point the same opinion. Rodenburg puts another ease. By the law of Holland married persons may make a will in favor of each other; by the law of Utrecht, not. Suppose a man and wife who are married in Holland move to Utrecht, is the will between them, previously made, good? And he decides in the negative.® 142. Boullenois however has himself put a case which he seems to decide upon a ground which breaks in, in some measure, upon the general doctrine. He supposes the case of a woman domiciled and married in a country using the Roman law (Droit Ecrit) to a man belonging to the same country. She has the right and capacity by that law to enjoy her paraphernal pro- perty there, and to alienate it independently of her husband,° and without his being entitled to intermeddle in the administra- tion of it in any manner. He then puts the question whether, if her husband goes to reside at Paris, where no such law exists, 1 Thid. 2 Tbid. 8 Rodenburg, de Divers. Stat. tit. 2, pt. 2, c. 1, s. 1; 2 Boullenois, Appx. p- 55, 56; Burgund. tract. 2, n. 7. ore * 1 Boullenois, obs. 4, p. 61, 62; Id. obs. 16, p. 205; 2 Boullenois, obs. 32, p- 7-54; Id. p. 81, 82; Id. obs, 35, p. 93-112. § Rodenburg, de Div. Stat. tit. 2, pt. 2, c. 4, s. 1; 2 Boullenois, Appx. p. 68; 1d. p. 81; Id. obs. 35,p. 98-112, 0 «°=«0°°«° #8 Oe ® 1 Domat, b. 1, tit. 9, p. 167; Id. s. 4, p. 179, 180. CHAP, VI.] INCIDENTS TO MARRIAGES. 239 she then falls under his marital authority, so as to lose from that period the administration and alienation of her paraphernal property ? Boullenois admits that she falls under the marital authority ; but at the same time he contends that she has, not- withstanding, the right of administering and alienating her para- phernal property, because it was given to her by the contract of marriage, supported by the law of her matrimonial domicil: and that her husband cannot by a change of domicil extinguish her right, founded upon such authentic titles. And though she can- not act without the consent of her husband in such administra- tion and alienation, yet he is bound to give such consent! But Boullenois is compelled to admit other exceptions to the doc- trine, where other considerations are mixed up in the case. Thus he says: Suppose a woman is married at Paris, and has a com- munity of property with her husband there, and she has property at Aix or Toulouse, and her husband goes to reside at either of these places ; the question is whether she is at liberty to sell her property there without the authority or consent of her husband ; and he holds that she cannot sell her property there without the consent of her husband, although she was married at Paris. The reason he assigns is, because, in the countries governed by their own customary law, the property of a married woman in com- munity is deemed dotal property, and is presumed to have been brought there by the parties, as such; and that such property, as dotal property, is less alienable at Aix and Toulouse than in countries governed by their customary law; and that in those provinces, as well as in Paris, the husband has the right of the administration of dotal property during the marriage, so that the change of domicil does not make the right of the husband to cease. But, he adds, if the woman married at Paris had no com- munity of property, and, having the administration thereof, came to reside at Aix or Toulouse, then she might sell her property without the authority of her husband, even if situate in Paris, because she is no longer under the authority of her husband, who has no interest in the sale. But if there were no such commu- nity, then he holds that she might sell.? 1 2 Boullenois, obs. 82, p. 20, 21; Id. p. 22-28. See Bouhier, Cout. de Bourg. c. 22, s. 28-80; Id. s. 40-45. 2 2 Boullenois, obs. 82, p. 22-24. See 2 Froland, Mém, 1007-1064; Bou- hier, Cout. de Bourg. c. 22, 8. 5-10; Id. s. 28-32; J. Voet, ad Pand. 5, 1,101; .1 Burge, Col. & For. Law, pt. 1, c. 6, s. 2, p. 244-262. 240 CONFLICT OF LAWS. [s. 143-145. 143. Common Property of Husband and Wife. — Passing from the consideration of the personal capacities, disabilities, and powers of the wife, and of the examination of the different opi- nions of foreign jurists respecting them in cases where there has been no change of domicil, and in cases where there has been such a change, let us in the next place examine into the effect of marriage upon the mutual property of the husband and wife, and their respective rights in and over it. The marriage may have taken place with an express nuptial contract or arrangement as to the property of the parties, or it may have taken place with- out any such contract or arrangement. The principal difficulty is not so much to ascertain what rule ought to govern in cases of an express nuptial contract, at least, where there is no change of domicil, as what rule ought to govern in cases where there is no such contract, or no contract which provides for the emergency. Where there is an express nuptial contract, that, if it speaks fully to the very point, will generally be admitted to govern all the property of the parties, not only in the matrimonial domicil, but in every other place, under the same limitations and restrictions as apply to other cases of contract.2, But where there is no ex- press nuptial contract at all, or none speaking to the very point, the question, what rule ought to govern, is surrounded with more difficulty. Is the law of the matrimonal domicil to govern? Or isthe law of the local situation of the property? Or is the law of the actual or new domicil of the parties? Does the same rule apply to movable property as to immovable property when it is situated in different countries ?2 “Boullenois has remarked that, even on the subject of marriage contracts, the law of the place of the contract will not always decide all the questions arising from itt Many of the questions touching it must be decided by the 1 See 1 Burge, Col. & For. Law, pt. 1, c. 7, s. 8, p. 599-640. 2 See Le Brun, Traité de la Communauté, liv. 1, ¢. 2,8. 2; Murphy v. Murphy, 5 Mart. (La.) 83; Lashley v. Hogg, 4 Paton App. Cas. 581; Feau- bert v. Turst, Pree. Ch. 207, 208. This doctrine has been fully recognized in Englan‘d in the case of Anstruther v. Adair, 2 Mylne & K. 513; post, s. 184; Le Breton v. Miles, 8 Paige (N. Y.) 261. ® In some foreign codes there are express provisions that marriage contracts shall not fix the rights of the couple according to the law of foreign countries. In France there is an effective prohibition of contracts regulating marriage rights by the old customs of the provinces, which it has abolished. Code Civil, art. 1890. See also Bourcier v. Lanusse, 3 Mart. (La.) 581. * 1 Boullenois, Prin. Gén. 48, p. 11. See also Dig. 5, 1, 65. CHAP. VI.] INCIDENTS TO MARRIAGES. 241 law of the domicil of the parties, and sometimes by the law of the domicil of one of them.! 144. Two classes of cases naturally present themselves in con- sidering this subject. First, those where during the marriage there is no change of domicil ; secondly, those where there is such a change.? 145. No Change of Domicil. — Foreign Jurists.— And first, in cases where there is no change of domicil and no express nuptial contract. Huberus lays down the doctrine in broad terms, that not only the contract of the marriage itself, properly celebrated in a place according to its laws, is valid in all other places; but that the rights and effects of the marriage contract, according to the laws of the place, are to be held equally in force every- where. Thus, he says, in Holland married persons have a com- munity of all their property, unless it is otherwise agreed in their nuptial contract ; and that this will have effect in respect to pro- perty situate in Friesland, although in that province there is only a community of the losses and gains, and not of the pro- perty itself. Therefore, he adds, a Frisian married couple re- main after their marriage the separate owners, each of their own property situated in Holland. But whenever a married couple remove from the one province (Holland) into the other (Fries- land) the property which afterwards comes to either of them ceases to be in community, and is held in distinct proprietary rights. But their antecedent property held in community re- mains in the state or right in which they originally possessed it. ‘Porro, non tantum ipsi contractus ipseeque nuptiz certis locis rite celebrate, ubique pro justis et validis habentur; sed etiam jura et effecta contractuum nuptiarumque, in iis locis recepta, ubique vim suam obtinebunt. In Hollandia conjuges habent omnium bonorum communionem, quatenus aliter pactis dotalibus non convenit. Hoc etiam locum habebit in bonis sitis in Frisia, licet ibi tantum sit communio questus et damni, non ipsorum bonorum. Ergo et Frisii conjuges manent singuli rerum suarum, etiam in Hollandia sitarum, domini; cum primum vero conjuges migrant ex una provincia in aliam, bona deinceps que, alteri 1 Thid. ? See 1 Burge, Col. & For. Law, pt. 1, c. 7, s. 8, p. 599-640. * Huberns, lib. 1, tit. 3,'s. 9; post, s. 169; 1 ‘Burge, Col. & For. Law, pt. 1, 0. 6, 8. 2, p. 244-262. 16 242 CONFLICT OF LAWS. [s. 144-147. adveniunt, cessant esse communia, manentque distinctis proprie- tatibus; sic ut res antea communes facte, manent in eo statu juris, quem induerunt.’! The example he thus puts obviously shows that his doctrine is applied to cases where there is no ex- press contract. 145 a. Mr. Chancellor Kent has applied the doctrine of Hu- berus in the case of an express antenuptial contract between the parties ; and has laid down the rule that the rights dependent upon nuptial contracts are to be determined by the lex loci con- tractus.2 This may be generally correct in regard to cases of ex- press or of implied nuptial contracts ; and it is probable that none other were at the time in the mind of the learned judge. But we shall presently see that, as a general question, in regard to the universal operation of the lex loci matrimonii, there is much controversy upon the subject among foreign jurists. 146. There are many distinguished jurists who, in common with Huberus, maintain the opinion that the incidents and effects of the marriage upon the property of the parties, wher- ever it is situate, are to be governed by the law of the matri- monial domicil, in the absence of all other positive arrangements between the parties? Thus, if English subjects are married in England without any nuptial contract, the husband being entitled by the law of England to all the personal or movable property of his wife, will be entitled to it wherever it may be situated, whether in England or in any foreign country. (a) And his rights, it would seem, in her immovable property, wherever it may be situated, would, in the opinion of many of the foreign jurists, be exclusively regulated by the law of England.‘ So, on the other 1 Huberus, lib. 1, tit. 38, de Conflict. Leg. s. 9; post, s. 169. 2 See Decouche v. Savetier, 3 Johns. Ch. 211; 2 Kent Com. 458, 459. See also Feaubert v. Turst, cited in Robertson App. Cas. 1, and Lashley v. Hogg, 1804, cited Id. 4; Le Breton v. Miles, 8 Paige (N. Y.), 261. 3 Merlin, Répert. Commun. de Biens, s. 1, art. 8; 1 Boullenois, p. 660-673; Id. obs. 29, p. 732-818; Rodenburg, de Div. Stat. tit. 2, c. 5, s. 12-15; 2 Boulle- nois, Appx, p. 41-46; 1 Burge, Col. & For. Law, pt. 1, ¢. 6, 8. 2, p. 244 253; Id. c. 7, s. 8, p. 599-609. 4 Hertii Opera, de Collis. Leg. s. 47, p. 148, ed. 1737; Id. p. 204, ed. 1716. Many jurists make no distinction in the application of the doctrine of the tacit contract of marriage between movable and immovable property, and consider (a) On the other hand, an English- the law of England, and not by the man marrying in England a lady of lawof Jersey. De Greuchy v. Wills, Jersey becomes liable for her debts by 4. P. D. 362. CHAP. VL] INCIDENTS TO MARRIAGES. 243 hand, French subjects married in France, without any contract whatever, would hold, as we have seen,! certain kinds of their property in community generally ; and this rule would apply as well to the like property situated in foreign countries, as to that situated in France. 147. The grounds upon which this opinion has been main- tained are various. Some foreign jurists hold that the law of the matrimonial domicil attaches all the rights and incidents of mar- riage to it, proprio vigore, and independently of any supposed consent of the parties.2 Others hold that there is in such cases an implied consent of the parties to adopt the law of the matri- monial domicil by way of tacit contract ; and then the same rule applies as is applied to express nuptial contracts. Dumoulin was the author, or at least the most distinguished advocate, of this latter doctrine. ‘Quia per predicta inest tacitum pactum, quod maritus lucrabitur dotem conventam, in casu, et pro pro- portione statuti illius domicilii, quod previdetur, et intelligitur ; et istud tacitum pactum, nisi conventum fuerit, intrat in actionem ex stipulatu rei uxoriz, et illam informat. Itaque semper re- manet forma ab initio impressa.’* And he adds that it applies to all property, wherever situate, and whether movable or im- movable: ‘Non solum inspiciatur statutum vel consuetudo primi illius domicilii pro bonis sub illo sitis. Sed locum habebit ubique etiam extra fines et territorium dicti statuti, etiam interim cor- repti; et hoc indistincte, sive bona dotalia sint mobilia, sive both to be governed by the law of the domicil of marriage. Others again distinguish between them. Foreign jurists commonly in the term ‘biens’ include all sorts of property, movable and immovable, in their discussions on this subject. See Merlin, Répert. Autoris. Maritale, s. 10, art. 2; Id. Ma- jorité, s. 5; Id. Communauté de Biens, s. 1, art. 3; Voet, de Statut. s. 4, c. 2, n. 16; Rodenburg, de Div. Stat. pt. 1, tit. 2, c. 5, 8. 18-15; Id. pt. 2, tit. 2, c. 4,8. 1; 2 Boullenois, Appx. p. 41-46; Id. p. 63; 1 Boullenois, p. 673, 683, 767; 2 Boullenois, p. 81, 88; obs. 35, p. 93, 94; Id. obs. 387, p. 266, 277; 1 Hertii Opera, de Collis. Leg. s. 46, 47, p. 148, 144, ed. 1787; Id. p. 203; 204, ed. 1716; Livermore, Dissert. s. 89, p. 73,74; Huberus, lib. 1, tit. 3, s. 9; Bouhier, c. 22, s. 79, p. 429. See also 1 Burge, Col. & For. Law, pt. 1,c. 7, 8. 8, p. 599-609. 1 Ante, s. 130. . 2 See 1 Boullenois, obs. 29, p. 741, 750, 757, 758; Huberus, lib. 1, tit. 3, de Confl. Leg. s. 9. 3 1 Boullenois, obs. 29, p. 757. 4 Molin. Com. ad Cod. lib. 1, tit. 1, 1. 1; Opera, tom. 3, p. 555, ed. 1681; 1 Froland, Mém. 62, 218; Livermore, Dissert. s. 89, p. 78, 74; 1 Boullenois, obs. 29, p. 756, 758. 244 CONFLICT OF LAWS. [s. 147-151. immobilia, ubicunque sita, sive nomina. Ratio punctualis spe- cifica procedat in vim taciti pacti ad formam statuti; veluti, quod tacitum pactum pro expresso habetur.’? 148. The opinion of Dumoulin, that the law of the place of the marriage constitutes the rule by which the rights of married persons are regulated, by a tacit contract of the parties in the absence of any express contract, according to the maxim, In con- tractibus tacite veniunt ea, que sunt moris et consuetudinis, has been adopted by Bouhier, Hertius, Pothier, Merlin, and other distinguished jurists? It is opposed however by others of no small celebrity ; and the doctrine of tacit contract in the case of marriage (as we shall see) is treated by some of them as a mere indefensible and visionary theory. D’Argentré, and Froland, and Vander Muelen are at the head of those who maintain that the law of the situs of the property constitutes the rule to decide the rights of the married couple at all times and under all cir- cumstances. D’Argentré says: ‘Primum, quod Molineus a simplici consuetudinis dispositione elicet partium conventionem et pactum, citra ullam conventionem partium adjectam consue- tudini, rationem non habet. Alia enim vis et ratio, aliud et prin- cipium et causa obligationis, que a lege inducitur, alia ejus, que ab pacto et conventione partium proficiscitur.’ ® 1 Molin. Com. ad Cod. lib. 1, tit. 1, 1. 1; Conclus. de Statutis, Opera, tom. 3, p. 555, ed. 1681; 1 Froland, Mém. 61-63, 218; Livermore, Dissert. 8. 89, p. 72, 74; 1 Boullenois, obs. 29, p. 757, 758. 2 Bouhier, Cout. de Bourg. c. 23, s. 69-75, p. 458, 459; Id. c. 26, p. 462- 490; 1 Froland, Mém. 61-63; Id. 178-211; Id. 214-222; Id. 274; Merlin, Répert. Communauté de Biens, s. 1, art. 3; Pothier, Traité de la Communauté, art. 1, n. 10; 1 Hertii Opera, de Collis. Leg. s. 47, p. 148, ed. 1737; Id. p. 204, ed. 1716; post, s. 150-152; 1 Burge, Col. & For. Law, pt. 1, c. 7, s. 8, p. 599-614. 8 Froland, in opposing. the doctrine of tacit contracts, derived from the supposed operation of the lex loci matrimonii, says: Ce ne sont 1d que des paroles, et rien au-dela. Mirificum illud Molinei acumen; des subtilités d’esprit; des idées; des chiméres; enfin des moyens, que la seule imagination échauffée produit. Hac grandiloquentia etiamsi Molinzeus personat, tamen aperte non est verum, quod dicit. 1 Froland, Mém. 316; post, s. 167. 4 D’ Argentré, in Briton, Leges des Donations, art. 218, glos. 6, n. 33, tom. 1, p- 655-657; Livermore, Dissert. s. 95, p. 77; 1 Froland, Mém. 192-200; Id. 220, 222; Id. 316; 1 Boullenois, p. 673-699; Id. obs. 29, p. 732-736; Id. p. 740-750; Id. p. 757, 792; 2 Boullenois, obs. 35, p. 110; Merlin, Répert. Communauté de Biens, s. 1, art. 3, p. 110, 111; Livermore, Dissert. s. 92-106, p. 75-82; 1 Froland, Mém. 61-64; post, s. 152 a, note 2, s. 167, 168; 1 Burge, Col. & For. Law, pt. 1; ¢. 7, s. 8, p. 609. 5 D’Argentré, in Briton. Leg. des Donations, art. 218, glos. 6, n. 33, tom. 1, CHAP. VI.] INCIDENTS TO MARRIAGES. 245 149. It may be useful to bring together in this place, in a more exact form, the opinions of some other jurists of the highest reputation on this subject, for the purpose of exhibiting some of the differences as well as some of the coincidences inthe doctrines respectively maintained by them. 150. Cochin holds the doctrine that, if the contract of mar- riage contains no stipulation for community of property, the law of the place where the parties are domiciled, and to which they submit by the contract of marriage, must govern, not only as to property (biens) situate in that place, but as to property situate in all other places! The rights of married persons, he adds, over the property which they then have, as well as over that which they afterwards acquire, ought to be regulated by an uniform rule. If they have established an express rule by the contract of marriage, that ought to decide their rights as to all their prop- erty. If they have made no stipulation, then the law of the place of their common domicil establishes a rule for them ; since they are presumed to submit themselves to it, when they have not stipulated anything to the contrary. 151. Le Brun is. quite as explicit. After stating that the com- munity of property may be formed by an express contract, or by a tacit contract, he gives as a reason for the latter, that if the married couple have not made any express stipulation, and are domiciled in a place where the law of community exists when they are married, the conclusion is that they have referred them- selves to that law. And this presumption has its foundation in law, which often decides that, as to things omitted in the con- tract, the parties have referred themselves to the usage or law of the place. And he adds that as, in cases of express contracts for community of property, the contracts reach all the property of the parties, even in other countries, so in cases of tacit con- tracts, such as those resulting by operation of law, the same rule applies. If the law of the place of domicil and marriage of the parties creates such a community, it applies to all property, _wherever it is situate. It has, in short, all the character and p. 656; Livermore, Dissert. s. 92, p. 75, 8. 95, p. 77, 8. 106, p. 81. See also 1 Burge, Col. & For. Law, pt. 1, c. 7, 8. 8, p. 609-614; 1 Boullenois, obs. 29, p. 761-767. 1 Cochin, Euvres, tom. 3, p. 703, 4to ed. 2 Le Brun, Traité de la Communauté, liv. 1, c. 2, s. 2-4. 246 CONFLICT OF LAWS. [s. 151-153, effect of a personal law or statute, although it regulates pro- perty.1 152. Hertius has put a number of cases to illustrate the gene- ral principle. At Liége, by law, the husband by marriage ac- quires the ownership of all the property of his wife of every nature. At Utrecht it is otherwise. Is an inhabitant of Utrecht entitled, jure connubii, to take all the property of his deceased wife situate in Liége? He answers in the negative ; because the law of the place of marriage, Utrecht, does not confer it. Again: a person, in whose domicil there is no community of pro- perty between married persons, possesses property in another territory where such community of all property exists, and he contracts marriage in another country where a qualified com- munity only exists (ubi societas bonorum tantum, sive simpliciter, ita dicta, obtinet). What law is to prevail? Some jurists hold that the law of the domicil shall prevail. Others are of a dif- ferent opinion. Hertius himself holds that, as the case supposes the place of the marriage to be foreign to both parties, the law of the husband’s domicil ought to prevail as an implied contract be- tween the parties. Again: in the domicil of the husband, a community of property exists between married persons; will that community apply to immovable property, bought by either party in a territory where such a law does not exist? Many jurists decide in the negative. Hertius holds the affirmative, upon the ground of an implied contract resulting from the marriage.* 152 a. Froland puts the case of a man domiciled at Paris, who goes and marries a woman in a country governed by the Roman law, as in Rheims, Auvergne, or N ormandy, or e contra; and the marriage is without any express contract; and he then asks, in such a case, what law is to prevail as to future acquisi- tions (conquests) ? the law of the domicil of the husband, or that of the wife? or that of the place of marriage? or of the 1 Id. liv. 1, ¢. 2, s. 6, 86-42. ‘ Hertii Opera, de Collis. Leg. s. 44, p. 142, 148, ed. 1787; Id. p. 201, ed. * 8 Id. s. 46, p. 143, ed. 1737; Id. p. 202, ed. 1716. * Id. p. 144, s. 47, ed. 1737; Id. p. 204, ed. 1716. The decision of Mr. Chancellor Kent in Decouche v. Savetier, 3 Johns. Ch. (N. Y.) 190, 20, treating it as a case of an express or an implied contract, would lead.to the same conclusion. CHAP. VI.] INCIDENTS TO MARRIAGES, 247 location of the property? And he decides in favor of the latter. 153. Froland has stated the question in a more general shape: whether, if a community of property exists by the law of the place of domicil and marriage of the parties, it extends to all property situate elsewhere, where no such law prevails.?2 He gives the reasoning of different jurists, maintaining opposite opinions on the point, and concludes by stating that the opinion of Dumoulin in the affirmative has finally prevailed, in cases where there is an express contract for such community; and Dumoulin equally contends for it in cases of tacit contract, re- sulting from the lex loci contractus.2 From this latter point however Froland dissents in a qualified manner.t He deems the law of community, independently of an express contract, to be a real law, and therefore confined to the territory. As to acquests or acquisitions, whether of movable or of immovable property, made in foreign countries where the law of community exists, he agrees that, in cases of an express contract, the law of the matri- monial domicil ought to prevail. But as to foreign countries where the law of community does not exist, he thinks the right does not extend, aut in vim consuetudinis, or, in vim contractus ; for it is in vain to presume a tacit contract; and that therefore it ought to be governed by the law rei site.’ It would seem 1 1 Froland, Mém. 821. See also Voet, de Stat. s. 4, c. 3,8. 9,p. 134, 135, ed. 1715; Id. p. 151, 152, ed. 1861. 21 Froland, Mém. p. 178-200; Id. p. 211-271; Id. p. 272-340. See also 1 Boullenois, p. 660-683; Id. obs. 29, p. 732-818. Dumoulin’s words are: ‘Nullum habet dubium quin societas, semel contracta, complec- tatur bona ubicumque sita, sine ulla differentia territorii, quemadmodum quilibet contractus, sive tacitus, sive expressus, ligat personam, et res dis- ponentis ubique. Non obstat, quod hujusmodi societas non est expressa, sed tacita; nec oritur ex contractu expresso partium, sed ex tacito vel prasumpto contractu a consuetudine locali introducto.’ 1 Froland, Mém. 274. See also Livermore, Dissert. s. 78-90, p. 69, 71-74; Saul v. His Creditors, 5 Mart. N.S. 569, 599. The same doctrine is maintained by Bouhier. ‘Tout statut,’ says he, ‘ qui est fondé sur une convention tacite et presumée, des contractans, est personnel.’ Bouhier, Cout. de Bourg. c. 32, s. 69-74. And he expressly applies it to the case of tacit contracts of marriage, following out the reason- ing of Dumoulin. Id. c. 26, s. 1-20. On the other hand, D’Argentré and Vander Muelen hold that all laws respecting community are real, and not per- sonal, and therefore that they are governed by the law rei sit. 1 Boullenois, obs. 39, p. 758-765. : 3 Thid. 41 Froland, Mém. 315-317. 5 1 Froland, Mém. 315-317, 321-823, 338, 841; 1 Boullenois, obs. 29, p- 758, 759. 248 CONFLICT OF LAWS. [s. 153-157, however from subsequent passages, that he applied his doctrine to the case of immovables only, admitting that movables should be governed by the law of the domicil of the parties.} 154. Rodenburg seems to apply the same principle to cases where there is a nuptial contract as to cases where there is none, holding that in the latter cases the law of the matrimonial domi- cil is adopted by a tacit contract. At the same time he asserts that the law of community is not personal, but is real, and hence that, although it does not, or may not, directly act upon property aliunde, where no community exists, yet it will give a right of action, founded in the tacit contract, which may be enforced everywhere. And therefore the law of matrimonial domicil. in such a case acts indirectly, and obtains universality of application by reason of the tacit contract.2 And he applies it equally to present and future acquisitions.® 155. Boullenois holds an opinion somewhat different. After having stated that jurists have entertained different views as to the operation of the law of the matrimonial domicil upon the real property then possessed by the parties, and upon that afterwards acquired by them, he says that they seem generally agreed in one point, that so far as respects their property at the time of the marriage, of strict right the law of the situs ought to be fol- lowed. But as to their property acquired after the marriage they differed, some holding that it was governed by the law of the situs, others that it was not, and that the law of the place of the marriage, as to community or non-community, ought to govern. Boullenois holds that this latter doctrine is not correct, because all laws respecting property are real, and that those who adhere to this doctrine are obliged to resort to a supposed tacit contract of the parties, to be governed by the law of the matrimonial domicil. He goes on to state that, without aiming a blow against this system of tacit contract, which on account of its equity he highly approves, his own opinion is that there is no necessity for deeming the law of community to be a personal law, in order to give full effect to the doctrine as to property acquired after the marriage, upon another distinction. This distinction is that the 1 Tbid. * Rodenburg, de Div. Stat. tit. 2, c. 5,s.12-15; 2 Boullenois, Appx. p. 41- ay aa p. 673-683; Id. obs. 29, p. 782-735; Id. p. 754-757. id. CHAP. VI] INCIDENTS TO MARRIAGES, 249 law of community or non-community is one merely fixing the state or condition of the married couple, and therefore not a real but a personal law.t Hence he holds that the law of com- munity or of non-community, existing in the matrimonial domicil, extends to all property of the parties, wherever it is situated, not upon the ground of any tacit contract, but proprio vigore, as a law binding both as to their present property and as to their future acquisitions. But if by the law of the situs the law of community is prohibited, as to their present property, or as to their future acquisitions, or as to both, then he admits that the law of the situs ought to prevail ; for in all cases of this sort the personal law yields to the real law of the situs. ‘Le statut per- sonnel céde en cette occasion au statut réel de la situation.’ 2 156. Pothier has adopted the doctrine of tacit contracts main- tained by Dumoulin ; and therefore, in case there is no express nuptial contract, if the law of the matrimonial domicil creates a community, he holds that it applies to all property, present and future, wherever situated, and even in provinces which do not admit of a community.2 Grotius is also stated to. have held the same opinion in a case where he was consulted.‘ 157. It has been remarked by the Supreme Court of Louisiana, that the greater number of the jurists of France and Holland are of opinion that, in settling the rights of the husband and wife, on the dissolution of the marriage, to the property acquired by them, the law of the place where the marriage was contracted, and not of that where it was dissolved by death, must be the guide; and that this opinion is, by most of them, founded on the idea first promulgated by Dumoulin, that, where the parties marry without an express nuptial contract, they must be presumed to contract with reference to the law of the country where the marriage took place, and that this tacit contract follows them wherever they go.5 But that court are of opinion that the ground is unsatisfactory, especially when it is applied to cases 1 1 Boullenois, obs. 29, p. 736, 741, 751-770. 2 1 Boullenois, obs. 29, p. 736, 741, 750-754; Id. p. 754-757, 759, 760, 766, 769, 770; 2 Boullenois, obs. 37, p. 277; post, s. 166. 8 Pothier, Traité de la Communauté, art. Prélim. n. 10-18; post, s. 166. 4 See Henry on Foreign Law, c. 5, p. 36, 87, note; 1 Burge, Col. & For. Law, pt. 1. ¢. 7, 8. 8, p. 605. : 5 Mr Justice Porter, in delivering the opinion of the court in Saul v. His Creditors, 5 Mart. N.S. (La.) 599; post, s. 170. 250 CONFLICT OF LAWS. [s. 157-160, of property acquired after a subsequent change of domicil of the parties. Their view of the subject is, that, if the doctrine of a tacit contract be admissible at all, the contract is to be construed in the same way as if the laws. of the country of the marriage were inserted in it; and that, so far as they are to be deemed real laws, and not to be personal laws, they are necessarily terri- torial, and can be construed to apply only to acquests or acquisi- tions within that particular country. The extent of the tacit agreement depends upon the extent of that law. If it has no force beyond the jurisdiction of the sovereign by which it is en- acted; if it is real, and not personal; then the tacit consent of the parties cannot turn it into a personal statute. The parties have not said so; and they are presumed to have contracted in reference to the law, such as it was; to have known its limita- tions as well as its nature; and to have had the one as much in view as the other. In one word, the parties have agreed that the law shall bind them, as far as that law extends, but no further.! 158. Result. — The result of this reasoning (and it certainly has very great force) would seem to be, that in the case of a mar- riage without any express nuptial contract, the lex loci contractus (assuming that it furnishes any just basis to imply a tacit con- tract) will govern as to all movable property, and as to all im- movable property within that country, (a) and as to property in other countries, it will govern movables, but not immovables, the former having no situs, and the latter being governed by the lex rei site. 159. Perhaps the most simple and satisfactory exposition of the subject, or, at least, that which best harmonizes with the analo- gies of the common law, is, that in the case of a marriage where there is no special nuptial contract, and there has been no change of domicil, the law of the place of celebration of the marriage 1 Mr. Justice Porter, in the case of Saul v. His Creditors, 5 Mart. N.S. (La.) 569, 603-605; post, s. 187. (a) See Bonati v. Welsch, 24.N.Y. phreys, 14 Smedes & M. 130; Bank of 157; Kendall v. Coons, 1 Bush (Ky.) Louisiana v. Williams, 46 Miss. 618; 530; Townes v. Durbin, 3 Met. (Ky.) Hicks v. Skinner, 71 N. Car. 539; 352; Keyser v. Pilgrim, 25 Tex. 217; Craycoff », Morehead, 67 N. Car. 422. Parrott v. Nimmo, 28 Ark. 351; Bond So of lands sold after the change of v. Cummings, 70 Me. 125; Smith v. domicil, against purchasers with no- McAtee, 27 Md. 420, Newcomer v. tice. Parrott v. Nimmo, supra. Orem, 2 Md. 297; Vertner v. Hum- : CHAP. VI.] INCIDENTS TO MARRIAGES. 251 ought to govern the rights of the parties in respect to all personal or movable property, wherever that is acquired, and wherever it may be situate ; but real or immovable property ought to be left to be adjudged by the lex rei site, as not within the reach of any extra-territorial law.1 Where there is any special nuptial con- tract between the parties, that will furnish a rule for the case, and, as a matter of contract, ought to be carried into effect every- where, under the general limitations and exceptions belonging to all other classes of contracts.? 160. In the next place, what is the principle to be adopted in cases where there has been a change of domicil? And this ad- mits of a double aspect: first, in relation to property acquired by the parties before the removal; and secondly, in relation to pro- perty acquired by the parties afterwards in the new domicil. In each instance however we are to be understood to speak of the mere operation of law, where there is no express nuptial contract between them. 1 See Henry on Foreign Law, c. 7, p. 48, 49; post, s. 454; Le Breton v. Miles, 8 Paige (N.Y.) 261. : 2 Post, s. 454. Paul Voet lays down the following doctrine. ‘Si statuto hujus loci inter conjuges bona sint communia, vel pactis antenuptialibus ita con- ventum sit, ut omnia, ubique locorum sita, communia forent, etiam ad illa, que in Frisia jacent, ubi non nisi quesitorum est communio, dabitur actio, ut communicentur.’ Voet, de Stat. s. 4, c. 2, s. 16, p. 127, ed. 1716; Id. p. 142, ed. 1661; Id. c. 8, s. 9, p. 184, ed. 1716; Id. p. 140, 141. Yet he deems laws establishing a community of property to be real and not personal laws. Id. s. 4, ¢. 8, 8. 9, p. 184, 185, ed. 1716. See 1 Froland, Mém. 199, 200. This apparent discrepancy may be reconciled by considering that, though the law of community be real, yet it may found a right of action for property situate elsewhere. See also Rodenburg, de Divers. Stat. tit. 2, ¢. 5, s. 12-15; 2 Boul- lenois, Appx. p. 41-46. A distinction of this sort seems not unknown to the Scottish law. 1 Rose, Cas. in Bank. 481. Lord. Meadowbank, in a Scottish case of great importance, laid down the following doctrine as unquestionable. ‘In the ordinary case of transference by contract of marriage, when a lady of fortune, having a great deal of money in Scotland, or stock in the bank, or public companies there, marries in London, the whole property is ipso jure her husband’s: It is assigned to him. ‘he legal assignment of a marriage ope- rates, without regard to territory, all the world over.’ Royal Bank of Scotland v. Smith, 1 Rose, Cas. Bank. Appx. 491. Lord Eldon has affirmed this doc- trine to be correct in relation to personal property, but not in relation to real property. In the cases of bankruptcy to which he applied it, he added that there was no legal obligation on a bankrupt to convey his real estate, situate in a foreign country, to the assignees. Selkrig v. Davies, 2 Rose, Bank. Cas. 99; 2 Dow, 2380, 250. 8 See 1 Burge, Col. & For. Law, pt. 1, ¢. 7, 8. 7, p. 609-640; ante, s. 155; post, s. 449-454; Ordronauxv. Rey, 2 Sandf. Ch. 33. 252 CONFLICT OF LAWS. [s. 161-164. 161. Change of Domicil. — Foreign Jurists. Upon this subject there is, as we have already seen, no small diversity of opinion among foreign jurists as well in regard to the rights to pro- perty acquired after the change of domicil, as in regard to the rights to property antecedently acquired." Bouhier lays down the rule in general terms, that in relation to the beneficial and pecuniary rights (les droits utiles et pécuniaires) of the wife which result from the matrimonial contract, either express or tacit, the husband has no power by a change of domicil to alter or change them, according to the rule, nemo potest mutare con- silium suum in alterius injuriam; and he insists that this is the opinion of jurists generally.2. Thus if by the law of the matri- monial domicil there exists a community of property between the husband and the wife, and they remove to another place where no such community exists, the rights of neither party are changed; and the community applies in the same manner as in the original domicil.2 And, on the other hand, if no such community exists in the matrimonial domicil, a transfer of domicil to a place where it does exist will not create it; for a change of domicil would not add anything to the marriage rights in the case of an express contract, and therefore ought not to do so in that of a tacit contract. This also is Dumoulin’s opinion. He says that this is controverted by some authors ; but it is so unjustly and falsely. ‘Sed controvertunt, si maritus postea cum uxore trans- tulerit domicilium, an debeat attendi illud, quod erat tempore contractus, an vero ultimum, quod invenitur tempore mortis; et istud ultimum tenet Salicetus, et sequitur Alexander. Sed hoc non solum iniquum ; quia maritus de loco, in quo nihil lucratur, vel tantum quartam, posset transferre domicilium ad locum, in quo totam dotem lucraretur premoriente uxore sine liberis. Et quod sit falsum, probo per testem dicte legis, Exigere dotem.’5 Bouhier makes no distinction whatsoever between movable pro- perty and immovable property. Nor does he seem to recognize any distinction between property acquired before the change of domicil, and that acquired after the change of domicil.7 ? Ante, s. 137-142; Id. 148-159; 1 Burge, Col. & For. Law, pt. 1, ¢. 7, 8.8, p. 609-640. ? Bouhier, Cout. de Bourg. c. 22, s. 63-72. 8 Ibid. 4 Tbid. 5 Dig. 5, 1, 65, de Judiciis; ante, s. 147; Molin. Comm. ad Cod. lib. 1, tit. 1,1. 1; Molin Opera, tom. 8, p. 555. ‘ ® Bouhier, Cout. de Bourg. c. 22, s. 79, 80. 7 Id. c. 22, per tot. CHAP. VI.] INCIDENTS TO MARRIAGES. 253 162. Le Brun ‘supports the like opinion. He insists that, if there is no special contract of marriage, the law of the place where the marriage is celebrated and in which the parties are domiciled, governs as a tacit contract; and that no subsequent change of domicil can change the legal rights of the parties, even as to after-acquired property.!. And he puts the case of a mar- riage in Paris, and a subsequent change of domicil of the parties to the province of Bar, where the survivor is by custom entitled to the whole property in movables by survivorship; and holds that if either die, the movables, whether acquired before the re- moval or after the removal, are governed by the law of com- munity, and do not all remain to the survivor. ‘Le raison est, que ce serait changer 1]’établissement de communauté fait par le contrat, ou par le coutume, selon lequel on a dfi partager les meubles aussi bien que les conquéts.’ 2 163. Rodenburg puts the case of a marriage in a place where the law of community of property between husband and wife prevails, and a subsequent removal to another place where it has no existence; and he asks if the community still subsists in the new domicil? He observes that most of the Dutch jurists are of opinion that it does; and in this opinion he concurs to this ex- tent, that the community will continue until the parties have by some overt act discarded it, and then it will cease.2 And he ap- plies the same principle to cases of dowry by the customary law, holding that the matrimonial domicil ought to prevail. 164. Hertius puts the following question: A marriage is con- tracted in a place where the civil law governs (7. e., where there is no community), and afterwards the couple remove to a place where the law of community exists; and to the inquiry whether in such a case there is a community in the acquisitions of the - parties after the removal, he answers in the negative, adopting the doctrine of Rodenburg; and he gives this reason for his opinion, that it is not probable that the married couple, who did not agree to a community of goods in the beginning, intended to adopt it by a mere change of domicil. ‘Nam probabile non est, 1 Le Brun, Traité de la Communauté, liv. 1, c. 2, s. 55, 56, p. 20. * Thid.; ante, s. 151. ® Rodenburg, de Div. Stat. pt. 2, tit. 2, c. 4,8. 3, 4; 2 Boullenois, Appx. p. 66, 67; Id. p. 85-87; Id. obs. 36, p. 173; ante, s. 154. * Rodenburg, de Div. Stat.. pt. 2, tit. 2,c. 4,8. 5; 2 Boullenois, Appx. p. 66, 67; Id: p. 87;-ante, s. 154. 254 CONFLICT OF LAWS. [s. 164-167. conjuges, qui pactis in societatem bonorum ab initio non con- sensuerant, sola domicilii mutatione eam inducere voluisse.’! In the more general form in which the question may be presented, whether in the case of married persons removing from their matri- monial domicil where a community of property exists, to a place where it does not, they are to be governed by the law of the matrimonial domicil, he evidently adopts the affirmative, citing Rodenburg.? And he applies his doctrine to immovable property, as well as movable property, making an exception however of the case where there is a prohibitory law of the country of the situs.® 165. Paul Voet appears to maintain the doctrine generally, that a change of domicil does not change the effect of the marriage contract, express or tacit. ‘ Quid, si maritus alio domicilium post- modum transtulerit, eritne conveniendus, secundum loci statutum, in quem postremum sese recepit. Non equidem. Quia non eo ipso, qui domicilium transferat, censetur voluntatem circa facta nuptialia mutasse. Nisi eadem solemnitas in actu contrario inter- cesserit. Accedit, quod illa pacta solus mutare nequeat maritus, id quod tamen posset, si per emigrationem in alium locum, ea mutarentur.’* Merlin maintains the like opinion, saying that if a couple are married at Paris, meaning at the time to live there, and afterwards they remove to Lyons, in such a case the com- munity formed at Paris will continue as to property acquired at Lyons.é 166. Boullenois holds the opinion, as we have seen, that the law regulating the community affects the state or condition of the parties, and is therefore a personal law, and accompanies them everywhere, and affects property wherever situate. He accor- aie Hertii Opera, de Collis. Leg. s. 49, p. 145, ed. 1787; Id. p. 205, ed. 2 Td. s. 48, p. 145, ed. 1787; Id. p. 206, ed. 1716. 8 Id. s. 47, 48, ed. 1787, p. 144, 145; Id. p. 205, ed. 1716. * Voet, de Stat. s. 9, c. 2, n. 5, 6, 7, p. 264, 266, ed. 1716; Id. p. 819, 822, ed. 1661; Id. s. 4, c. 2, n. 16, p. 127, ed. 1716; Id. p. 142, ed. 1661; Id. s. 4, c. 8, n. 9, p. 184, 135, ed. 1716; Id. p. 151, 152, ed. 1661; post, s. 168. Paul Voet holds all such contracts, whether express or tacit, to be real and not per- sonal laws; and therefore not directly affecting property out of the territory, but only indirectly, by a remedy to enforce the contract against extra-territorial property. Voet, ad Statut.s. 4, ¢. 3, s. 9, p. 134, 185, ed. 1716; Id. p. 151, 152, ed. 1161; post, s. 168; Livermore, Dissert. s. 115-123, p. 87-92. ® Merlin, Répertoire, Communauté de Biens, s. 1, p. 111. § Ante, s. 155; 1 Boullenois, obs. 29, p. 736, 741, 750-754; Id. p. 759-770; 2 Boullenois, obs. 38, p. 277; Saul v, His Creditors, 5 Mart. N.S. 607. CHAP. V1] INCIDENTS TO MARRIAGES, 255 dingly insists that, if by the law of the matrimonial domicil a com- munity of property exists, that community extends to all future acquisitions, whether movable or immovable, even in places to which the parties have afterwards removed, and where no such community exists! Pothier has adopted the opinion of Boulle- nois, that the law of community is to be deemed a personal law and not a reallaw; and he also adopts the doctrine of Dumoulin as to tacit contracts.2 So that he has no hesitation in declaring, as we have seen, that the law of the matrimonial domicil governs the property everywhere.’ But he has omitted to put the case of a change of domicil, and the effects which it would produce. In an- other place he has laid down as a general principle, that a change of domicil delivers all persons from the empire of the laws of their former domicil, and subjects them to the new. What then ought to be the effect of a removal upon property acquired in the new domicil ? 167. Froland, after a good deal of hesitation, has given his own opinion on the subject to this effect. In cases where there is an express contract of community of property between the husband and the wife, he holds that a change. of domicil does not alter the tights of the parties; and that the community applies to property ‘situate where the community is unknown as well as where it exists.5 But where there is no express contract, he deems the law of community as purely real, and therefore as not extending beyond the matrimonial domicil.6 He treats the notion of Du- moulin, of a tacit contract in such a case, as a mere imaginary thing ; words and nothing else; a mere subtlety, phantom, and chimera, ‘Ce nesont la que des paroles, et rien au-dela. Mirifi- cum illud Molinei acumen: des subtilités d’esprit ; des idées ; des chiméres ; enfin des moyens que la seule imagination échauffée produit. Hac grandiloquentia etiamsi Molinzus personat, tamen aperte non est verum, quod dicit.’? The conclusion to which he arrives is, that if two persons marry without any contract in a 1 2 Boullenois, obs, 38, p. 277, 278, 288-285; ante, s. 155. 2 Pothier, Traité de la Communauté, art. Prélim. n. 10-13; ante, s. 156. 8 Thid.; ante, s. 156. 4 Pothier, Cout. d’Orléans, c.1, n. 13; ante, s. 51a, s. 156. 5 1 Froland, Mém. pt. 2, c. 1, 8. 10, 11, p. 200-210; Id. p. 841; Id. p. 190. ® 1 Froland, Mém. pt. 2, ¢. 8, s. 9-11, p. 315-338; Id. p. 841; ante, s. 148, note, s. 149. 7 1 Froland, Mém. pt. 2, c. 8, 8. 9, p. 316. 256 CONFLICT OF LAWS. [s. 167-170. place where the law of community exists, and remove to another place where it does not exist, the change of domicil has no effect whatsoever ; but the rights of each are the same as if they had remained in their matrimonial domicil; and the acquisitions of immovable property, situate in the new domicil, do not fall into community, but are governed by the law rei site. As to movables, he holds that the law of the actual domicil ought to govern.! 168. There are many other jurists who maintain that the law of community among married persons is real and not personal; and among these the most distinguished are D’Argentré, Dumou- lin, Paul Voet, and Vander Muelen.? According to them, the law rei site will govern in all cases where there is no express or tacit contract. But then we must take this proposition with the accom- panying qualification, that those of these jurists who admit of the doctrine of a tacit contract, adopting the law of the place of marriage, among whom are Dumoulin and Paul Voet, also hold, that although the law of the place of the marriage does not directly act upon the property in a foreign country, yet, through. the means of this tacit contract, it acts indirectly, and enables. the parties to-enforce it against that property by a proper suit in rem.3 169. Huberus, as we have seen, does not hesitate to assert the doctrine that, in case of a change of domicil, future acquisi- tions of married persons are governed by the law of their actual: domicil and not of their antecedent matrimonial domicil.4 Thus, after asserting that in Holland there is a community of property, 1 1 Froland, Mém. pt. 2, c. 3,s. 9-11, ‘p. 815-323; Id. p. 341. I con- fess myself under some difficulty in reconciling what is here said with what Froland seems to decide in the next chapter (4th), s. 3, p. 845, &c., where he appears to hold that a woman marrying in a place where the law of commu- nity does not exist, does not, by removing with her husband to a place where it does exist, acquire any right of community to his acquisitions or movables in the latter. : 2 1 Boullenois, obs. 29, p. 758-761, 765; P. Voet, de Stat. s. 4, ¢. 3, p. 134, 135, s. 9, ed. 1716; Id. p- 151, 152, ed. 1661. See also J. Voet, ad Pand. 5, 1, n. 101; Merlin, Communauté de Biens, s. 1, art. 8, p. 104, 110; Bouhier, Cout. de Bourg. c. 33, s. 34. See Saul v. His Creditors, 5 Mart. N.S. (La.) 588, 598, 599; ante, s. 148, 149, note. ® P. Voet, de Statut. s. 9, c. 2, n. 5-7, p. 264-266, ed. 1716; Id. p. 319- 328, ed. 1661; ante, s. 165, note; ante, s. 147; post, s. 169; 1 Burge, Col. & For. Law, pt. 1, c. 7, 8. 8, p. 612-614, 4 Ante, s. 145. CHAP. VI.] INCIDENTS TO MARRIAGES, 257 and in Friesland not, he says, if the married couple remove from the one province (Holland) to the other (Friesland) whatever pro- perty is afterwards acquired ceases to be common, and remains in distinct ownership (distinctis proprietatibus) ; and the property before held in community remains clothed with the same legal character that it previously possessed.1 And he applies this doctrine as well to immovable property as to movable property, relying upon the doctrine of tacit consent or tacit contract ;2— and holding the opinion of Dumoulin: ‘Quia pactio bene exten- ditur ubique, sed non statutum merum, hoc est, sola et mera vi statuti.’8 170. It would be endless to recount the diversities of opinion among foreign jurists on this subject, following out the almost infinitely varied cases which the customs and laws of different provinces and countries have brought before them. According to the opinion of the Supreme Court of Louisiana, already cited,* the greater number of foreign jurists are of opinion that, in set- tling the rights of husband and wife, on the dissolution of mar- riage, to the property acquired by them, the law of the domicil of the marriage, and not of the place where it is dissolved by death, is to be the guide.6 It is probably so; but there is more difficulty in affirming it where there has been a change of domicil than where there has been no such change. It may be inferred that the Scottish law has adopted the rule that, in cases of community, where there is no written contract, the law of the domicil of the parties at the death of either of them regulates the disposal of the property of the parties.® 1Tbid. 2 Huberus, lib. 1, tit. 3, 8. 9; ante, s. 145. 8 Livermore, Diss. s. 89, p. 78, 74; 1 Froland, Mém. 63. 4 Ante, s. 157. . " Mr. Justice Porter, in delivering the opinion of the court in Saul v. His Creditors, 5 Mart. N.S. (La.) 599; ante, s. 157. 6 Fergusson on Mar. & Divorce, 346, 847; Id. 361. There are some re- marks of Mr. Burge on this subject, which deserve to be cited in this place. ‘In hoe igitur,’ says he, ‘conflictu quibus adstipulabimur? was the obvious question of one of the jurists after he had been reviewing these discordant opinions. The following considerations will perhaps justify a concurrence with him in the answer given by himself. ‘‘ Mihi tutius videtur adhzrere secunde setentize (que negat preedia alibi sita communicari), quam non solum ratio validissima munit, sed et prestantes auctores, et consensus aliquot muni- cipiorum probant.’’? 1st. The law which by its own force and operation, and independently of contract, gives an interest in immovable property, is a real law. 2d. Immovable property is not subject to the power of a real law, unless 258 CONFLICT OF LAWS. [s. 171-172, 171. Law of England.—No question appears to have arisen in the English courts upon the point which we have been discussing, that is, what rule is to govern in cases of matrimonial property where there is no express nuptial contract and there has been.a change of domicil. But there is a case, which Lord Eldon is reported to have said was founded in (a nuptial) contract, and such law exists in the country where that property is situated. 3d. The joint interest which the husband and wife acquire under the community in the im- movable property of each other, is conferred by the law alone, unless that law be controlled in its operation by a tacit agreement; such an interest, therefore, will not be acquired in immovable property situated in a country where the law of community does not exist. 4th. If a tacit agreement could be inferred for the purpose of giving to the law of community a more extensive operation than belongs to the quality of a real law, it might with equal propriety be inferred for a similar purpose in the case of other real laws, i. e. those which govern the succession to real property, &c. A preference of the law of the country in which a man has passed his life, to that of another country in which his real property may be situated, is as natural a presumption as that in favor of the law of the matrimonial domicil. 5th. It cannot be said that, because the title is conferred by the law, as the consequence of the marriage, there is a ground peculiar to marriage for admitting the presumption of a tacit agreement; because no such presumption is admitted in respect of other titles conferred by law as the consequence of marriage; e. g., the titles to douaire and droit de viduité. 6th. The laws which confer douaire, and le droit de viduité, are admitted by all jurists to be real laws; and consequently they attach on that property only which is situated in the country where they prevail, and they do not extend to that which is situated in another country, and no tacit agreement is presumed in order to control their powers. 7th. The law establishing a community in immovable property is not essentially distin- guished from the laws of douaire and viduité, in any one of those particulars, which in the opinion of jurists, determine the reality or personality of laws, and consequently the extent of their power. There does not therefore appear to be any substantial reason for allowing the law of community to have the effect of a personal law, and to attach on immovable property in whatever country it may be situated. If this reasoning be admitted, the community, when it prevails in the matrimonial domicil, will be confined to such immo- vable property as is situated either there, or in a country in which a similar law exists; but it will not extend to such property situated in a country where a similar law does not exist. In the preceding observations the law of com- munity has been considered only as it affected immovable property. Its effect on personal property is determined by other principles. According to a prin- ciple of international jurisprudence, the acquisition of movable or personal property by the, operation of law, is, as will be presently shown, governed by the law of its owner’s domicil. The community, if it prevailed in the matri- monial domicil, would therefore attach on the movable property of the hus- band and wife, in whatever place it was situated.’ 1 Burge, Col. & For. Law, pt. 1, c. 7, 8. 8, p. 617-619; and Lashley v. Hogg, cited id. p. 623-625. * Lashley v. Hogg, cited in Robertson App. Cas. 4, and in 1 Burge, Col. & For. Law, pt. 1, ¢. 7, 8. 8, p. 623-625; Feaubert v. Turst, Prec, Ch. 207. CHAP. Vi] INCIDENTS TO MARRIAGES, 259 that if there had been no such contract the law of England, not- withstanding the domicil of the parties at the time of their mar- riage was in France, would have regulated the rights of the husband and wife, who were domiciled in England at the disso- lution of the marriage by death! So that, according to this doc- trine, the law of the actual domicil will govern as to all property, without any distinction, whether it is property acquired ante- cedently or subsequently to the removal. 171. In a more recent case, where the parties were inhabi- tants of Prussia, and domiciled there, a question arose in the Court of Exchequer upon the, distribution of an intestate’s estate under the administration of the court, whether the wife, being a distributee, was entitled in equity, upon a petition by her hus- band for the amount, to have any of the money settled on her, or whether the whole was to be paid to him. It appeared that, by the laws of Prussia, the whole of the personalty of the hus- band and wife is, during the coverture, at the absolute disposal of the husband; but on the death of either it is divided between the survivor and the heirs of the deceased. The man made no appli- cation to the court, and the court ordered the whole money to be paid over to the husband.2 Here, we see, the court adopted the law of their actual domicil to regulate the rights of the parties to the movable property. (a) 172. Court of Louisiana.—In America there has been a ge- neral silence in the states governed by the common law. But in Louisiana, whose jurisprudence is framed upon the general basis of the Spanish and French law, the point has several times come 1 Thid. 2 Sawer v. Shute, 1 Anstr. 63. See also Anstruther v. Adair, 2 Mylne & K. 518. (a) In Re Lett’s Trusts, 7 L. R. Ir. 132, it was held that a married woman, who was domiciled with her* husband in the state of New York, was entitled to receive payment of her distributive share of an intestate’s es- tate in Ireland, it being proved that by the law of New York a married woman was entitled to receive a be- quest or share of an intestate’s estate asifshe were unmarried. She and her husband at the time of their marriage were domiciled in Ireland, and had subsequently emigrated to New York and become domiciled there. See also Dues v. Smith, Jac. 544. Comp. Graham v. First National Bank, 84 N. Y. 898. It is there held that the effect of payment made to a husband of dividends of banks stock standing in his wife’s name, the bank being located and the dividends paid ina state not the domici] of the payee, is to be governed by the law of the state in which the dividends were paid, not by the lex domicilii. 260 CONFLICT OF LAWS. [s. 172-177. under judicial decision. The law of community exists in that state,! and from the frequency of removals from and to that state, it is scarcely possible that some of the doctrines which have so much perplexed foreign jurists should not be brought under re- view. 173. We have already had occasion to take notice of some of the views entertained by the Supreme Court of Louisiana upon this subject.2, It has been very properly remarked by that court that questions upon the conflict of the laws of the different states are the most embarrassing and difficult of decision of any that can occupy the attention of courts of justice® And it may be added, almost in their own language, that the vast mass of learn- ing which the researches of counsel can furnish, leaves the sub- ject as much enveloped in obscurity and doubt as it would be if one were called upon to decide without the knowledge of what others had thought and written upon it.4 174. It is manifest that the great body of foreign’ jurists who maintain the universality and ubiquity of the operation of the law of the matrimonial domicil, notwithstanding any subsequent change of domicil, found themselves upon the doctrine of a tacit contract, which, being once entered into, is of legal obligation everywhere. The remarks of the Supreme Court of Louisiana on this point have been already cited, and certainly they have a great tendency to shake its foundation.6 If the law of commu- nity be a real law and not a personal law, it would seem to follow that it ought to regulate all things which are situate within the limits of the country wherein it is in force, but not elsewhere.” The most strenuous advocate for the doctrine of tacit contract must admit that, if by the statute of any country community is prohibited as to property there, the law of the matrimonial domi- cil ought not to prevail in such country in contradiction to its own. And the learned court qbove referred to have said that they can perceive no solid distinction between the case of a real * Civil Code of Louisiana (1809), 336, art. 2363; New Code (1825), art. 2369-2393. e 2 Ante, s. 157, 170. 8 Thid. * Mr. Justice Porter in delivering the opinion of the court in Saul v. His Creditors, 5 Mart. N.S. (La.) 571, 572, 5 Ante, s. 147-170. § Sau] v. His Creditors, 5 Mart. N.S. (La.) 599-608; ante, s. 157, 170. 7 Mr. Justice Porter, in Saul v. His Creditors, 5 Mart. N.S. 601, 602. CHAP. VI.] INCIDENTS TO MARRIAGES. 261 statute and a prohibitory statute, as to property situate in that country.t 175. But if the law of community be personal, still there is strong ground to contend that the personal laws of one country cannot control the personal laws of another country, ipso facto, where they extend to and provide for property within the juris- diction of the latter. No one can doubt that any country has a right to say that contracts for community made in another country shall have no operation within its own territory. The question then is reduced to the mere consideration, whether the law of the country does directly or indirectly provide for or re- pudiate the community as to property locally situate within it2 176. Upon reasoning to this effect, after full consideration, the Supreme Court of Louisiana came to the conclusion that the law of community must, upon just principles of interpretation, be deemed a real law, since it relates to things more than to per- sons, and it ‘hhas, in the language of D’Aguesseau, the destination of property to certain persons and its preservation in view. The court therefore held that where a married couple had removed from Virginia (their matrimonial domicil), where community does not exist, into Louisiana, where community does exist, the acquests and gains acquired after their removal were to be go- verned by the law of community in Louisiana.* 177. This doctrine appears to be in full accordance with the laws of Spain. Those laws apply the same rule to cases of ex- press contract, and to cases of tacit contract or customary law. - Where there is an express contract, that governs as to all acqui- sitions and gains before the removal. Where there is no express contract, the customary law of the matrimonial domicil governs in like manner. But in both cases all acquisitions and gains made after the removal are governed by the law of the actual 1 Thid. See post, s, 449-454. 2 Saul v. His Creditors, 5 Mart. N.S. (La.) 573, 574-588; 1 Hertii Opera, de Collis. Leg. s. 47, p. 148, 144, ed. 1737; Id. p. 294, ed. 1716; post, s. 449- 454. 8 Mr, Justice Porter, in Saul v. His Creditors, 5 Mart. N.S. (La.) 593- 595, 606, 607; D’ Aguesseau, Ceuvres, tom. 4, pl. 54, p. 660, 4to ed. 4 The law of community existed in Louisiana under the Spanish law, and now exists under the Civil Code of that State. Bruneau v. Bruneau, 9 Mart. 217; Code Civil of Louisiana (1809), 336, art, 63; Revised Code (1825), art. 2870; Saul v. His Creditors, 5 Mart. N.S. (La.) 573; 2 Kent Com. 183, note, 262 CONFLICT OF LAWS. [s. 177-180, domicil.1_ The present revised Code of Louisiana adopts a like rule, and declares that a marriage contracted out of the state between persons who afterwards come to live within the state, is subject to the community of acquests, with respect to such property as is acquired after their removal.? 178. This code of course furnishes the rule for all future cages in Louisiana ; but the discussions in that state have arisen upon antecedent cases, and have involved a general examination of the whole doctrine upon principle and authority. The doctrine which, with reference to public law, has been thus established in that state, resolves itself into two fundamental propositions, First, where there is an express nuptial contract that there shall be a community of acquests and gains between the parties, even though they should reside in countries where different laws pre- vail, that agreement will be held obligatory throughout, as a matter of contract, in cases of the removal of the parties to an- other state ; with this restriction, however, which is applicable to all contracts, that it is not to cause any prejudice to the citi- zens of the country to which they remove, and that its execution is not incompatible with the laws of that country.3 Secondly, where there is no such express nuptial contract, the law of the matrimonial domicil is to prevail as to the antecedent property, but the property acquired after the removal is to be governed by the law of the actual domicil.t This latter proposition has been laid down in terms unusually strong by the Supreme Court of that state. ‘Though it was once a question (say the court), it seems now to be a settled principle, that when a married couple emigrate from the country where the marriage was contracted into another, the laws of which are different, the property which they acquire in the place to which they have removed is go- verned by the laws of that place.’> Upon these propositions the court have accordingly decided that where a couple, who were married in North Carolina, where community does not exist, had ? Saul v. His Creditors, 5 Mart. N.S. (La.) 576-581, 607, 608. * Code Civil of Louisiana (1825), art. 2870. 5 Mr. Justice Derbigny, in Murphy v. Murphy, 5 Mart. (La.) 83; Mr. Jus- tice Porter, in Saul v. His Creditors, 5 Mart. N.S. (La.) 605, 606. * Mr. Justice Derbigny in Gale v. Davis, 4 Mart. (La.) 645; Saul v. His Cisaltens 5 Mart. N.S. (La.) 605, 606; Le Breton v. Nouchet, 3 Mart. (La.) » 73. ° Mr. Justice Derbigny, in Gale v. Davis, 4 Mart. (La.) 645, 649. CHAP. VI.] INCIDENTS TO MARRIAGES. 263 removed to Louisiana, where it does exist, the property acquired after the removal was to be held in community.1 And, in an- other case, where the marriage was in Cuba, and there was a special contract that there should be a community according to the custom of Paris, in whatever country the parties might re- side, and the parties remove to South Carolina, where no com- munity exists, the contract was held to govern the property acquired .in the latter State.2. The same doctrine has been main- tained in New York, in the case of a marriage between, French subjects, under a similar stipulation of community and of mutual donation in case of survivorship of either of the parties. 179, An instance illustrative of the exception in cases of ex- press contract may be drawn from other decisions in Louisiana. Upon a marriage celebrated .in that state, the parties stipulated that the rights of the parties should be governed by the custom of Paris. The question was, whether the parties residing in the country were competent to enter into a nuptial contract, stipu- lating that the effect of it on their property should be governed by a foreign law. The court held that they had no such com- petency, and that the contract was void.t 180. A still more striking case occurred in the same state, upon some of the doctrines of which, ‘as stated by the court, there may perhaps be reason to pause ; but the grounds are neverthe- less stated with great force. A man ran away with a young lady of thirteen years of age, both of them being then domiciled in Louisiana, without the consent of her parents or guardian, and they went. together to Natchez in Mississippi, and were there married, and soon after returned to New Orleans, the place of their original domicil. The wife afterwards died while they were living in Louisiana; and after her death her mother demanded her property, as it would descend by the Louisiana law. The court sustained the demand.* From, the elaborate opinion de- livered forthe court by Mr. Justice Derbigny, the following ex- 1 Mr. Justice Derbigny, in Gale v. Davis, 4 Mart. (La.) 645. 2 Mr. Justice Derbigny, in Murphy v. Murphy, 5 Mart. (La.) 83; Mr. Jus- tice Porter, in Saul v.His Creditors, 5 Mart. N.S. (La.) 605; Mr. Justice Der- bigny, in Bourcier v. Lanusse, 8 Mart. (La.) 581, 583. . § Decouche ». Savatier, 8 Johns. Ch. (N. Y.) 190, 211. 4 Mr. Justice Derbigny, in Bourcier v. Lanusse, 3 Mart. (La.) 581. Seo Code Civil of France, art. 1890. ® Le Breton v. Nouchet, 3 Mart. (La.) 60, 73. 264 CONFLICT OF LAWS. [s. 180-182, tract is made, as highly interesting : ‘ With respect,’ say the court, ‘to the law of nations, the principle recognized by most writers may be reduced to this: that although no power is bound: to give effect within his own territory to the laws of a foreign coun- try, yet, by the courtesy of nations and from a consideration of the inconveniences which would be the result of a contrary con- duct, foreign laws are permitted to regulate contracts made in foreign countries. But in order that they may have such effect, it must first be ascertained that the parties really intended to be governed by those laws, and had not some other country in con- templation at the time of the contract. This being previously recognized, the government within the bounds of which such foreign laws claim admission, has next to consider whether the enforcing of these laws will cause no prejudice to its rights or to the rights of its citizens. 181. ‘Let us take the first exception, and apply it to this case. Did the parties really intend to be governed by the laws of the Mississippi,Territory, and had they not in contemplation at the time of contracting marriage their return to this country? If we were to judge from their acts alone, there could be no hesi- tation in saying that they went to Natchez for the purpose only of contracting marriage, and intended to come back as soon as it could conveniently be done. Their remaining at Natchez only a few weeks, and that in a tavern, their return to New Orleans not long after, and the continuation of their residence there until the death of the wife, would amount to an irresistible proof that they had this country in contemplation at the time of contract- ing their marriage. But it is alleged that, however evident their intention may appear from these facts, the appellant had really taken the resolution to settle at Natchez. Evidence has been furnished of his declarations: to that purpose, both before his de- parture and after his arrival in the Mississippi Territory. One of his brothers has sworn that, previous to his leaving New Orleans, he told him and his other brothers that he intended to stay at Natchez. Other persons have deposed that letters ex- pressive of the determination of the appellant to remain there were by them received from him shortly after their dates. With- out questioning the propriety of the admission of such testimony, the court is satisfied that it is insufficient to counterbalance the weight of the facts which disclose the real intention of the parties. CHAP. V1] INCIDENTS TO MARRIAGES. 265 182. ‘But, should their intention still remain a subject of doubt, we have next to consider whether, by permitting the laws of the Mississippi Territory to regulate this case, this govern- ment would not injure its own rights or the rights of its citizens. For, a foreign law having no other force than that which it de- rives from the consent of the government within the bounds of which it claims to be admitted, that government must be sup- posed to retain the faculty of refusing such admission whenever the foreign law interferes with its own regulations. A party to this marriage was one of those individuals over whom our laws watch with particular care, and whom they have subjected to certain incapacities for their own safety. She was a minor. Has she by fleeing to another country removed those incapacities ? Her mother is a citizen of this state ; she herself was a girl of thirteen years, who had no other domicil than that of her mother. Did she not remain, notwithstanding her flight to Natchez, under the authority of this government? Did not the protection of , this government follow her wherever she went? If so, this government cannot, without surrendering its rights, recognize the empire of laws the effect of which would be to render that protection inefficacious. But the laws of the Mississippi Terri- tory, as stated by the parties, do not only interfere with our rights, but are at war with our regulations. By our laws, a minor who marries cannot give away any part of his property without the authorization of those whose consent is necessary for the validity of the marriage. By the laws of the Mississippi Territory all the personal estate of the wife (that would embrace in this case everything which she had) is the property of the husband. Again, according to our laws, we cannot give away more than a certain portion of our property when we have forced heirs. But what our laws thus forbid is permitted in the Mississippi Terri- tory. And shall our citizens be deprived of their legitimate rights by the laws of another government, upon our own soil? Shall the mother of Alexandrine Dussuau lose the inheritance of her deceased child, secured to her by our laws, because her daughter married at Natchez? Shall our own laws be reduced to silence within our own precincts by the superior force of other laws? If such doctrine were maintainable it would be unne- cessary for us to legislate. In vain should we endeavor to secure the persons and the property of our citizens. Nothing would be 266 CONFLICT OF LAWS. {s. 182-186. more easy than to render our precautions useless and our laws a dead letter. But the municipal law of the Mississippi Territory, which is relied upon by the appellant, is not the law which would govern this case even there. The law of nations is law at Natchez as well as at New Orleans. According to the principles of that law, ‘‘ Personal incapacities communicated by the laws of any particular place accompany the person wherever he goes. Thus he who is excused the consequences of contracts for want of age in his country cannot make binding contracts in another.” Therefore even if this case were pending before a tribunal of the Mississippi Territory, it is to be supposed that they would recog- nize the incapacity under which Alexandrine Dussuau was labor- ing when she coritracted marriage, and decide that such marriage could not have the effect of giving to her husband what she was forbidden to give. If that be sound doctrine in any case, how much more so must it be in one of this nature, where the minor, . almost a child, has in all probability been seduced into an escape from her mother’s dwelling, and removed in haste out of her reach? We cannot here hesitate to believe that the courts of our neighboring territory, far from lending their assistance to this infraction of our laws, would have enforced them with be- coming severity. For if, when an appeal is made to those gene- ral principles of natural justice by which nations have tacitly agreed to govern themselves in their intercourse with each other, while nations entirely foreign to one another feel bound to observe them, how much more sacred must they be between governments, who, though independent of each other in matters of internal regulation, are associated for the purposes of common defence and common advantage, and are members of the same great body politic.’ 1 (a) 1 Mr. Justice Derbigny in Le Breton v. Nouchet, 3 Mart. (La.) 60, 66, 71. (a) It has been decided that a mar- riage settlement executed in one state, where the parties at the time resided, and where the property was situated, if valid by the laws of the place where made, cannot be affected by the sub- sequent removal of the parties to an- other state. Young v. Templeton, 4 La. Ann, 254. An analogous principle was recently recognized in England in fhe case of Duncan v. Cannan, 23 Eng. Law & Eq. 288; 18 Beav. 128. There a Scotchman, whose domicil was in Scotland, married an Englishwoman in England, and a marriage settlement was entered into according to the Scotch form. They went to reside in Scotland, but subsequently returned to England, where the husband en- gaged in trade and became bankrupt, having reeeived a large part of his. wife’s property from a trustee under CHAP, VI] INCIDENTS TO MARRIAGES. 267 183. In general, the doctrines thus maintained in Louisiana will most probably form the basis of the American jurisprudence on this subject. They have much to commend them in their in- trinsic convenience and certainty, as well as in their equity ; and they seem best to harmonize with the known principles of the common law in other cases. In concluding this topic, the follow- ing propositions may be laid down, as those which, although not universally established or recognized in America, have much of domestic authority for their support, and have none in opposition to them. 184. (1) Summary. — Where there is a marriage between par- ties in a foreign country, and an express contract respecting their rights and property, present and future, that, as a matter of con- tract, will be held equally valid everywhere, unless, under the circumstances, it stands prohibited by the laws of the country where it is sought to beenforced. It will act directly on movable property everywhere. But as to immovable property in a foreign territory, it will at most confer only a right of action, to be en- forced according to the jurisprudence rei site. (a) 185. (2) Where such an express contract applies in terms or intent only to present property, and there is a change of .domicil, the law of the actual domicil will govern the rights of the parties as to all future acquisitions.” (6) 186. (3) Where there is no express contract, the law of the matrimonial domicil will govern as to all the rights of the parties to their present property in that place, and as to all per- sonal property everywhere, upon the principle that movables have no situs, or rather that they accompany the person 1 See Henry on Foreign Law, 48, 49; Id. 95; ante, s. 143; Le Breton v. Miles, 8 Paige (N. Y.) 261. 2 Ante, s. 171, 171 a. her father’s will. Upon a bill filed by the wife against the trustee, to have him make good to her the amount he had paid to the husband, it was held that the marriage settlement, though made in England, must be construed according to the law of Scotland, by the form of which law it was made; and that as, by the Scotch law, the joint receipt of the husband and wife would be a good discharge to the trus- tee, although not so in England, such receipt would be held a good defence in England, even for payments made after the parties had removed to Eng- land. (a) Bessé v. Pellochoux, 73 Ill. 285; Fuss v. Fuss, 24 Wis. 256. (b) Besse v. Pellochoux, supra; Fuss v. Fuss, supra; Ordronaux v. Rey, 2 Sandf.'Ch. (N. Y.) 45. 268 CONFLICT OF LAWS. [s. 186-188. everywhere As to immovable property the law rei site will prevail.? (a) 187. (4) Where there is no change of domicil, the same rule will apply to future acquisitions as to present property. (5) But where there is a change of domicil, the law of the actual domicil, and not of the matrimonial domicil, will govern as to all future acquisitions of movable property ; and, as to all immovable pro- perty, the law rei site.’ (6) 1 See Stein’s Case, 1 Rose, Bank. Cases, Appx. 481; Selkrig v. Davis, 2 Rose, Bank. Cas. 99; 8.C. 2 Dow, 230, 250; 1 Burge, Col. & For. Law, pt. 1, c. 7, 8. &, p. 619. 2 See Henry on Foreign Law, 48, 49; 1 Burge, Col. & For. Law, pt. 1, c. 7, 8. 8, p. 618, 619. 8 How will it be as to personal or movable property antecedently acquired? See ante, s. 178; ante, s. 157, 158. Mr. Burge, adverting to the different opinions on this subject, has remarked: ‘ According to the general doctrine of jurists, the property of the husband and wife, whether it be acquired before or after the change of domicil, continues subject to the law of community, notwithstanding they have removed to another domicil, where that law does not exist. The change of the domicil neither divests them of any right which they had acquired under the law of their matrimonial domicil, nor confers on them any right which they could, not acquire under that law. If the law of community existed in their matrimonial domicil, they will not cease to be in community, although they should have acquired another domicil in a country where no law of community was established ; and, on the other hand, if there was no law of community in their matrimonial domicil, they will not become subject to the law of community, because they have taken up their domicil in a country where that law does exist. The concurrence of jurists in this doctrine is so general that there are few who have dissented from it. This doctrine seems to result as a necessary and legitimate conclusion from the theory that the community exists by force of the tacit agreement of the parties, and which is considered of the same weight as if it had been an express agreement; because, if the rights of the parties, either in their present property or in their future acquisitions, had been conferred by an agreement, they could not be varied by a change of domicil. But if this theory be rejected, and the law of community has no greater opera- tion than any other real law, it can never be necessary to consider the effect of a change of domicil on the interests of the husband and wife on their real property, because those interests in their present property, as well as in their future acquisitions, are determined by the lex loci rei site. The appli- cation of this doctrine to the interests acquired by the husband and wife in the personal property of each other under the law of their matrimonial domicil, so far as it regards property acquired before their removal from their matri- monial domicil, might, it seems, be maintained without the aid of this theory. The matrimonial domicil of the parties may be supposed to be in a country where, as in England, the marriage is an absolute gift to the husband of the wife’s whole personal estate; the subsequent domicil may be in a country (a) Fuss v. Fuss, supra. (6) Fuss v. Fuss, supra. CHAP. VI.] INCIDENTS TO MARRIAGES. 269 188. (6) And here also, as in cases of express contract, the exception is to be understood, that the laws of the place where the rights are sought to be enforced do not prohibit such arrange- ments. For if they do, as every nation has a right to prescribe rules for the government of all persons and property within its where, as in British Guiana, the wife, by virtue of the communio bonorum, retains an interest in her own, and acquires an interest in her husband’s per- sonal property; or the matrimonial domicil may have been in British Guiana, and the subsequently acquired domicil in England. In the one case, the whole personal estate of the wife has become vested in the husband; the wife brings no personal property of her own into British Guiana on which the law of com- munity can attach. In the other case the wife arrives in England, not only retaining an interest in her own, but having acquired an interest in the prop- erty of her husband. The law of the matrimonial domicil has, in this case, already made a disposition of the property of the husband and wife at the time when the parties and the property were subject to that law. In neither case could the law of the new domicil be admitted without divesting rights which had been already legally acquired. But, in the opinion of the greater number of jurists, not only the property which had been acquired by the husband and wife before their removal from their matrimonial domicil, but even that acquired in their new domicil, is subject to the law of the matrimonial domicil; and their opinion has been sanctioned even to this extent by the decisions in France. A person was married and domiciled in L., where the civil law prevailed. He afterwards removed to Paris, and established his domicil there. On his death his widow demanded a share of his movables, and of the acquéts made since the marriage. By an arrét of the 29th of March, 1640, her demand was rejected. A similiar decision was given in the case of a person married and domiciled in Normandy, who afterwards removed to and established his domi- cil in Paris. A demand by his widow for a share of the acquéts, made since the removal from Normandy, was rejected. The application of this doctrine to the acquisitions of personal property made by the husband and wife in their new or actual domicil can only be sustained by means of the theory of a tacit agree- ment. Even its advocates do not all concur in subjecting future acquisitions after a change of domicil to the law of the matrimonial domicil. Thus, Huber was of opinion that they are governed by the law of the new or actual domicil: ‘Cum primum vero conjuges migrant ex una provincia (where the community prevailed) in aliam (where it does not prevail), bona que deinceps alteri adveniunt, cessant esse communia, manentque distinctis proprietatibus ; sicut res antea communes factz, manent in eo statu juris, quem induerunt.’ But if the law of community be a real law, its power as to personal property cannot be more extensive than as to real property. As it affects only such real property as is actually situated in the country where it is established, so it affects personal property only when its owner is actually domiciled in the country where such law is established, becanse the place of his domicil is the situs in fictione juris of his movable property. The real law as to personal property is that which prevails in the place of the owner’s actual domicil. He acquires and holds it according to the disposition of that law, and it depends upon that law whether he and his wife acquire it for their joint benefit or for his sole benefit.’ 1 Burge, Col. & For. Law, pt. 1, ¢. 7,8. 8, p- 619-622. See also Lashley v. Hogg, cited ‘Id. p. 623-625; Id. p. 626. 270 CONFLICT OF LAWS. [s. 188-194. own territorial limits, its own law in a case of conflict ought to prevail.! 189. (7) Although, in a general sense, the law of the matri- monial domicil is to govern in relation to the incidents and effects of marriage, yet this doctrine must be received with many quali- fications and exceptions. No other nation will recognize such in- cidents or effects, when they are incompatible with its own policy or injurious to its own interests. (a) A marriage in France or Prussia may be dissolved for incompatibility of temper; but no divorce would be granted from such a marriage, for such a cause, in England, Scotland, or America.? ‘If,’ said a learned Scottish judge, in a passage already cited, ‘a man in this country were to confine his wife in an iron cage, or beat her with a rod of the thickness of the judge’s finger, would it be any justification in any court to allege that these were powers which the law of Eng- land conferred on a husband, and that he was entitled to exercise them, because his marriage had been celebrated in that country.’® And he added, with great emphasis, ‘ Marriage is a contract sui generis; and the rights, duties, and obligations which arise out of it are matters of so much importance to the well-being of the state, that they are regulated not by the private contract, but by the public laws of the state, which are imperative upon all who are domiciled within its territory.’ 4 190. (8) The doctrine of tacit contract to regulate the rights and duties of matrimony, in cases where there is no express con- tract, according to the law of the place where the marriage has been celebrated, is questionable in itself; and, even if admitted, must be liable to many qualifications and restrictions.® We have seen that it has been much doubted in Louisiana ;® and the Scot- tish courts have utterly refused (as we shall fully see hereafter) to allow the doctrine of such a tacit contract to regulate the right of divorce.’ ; 1 See Fergusson on Mar. & Div. 358-363; Id. 383, 892-422; Huberus, lib. 1, tit. 8, de Conflict. Leg. s. 2; ante, s. 111. 2 Fergusson on Mar. & Div. 398. ; ® Per Lord Robertson. See Fergusson on Mar. & Div. 399; Id. 361. 4 Td. 399; Id. 361. 5 Ante, s. 147-170. ® Saul ». His Creditors, 5 Mart. N.S. (La.) 598-607 ; ante, s. 157. 7 Fergusson on Mar. & Div. 358-363; Id. 882, 8393-4292. (a) Comp. McVey v. Holden, 15 La. An. 817. CHAP. V1] INCIDENTS TO MARRIAGES. 271 191. Matrimonial Domicil considered. — But a question may sometimes occur, What is to be deemed in the proper sense of the rule the true matrimonial domicil? Is it the place where the actual marriage is celebrated ? or that where the contract of mar- riage is entered into? or that where the parties are domiciled, if the marriage is celebrated elsewhere? Or, if the husband and wife have different domicils, whose is to be regarded? These and many other perplexing inquiries may be raised; and foreign jurists have not passed them over without examination.1 192. Where the place of domicil of both the parties is the same with that of the contract and the celebration of the marriage, no difficulty can arise. The place of celebration is clearly then the matrimonial domicil. But, let us suppose that neither of the par- ties has a domicil in the place where the marriage is celebrated ; but it is a marriage in transitu, or during a temporary residence, or on a journey made for that sole purpose, animo revertendi: what is then to be deemed the matrimonial domicil ? 193. The principle maintained by foreign jurists in stich cases is that, with reference to personal rights and rights of property, the actual or intended domicil of the parties is to be deemed the true matrimonial. domicil ; or, to express the doctrine in a still more general form, they hold that the law of the place where, at the time of marriage, the parties intend to fix their domicil, is to govern all the rights resulting from the marriage. Hence they would answer the question proposed, by stating that in such a case the law of the actual domicil of the parties is to govern, and not the place of the marriage in transitu.? 194. But suppose a man domiciled in Massachusetts should marry a lady domiciled in Louisiana, what is then to be deemed the matrimonial domicil? Foreign jurists would answer that it is the domicil of the husband, if the intention of the parties is to fix their residence there; and of the wife, if the intention is to fix their residence there ; and if the residence is intended to be in some other place, as in New York, then the matrimonial domi- cil would be in New York. Rodenburg lays down the doctrine 1 See on this.subject 1 Burge, Col. & For. Law, pt. 1, ¢. 6, s. 2, p. 244- 261. 22 Boullenois, obs. 86, p. 260; Pothier, Traité de la Communauté, art. Prélim. n. 14-16; Voet, de Statut. s. 9,c. 2,3. 5, 6, p. 264, ed. 1715; Id. p. 819, 320, ed. 1661; 1 Burge, Col. & For. Law, pt. 1, ¢. 6, 8. 2, p. 244-261. 272 CONFLICT OF LAWS. [s. 194-198. in explicit terms, and gives, as a reason, that the marriage is pre- sumed to be contracted according to the laws of the place where they intend to fix their domicil. ‘ Quia per destinationem in locis illis domicilii matrimonium contractum esse intelligitur.’1 Boulle- nois states the same doctrine, and says that, ordinarily, where the domicil of the husband and that of the wife are not the same, the law of the husband’s domicil is to prevail, unless he means to esta- blish himself in that of his wife.2~ Dumoulin is equally expressive. ‘Hine infertur,’ says he, ‘ad questionem quotidianam de con- tractu dotis et matrimonii, qui censetur fieri non in loco, in quo contrahitur, sed in loco domicilii viri; et intelligitur, non de domi- cilio originis, sed de domicilio habitationis ipsius viri, de quo nemo dubitat, sed omnes consentiunt.’? This appears also to be the opinion of Mascardus, Bartholus, Bouhier, Pothier, Merlin, and other distinguished jurists.* 195. Foreign Jurists. — Cujas affirms the same doctrine. ‘Sed ex eo contractu mulier migravit in alium locum, id est, talis est contractus, ut ex eo mulier statim migret in alium locum. Ergo non is locus speetatur, sed ille, in quem sit migratio. Hac ratione, mulier non agit, ubi matrimonium contraxit ; sed ubi ex matri- monio migravit, divertit, aut aget.’® And in so doing he does no more than affirm the very doctrine of the Pandects. ‘ Exigere dotem mulier debet illic, ubi maritus domicilium habuit, non ubi instrumentum dotale conscriptum est; nec enim id genus con- tractus est, ut eum locum spectari oporteat, in quo instrumentum dotis factum est, quam eum, in cujus domicilium et ipsa mulier per conditionem matrimonii erat reditura,’ é 1 Rodenburg, tit. 2, c. 5, s. 15; 2 Boullencis, Appx. p. 47; 1 Boullenois, 11, 682, 683; Id. obs. 29, p. 802; Voet, de Statut. s. 9, c. 2,8. 5; p. 264, ed. 1716; Id. p. 319, 820, ed. 1661; Le Brun, Traité de la Communauté, liv. 1, c. 2, 8. 42, 48, 46-48. 2 1 Boullenois, obs. 29, p- 802; 2 Boullenois, obs. 37, p. 259, 260, 265; Voet, de Stat. 8.9, c. 2, 8. 5, 6, p. 264, 265, ed. 1715; Id. p. 319, 320, ed. 1661. * Molinwi, Com. ad Cod. lib. 1, tit. 1,1. 1, Conclus. de Statut. Molin. Opera, tom. 3, p. 555; 2 Boullenois, obs. 37, p. 261. 4 2 Boullenois, obs. 37, p. 260-265; Pothier, Traité de la Communauté, art. Prélim. n. 14-16; Bouhier, Cout. de Bourg. ¢. 22, s. 18-28; Merlin, Répert. Autoris. Maritale, 5.10, art. 5 p. 244; Id. Communauté de Biens, s. 1, p. 111; 1 Burge, Col. & For. Law, pt. 1, ¢. 6, s. 2, p. 244-961. 5 Cujas, ad Legem, Exigere dotem, Dig. 5, 1, 65, Cujaccii Opera, tom. 7, p- 164, ed. 1758. See also Ford v. Ford, 2 Mart. N -S. 577; Le Brun, Traité de la Communauté, liv. 1, ¢. 2, 5. 41 ; post, s. 198. ® Dig. 5, 1, 65; Pothier, Pand. 5, 1, n. 38. CHAP. VI.] INCIDENTS TO MARRIAGES. 273 196. Huberus holds very decisive language on the same sub- ject. ‘But,’ says he, ‘the place where a contract is made is not so exactly to be looked at, but that, if the parties have in con- tracting had reference to another place, that is rather to be regarded: Contraxisse unusquisque in eo loco intelligitur, in quo, ut solveret, se obligavit.1 Therefore the place of the marriage contract is not so much to be deemed the place where the nuptial contract is made, as that in which the parties contracting matri- mony intend to live. Thus, it daily happens that men in Fries- land, natives or sojourners, marry wives in Holland, whom they immediately bring into Friesland. If this be their intention at the time of the contract, there is no community of property, although the marriage contract is silent, according to the law of Holland; but the law of Friesland in this case is the law of the place of contract.2 Proinde et locus matrimonii contracti non tam is est, ubi contractus nuptialis initus est, quam in quo con- trahentes matrimonium exercere voluerunt; ut omni die sit, homines in Frisia indigenas aut incolas, ducere uxores in Hol- landia, quas inde statim in Frisiam deducunt; idque si in ipso contractu ineundo propositum habeant, non oritur communio bonorum, etsi pacta dotalia sileant, secundum jus Hollandiz, sed jus Frisiz in hoc casu est loco contractus.’ 8 197. Le Brun has discussed the question at considerable length, and has arrived at the same conclusion. And he puts the case of a person domiciled in Normandy, where the law of community does not exist, who marries in Paris without any contract, where the law of community does exist; and he holds that if he has not changed his domicil, but returns immediately to Normandy, the law of Normandy will govern, and no community of property will exist between himself and his wife.* 198. Law of Louisiana. — The same doctrine has been repeatedly acted on by the Supreme Court of Louisiana. In one case of a runaway marriage (already alluded to) in another state by par- ties domiciled in Louisiana, who immediately afterwards returned, the court held, as we have seen, that the law of Louisiana 1 Td. 44, 7, 21; Pothier, Pand. 44, tit. 7, n. 21. 2 Huberus, lib. 1, tit. 8, s. 10; Fergusson on Mar. & Div. 174; Voet, de Statut. s. 9, c. 2, 8. 5, 6, p. 264, 265, ed. 1715; Id. p. 319, 320, ed. 1661. 8 Huberus, lib. 1, tit. 3, s. 10. 4 Le Brun, Traité de la Communauté, liv. 1, c. 2, s. 46-51, 55. 18 274 CONFLICT OF LAWS. [s. 198-201. governed the marriage rights and property. In another case where the parties were married in one state, intending immedi- ately to remove into another, which intention was consummated, the court held that the marriage rights and property were go- verned by the law of the place of the intended residence. (2) On this last occasion the court said: ‘We think that it may be safely laid down as a principle, that the matrimonial rights of a wife who marries with the intention of an instant removal for resi- dence into another state, are to be regulated by the laws of her intended domicil, when no marriage contract is made, or one without any provision in this respect.’? In the same case the court also recognized the general rule that, where the husband and wife have different domicils, the law of that of the husband . is to prevail; because the wife is presumed to follow her hus- band’s domicil.® 199. Conclusion. — Under these circumstances, where there is such a general consent of foreign jurists to the doctrine thus recognized in America, it is not perhaps too much to affirm that a contrary doctrine will scarcely hereafter be established ; for in England as well as in America, in the interpretation of other contracts, the law of the place where they are to be performed has been held to govern. Treated therefore as a matter of tacit matrimonial contract (if it can be so treated) there is the rule of analogy to govern it. And treated as a matter to be governed by the municipal law to which the parties were or meant to be sub- jected by their future domicil, the doctrine seems equally capa- ble of a solid vindication.® 1 Le Breton v. Nouchet, 3 Mart. 60; ante, s. 78, 180. 2 Ford v. Ford, 2 Mart. N.S. (La.) 574, 578. 8 Id. 577. * Robinson v. Bland, 2 Burr. 1077; Lanusse v. Barker, 8 Wheaton, 101; 4 Cowen, 513, note; 2 Kent Com. 459; Fergusson on Mar. & Div. 341, 342, 395, 396, 416. 5 See Fergusson on Mar. & Divorce, 339-346. (a) See Mason v. Homer, 105 Arendell ». Arendell, 10 La. An. 567; Mass. 116; Mason v. Fuller,.36 Conn. Hayden v. Nutt, 4 La. Ann. 66. 160; State v. Barrow, 14 Tex. 187; CHAP. VIL] FOREIGN DIVORCES. 275 CHAPTER VII. DIVORCES. 200. Mature of Marriage. — Having thus considered the opera- tion of marriage upon the personal capacity and the property of . the parties in the place of its celebration and in foreign coun- tries, we next come to the consideration of the important subject of Divorce.1 Marriage is not a mere contract between the par- ties, subject, as to its continuance, dissolution, and effects, to their mere pleasure and intentions. But it is treated as a civil institution, the most interesting and important in its nature of any in society. Upon it the sound morals, the domestic affections, and the delicate relations and duties of parents and of children, essentially depend. On this account it has in many nations the sanction and solemnity of religious obligation superadded to it.? And it may be truly said that Christianity, by giving to it a more affecting and sublime morality, has conferred upon mankind new blessings, and has elevated woman to the rank and dignity of an equal, instead of being a humble companion or a devoted slave of her husband. . 201. Divorce in Place of Domicil and Celebration.— It is not my design to enter into any discussion as to the general right of the legislative power to authorize directly or indirectly a dissolu- tion of the matrimonial state, and to release the parties from all the future obligation thereof. It is deemed by all modern nations to be within the competency of legislation to provide for such a dissolution and release in some form and for some causes. And there is no doubt that a divorce regularly obtained, according to the jurisprudence of the country where the marriage is celebrated and where the parties are domiciled, will be held a complete dis- 1 See on this subject, 1 Burge, Col. & For. Law, pt. 1, ¢. 8, 8.1, p. 640- 668; Id. s. 2, p. 668-694. 2 See 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 1, p. 642, 643; post, s. 209. 276 CONFLICT OF LAWS. [s. 201-204. solution of the matrimonial contract in every other country... I say, where the marriage is celebrated and where the parties are domiciled ; for both ingredients are, or may be, material ; and the presence of one and the absence of the other may change the legal predicament of the case according to the jurisprudence of different countries, when the subject comes under consideration therein. 202. Marriage and Domicil in Different Places.— The real difficulty is to lay down appropriate principles to govern cases where the marriage is celebrated in one place, and the parties are at the time domiciled in another; where afterwards there is a change of domicil by one party without a similar change by the other; where by the law of the place of celebration the marriage | is indissoluble, or dissoluble only under peculiar circumstances, and where by the law of another place it is dissoluble for various other causes, and even at the pleasure of the parties. By the law of England marriage is indissoluble except by a special act of Parliament.2 By the law of Scotland a divorce may be had through the instrumentality of a judicial process and a decree on account of adultery. By the civil law an almost unbounded license was allowed to divorces, and wives were often dismissed by their husbands, not only for want of chastity and for intolera- ble temper, but for causes of the most trivial nature In France a divorce may be judicially obtained for the cause of adultery, excess, cruelty, or grievous injuries of either party ; and in cer- tain cases by mutual and persevering consent.6 In America an equal diversity of principle and practice exists. In some States, as in Massachusetts and New York, divorces are grantable by judicial tribunals for the cause of adultery.6 In other States 12 Kent. Com. 107, 108. ? 1 Black. Com. 440, 441; 1 Burge, Col. & For. Law, pt. 1, c. 8,8. 1, p. 654-660. 8 Fergusson on Mar. & Div. 1, 18; Erskine’s Inst. b. 1, tit. 6, s. 88, 43; 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 2, p. 670-680. * 2 Kent Com, 102, 103; 1 Brown, Civ. Law, 89-92; 1 Black. Com. 441; Justin. Novell, 117, ¢. 8; Cod. 5, 17,8; Merlin, Répert. Divorce, s. 2, p. 149, a Traité de Mariage, art. 463; Van Leeuwen, Com. b. 1, ¢. 15, 5 Code Civil, art. 229-233; Id. 275, &c. See in Fergusson on Mar. & Div. Appx. 448, the Prussian Code on the subject of divorce; among others, incompatibility of temper, endangering life or health, is a good cause of di- vorce, art. 703. 6 This also is the law in Holland, in Prussia, and in the Protestant states CHAP. VIL] FOREIGN DIVORCES. 277 divorces are grantable judicially for causes of far inferior grossness and enormity, approaching sometimes almost to frivolousness. In other states, divorces can be pronounced by the legislature only, and for such causes as in its wisdom it may choose from time to time to allow.! 203. Embarrassing Questions. —Some of the most embarrass- ing questions belonging to international jurisprudence arise under the head of marriage and divorce. Suppose, for instance, a mar- riage celebrated in England, where marriage is indissoluble, and a divorce obtained in Scotland a vinculo matrimonii, as it may be, for adultery under the laws thereof, will that divorce be operative in England, so as to authorize a new marriage there by - either party? Suppose a marriage in Massachusetts, where a divorce may be had for adultery, will a divorce obtained in an- other state for a cause unknown to the laws of Massachusetts be held valid there? If, in each of these cases, the divorce would be held invalid in the country where the marriage is celebrated, but it would be held valid where the divorce is obtained, what rule is to govern in other countries as to such divorce? Is it to be deemed valid or invalid there? Will a new marriage con- tracted there by either party be good, or be not good? These and many other perplexing questions may be put ; and it is diffi- cult at the present moment to give any answer to them, which would receive the unqualified assent of all nations. 204. Other most perplexing inquiries may grow out of the con- sideration of the national character of the parties: whether they are both citizens or subjects, or both foreigners, or one a citizen and the other a foreigner ; whether the marriage is celebrated at home, or celebrated abroad; whether the jurisdiction of any court to pronounce a decree of divorce is to be founded upon the national character of the parties, or upon the celebration of the marriage within the territorial jurisdiction, or upon the domicil - of the parties within it, or upon the actual presence or temporary residence of one or both of them at the time when the process for divorce is instituted. And if, upon any of these grounds, the of Germany, in Sweden, Denmark, and Russia. Fergusson on Mar. & Div. 202. 1 See 2 Kent Com. 106-110, 117, 118. See also 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 1, p. 640-668, where are brought together in a general review the laws of different nations on the subject of divorce. 278 CONFLICT OF LAWS. [s. 204-206. jurisdiction is sustained, another not less important inquiry is, whether the law of divorce of the place of the marriage, or that of the place where the suit is instituted, is to be administered by the court before which the suit is pending. 205. It seems to have been thought that under the Scottish law it is not necessary, to found a jurisdiction for divorce in the courts of Scotland, that both the parties should at the time of the adultery committed, or at the time of the suit brought, have their actual domicil in Scotland. It seems to be sufficient that the defendant, against whom the suit is brought, is domiciled in that kingdom, so that a citation may be served upon him, and that a divorce under such circumstances may be granted, whether the adultery is committed at home or in a foreign country. Un- doubtedly this doctrine is to be understood with the limitation that the domicil is real, and not pretended, and that it is bona fide, and not by collusion between the parties for the mere pur- pose of maintaining the suit and procuring the divorce. 1 Fergusson on Mar. & Div. Introd. p. 16-18; Id. p. 51; Id. p. 114, 115, note; St. Aubyn v. Obrien, Id. Appx. p. 276; Id. note B. p. 363- 876; 1 Burge, Col. & For. Law, pt. 1, ¢. 8, s. 2, p. 672, 674-679, 688, 689. See McCarthy v. De Caix, cited in a note to 3 Hagg. 642, and in Warrender v. Warrender, 9 Bligh, 141, 142; Conway v. Beazley, 3 Hagg. Ecc. 639, 645, 646; 2 Russ. & Mylne, 614, 618-620; Tovey v. Lindsay, 1 Dow, 117, 181, 135-187; 2 Clark & Fin. 569, note; post, s. 216-218. See also War- render v. Warrender, 9 Bligh, 89, 144; post, s. 226a-226c. Mr. Chief Jus- tice Gibson, in delivering the opinion of the supreme court of Pennsylvania in a case of divorce, used the following language: ‘ In constructing our inter- national law of divorce we naturally look for the materials of it in the juris- prudence of our ancestors, whose institutions are more congenial with our own than those of their continental neighbors, and whose process of forensic dis- cussion is usually more exact. But we find an irreconcilable difference betwixt the decisions of the English and of the Scottish courts. The English judges acknowledge the legitimacy of no jurisdiction which is not founded in the law of divorce at the place of the marriage, if it be an English one; while the Scottish in the other extreme are willing to found theirs even on a tempo- rary residence of the complainant in the country of the forum. Of the latter pretension I shall say little more than that it is in truth a usurpation of power to intermeddle in the domestic concerns of a neighbor. If a bona fide domicil in the strictest sense of the word were not essential to jurisdiction, there would be nothing to prevent the exhibition of a libel by a proctor, and without the presence even of the complainant.’ But the respondent’s presence would be more essential still; for a sentence against one who was not subject to the jurisdiction would be void on the plainest principles of natural law. More- over it is not perceived how the actual presence of both of them could confer jurisdiction of a cause of divorce which was not in its inception subject to the law of the forum. It seems to me the fallacy in the reasoning of the Scottish CHAP, VIL] FOREIGN DIVORCES. 279 206. A learned Scottish jurist, in remarking upon the embar- rassments arising out of this state of the law of Scotland, has made the following powerful observations: ‘These conclusions evidently demonstrate that unless the remedy in this judicature shall be limited either to that which the lex loci contractus affords, or to that which the lex domicilii, taken in the same fair sense as in questions of succession, might give, the public decrees of the only court of Scotland which is competent to pronounce one in such consistorial causes, become proclamations to invite all the married who incline to be free, not in the rest of the British judges, plausible though it be, consists in their assumption that divorce is a penalty everywhere annexed to a breach of the marriage contract, which, like a civil cause of action attendant on the person, may be enforced anywhere; thus forgetting that whether it be a penalty at all depends not on the Scottish law as an interpreter or avenger, but on the law of the domicil, or else on the lex loci contractus, which exclusively furnishes the original conditions. The English doctrine on the other hand is not more reconcilable.to our principle of finite allegiance; for notwithstanding the doubt and manifest inclination of Dr. Lushington in Conway v. Beazley, 3 Hagg. Ecc. 639, I take it to be settled by Lolley’s Case, Russ. & Ry. 236, sanctioned in Tovey v. Lindsay, 1 Dow, 124, by the preponderating weight of Lord Eldon’s name, that the disso- lution of an English marriage for any cause whatever can be effected so as to be acknowledged in that country only by English authority. It was indeed intimated in Conway v. Beazley that the question of jurisdiction in Lolley’s Case, perhaps turned on the difference between temporary and permanent residence; but the report certainly does not indicate it, and besides the con- clusion attained was an unavoidable consequence of the British tenet of per- petual allegiance. Though an English subject acquire a foreign character from a foreign domicil, insomuch as to be treated as an alien for commercial purposes; though he formally renounce his primitive allegiance, and profess another, he is accounted but as a sojourner while abroad, and England by the dogma of her government is his home and his country still. Holding this dogma it would be strange did she tolerate foreign interference with her domestic relations within our pale. Insisting on jurisdiction of his person, absent or present, she necessarily regards an attempt to change any one of these as an invasion of her sovereignty; and in that aspect it cannot be denied that the matter is within her province and her power; for, though the status of marriage is juris gentium, the institution is undoubtedly a subject of muni- cipal regulation. And it is this perpetual allegiance to the country, its insti- tutions and its laws, — not an indissolubility of the marriage contract from the presumptive will and reservation of the parties, — which is the root of the English doctrine. It truly assumes that marriage is contracted on the basis of the laws, and that these forbid a British subject to dissolve it by the autho- rity of any other country; but take away the law of perpetual allegiance, and you take away the foundation of the presumptive pledge not to submit the duration of it to foreign action.’ Dorsey v. Dorsey 7 Watts (Penn.), 349; 1 (Boston) Law Reporter, p. 288, 289. (See Maguire v. Maguire, 7 Dana (Ky.) 181.) 280 CONFLICT OF LAWS. [s. 206-210. empire alone, but in all countries where marriage is indissoluble by judicial sentence, to seek that object in this tribunal. Adultery and presence within our territority are the only requisites to found the jurisdiction by citation. What numbers of foreign parties may accept such an offer, and may even commit the crime here for the very purpose of affording ground for the action, it is im- possible to conjecture. But it is manifest that, in exact propor- tion to their number, injury to the morals of this country must follow ; and, by setting at nought the laws of other nations, re- proach must be brought upon our own. For all foreign parties, while matters stand upon this footing, have it in their power, with the help of evidence as easily provided as it may be disgust- ing and impure, to oblige the Scotch Consistorial Court to enter- tain the whole mass of their foreign causes, although there is no fair interest to insist that the municipal law of Scotland shall de- cide these by its own peculiar rules. To what extent therefore the good order of society may eventually be disturbed by this compulsory abuse and pollution of its jurisdiction in consequence of the doubts and contests that must ensue as to rights of legiti- macy and succession, no calculation can be made.’ } 207. Upon the point, what is the rule of divorce, a learned Scottish judge has made the following remarks in a case depend- ing before him in judgment:? ‘ With us the laws relative to divorce are founded on divine authority. How can a person withdraw himself from obedience to such laws? Are these laws relaxed as toa person domiciled in Scotland, because his mar- riage is contracted in a country where the law of divorce is dif- ferent? If two natives of Scotland were married in France or Prussia according to the laws of those countries, the marriage would no doubt be valid here. But would they be entitled to come into the Commissary Court and insist for a dissolution a vinculo matrimonii, merely because their tempers were not suita- ble, which, in France, was a ground of divorce, or for any of the numberless reasons for dissolving a marriage which are allowed by the laws of Prussia? But if we would not listen to the lex loci when it facilitates divorce to a degree which our law con- siders as inconsistent with the best interests of society, and as 1 Fergusson on Mar. & Div.. Introd. p. 18, 19. 2 Lord Robertson; The Cases of Edmonstone, of Levett, and of Forbes, in Fergusson, Appx. 883; Id. 898. See also Id. 415. CHAP. VII.] FOREIGN DIVORCES. 281 not warranted by the divine law, on what principle are we to give effect to the-lex loci which prohibits divorce, even adulterii causa, though permitted in this country under the sanction of the divine law ?’ 208. These passages are sufficiently significant, as to the in- trinsic difficulties of the subject, looking only to the law of divorce of a single country. But when we look at the almost endless diversities of foreign continental jurisprudence on the same sub- ject, and the little regard which is habitually paid in that juris- prudence to the decrees of foreign courts, especially in matters which concern persons belonging to any other continental sove- reignty, it ought not to surprise us that one nation should hold its own law of divorce of universal obligation and authority, and that another should yield it up in favor of the law of the domicil of the parties.. 209. Catholic and Protestant Countries. — Upon the continent of Europe there has long existed a known distinction between the Catholics and the Protestants upon the subject of divorce. The former, according to the doctrine of the Romish Church, consider marriage as a sacrament, and in its effects to be go- verned by the divine law; and according to their interpretation of that law it was formerly held to be indissoluble.1| The Pro- testants, on the contrary, have not generally considered it asa sacrament; but many, if not all of them, have considered it mainly as a civil institution, and subject to the legislative autho- rity, as matter of public police and regulation.? 210. In Catholic France, we are informed that, until some time after the Revolution (until 1792), marriage was always treated as indissoluble.2 ‘Our church,’ says‘ Merlin, ‘never approved of divorce, properly so called. It has always regarded it as contrary to the precept, Quod Deus conjunxit, homo non 1 See Fergusson on Mar. & Div. Appx. note M. p. 443; Heinecc. Elem. Juris Germ. tit. 14, s. 338-332; Dalrymple ». Dalrymple, 2 Hagg. Cons. 63, 64, 67; 1 Burge, Col. & For. Law, pt. 1, ¢. 8, s. 1, p. 642, 648. 21 Black. Com. 433; 2 Hagg. Cons. 63, 67; 1 Burge, Col. & For. Law, pt. 1, c. 8, s. 1, p. 648, 649; Id. p. 650-653. 8 We have already seen that, by the Code Civil of France, art. 229-2338, divorce is allowed in a variety of cases. Upon the restoration of the Royal Family in 1816, it seems that the existing law of divorce was abolished. Merlin, Répert. Divorce, s. 4, p. 161. Whether, since the Revolution of 1830, it has been reinstated, I am not at this moment able to say. See Du- ranton, Cours de Droit Frangais, vol. 14, p. 535, note. 282 CONFLICT OF LAWS. “[s. 210-213. separet: What God hath joined together, let not man put asunder! It is therefore a perpetual maxim among us, that marriage cannot be dissolved by means of a divorce.’? Pothier says: Marriage is not dissolved but by the natural death of one of the parties ; while they live, it is indissoluble.® He adds that, though divorce was permitted by the Christian emperors, the church regarded it as prohibited by the gospel ; and that it is not permitted by the French law for any cause whatsoever. ' 911. Protestants have dealt differently by it.6 In Scotland, which proposes on this subject to be governed exclusively by the scriptures, divorce is allowed for the scriptural causes, for adul- tery and for wilful desertion.6 In many other Protestant coun- tries it is not treated as indissoluble except for scriptural causes; but it may be dissolved for other causes. In England it is never dissolved except by an act of parliament, and for adultery.’ In the Protestant continental nations of Europe, many other causes of divorce are known; and in America, as we have seen, it is gen- erally treated as a matter of civil regulation.’ 212. Foreign Jurists. —The conflict of laws on the subject of divorce does not seem to have undergone much discussion among the continental jurists; at least I have not been able to trace any systematic examination of the subject in those works which are within my reach, and in which almost all other topics of the con- flict of laws are so amply treated. The silence of the French jurists may be accounted for, in a great measure, from the uni- formity of operation of the Catholic religion and its canons over all the provinces of that kingdom ; from the strong probability that few cases of foreign divorces between French subjects were ever judicially examined ; and from the natural conclusion that, as in their view Christianity made the marriage union indissolu- ble, no earthly tribunal, either foreign or domestic, could right- fully pronounce a sentence of divorce. The silence of other 1 Matthew, c. 19, v. 6. 2 Merlin, Répert. Divorce, s. 8, p. 151. ® Pothier, Traité du Mariage, n. 462. 4 Id. n. 464. 5 Td. n. 465; ante, s. 209. . ® Erskine’s Instit. b. 1, tit. 6, 8. 48,44; Fergusson on Marr. and Div. Appx. note H. p. 423. 7 Ante, s. 202. ® See 1 Black. Com. 441; Code Civil of France, art. 229-233; Fergusson on Mar. & Div. Appx. note N.p. 448; 2 Kent Com. 95-106; Van Leeuwen Com. b. 1, c. 15, s. 1-6. CHAP, vu.] FOREIGN DIVORCES, 283 Catholic countries may be accounted for in the same way. But it is not so easy to assign a satisfactory reason for the omission of the Protestant countries of the continent of Europe to discuss the subject at large. It is highly probable that, in those coun- tries, the parties have been referred to their own matrimonial forum, either to furnish the true rule to expound the contract, or to administer the law of divorce, or for both purposes. This course has not been without example, even in our own country, upon cases bearing a close affinity. 213. Merlin has treated the question purely as one arising under the French law, either with reference to the allowance of divorces under the legislation of 1792, or with reference to the prohibition of divorces after the restoration of the Bourbons in 1816.2. He asks the question, whether in virtue of the new law of 1792, which introduced divorce, a marriage celebrated under the old law, which prohibited divorce, could be dissolved ; and vice versa, whether a marriage celebrated after the new law, which permitted divorce, could be dissolved after the promulga- tion of the law of 1816, which prohibited divorce.? He says that if divorce was, as the state of the parties (1’état des époux), the immediate effect and simple consequence of the marriage, the question might be easily answered.’ Upon this hypothesis, as the state of the parties, the right of divorce would depend alto- gether upon the law at the time when the marriage was cele- brated ; because then, in the first case put, the contract must be deemed one for an indissoluble union, and in the second case, a contract dissoluble for the proper causes of divorce.6 But he goes on to state that divorce does not depend upon the intention of ‘the parties, nor is it a consequence or interpretation of it. The legislature, in allowing or prohibiting divorce, has regard only to considerations of public order, and not to the mere con- tract of the parties. They are not permitted by private agree- ment to change the laws, or to make a marriage dissoluble or indissoluble in contravention of the policy of the state.® He, therefore comes to the conclusion that in a French court a di- 1 2 Kent Com. 108. 2 Ante, s. 210, note. 8 Merlin, Répert. Effet Rétroactif, s. 3, n. 2, art. 6. 4 Id. s. 3, n. 2, art. 6, p. 19. 5 Thid. ; * Merlin, Répert. Effet Rétroactif, s. 3, n. 3, art. 6, p. 19. 284 CONFLICT OF LAWS. [s. 213-218. vorce in such case would be granted or denied according to the law of France at the time of the suit.! 214. English and Scotch Decisions. — The question how a mar- riage in a foreign country between French subjects, or between foreigners, would be affected by a naturalization or domicil in France, is not here.touched. In another work however treating of moot questions, he has recently discussed the point. He asks whether French subjects, married in France since the repealing act of 1816, who have abandoned their country, and become naturalized in a country where divorce is allowed, could institute a suit there, and dissolve their marriage by a decree of divorce pronounced there by mutual consent. He supports the affirmative upon the general reasoning by which he has sustained the doc- trine in the preceding paragraph.? It would seem however from his own statement that this is quite an open question in France. 215. It is to the decisions of the English and Scottish courts however that we must look for the most thorough and exact dis- cussion of this subject. From the different nature of the respec- tive laws of England and Scotland upon the subject of divorce, from their national union, and from their constant, easy, and familiar intercourse, the courts of both countries have been fre- quently called upon to pronounce very elaborate judgments respecting the jurisdiction and law of divorce in suits and contes- tations before them. 216. Several questions on this subject have been recently dis- cussed in the courts of Scotland. One is whether a permanent domicil of the parties is indispensable to found a jurisdiction in cases of divorce in the Scottish tribunals, or whetber a citation given formally to the party defendant, or left at his dwelling-place in Scotland after he has been forty days there, is sufficient to sub- ject him to the jurisdiction of those courts in a suit for divorce. In the case in which this question was principally discussed the marriage was celebrated in England, the husband many years afterwards abandoned his wife and went to Scotland to reside, and the wife commenced a suit for divorce against her husband in the Scottish Consistorial Court. The court were of opinion that as the parties were English, and never cohabited as husband and wife in Scotland, and there was no proof that the husband had taken up a fixed and permanent residence in Scotland, the suit 1 Tbid. 2 Merlin, Questions de Droit, Divorce, s. 11, p. 350; ante, s. 213. CHAP. VII] FOREIGN DIVORCES. 285 ought to be dismissed upon the ground of a want of jurisdiction. Upon appeal the decree was reversed by the superior tribunal, and a decree of divorce was ultimately pronounced.! 217. The leading grounds of the reversal were: ‘That the relation of husband and wife is a relation acknowledged jure gentium; that the duties, obligations, and rights to redress wrongs incident to that relation, as recognized by the law of Scot- land, attach on all married persons living within the territory and subject to that law, wheresoever their marriage may have been celebrated; that jurisdiction, or the right and duty of the courts of Scotland to administer justice in such matters over persons not natural-born subjects, arises from the person sued being resident within the territory at the time of their citation and appearance, or being duly domiciled, and being properly cited accordingly, at the instance of a person having a sufficient interest and title, and proceeding in due form of law.’? The result of this decision is, that permanent domicil, or the animus manendi, is not necessary to found the jurisdiction. In several other succeeding cases the court have followed up the same doctrine, affirming that a tempo- yary residence is sufficient to found the jurisdiction, notwith- standing the permanent jurisdiction of the parties is in another country. 218. Lolley’s Case. — This doctrine has been maintained by the Scottish judges with great ability and learning, and no one can read their reasoning without admitting its force. It has not how- ever been deemed satisfactory in England. In a very important case before the twelve judges (Lolley’s Case), where English subjects were married in England, and afterwards the husband went to Scotland, and procured a divorce a vinculo there, and then returned to England and married another wife, it was de- cided that the second marriage was void, and the husband was guilty of bigamy. It has been commonly supposed that this decision proceeded upon the broad and general ground, that an 1 Utterton v. Tewsh, Fergusson on Mar. & Div. p. 1-67. 2 Thid. 8 Duntze v. Levett, Fergusson on Mar. & Div. p. 68-167; Edmon- stone v. Lockhart, Id. p. 168-208; Butler v. Forbes, Id. p. 209-225; Kibble- white v. Rowland, Id. p. 226-248; Gordon v. Pye, Id. p. 276-362; Id. p. 383- 423, 4 Lolley’s Case, Russ. & R. 237. See Warrender v. Warrender, 9 Bligh, 122, 123, 127-130, 189-143. 286 CONFLICT OF LAWS. [s. 218, 219. English marriage is incapable of being dissolved under any cir- cumstances by a foreign divorce; and so it seems to have been understood by Lord Eldon on a later occasion. It has been sug- 1 Tovey v. Lindsay, 1 Dow, 117, 181. See also M’Carthy v. Decaix, 1831, cited 8 Hagg. Ecc. 642, note; 2 Russ. & M. 614, 620. Lord Eldon on this occasion (1 Dow, 187) is reported to have used the following language: ‘ Here then we have a case in which both parties were domiciled in England, and then the husband went to Scotland, where it was said he had a domicil by reason of origin and his being heir of entail of an estate there, and instituted _a suit against his wife, which she said did not affect her in England; and if his domicil was at Durham, the answer would be sufficient, though the rule of law’ should be admitted, that the domicil of the wife followed that of the hus- band. But if the jurisdiction by reason of the original domicil could be main- tained, it would be attended with the most important consequences to the law of marriage. The decision in the second case appeared rather singular, when connected with the decision in the first. They stated, as a main ground of the judgment in the second cause, that the respondent was confessedly domi- ciled in Scotland, and that therefore they had jurisdiction, which appeared to imply a doubt whether they had jurisdiction in the first cause. If the first cause could be supported, there was no occasion for the second. But, suppose the respondent were domiciled in Scotland at the time of the alleged acts of adultery there, the question still remained, whether in 1810 he could institute asuit against her with effect, unless she had changed her forum likewise, merely upon the ground of the fiction which had been stated. This was a question of the very highest importance.’ Lord Brougham, in delivering his own judgment in M’Carthy v. Decaix, 2 Russ. & M. 614, 620, said: ‘I find, from the note of what fell from Lord Eldon on the present appeal, that his Lordship labored under considerable misapprehension as to the facts in Lolley’s case; he is represented as saying he will not admit that it is the settled law, and that therefore he will not decide whether the marriage was or not prema- turely determined by the Danish divorce. His words are, ‘‘I will not without other assistance take upon myself to do so.’? Now, if it has not validly and by the highest authorities in Westminster Hall been holden that a foreign divorce cannot dissolve an English marriage, then nothing whatever has been esta- blished. For what was Lolley’scase? It was a case the strongest possible in favor of the doctrine contended for. It was not a question of civil right, but of felony. Lolley had bona fide, and in a confident belief, founded on the au- thority of the Scotch lawyers, that the Scotch divorce had effectually dissolved his prior English marriage, intermarried in England, living his first wife, He was tried at Lancaster for bigamy, and found guilty; but the point was re- served, and was afterwards argued before all the most learned judges of the day, who, after hearing the case fully aud thoroughly discussed, first at West- minster Hall, and then at Serjeant’s Inn, gave a clear and unanimous opinion, that no divorce or proceeding in the nature of divorce in any foreign country, Scotland included, could dissolve a marriage contracted in England; and they sentenced Lolley to seven years’ transportation. And he was accordingly sent to the hulks for one or two years; though in mercy the residue of his sentence was ultimately remitted. I take leave to say he ought not to have gone to the hulks at all, because he had acted bona fide, though this did not prevent his conviction from being legal. But he was sent notwithstanding, as if to show CHAP. VII] FOREIGN DIVORCES. 287 gested however that Lord Eldon was not prepared to carry the doctrine to such a length; and certainly there was room in that case for a distinction, founded upon the fact that neither of the parties at the time of the suit for the divorce in Scotland had a bona fide domicil there, but that they both at that very time in fact had their domicil in England, where the marriage was had.! (a) 219. It has been stated by another learned judge, in a very recent case, that Lolley’s Case turned upon the very distinction in point of jurisdiction between a temporary and fugitive resi- dence for the purpose of a divorce, and bona fide change of do- micil by the husband and wife animo manendi. And upon the ground of that distinction, in a case where there was no change of domicil, and the parties were not at any time bona fide domi- ciled in Scotland, he declared a Scottish divorce from an English marriage utterly void.2 The language of his opinion is so im- portant that it deserves to be quoted at large. ‘A case,’ says he, ‘in which all the parties are domiciled in England, and resort is had to Scotland (with. which neither of them have any con- nection) for no other purpose than to obtain a divorce a vinculo, clearly that the judges were confident of the law they had laid down; so that never was there a greater mistake than to suppose that the remission argued the least doubt in the judges. Even if the punishment had been en- tirely remitted, the remission would have been on the ground that there had been no criminal intent, though that had been done which the law declares to be felony. I hold it to be perfectly clear therefore that Lolley’s case stands as the settled law of Westminster Hall at this day. It has been uniformly recognized since; and in particular it was repeatedly made the subject of discus- sion before Lord Eldon himself, in the two appeals of Tovey v. Lindsay (1 Dow, 117, 181), in the House of Lords, when I furnished his lordship with a note of Lolley’s case, which he followed in disposing of both those appeals, so far as it affected them. That case then settled two points; first, that no foreign pro- ceeding in the nature of a divorce in an ecclesiastical court could effectually dissolve an English marriage; and secondly, that a Scotch divorce is not such a proceeding in an ecclesiastical court as to bring the case within the excep- tion in the Bigamy Act (1 Jac. 1, ¢. 11, s. 2) for which nothing less than the sentence of an English ecclesiastical court is sufficient.’ See also 2 Clark & Fin. 567, note, and Warrender v. Warrender, 9 Bligh, 89, 121, 124, 127; Id. 141-143; post, s. 229 a. : 1 Lolley’s Case, Russ. & R., 287; 2 Clark & Fin. 567, note. : 2 Dr. Lushington, in Conway v. Beazley, 3 Hagg. Ecc. 639, 645-647, 653. (a) See Shaw v. Gould, L. R.3 H. see Dolphin v. Robins, 7 H. L. C. 390; L. 55, in 1868, where the subject un- Shaw v. Att’y-Gen., Law Rep. 2 P. & derwent elaborate examination. And D. 156; post, s. 227 a. 288 CONFLICT OF LAWS. [s. 219-221. may properly be decided on principles which would not altogether apply to a case differently circumstanced ; as where, prior to the cause arising on account of which a divorce was sought, the par- ties had been bona fide domiciled in Scotland. Unless I am satisfied that every view of this question had been taken, the court cannot, from the case referred to (Lolley’s Case), assume it to have been established as an universal rule, that a marriage had in England, and originally valid by the law of England, cannot, under any possible circumstances, be dissolved by the decree ofa foreign court. Before I could give my assent to such a doctrine (not meaning to deny that it may be true), I must have a decision after argument upon such a case as I will now suppose, viz., a marriage in England, the parties resorting to a foreign country, becoming actually bona'fide domiciled in that country, and then separated by a sentence of divorce pronounced by the competent tribunal of that country. If a case of that description had oc- curred and had received the decision of the twelve judges, or the other high authority (a) to which allusion has been made, then indeed it might have set this important matter at rest; but I am not aware that that point has ever been distinctly raised, and I think I may say with certainty that it has never received any express decision. . . . I believe the course of de- cision in Scotland up to the present hour has been to consider that the Scotch courts have a right to entertain jurisdiction with respect to-marriages had in-England, after the parties have been residents for a certain period in Scotland, though that period had been infinitely too short to constitute what we should call a legal domicil, and that those courts have proceeded in such cases to divorce a vinculo. . . . It is obvious that many most important differences may arise in cases of this description. Two Scotch persons married in England may afterwards go to reside in Scot- land. Again, one of the contracting parties may be English, the other Scotch. If the law of Scotland continue such as their courts have hitherto held it to be, and if the decision in Lolley’s Case be of universal application, the issue of the second marriage may be legitimate in Scotland and illegitimate in England. The son may take the real estate in Scotland and not the real estate in England. He might possibly be a Scotch peer and lose his (a) Lord Brougham in M’Carthy v. Decaix, 2 Russ. & M. 614. CHAP. VII.] FOREIGN DIVORCES. 289 English title, and with it the English estates, the only support of his Scotch peerage.’ } 220. Scotch Law.— Independent of the point of general juris- diction, founded upon the fact of the domicil of both the parties, or at least of the party defendant in the suit for a divorce, which for a series of years was most elaborately discussed, and remained in a state of distressing uncertainty, as well as to the effect of a permanent domicil as to that of a temporary domicil to found a sentence of divorce, the Scottish courts have been called on to | decide other questions of a broader character and involving more extensive consequences. In the first place, the general question already hinted at, whether an English marriage between English subjects, being indissoluble by the law of England, can under any possible circumstances be dissolved by a decree of divorce in Scotland. In the next place, whether a marriage in Scotland by English subjects, domiciled at the time in England, is dissoluble under any circumstances by a decree of divorce in Scotland. In the next place, whether in case of a marriage in England, it will make any difference that the parties are both Scotch persons, domiciled in Scotland, or afterwards become bona fide and per- manently domiciled there. 221. Upon these questions the highest tribunals in Scotland have come to the following conclusions: First, that a marriage between English subjects in England, and indissoluble there, may be lawfully dissolved by the proper Scottish court for a cause of divorce good by the law of Scotland, when the parties are within the process and jurisdiction of the court ; or, in other words, that it is not a valid defence against an action of divorce in Scotland for adultery committed there, that the marriage was celebrated in England. Secondly, that a Scotch marriage by persons domiciled at the time in England, is dissoluble in like manner by the proper Scottish court; or, in other words, that it is not a valid defence that the parties were domiciled in England when the marriage was celebrated in Scotland. Thirdly, that, in case of a marriage in England, it will make no difference that the parties are Scot- tish persons domiciled in Scotland, or. are afterwards bona fide and permanently domiciled there; or, in other words, that it is not a valid defence that the parties are Scottish persons, happen- 1 Conway v. Beazley, 3 Hagg. Ecc. 645-647, 653. 19 290 CONFLICT OF LAWS. [s. 221-224. ing to be in England when their marriage was celebrated, but who afterwards returned to Scotland, and cohabited, and con-: tinued domiciled there. The result of these opinions, the unani- mous opinions of the judges of the Court of Session, is, that the mere fact of the marriage having been celebrated in England, whether it is between English parties or Scottish parties, or both, is not per se a defence against a suit of divorce for adultery committed there.! 222. The reasoning by which these opinions are maintained, as it may be gathered from comparing the arguments of the diffe- rent judges, is to the following effect. The relation of husband and wife, wherever it may have been originally constituted and the parties thereto been connected, is entitled to the same pro- tection and redress from the courts of justice in Scotland, as to wrongs committed in Scotland, which belong of right to that relation by the law of Scotland.2, By marrying in England the parties do not become bound to reside for ever in England, or to treat one another in every other country where they may after- wards reside according to the law of England. Their obligation is to fulfil the duties of husband and wife to each other in every country to which they may be called in the course of Providence ; and they neither promise, nor have they power to engage, that they will carry the law of England along with them to regulate what the duties and powers shall be which they shall fulfil and exercise, or the redress which the violation of those duties or abuse of those powers may entitle them to in all other countries. All these functions belong to the law of the country where they may eventually reside, and to which they unquestionably con- tract the duties of obedience and subjection whenever they enter its territories. Even if it had been the will of the parties by any stipulation, however express, to make the lex loci the law of their marriage, it would derive no force from that circumstance. An action of divorce could not be dismissed because the parties, when intermarrying, had in the most formal manner renounced the benefit of divorce, and had beoome bound that their marriage should be indissoluble. It would be no objection to a divorce at the instance of a Roman Catholic, that his marriage was to him a 1 Cases of Edmonstone, Levett, and Forbes, Fergusson on Mar. & Div. 888, 892, 893; Id. 414, 415. 2 Fergusson on Mar. & Div. 358. CHAP. VII.] FOREIGN DIVORCES, 291 sacrament, and therefore by its own nature indissoluble. These are all facta privatorum, and cannot impede or embarrass the steady, uniform course of the jus publicum, which with regard to the rights and obligations of individuals, affected by the three great domestic relations, enacts them from motives of political expediency and public morality, and in no wise confers them as private benefits, resulting from agreements concerning meum et tuum, which are capable of being modified and renounced at pleasure.! . 223. If this supposed obligation of indissolubility resulting from contract can derive no force from the will of the parties, it can- not derive any from the dictates of the municipal law where the relation of marriage originated, so as to give it efficacy ultra ter- ritorium ; for the general rule is, Extra-territorium jus dicenti impune non paretur.? In the fulfilment of ordinary contracts, as to meum et tuum, the lex loci contractus forms an implied condi- tion of the contract, and is accordingly adopted as furnishing the means of construing it aright. But this is merely a proceeding in execution of the will of the parties, and not in the least a re- cognition of the authority of a foreign law. The case is there- fore quite different where the will of the parties only constitutes, and does not modify, the relation or its rights, and where of course the municipal law, deriving nothing from stipulation or agreement, is merely the positive institution of the sovereign, and cannot direct the decisions of foreign courts or the circumstances occurring within their own jurisdiction. Matrimonial rights and obligations, so far as they are juris gentium, admit of no modifi- cation by the will of parties ; and foreign courts are therefore in no wise called upon to inquire after that will, or after any muni- cipal law to which it may correspond.? 224, Foreigners, equally with natives, while residents, are sub- ject to the law here, and of course are under the protection of the law. The relations in which they stand towards one another, and which have been duly constituted before they came here, if they are relations recognized by all civilized nations, must be observed ; and the obligations created by them must be fulfilled agreeably to the dictates of the law of Scotland. If the law re- 1 Fergusson on Mar. & Div. 359, 360; Id. 398, 399, 402. 2 Ante. s. 8; Dig. 2, 1, 20. 8 Fergusson on Mar. & Div. 360, 361, 402, 410, 412, 414. 292 CONFLICT OF LAWS. [s. 224-226 a. fused to apply its rules to the relation of husband and wife, parent and child, master and servant, among foreigners in this country, Scotland could not be deemed a civilized country; as thereby it would permit a numerous description of persons to traverse it, and violate with utter impunity all the obligations on which the principal comforts of human life depend. If it assumed jurisdic- tion, but applied not its own rules, but the rules of the law of a foreign country, the supremacy of the law of Scotland within its own territories would be compromised; its arrangements for domestic comfort would be violated, confounded, and perplexed ; and the powers of foreign courts, unknown to its law and consti- tution, would be usurped and exercised! In every country the laws relative to divorce are considered of the utmost importance, as positive laws affecting the domestic interests of society ; and in some places they are treated as of divine authority.? A party domiciled here cannot be permitted to import into this country a law peculiar to his own case and in opposition to those great and important public laws which are held to be connected with the best interests of society.’ 225, English Law.— That there is great force in this reasoning cannot well be denied. For a long time it did not obtain any positive sanction in England ; but as far as judicial opinions went, they were against the doctrine that an English marriage is disso- luble by a Scottish divorce. The reasoning by which this latter view was sustained, was to the following effect. The law of the place where the marriage is celebrated furnishes a just rule for the interpretation of its obligations and rights, as it does in the case of other contracts which are held obligatory according to the lex loci contractus.6 It is not just that one party should be able at his option to dissolve a contract by a law different from that under which it was formed, and by which the other party understood it to be governed. If any other rule than the lex loci contractus is adopted, the law of marriage, on which the happi- ness of society so mainly depends, must be completely loose and 1 Td. 57, 58, 414, 418. 2 Td. 398, 402, 408; ante, s. 108, 210. 8 Td. 399, 400, 412, 418. 4 Lolley’s Case, Russ. & R. p. 237; Tovey v. Lindsay, 1 Dow, 124; M’Car- thy v. Decaix, 3 Hagg. Ecc. 642, note; 2 Russ. & M. 614, 620; 2 Kent Com. 116, 117. 5 Fergusson on Mar. & Div. 288-285, 311-313, 318, 325, 835, 339. CHAP. VII.] FOREIGN DIVORCES. 293 unsettled ;1 and the marriage state, whose indissolubility is so much favored by Christianity and by the best, interests of society, will become subject to the mere will and almost to the caprice of the parties as to its duration. The courts of the nations whose laws are most lax upon this subject will be constantly resorted to for the purpose of procuring divorces; and thus not only frauds will be encouraged, but the common cause of morality and religion be seriously injured, and conjugal virtue and parental affection become corrupted and debased.? Thus, a dissatisfied party might resort to one foreign country, where incompatibility of temper is a ground of divorce, or to another which admits of divorce upon even more frivolous pretences, or upon the mere consent of both, or even of one of the parties. ' 226. In this manner a nation may find its own inhabitants throwing off all obedience to its own laws and institutions, and subverting, by the interposition of a foreign tribunal, its own fun- damental policy. Nay, a stronger case may be put of a marriage. deemed as a sacrament, indissoluble by the public religion of a nation, which is yet dissolved at the will of a foreign nation, in violation of the highest of all human duties, a perfect obedience to the divine law. There is no solid ground upon which any government can be held: to yield up its own fundamental laws and policy as to its own subjects, in favor of the laws or acts of other countries. Parties contracting in a country where mar- riage is indissoluble voluntarily submit to the jurisdiction and laws of that country, if they are foreigners domiciled there. If they are natural subjects they are bound by the laws of the coun- try in virtue of the general duty of allegiance. Why then should England permit her subjects, by a foreign domicil, to escape from the indissolubility of a marriage contracted in England, and thus permit them to defeat a fundamental policy of the realm?? Such is a summary of the reasoning on each side of this vexed question. 226 a. This whole subject however recently came before the House of Lords in England, upon an appeal from the Court of Session in Scotland, in which the direct question was, whether it 1 Td. 283, 298, 312. 2 Id. 103, 104, 283, 284, 318, 319, 353, 355, 356. 8 Mr. Chancellor Kent has given an excellent summary of the reasoning on each side in his Commentaries, 2 Kent Com. 110-117. My own duty required me to follow out his doctrine by some additional sketches. 294 CONFLICT OF LAWS. [s. 226 @—226 c. was competent for the Scottish courts to decree a divorce between parties domiciled in Scotland, who were married in England. The facts of the case in substance were these: A Scotchman do- miciled in Scotland was married to an Englishwoman in England ; and by their marriage contract a jointure was secured to her in his Scottish estates. After their marriage they went to Scotland, and resided there a short time, and then returned to England, They afterwards in England executed articles of separation, by which a separate maintenance was secured to the wife during her separation. Immediately afterwards the wife went abroad, and has ever since resided abroad. The husband continued to be domiciled in Scotland, where he brought a suit for a divorce against his. wife, founded upon the charge of adultery. The pre- liminary question presented was, whether, even assuming the parties to be domiciled in Scotland, the suit could be maintained in Scotland for a divorce from an English marriage, which was by the law of England indissoluble. The Court of Session affirmed the jurisdiction to decree the divorce; and this decree was upon the appeal confirmed by the House of Lords. 2265. Very elaborate judgments were delivered by Lord Brougham and Lord Lyndhurst upon this occasion. The direct point decided was, that the courts of Scotland had by the laws of Scotland a clear jurisdiction to decree a divorce in such a case between parties actually domiciled in Scotland, notwithstanding the marriage was contracted in England; and that the House of Lords, sitting as a court of appeal in a case coming from Scot- land, was bound to administer the law of Scotland. The court did not however decide what effect that divorce would have or ought to have in England, if it should be brought in question in an English court of justice.? Lolley’s Case was a good deal dis- cussed ; and, without being overturned as to its professed general doctrine, must be now deemed to be greatly shaken, except as a decision upon its own peculiar circumstances. 226 ce. But although the general question as to the indissolu- bility of an English marriage, so far at least as it could arise in England upon a litigation there, was left undecided, Lord Brougham in delivering his judgment went into an elaborate examination of the general principles of international law upon 1 Warrender v. Warrender, 9 Bligh, 89; 2 Cl. & F. 488. 3 Tbid. CHAP. VII.] FOREIGN DIVORCES. 295 this subject. It cannot therefore but be acceptable to the learned reader to have in the subjoined note a summary of the reasoning by which this distinguished judge maintained the opinion that, upon principles of public law, a divorce from an English marriage, made by a competent court of a foreign country where the parties are domiciled, ought to be deemed in England to dissolve the marriage, and to confer upon the parties all the rights arising from a lawful dissolution. 1 His lordship’s reasoning was in substance to the following effect (9 Bligh, 110): ‘ The general principle is denied by no one, that the lex loci is to be the governing rule in deciding upon the validity or invalidity of all personal con- tracts. This is sometimes expressed, and I take leave to say inaccurately expressed, by saying that there is a comitas shown by the tribunals of one country towards the laws of the other country. Such-a thing*as comitas or courtesy may be said to exist in certain cases, as where the French courts inquire how our law would deal with a Frenchman in similar or parallel civ- cumstances, and, upon proof of it, so deal with an Englishman in those circum- stances. This is truly a comitas, and can be explained upon no other ground; and I must be permitted to say, with all respect for the usage, it is not easily reconcilable to any sound reason. But when the courts of one country consider the laws of another in which any contract has been made, or alleged to have been made, in construing its meaning or ascertaining its existence, they can hardly be said to act from courtesy, ex comitate, for it is of the essence of the subject-matter to ascertain the meaning of the parties, and that they did so- lemnly bind themselves; and it is clear that you must presume them to have intended what the law of the country sanctions or supposes, and equally clear that their adopting the forms and solemnities which that law prescribes, shows their intention to bind themselves, — nay more, it is the only safe criterion of their having entertained such an intention. Therefore the courts of the coun- try where the question arises resort to the law of the country where the contract was made, not ex comitate, but ex debito justitie; and in order to explicate their own jurisdiction by discovering that which they are in quest of, and which alone they are in quest of, the meaning and intent of the parties. But whatever may be the foundation of the principle, its acceptance in all systems of jurisprudence is unquestionable. Thus, a marriage, good by the laws of one country, is held good in all others where the question of its validity may arise. For why? The question always must be, Did the parties intend to contract marriage? And if they did what in the place they were in is deemed a marriage, they cannot reasonably, or sensibly, or safely, be consi- dered otherwise than as intending a marriage contract. The laws of each nation lay down the forms and solemnities, a compliance with which shall be deemed the only criterion of the intention to enter into the contract. -If those laws annex certain qualifications to parties cireumstanced in a particular way, or if they impose certain conditions precedent on certain parties, this falls ex- actly within the same rule; for the presumption of law is, in the one case, that the parties are absolutely incapable of the consent required to make the con- tract, and, in the other case, that they are incapable until they have complied with the conditions imposed. I shall only stop here to remark that the Eng- 296 CONFLICT OF LAWS. [s. 227. 227. Questions raised. —If in any nation the doctrine shall ever be established in regard to marriages, that the law of the place lish jurisprudence,, while it adopts this principle in words, would not perhaps, in certain cases which may be put, be found very willing to act upon it through- out. Thus, we should expect that the Spanish and Portuguese courts would hold an English marriage avoidable between uncle and niece, or brother and sister-in-law, though solemnized under papal dispensation, because it would clearly be avoidable in this country. But I strongly incline to think that our courts would refuse to sanction, and would avoid by sentence, a marriage be- tween those relatives contracted in the Peninsula under dispensation, although beyond all doubt such a marriage would there be valid by the lex loci contrac- tus, and incapable of being set aside by any proceedings in that country. But the rule extends, I apprehend, no further than to the ascertaining of the vali- dity of the contract and the meaning of the parties, that is, the existence of the contract and its construction. If indeed there go two things under one and the same hame in different countries, — if that which is called marriage is of a different nature in each, — there may be some room for holding that we are to consider the thing to which the parties have bound themselves, accord- ing to its legal acceptation in the country where the obligation was contracted. But marriage is one and the same thing substantially ali the Christian world over. Our whole law of marriage assumes this; and it is important to observe that we regard it as a wholly different thing, a different status, from Turkish or other marriages among infidel nations, because we clearly never should recognize the plurality of wives, and consequent validity of second marriages, standing the first, which second marriages the laws of those countries autho- rize and validate. This cannot be put upon any rational ground, except our holding the infidel marriage to be something different from the Christian, and our also holding Christian marriage to be the same everywhere. Therefore all that the courts of one country have to determine is, whether or not the thing called marriage, that known relation of persons, that relation which those courts are acquainted with, and know how to deal with, has been validly con- tracted in the other country where the parties professed to bind themselves. If the question is answered in the affirmative, a marriage has been had, the re- lation has been constituted; and those courts will deal with the rights of the parties under it according to the principles of the municipal law which they administer. But itis said that what is called the essence of the contract must also be judged of according to the lex loci; and as this is somewhat vague, and for its vagueness a somewhat suspicious proposition, it is rendered more certain by adding that dissolubility or indissolubility is of the essence of the contract. Now I take this to be really petitio principii. It is putting the very question under discussion into another form of words, and giving the answer in one way. There are many other things which may just as well be reckoned of the essence as this. If it is said that the parties marrying in England must be taken all the world over. to have bound themselves to live until death or an act of parliament them ‘do part,’’ why shall it not also be said that they have bound themselves to live together on such terms, and with such mutual personal rights and duties, as the English law recognizes and enforces? Those rights and duties are just as much of the essence as dissolubility or indissolubility; and yet all admit, all must admit, that persons married in England and settled in Scot- land will be entitled only to the personal rights which the Scotch law sanctions, CHAP. VII] FOREIGN DIVORCES, 297 of its actual celebration shall prevail, not only as to its original validity, but also as to its mode of dissolution, some other inter- and will only be liable to perform the duties which the Scotch law imposes. In- deed, if we are to regard the nature of the contract in this respect as defined by the lex loci, it is difficult to see why we may not import from Turkey into Eng- land a marriage of such @ nature as that it is capable of being followed by and subsisting with another, polygamy being there of the essence of the contract. The fallacy of the argument ‘‘ that indissolubility is of the essence’? appears plainly to be this: it confounds incidents with essence; it makes the rights under a contract, or flowing from and arising out of it, parcel of the contract; it makes the mode in which judicatures deal with those rights and with the contract itself part of the contract; instead of considering, as in all soundness of prin- ciple we ought, that the contract and all its incidents, and the rights of the parties to it, and the wrongs committed by them respecting it, must be dealt with by the courts of the country where the parties reside, and where the con- tract is to be carried into execution. But at all events this is clear, and it seems decisive of the point that if on some such ground as this a marriage indissoluble by the Jex loci is held to be indissoluble everywhere, so, con- versely, a marriage dissoluble by the lex loci must be held everywhere disso- luble. The one proposition is in truth identical with the other. Now it would follow from hence, or rather it is the same proposition, that a marriage contracted in Scotland, where it is dissoluble by reason of adultery or of non- adherence, is dissoluble in England, and that at the suit of either party. Therefore a wife married in Scotland might sue her husband in our courts for adultery or for absenting himself four years, and ought to obtain a divorce a vineulo matrimonii. Nay, if the marriage had been solemnized in Prussia, either party might obtain a divorce on the ground of incompatibility of tem- per: and if it had been solemnized in France during the earlier period of the Revolution, the mere consent of the parties ought to suffice for dissolving it here. Indeed, another consequence would follow from this doctrine of con- founding with the nature of the contract that which is only a matter touching the jurisdiction of the courts, and their power of dealing with the rights and duties to it. If there were a country in which marriage could be dissolved without any judicial proceeding at all, merely by the parties agreeing in pais to separate, every other country ought to sanction a separation had in pais there, and uphold a second marriage contracted after such separation. It may safely be asserted that so absurd a proposition never could for a moment be entertained; and yet it is not like, but identical with, the proposition upon which the main body of the appellant’s argument rests, that the question of indissoluble or dissoluble must be decided in all cases by the lex loci. Hither- to we have been considering the contract as to its nature and solemnities, and examining how far, being English, and entered into with reference only to England, it could be dissolved by a Scotch sentence of divorce. But the circumstances of parties belonging to one country marrying in another (which is the case at bar) presents the question in another light. .In personal con- tracts much depends upon the parties having regard to the country where it is to be acted under and to receive its execution — upon their making the contract with a view to its execution in that country. The marriage contract is empha- tically one which parties make with an immediate view to the usual. place of their residence. An Englishman marrying in Turkey contracts a, marriage of 298 CONFLICT OF LAWS. fs, 27, esting questions will still remain for decision. In the first place, will any foreign court have a right to entertain jurisdiction to an English kind, that is, excluding plurality of wives, because he is an Eng- lishman, and only residing in Turkey and under the Mahometan law acciden- tally and temporarily, and because he marries with a view of being a married man and having a wife in England and for English purposes; consequently the incidents and effects, nay, the very nature and essence (to use the lan- guage of the appellant’s argument) must be ascertained by the English and not by the Turkish law. So of an Englishman marrying in Prussia, where incompatible temper, that is, disagreement, may dissolve the contract. Ashe marries with a view to English domicil his contract will be judged by English law, and he cannot apply for a divorce here upon the ground of incompatible tempers. In like manner a domiciled Scotchman may be said to contract not an English but a Scotch marriage, though the consent wherein it consists may be testified by English solemnities. The Scotch parties, looking to residence and rights in Scotland, may be held to regard the nature and incidents and consequences of the contract, according to the law of that country, their home; a connection formed for cohabitation for mutual comfort, protection and en- dearment, appears to be a contract having a most peculiar reference to the con- templated residence of the wedded pair; the home where they are to fulfil their mutual promises, and peform those duties which were the objects of the union; in a word, their domicil; the place so beautifully described by the civilian, ‘Locus, ubi quisque larem suum posuit sedemque fortunarum suarum, unde cum proficiscitur peregrinare videtur, quo cum revertitur redire domum.”’ It certainly may well be urged, both with a view to the general question of lex loci, and especially in answering the argument of the alleged essential quality of indissolubility, that the parties to a contract like this must be held empha- tically to enter into it with a reference to their own domicil and its laws; that the contract assumes as it were a local aspect, but that at any rate, if we infer the nature of any mutual obligation from the presumed intentions of the parties, and if we presume those intentions from supposing that the parties had a particular system of laws in their eye (the only foundation of the argu- ment for the appellant), there is fully more reason to suppose they had the law of their own home in their view, where they purposed to live, than the law of the stranger under which they happened for the moment to be. : ‘ Suppose we take now another but a very obvious and intelligible view of the subject, and regard the divorce not as a remedy given to the injured party by freeing him from the chain that binds him to a guilty partner, but as a punishment inflicted upon crime for the purpose of preventing its repetition, and thus keeping public morals pure. The language of the Scotch acts plainly countenances this view of the matter, and we may observe how strongly it bears upon the present question. No one can doubt that every state has the right to visit offences with such penalties as to its legislative wisdom shall seem meet. At one time adultery was punishable capitally in England; it is 80 in certain cases still by the letter of the Scotch law. Whoever committed it must have suffered that punishment had the law been enforced, and without regard to the marriage of which he had violated the duties having been con- tracted abroad. Indeed, in executing such statutes no one ever heard of a question being raised as to where the contract had been made. Suppose again that the proposition frequently made in modern times were adopted, CHAP, VII.] FOREIGN DIVORCES. 299 decree a divorce for causes justified by the law of the matrimonial domicil? Will the like right exist where no divorce is grantable and adultery were declared to be a misdemeanor, could any one, tried for it either here or in Scotland, set up in his defence, that to the law of the coun- try where he was married there was no such offence known? In like manner if a disruption of the marriage. tie is the punishment denounced against the adulterer for disregarding its duties, no one can pretend that the tie being declared indissoluble by the laws of the country where it was knit, could afford the least defence against the execution of the law declaring its dissolution to be the penalty of the crime. Whoever maintains that the Scotch courts are to take cognizance of the English law of indissolubility, when called upon to inflict the penalty of divorce, must likewise be prepared to hold that, in punishing any other offence, the same courts are to regard the laws of the state where the culprit was born, or where part of the transaction passed; that, for example, a forgery being committed on a foreign bill of exchange, the punishment awarded by the foreign law is to regulate the visita- tion of the offence under the law of Scotland. It may safely be asserted that no instance whatever can be given of the criminal law of any country being made to bend to that of any other in any partof its administration. When the Roman citizen carried abroad with him his rights of citizenship, and boasted that he could plead in all the courts of the world, ‘‘ civis Romanus sum,”’ his boast was founded not on any legal principle, but upon the fact that his barbarian coun- trymen had overrun the world with their arms, reduced all laws to silence, and annihilated the independence of foreign legislatures. Their orators regarded this very plea as the badge of universal slavery which their warriors had fixed upon mankind. But if any foreigner had come to Rome and committed a crime punishable with loss of civil rights, he would in vain have pleaded in bar of the capitis diminutio, that citizenship was indelible and indestructible in the country of his birth. The lex loci must needs govern all criminal juris- diction from the nature of the thing and the purposes of that jurisdiction. How then can we say that, when the Scotch law pronounces the dissolution of a marriage to be the punishment of adultery, the Scotch courts can be justified in importing an exception in favor of those who had contracted an English marriage; an exception created by the English law, and to the Scotch law unknown? But it may be said that the offence being committed. abroad, and not within the Scotch territory, prevents the application to it of the Scotch criminal law. To this it may however be answered that where a person has his domicil in a given country, the laws of that country to which he owes allegiance may visit even criminally offences committed by him out of his territory. Of this we have many instances in our own jurisprudence. Murder and treason committed by Englishmen abroad are triable in England and punishable here. Nay, by the bill which I introduced in 1811, and which is constantly acted upon, British subjects are liable to be convicted of felony for slave-trading in whatever part of the world committed by them. It would no doubt be going far to hold the wife criminally answerable to the law of Scot- land in respect of her legal domicil being Scotch. But we are here not so much arguing to the merits of this case, which has abundant other ground to rest upon, as to the general principle; and at any rate the argument would apply to the case most frequently mooted, of English married parties living temporarily in Scotland, and adultery being there committed by one of them. 300 CONFLICT OF LAWS. [s. 2277. by the lex loci for a similar cause in case of a domestic marriage 2. For instance, could a Consistory Court of England entertain a To such a state of facts the whole argument now adduced is applicable in its full force; and without admitting that application I do not well see how we can hold that the Scotch legislature ever possessed that supreme power which is absolutely essential to the very nature and existence of a legislature. If we deny this application, we truly admit that the Scottish parliament had no right to punish the offence of adultery by the penalty of divorce. N ay, we hold that English parties had a right to violate the Scotch criminal law with perfect impunity in one essential particular; for, suppose no other penalty had been provided by the Scotch law, except divorce, all English offenders against that law must go unpunished. Nay, worse still, all Scotch parties who chose to avoid the punishment had only to marry in England, and then the law, the criminal law of their own country, became inoperative. The gross absurdity of this strikes me as bearing directly upon the argument, and as greater than that of any consequences which I remember to have seen deduced from almost any disputed position. It may further be remarked that this argument applies equally to the case, if we admit that the Scotch divorce is invalid out of Scot- land, and consequently that it stands well with even the principles of Lolley’s Case. In order to dispose of the present question, it is not at all necessary on the one side to support, or on the other to impeach, the authority of. Lolley’s Case, or of any other which may have been determined in England upon that authority. This ought to be steadily borne in mind. The resolu- tion in Lolley’s Case was that an English marriage could not be dissolved by any proceeding in the courts of any other country for English purposes ; in other words, that the courts of this country will not recognize the: validity of the Scotch divorce, but will hold the divorced wife dowable of an English estate, the divorced husband tenant thereof by the curtesy, and either party guilty of felony by contracting asecond marriage in England. Upon the force and effect of such a divorce in Scotland, and for Scotch purposes, the judges gave, and indeed could give, no opinion; and as there would be nothing legally impossible in a marriage being good in one country which was prohibited by the law of another, so, if the conflict of the Scotch and English law be com- plete and irreconcilable, there is nothing legally impossible in a divorce being valid in the one country which the courts of the other may hold to be a nullity. Lolley’s Case therefore cannot be held to decide the present, perhaps not even to affect it in principle. In another point of view it is inapplicable; for, though the decision was not put upon any special circumstance, yet, in fairly considering its application, we cannot lay out of view that the parties were not only married, but really domiciled in England, and had resorted to Scotland for the manifest purpose of obtaining a temporary and fictitious domicil there, in order to give the Scotch courts jurisdiction over them, and enable them to dissolve their marriage; whereas here the domicil of the parties is Scotch, and the proceeding is bona fide taken by the husband in the courts of his own country, to which he is amenable and ought to have free access, and no fraud upon the law of any other country is practised by the suit. It must be added that, in Lolley’s Case, the English marriage had been contracted by English parties, without any view to the execution of the contract at any time in Scotland; whereas the marriage now in question was had by a Scotchman and a woman whom the contract made Scotch, and therefore may be held to have CHAP. Vit] FOREIGN DIVORCES. 301 suit for a divorce a vinculo, for the cause of adultery, in case of a Scottish marriage? Or in such cases is the remedy to be ex- contemplated an execution and effects in Scotland. But although, for these reasons, the support of my opinion does not require that I should dispute the law in Lolley’s Case, I should not be dealing fairly with this important ques- tion if I were to avoid touching upon that subject; and as no decision of this house has ever adopted that rule, or assumed its principle for sound, and acted upon it, I am entitled here to express the difficulty which I feel in acceding to that doctrine, — a difficulty which much deliberation and frequent discussion with the greatest lawyers of the age — I might say both of this and of the last age — has not been able to remove from my mind. If no decision had ever been pronounced in this country, recognizing the validity of Scotch marriages between English parties. going to Scotland with the purpose of escaping from the authority of the English law, I should have felt it much easier to acquiesce in the decision of which I am speaking. For then it might have been said con- sistently enough that whatever may be the Scotch marriage law among its own subjects, and for the government of Scotch questions, ours is in an irre- concilable conflict with it, and we cannot permit the positive enactments of our statute book, and the principles of our common law, to be violated or eluded by merely crossing a river or an ideal boundary line. Nor could any- thing have been more obvious than the consistency of those who, holding that no unmarried parties incapable of marrying here can, in fraud of our law, con- tract a valid marriage in Scotland by going there for an hour, should also hold the cognate doctrine that no married parties can dissolve an English marriage indissoluble here, by repairing thither for six weeks. But upon this firm ground the decisions of all the English courts have long since prevented us from taking our stand. They have held, both the Consistorial judges in Compton v. Bearcroft and those of the common law in Ilderton v. Ilderton, the doctrine uniformly recognized in all subsequent cases, and acted upon daily by the English people, that a Scotch marriage, contracted by English parties in the face and in fraud of the English law, is valid to all intents and purposes, and carries all the real and all the personal rights of an English marriage, affecting in its consequences land and honors and duties and privileges, precisely as it does the most awful and solemn matrimonial contract entered into among ourselves, in our own churches, according to our ritual, and under our own statutes. It is quite impossible after this to say that we can draw the line and hold a foreign law, which we acknowledge all powerful for making the binding contract, to be utterly impotent to dissolve it. Were the sentence of the Scotch court in a declarator of marriage to be given in evidence here, it would be conclusive that the parties were man and wife, and no exception could be taken to the admissibility or the effect of the foreign evidence upon the: ground of the par- ‘ties having been English, and repaired to Scotland for the purpose of escaping the provisions of the English law. A similar sentence of the same court declaring the marriage to be dissolved by the same law of Scotland, is now ‘supposed to be given in evidence between parties who had married in Eng- land. Can it in any consistency of reason be objected to the. reception or to the force of this sentence that the contract had been made, and the parties had resided here? In what other contract of a nature merely personal, in what other transaction between men, is such a rule ever applied, such an arbitrary and gratuitous distinction made, such an exception raised to the universal 302 CONFLICT OF LAWS. [s. 227. clusively pursued in the:domestic forum of the marriage? Who- ever shall diligently consider these questions will not find them position, that things are to be dissolved by the same process whereby they are bound together; or rather, that the tie is to be loosened by reversing the opera- tion which knit it, but reversing the operation according to the same rules? What gave force to the ligament? If a contract for sale of a chattel is made, or an obligation of debt is incurred, or a chattel is pledged in one country, the sale may be annulled, the debt released, and the pledge redeemed by the law and by the forms of another country in which the parties happen to reside, and in whose courts their rights and obligations come in question, unless there was an express stipulation in the contract itself against such voidance, release, or redemption. But at any rate this is certain, that if the laws of one country and its courts recognize and give effect to those of another, in respect of the constitution of any contract, they must give the like recognition and effect to those same foreign laws when they declare the same kind of contract dissolved. Suppose a party forbidden to purchase from another by our equity as adminis- tered in the courts of this country (and we have some restraints upon certain parties which come very near prohibition), and suppose a sale of chattels by one to another party standing in this relation towards each other should be effected in Scotland, and that our courts here should, whether right or wrong, recognize such a rule because the Scotch law would affirm it, surely it would follow that our courts must equally recognize a rescission of the contract of sale in Scotland by any act which the Scotch law regards as valid to rescind it, although our own law may not regard it as sufficient. Suppose a question to arise in the courts of England respecting the execution of a contract thns made in this country, and that the objection of its invalidity were waived for some reason; if the party resisting its execution were to produce either a sen- tence of a Scotch court declaring it rescinded by a Scotch matter done in pais, or were merely to produce evidence of the thing so done, and proof of its amounting by the Scotch law to a rescission of the contract, I apprehend that the party relying on the contract could never be heard to say, ‘‘ The contract is English, and the Scotch proceeding is impotent to dissolve it.” The reply would be, ‘‘ Our English courts have, whether right or wrong, recognized the validity of a Scotch proceeding to complete the obligation, and can no longer deny the validity of a similar but reverse proceeding to dissolve it, — unum- quodque dissolvitur eodem modo, quo colligatur.” Suppose, for another example (which is the case), that the law of this country precluded an infant, or a married woman, from borrowing money in any way, or from binding themselves by deed; and that in another country those obligations could be validly incurred; it is probable that our law and our courts would recognize the validity of such foreign obligations. But.suppose a feme covert had executed a power and conveyed an interest under it to another fenie covert in England, could it be endured that, where the donee of the power produced a release under seal from the feme covert in the same foreign country, a distinc- tion should be taken, and the court here should hold that party incapable of releasing the obligation? Would it not be said that onr courts, having decided the contract of a feme covert to be binding when executed abroad, must, by parity of reason, hold the discharge or release of the feme covert to be valid, if it be valid in the same foreign country? Nor can any attempt succeed, in this argument, which rests upon distinctions taken between mar- a CHAP. VIL] FOREIGN DIVORCES. 303 without serious embarrassment. They are incidentally treated in the Scottish decisions already alluded to, and the reasoning on riage and other contracts, on the ground that its effects govern the enjoyment of real rights in England, and that the English law alone can regulate the rights of landed property. For, not to mention that a Scotch marriage be- tween English parties gives English honors and estates to its issue, which would have been bastard had the parties married or pretended to marry in England, all personal obligations may in their consequences affect real rights in England. Nor does a Scotch divorce, by depriving a widow of dower, or arrears of pin money charged on English property, more immediately affect real estate here, than a bond or a judgment released in Scotland according to Scotch forms discharges real estate of a lien, or than a bond executed, or in- deed a simple contract debt incurred in Scotland, eventually and consequen- tially charges English real estate. It appears to me quite certain that those who decided Lolley’s Case did not look sufficiently to the difficulty of follow- ing out the principle of the rule which they laid down. At first sight, on a cursory survey of the question, there seems no impediment in the way of a judge who would keep the English marriage contract indissoluble in Scotland, and yet allow a Scotch marriage to have validity in England; for it does not immediately appear how the dissolution and the constitution of the contract should come in conflict, though diametrically opposite principles are applied to each. But only mark how that conflict arises, and how, in fact and in practice it must needs arise as long as the diversity of the rules applied is, maintained. When English parties are divorced in Scotland it seems easy to say, ‘* We give no validity to this proceeding in England, leaving the Scotch law to deal with it in that country; and with its awards we do not in any wise interfere.’? But the time speedily arrives when we can no longer refuse to interfere, and then see the inextricable confusion that instantly arises and involves the whole subject. The English parties are divorced, — they return to England, and one of them marries again; that party is met by Lolley’s Case, and treated as afelon. Sofar allissmooth. But what if the second marriage is contracted in Scotland? And what if the issue of that marriage claims an English real estate by descent, or a widow demands her dower? Lolley’s Case will no longer serve the purpose of deciding the rights of the parties; for Lol- ley’s Case is confined to the effects of the Scotch divorce in England, and pro- fesses not to touch, as indeed they who decided it had no authority to touch, the validity of that divorce in Scotland. Then the marriage being Scotch, the lex loci must prevail by the cases of Compton v. Bearcroft, and Ilderton v. Tiderton. All its consequences to the wife and issue must be dealt with by the English courts, and the same judge who, sitting under a commission of gaol delivery, has in the morning sent Mr. Lolley to the hulks for felony, because he remarried in England, and the divorce was insufficient, . sitting at nisi prius in the afternoon, must give the issue of Mr. Lolley’s second mar- riage an estate in Yorkshire, because he remarried in Scotland, and must give it on the precise ground that the divorce was effectual. Thus the divorce is both valid and nugatory, not according to its own nature or the law of any one state, but according to the accident, whether a trans- action which follows upon it, and does not necessarily occur at all, chanced to take place in one part of the island or in the other; and yet the felony of the husband depended entirely upon his not having been divorced 304 CONFLICT OF LAWS. [s. 227. each side is worthy of an exact perusal.1_ The attempt to engraft foreign remedial justice upon domestic institutions has always validly in Scotland, and not at all upon his not being divorced validly in England; and the title of the wife’s issue to the succession, or of herself to dower, depends wholly upon the same husband having been validly divorced in that same country of Scotland. Nor will it avail to contend that the parties marrying in Scotland, after a Scotch divorce, is in fraud of the English rule as laid down in that celebrated case. It may be so; but it is not more in frau- dem legis Anglicane than the marriage was in Compton »v. Bearcroft (Bull. N.P. 118), which yet has been held good in all our courts. Neither will it avail to argue that the indissoluble nature of the English marriage prevents those parties from marrying again in Scotland as well as in England; for the rule in Lolley’s Case has no greater force in disqualifying parties from marry- ing in Scotland, where that is not the rule of law, than the English marriage act has in disqualifying infants from marrying without bauns published, and yet these may, by the law of England, go and marry validly in Scotland. In- deed, if there be any purely personal disqualification or incapacity caused by the law, and which, more than any other, may be said to travel about with the party, it is that which the law raises upon a natural status, as that of infancy, and fixes on those who, by the order of nature itself, are in that condition, and unable to shake it off, or by an hour to accelerate its termination. If, in a manner confessedly not clear, and very far from being unincumbered with doubt and difficulty, we find that manifest and serious inconvenience is sure to result from one view, and very little in comparison from adopting the opposite course, nothing can be a stronger reason for taking the latter. Now surely it strikes every one, that the greatest hardships must occur to parties, the great- est embarrassment to their rights, and the utmost inconvenience to the courts of justice in both countries, by the rule being maintained as laid down in Lolley’s Case: the greatest hardship to parties —for what can be a greater grievance than that parties living bona fide in England, though temporarily, should either not be allowed to marry at all during their residence here, or if they do, and afterwards return to their own country, however great its distance, that they must be deprived of all remedy in case of misconduct, however ag- gravated, unless they undertake a voyage back to England, ay, and unless they can comply with the parliamentary forms in serving notices? the greatest em- barrassment to their rights — for what can be more embarrassing than that a person’s status should be involved in uncertainty, and should be subject to change its nature, as he goes from place to place; that he should be married in one country, and single, if not a felon, in another; bastard here, and legitimate there? the utmost inconvenience to the courts — for what inconvenience can be greater than that they should have to regard a person as married for one purpose and not for another, single and a felon if he marries a few yards to the southward, lawfully married if the ceremony be performed a few yards to the north, a bastard when he claims land, legitimate when he sues for personal succession, widow when she demands the chattels of her husband, his concu- bine when she counts as dowable of his land? It is in vain to remind us of the opportunity which a strict adherence to the lex loci, with respect to disso- lution of the contract, would give to violators of our English marriage law. ' See Fergusson on Mar. & Div. Appx. 383-422. CHAP. VIL] FOREIGN DIVORCES. 305 been found extremely difficult, and as we shall hereafter see has led to the conclusion, that the safest and best rule is to give This objection comes too late. Before the validity of Scotch marriages had been supported by decisions too numerous and too old for any question, this argument ab inconvenienti might have been urged and set against those other reasons which I have adduced, drawn from the same consideration. But we have it now firmly established as the law of the land, and daily acted upon by persons of every condition, that, though the law of England incapacitates par- ties from contracting marriage here, they may go for a few minutes to the Scotch border, and be married as effectually as if they had no incapacity what- ever in their own country, and then return, after eluding the law, to set its prohibitions at defiance without incurring any penalty, and to obtain its aid without any difficulty in securing the enjoyment of all the rights incident to the married state. Surely there is neither sense nor consistency in complain- ing of the risk, infraction, or evasion arising to the English law from support- ing Scotch divorces, after having thus given to the Scotch marriages the power of eluding, and breaking, and defying that law for so many years. ‘T have now been commenting upon Lolley’s Case on its own principle, that is, regarding it as merely laying down arule for England, and prescribing how a Scotch divorce shall be considered in this country, and dealt with by its courts. I have felt this the more necessary, because I do not see, for the rea- sons which have occasionally been adverted to in treating the other argument, how, consistently with any principle, the judges who decided the case could limit its application to England, and think that it did not decide also on the validity of the divorce in Scotland. They certainly could not hold the second English marriage invalid and felonious in England, without assuming that the Scotch divorce was void even in Scotland. In my view of the present question, therefore, it was fit to show that the Scotch courts have a good title to consi- der the principle of Lolley’s Case erroneous even as an English decision. This, it is true, their lordships have not done ; and the judgment now under appeal is rested upon the ground of the Scotch divorce being sufficient to de- termine the marriage contract in Scotland only. I must now observe that, supposing (as may fairly be concluded) Lolley’s Case to have decided that the divorce is void in Scotland, there can be no ground whatever for holding that it is binding upon the Scotch courts on a question of Scotch law. If the cases and the authorities of that law are against it, the learned persons who admi- nister the system of jurisprudence are not bound to regard, nay, they are not entitled to regard, an English decision, framed by English judges upon an English case, and devoid of all authority beyond the Tweed. Now I have no doubt at all that the Scotch authorities are in favor of the jurisdiction and support the decision under appeal. But I must premise that, unless it could be shown that they were the other way, my mind is made up with respect to the principle, and I should be for affirming on that ground of principle alone, if precedent or dicta did not displace the argument. The principle I hold so clear, upon grounds of general law, that the proof is thrown, according to my view, upon those who would show the Scotch law to be the other way.’ I have given his lordship’s reasoning at large, because it seemed difficult to admit particular passages which have been already cited, or will be cited here- after in other connections, without impairing its true force. Ante, s. 115; post, 8. 259 8. 20 306 CONFLICT OF LAWS. [s. 227-229 a. remedies only to the extent and in the manner which the lex loci justifies and approves.? 228. In America questions respecting the nature and effect of foreign divorces upon domestic marriages, and vice versa, have, as might be expected, not unfrequently been under discussion in our courts. In Massachusetts, in some early cases, the Supreme Court refused to interfere and grant a divorce, where the parties lived in another state at the time the adultery was charged to have been committed, and the libellant had since that time removed into the state. These decisions seem mainly to have proceeded upon the construction of the local statutes, which conferred jurisdiction upon the court in matters of divorce; but it was admitted that the state to which the parties belonged had jursidiction, and could exercise it if it appeared expedient In a later case, where a marriage celebrated in Massachusetts had been dissolved in Vermont, upon a suit by the husband for a divorce, for the cause of extreme cruelty of his wife (a cause inadmissible by the laws of Massa- chusetts to dissolve a marriage), it appearing that the parties had not at the time any permanent domicil in Vermont, but that the husband had gone there for the purpose of obtaining a divorce, the divorce was held a mere nullity, upon the ground that there was no real change of domicil. ‘If,’ said the court, ‘we were to give effect to this decree, we should permit another state to govern our citizens in direct contravention of our own statutes ; and this can be required by no rule of comity.’ 229. In another casé the general question came before the court, whether a marriage celebrated in Massachusetts could be dissolved by a decree of divorce of the proper state court of Ver- mont, both parties being at the time bona fide domiciled in that state, and the cause of divorce being such as would not authorize a divorce a vinculo in Massachusetts. The court decided in the affirmative, upon the ground that the law of the actual domicil must regulate the right. The reasoning of the court was to the following effect: + Regulations on the subject of marriage and divorce are rather parts of the criminal than of the civil code, and 1 See in (English) Law Magazine, vol. 6, p. 32, a review of the English law as to divorces. See on this very point the judgment of Lord Brougham in Warrender v. Warrender, 9 Bligh, 115-118, cited ante, s. 226 c, note. * Hopkins v. Hopkins, 8 Mass. 158; Carter v. Carter, 6 Mass. 263. 8 Hanover v. Turner, 14 Mass. 227,231. See also Barber v. Root, 10 Mass. 265, 266. CHAP, VIL] FOREIGN DIVORCES. 307 apply not so much to the contract between the individuals as to the personal relation resulting from it, and to the relative duties of the parties, to their standing and conduct in the society of which they are members; and these are regulated with a principal view to the public order and economy, the promotion of good morals, and the happiness of the community. A divorce, for example, in a case of public scandal and reproach, is not a vindication of the’ contract of marriage, or a remedy to enforce it, but a species of punishment which the public have placed in the hands of the in- jured party to inflict, under the sanction and with the aid of the competent tribunal, operating as a redress of the injury, when, the contract having been violated, the relation of the parties and their continuance in the marriage state have become intolerable or vexa- tious to them, and of evil example to others. The lex loci there- fore by which the conduct of married persons is to be regulated and their relative duties are to be determined, and by which the relation itself is to be in certain cases annulled, must be always referred, not to the place where the contract was entered into, but where it subsists for the time, where the parties have had their domicil, and have been protected in the rights resulting from the marriage contract, and especially where the parties are or have been amenable for any violation of the duties incumbent upon them in that relation.’ ! 229 a. In another case the question as to the jurisdiction to found a suit for a divorce also arose, and it was held that ordi- narily such a suit cannot be entertained unless the parties are bona fide domiciled in the state in which the suit is brought; and that for this purpose the domicil of the husband must be treated as the domicil of his wife. Hence if a husband should bona fide 1 Barber v. Root, 10 Mass. 265. By the Revised Statutes of Massachusetts, 1835, c. 76, s. 9-11, it is declared that no divorce shall be decreed for any cause, if the parties have never lived together as husband and wife in this state. No divorce shall be decreed for any cause which shall have occurred in any other state or country, unless the parties had, before such cause occurred, been living together as husband and wife in this state. No divorce shall be decreed for any cause which shal] have occurred in any other state or country, unless one of the parties was then living in this state. It is also by another section (s. 39) of the same chapter provided that when an inhabitant of this state shall go into any other state or country in order to obtain a divorce for any cause which had occurred here, and whilst the parties resided here, or for any cause which would not authorize a divorce by the laws of this state, a divorce so obtained shall be of no force or effect in this state. 308 CONFLICT OF LAWS. [s. 229 a, 230. remove from Massachusetts to another state with his wife,and there a good cause for a divorce by law should occur, a suit could not be maintained therefor in the courts of Massachusetts." But the court thought that cases might arise, in which the change of domicil of the husband might not deprive the wife of her right to sue for a divorce in the state where they originally lived together.? (a) 1 Harteau v. Harteau, 14 Pick. (Mass.) 181. 2 Ibid. On this occasion Mr. Chief Justice Shaw, in delivering the opinion of the court, said: ‘Much obscurity has, we think, been thrown on the subject by confounding the two questions, which are essentially different, namely, (1) in what cases a party is entitled to claim a divorce, and (2) in what county the libel should be brought. As it is a right conferred by statute, the one question may sometimes depend on the other; for if by the terms of the statute no suit can be instituted, it is very clear that no divorce can be had. But I think there inay be cases where the statute con- fers a right to have a divorce, in which the statute gives a general juris- diction to this court, and yet where the parties do not live, that is, have their domicil, either at the time of the act done or at the time of the suit com- menced, in any county in this commonwealth. If so, there are cases where the statute cannot be literally complied with, and must be construed cy prés according to the intent. Suppose a husband commits adultery, and then pur- chases a house and actually takes up his domicil in another state, but before his wife has joined him, she is apprised of the fact, and immediately files a libel for a divorce, and obtains an order to protect her from the power of her husband, as by law she may. He is an inhabitant of another state, and can in no sense be said to live in any county in this state. And yet it would be difficult to say that she is not entitled to have a divorce here. Supposing, in- stead of the last case, he has actually purchased a house and changed his domi- cil to another state, and there commits adultery, and the wife, not having joined him, and not having left her residence in this state, becomes acquainted with the fact and libels, and obtains a similar order, could she not maintain it? Yet, in the latter case, at the time of the act done, and in the other at the time of the suit instituted, the respondent, one of the parties, certainly did not live in any county of this commonwealth. This suggests another course of inquiry, that is, how far the maxim is applicable to this case, ‘‘that the domicil of the wife follows that of the husband.’”? Can this maxim be true in its application to this subject, where the wife claims to act, and by law, to a certain extent and in certain cases, is allowed to act adversely to her husband? It would oust the court of its jurisdiction in all cases where the husband should change his domicil to another state before the suit is instituted. It is in the power of the husband to change and fix his domicil at his will. If the maxim could apply, a man might go from this county to Providence, take a house, live in open adul- tery, abandoning his wife altogether, and yet she could not libel fora divorce in this state, where till such change of domicil they had always lived. He clearly (a) Divorce Jurisdiction. —In order held necessary by the courts of this to give validity throughout the Unionto country. Where neither party has a decree of divorce, doimicil of the par- even a residence within the state, the ties within the state of the forum is courts of the state resorted to will re- CHAP. VIL] FOREIGN DIVORCES. 309 230. In New York, as far as decisions have gone, they coincide with those of Massachusetts. Thus in a case where the marriage lives in Rhode Island ; her domicil, according to the maxim, follows his; she therefore, in contemplation of law, is domiciled there too; so that neither of the parties can be said to live in this commonwealth. It is probably a just view to consider that the maxim isfounded upon a theoretic identity of person and of interest between husband and wife, as established by law, and the presumption that, from the nature of that relation, the home of the one is that of the other, and intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists where union and harmony prevail. But the law will recognize a wife as having a separate existence, and separate interests, and sep- arate rights, in those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved, or so modified as to esta- blish separate interests, and especially a separate domicil and home, bed and board being put, a part for the whole, as expressive of the idea of home. Otherwise, the parties in this respect would stand upon very unequal grounds, it being in the power of the husband to change his domicil at -will, but not in that of the wife. The husband might deprive the wife of the means of enforcing her rights, and, in effect, of the rights themselves, and of the protection of the laws of the commonwealth, at the same time that his own misconduct gives her a right to be rescued from his power on account of his own misconduct towards her. Dean v. Richmond, 5 Pick. (Mass.) 461; Barber v. Root, 10 Mass. 260. The place where the marriage was had seems to be of no importance. The law looks at the relation of husband and wife as it subsists and is regulated by our laws, without considering under what law or in what country the marriage was contracted. The good sense of the thing seems to be, if the statute will permit us to reach it, that where parties have bona fide taken up a domicil in this commonwealth, and have ‘resided under the protection and subject to the control of our laws, and, during the continuance of such domicil, one does an act which may entitle the other to a divorce, such divorce shall be granted, and the suit for it enter- tained, although the act was done out of the jurisdiction, and whether the act be a crime, which would subject a party to punishment or not; that after such right has accrued, it cannot be defeated either by the actual absence of the other party, however long continued animo revertendi, or by a colorable change of domicil, or even by an actual change of domicil; and that it shall not be considered in law that the change of domicil of the husband draws after it the domicil of the wife to another state, so as to oust the courts of this state of their jurisdiction, and deprive the injured wife of the protection of the laws of this commonwealth and of her right to a divorce. But where the parties have bona fide renounced their domicil in this state, though married here, and taken up a domicil in another state, and there live as man and wife, and an act is done by one which, if done in this state, would entitle the other to a divorce, and one of the parties comes into this state, the courts of this com- monwealth have not such jurisdiction of the parties, and of their relation as fuse to entertain suit for divorce, un- Fossen v. State, 37 Ohio St. 317; less authorized by statute. Blumen- Lyon v. Lyon, 2 Gray, (Mass.) 367. thal ». Tannenholz, 31 N. J. Eq. 194; And concerning the force of a decree Calef v. Calef, 54 Me, 365. See Van in such a case when authorized by sta- 310 CONFLICT OF LAWS. [s. 230. was in that state, and afterwards the wife went to Vermont and instituted a suit for divorce there for a cause not recognized husband and wife, as to warrant them in saying that the marriage should be dissolved. ‘The case of Barber v. Root is an authority for saying that such a divorce would not be valid in New York. It is of importance that such a question should be regulated, if possible, not by local law or local usage, under which the marriage relation should be deemed subsisting in one state and dis- solved in another; but upon some general principle which can be recognized in all states and countries, so that parties who are deemed husband and wife in one shall be held so in all. So many interesting relations, so many colla- teral and derivative rights of property and of inheritance, so many correlative duties, depend upon the subsistence of this relation, that it is scarcely possible to overrate the importance of placing it upon some general and uniform prin- ciple which shall be recognized and adopted in all civilized states.’ tute, it is laid down that no effect will be allowed to it beyond the state in which it was made, even though the parties both submitted to the ju- risdiction of the divorce court. Van Fossen v. State, supra. It is very clear that this will be true where the plaintiff has gone from the state of the domici] into the state of the forum to avoid the laws of his or her own state, and obtain a divorce by the laws of the other state, though the defendant appeared. Smith v. Smith, 13 Gray (Mass.) 209; Lyon v. Lyon, 2 Gray (Mass.) 867; Chase v. Chase, 6 Gray (Mass.) 157; Shannon v, Shannon, 4 Allen (Mass.) 134; Se- wall v. Sewall, 122 Mass. 156; Loud », Loud, 129 Mass. 14,18. And it may be shown that no bona fide residence had been acquired in the state of the divorce. Platt’s Appeal, 80 Penn. St. 501; Kinnier v. Kinnier, 45 N. Y. 5385; Lyon v. Lyon, 2 Gray (Mass.) 369; Leith v. Leith, 39 N. H. 20; Cox v. Cox, 19 Ohio, 502; Vischer v. Vischer, 12 Barb. 640; Thompson v. State, 28 Ala. 12; Kerr v. Kerr, 41 N. Y. 272; Reel v. Elder, 62 Penn. St. 308. Whether the decree would be invalid where there was no fraudu- lent purpose in the departure is not clear. See Loud v. Loud, supra. The Ohio court lay down the proposi- tion broadly, and refuse to accord validity to any foreign decree made between non-residents. Wan Fossen v. State, supra. See Chase v. Chase, supra. On the other hand it is often stated that husband and wife may, for the purposes of divorce, acquire separate domicils; and this view has actually been adopted in one or two cases. Harding v. Alden, 9 Greenl. (Me.) 140. As containing dicta to the same ef- fect, see Cheever v. Wilson, 9 Wall. 108, 124. (The defendant appeared to the action.) Van Fossen v. State, 387 Ohio St. 317; Kline v. Kline, 57 Ia. 386; Irby v. Wilson, 1 Dev. & B. Eq. (N. C.) 568, 582; Ditson v. Ditson, 4 R. I. 87, 108; Harteau v. Harteau, 14 Pick. 181, 186. The effect of this doctrine in connection with the rule that the wife’s domicil follows that of the husband, is that if the husband leave his wife and acquire a domicil in another state, she becomes thereby a citizen of the new state even against her will, and is of course bound, like other citizens, by its laws. There- fore a decree of divorce obtained by the husband, though without notice or appearance, would bind her, if autho- rized by the local law, not only in that state but everywhere else. In- deed it has been held that a divorce obtained by a wife who has acquired a residence in a state not that of the husband’s domicil, will be valid * CHAP. VIL] FOREIGN DIVORCES. 311 by the laws of New York, against her husband who remained domiciled in New York, the Supreme Court of the latter state everywhere, regardless of notice or appearance. Harding v. Alden, 9 Greenl. (Me.) 140. And see Ditson v. Ditson, 4 R.1. 87. But that clearly is wrong. People v. Baker, 76 N. Y. 78; Prosser v. Warner, 47 Vt. 667; Lyon v. Lyon, 2 Gray, 367. And that it is extremely doubtful if the husband can go into another state or country, and there acquire a domicil such as will ipso facto draw the wife within the same jurisdiction, see the remarks of James, L.J. in Harvey v. Farnie, 6 P. D. 35, 47; of Lord West- bury in Pitt v. Pitt, 4 Macq. 640; and of the president of the court in Briggs v. Briggs, 5 P. D. 163, 165. And * Borden v. Fitch, 15 Johns. (N. Y.) 121, is an express decision to the effect that the acquisition of a new domicil by the husband does not draw the wife into the same jurisdiction. It is no doubt correct for most pur- poses to say that the wife’s domicil follows the husband’s. Thus if a Scotchman or a foreigner go to Eng- land and marry an Englishwoman there, her domicil becomes instantly changed to that of her husband. Har- vey v. Farnie, 5 P. D. 158; 6 P. D. 35, 46. And then ‘all the rights and consequences arising from the mar- riage are to be determined by the law of that country which . . . becomes the domicil of both parties exactly to the same extent as if they had both been originally of the foreign coun- try.’ Ib., James, L.J. But the hus- band cannot deprive the wife of the right to sue for adivorce by.an abandon- ment of his late residence with inten- tion to acquire a new domicil, or even by actually acquiring a new one. She may still sue in the courts of the state in which she was domiciled with her husband. Shaw v. Shaw, 98 Mass. 158; Harteau ». Harteau, 14 Pick. 181; Bell v. Kennedy, L. R..1 H. L. Se. 307. And in the case of abandon- ment of residence the old domicil con- tinues until the new one is acquired. It was accordingly held in Shaw v. Shaw, supra, that a wife who had gone from Massachusetts as far as Pennsylvania with her husband on the way to Colorado, where they in- tended to acquire a new domicil, might return to Massachusetts, and institute suit there for a divorce for a cause happening in Pennsylvania dur- ing a mere sojourn in that state. Of course on the other hand the wife cannot by removal deprive the husband of the right to sue for divorce in the courts of his domicil; but no decree obtained by either against the other while a bona fide non-resident will have any extra-territorial force unless the defendant was served with process within the state, or appeared. To make divorce valid everywhere the court must have jurisdiction of both of the parties. People v. Baker, 76 N. Y. 78; Kinnier ». Kinnier, 45 N. Y. 585; Hunt v. Hunt, 72 N. Y. 217; Van Fossen v. State, 87 Ohio St..317; Sewall v. Sewall, 122 Mass. 156; Hoffman v. Hoffman, 46 N. Y. 30; People v. Dawell, 25 Mich. 247; Lyon v. Lyon, 2 Gray, 367. The court in Peuple v. Baker considered Kinnier v. Kinnier, and Hunt v. Hunt en- tirely within the rule. Of the last- named case it was said, ‘ That case was close. It went upon the ground, built up with elaboration, that both parties to the judgment were domi- ciled in Louisiana when the judicial proceedings were there begun and continued and the judgment was ren- dered, and were subject to its laws, including those of substituted service of process.’ See also Pennoyer v. Neff, 95 U. S. 714; Collins v. Collins, 80 N. ¥. 1. It may be added that the English 312 CONFLICT OF LAWS. [s. 230, 230 a. refused to carry the decree into effect in regard to alimony, notwithstanding the husband had appeared in the cause,} upon the ground that, there being no bona fide change of the domicil of the parties, it was an attempt fraudulently to evade the force and operation of the laws of New York? The court however abstained from declaring what was the legal effect of the divorce so obtained. In another case, where the marriage was in Con- necticut, and the husband afterwards went to Vermont and insti- tuted a suit there for a divorce against his wife, who never resided there and never appeared in the suit, it was held that the decree of divorce obtained in Vermont was invalid, being in fraudem legis of the state where the parties were married and had their domicil. It was further held that the courts of Ver- mont could not possess a proper jurisdiction over the case, both 1 This does not appear in the statement of facts; but it is averred by coun- sel to appear upon the exemplification of the record of the decree of Vermont. 1 Johns. (N. Y.) 431. 2 Jackson v. Jackson, 1 Johns. (N. Y.) 424. rule in Lolley’s Case is now treated as resting on the ground that the do- micil of the parties was fictitious; the position being abandoned that a fo- reign court cannot dissolve an Eng- lish marriage. Harvey v. Farnie, 6 P. D. 35, 44, 8 App. Cas. 48 (H. L.); Conway v. Beasley, 3 Hagg. Eccl. 639. In Harvey v. Farnie, which has just been affirmed by the House of Lords, it was held that a Scotch de- cree dissolving marriage between a Scotchman, domiciled in Scotland, who had married an Englishwoman in England, the parties both residing in Scotland at the time of the suit, was valid. M’Carthy v. Decaix, 2 Russ. & M. 614, 2 Cl. & F. 568, was much questioned. Much question has been made in England concerning the ground of jurisdiction in cases of divorce in- stituted in England between parties, one of whom is a non-resident. In Niboyet v. Niboyet, 4 P. D. 1 (Ct. of App.), reversing 83 P. D. 52, the court entertained jurisdiction of a cause of divorce against a Frenchman who indeed appeared, but under protest, and prayed to be dismissed. He had lived in England for several years, but only as consul for the French government; his domicil therefore re- maining in France. The decision is criticised in 19 Alb. L. J. 146; and see Westlake, p. 71-77 (ed. 1880); Le Sueur v. Le Sueur, 1 P. D. 139, where jurisdiction was declined; Santo Teodoro v. Santo Teodoro, 5 P. D. 79, where jurisdiction was entertained. And see further, on the effect of mere residence, Brodie »v. Brodie, 2 Sw. & T. 259; Manning v. Manning, 40 L. J. P. &M.18. Ques- tions of this sort are generally regu- lated by statute in this country; concerning which it need only be repeated that no state or country will recognize the divorce laws of another as applied to persons not within their jurisdiction except to the extent of conceding the right of every state to exercise sovereignty over property within its borders. CHAP. VIL] FOREIGN DIVORCES. 313 parties not being within the state, and the wife not having had any personal notice of the suit.1 What would be the effect of a marriage in Connecticut, a subsequent bona fide change of domi- cil to New York, and then a divorce in Connecticut, both parties appearing in the suit, remains as yet undecided. (a) 230 a. Upon the whole the doctrine now firmly established in America upon the subject of divorce is, that the law of the place of the actual bona fide domicil of the parties gives jurisdiction to the proper courts to decree a divorce for any cause, allowed by the local law, without any reference to the law of the place of the original marriage, or the place where the offence for which the divorce is allowed was committed.2(b) Perhaps the doctrine cannot be stated with more clearness than in the reasoning of Mr. Chief Justice Gibson in a recent case. ‘The law of the place,’ says he, ‘is necessarily the law of the marriage for its primitive obligation ; but, except on the principle of perpetual submission to its supremacy in all things, it is not the law of the contract for the determination of its dissolubility. Is then a rule thus founded adapted to the jurisprudence of a country whose law of allegiance is different, and whose asserted right of affilia- tion in respect to those whom it admits on that ground to its civil and political privileges, divorce among the rest, concedes the same right to every other country? Framed on the basis of this law, the contract implies no perpetuity of municipal regula- tion. While the parties remain subject to our jurisdiction, the marriage is dissoluble only by our law; when they are remitted to another, it is incidently remitted along with them. And that consequence must ensue as well when they are remitted to a ju- ‘risdiction entirely foreign, as when they are remitted to that of a sister state; for whatever ultra-territorial force a sentence of divorce by a court of competent jurisdiction may have been 1 Borden »v. Fitch, 15 Johns. (N. Y.) 121. See 2 Kent Com. 108-118. See also Bradshaw v. Heath, 138 Wend. (N. Y.) 407. 2 Pawling v. Bird, 18 Johns. (N. Y.) 192, 208, 209. (a) The question has recently been decided in Texas, the court entertain- ing jurisdiction to grant a divorce in just such a case. Shreck v. Shreck, 82 Tex. 578. But concerning the ef- fect of a decree in such a case when called in question in another state, see note supra. (6) Nor will alimony be granted when both parties are non-residents, though there be property in the state of the one against whom it is asked. Keerl v. Keerl, 84 Md. 21. 314 CONFLICT OF LAWS. [s. 230 a—232. thought to gain from the constitutional precept, that the judg- ment of a state court is to receive the same faith and credit in every other state as in its own, nothing in the Federal constitu- tion or laws has been thought to touch the question of jurisdic- tion; and the members of the Union therefore stand towards each other in relation to it as strangers. With what consistency then would naturalized citizens be allowed our law of divorce, if the validity of a divorce by the law of the domicil in a sister state were disallowed because the marriage had not the same origin? Transfer of allegiance and domicil is a contingency which enters into the views of the parties, and of which the wife consents to bear the risk. By sanctioning this transfer before- hand, we consent to part with the municipal governance incident to it; but with this limitation we part not with the remedy of past transgression,’ ! 230 6. The incidents to a foreign divorce are also naturally to be deduced from the law of the place where it is decreed. If valid there, the divorce will have, and ought in general to have, all the effects in every other country upon personal property locally situated there, which are properly attributable to it in the forum where it is decreed. In respect to real or immovable property, the same effects would in general be attributed to such divorce as would ordinarily belong to a divorce of the same sort by the lex loci rei site. If a dissolution of the marriage would there be consequent upon such a divorce, and would there extin- guish the right of dower, or of tenancy by the curtesy, according to such local law, then the like effects would be attributed to the foreign divorce which worked a like dissolution of the marriage. a Dorsey v. Dorsey, 7 Watts (Penn.) 349; 1 (Boston) Law Reporter, 287, 2 Warrender v. Warrender, 9 Bligh, 127; ante, s. 226, note. CHAP, VIII] FOREIGN CONTRACTS. 315 CHAPTER VIII. FOREIGN CONTRACTS. 231. Subject of the Chapter.— We next come to the considera- tion of the highly important branch of international jurisprudence arising from the conflict of laws in matters of contract generally. This subject has been very much discussed, not only by foreign jurists and foreign courts, but in our own domestic tribunals. The general principles which regulate it have therefore acquired a high degree of certainty; although, upon so complex a topic, many intricate and difficult questions yet remain unsettled. 232. Questions that arise.—It is easy to see that in the com- mon intercourse of different countries many circumstances may be required to be taken into consideration before it can be clearly ascertained what is the true rule by which the validity, obligation, and interpretation of contracts are to be governed. To make a contract valid, it is a universal principle, admitted by the whole world, that it should be made by parties capable to contract; that it should be voluntary; that it should be upon a sufficient consideration ; that it should be lawful in its nature ; and that it should be in its terms reasonably certain. But upon some of these points there is a diversity in the positive and customary laws of different nations. Persons capable in one country are incapable by the laws of another ;? considerations good in one country are insufficient or invalid in another; the public policy of one country permits or favors certain agreements which are prohibited in another; the forms prescribed by the laws of one country, to insure validity and obligation of contracts, are un- known in another ; and the rights acknowledged by one country 1 See on the subject of this chapter, 1 Burge, Col. & For. Law, vol. 1, pt. 1, c. 1, p. 28, 24, 29; Id. vol. III. pt. 8, ¢. 20, p. 749-780; Foelix, Conflit des Lois, Revue Etrangére et Francaise, tom. 7, 1840, s. 89-51, p. 344-865. 2 Ante, s. 31-90. 316. CONFLICT OF LAWS. [s. 232-235. are not commensurate with those belonging to another. A per- son sometimes contracts in one country, and is domiciled in an- other; and is to pay in a third; and sometimes the property which is the subject of the contract is situate in a fourth ; and each of these countries may have different and even opposite laws affecting the subject-matter. What then is to be done in this conflict of laws? What law is to regulate the contract, either to determine the rights, or the remedies, or the defences growing out of it, or the consequences flowing from it? What law is to interpret its terms, and ascertain the nature, character, and extent of its stipulations? Boullenois has very justly said that these are questions of great importance and embrace a wide extent of objects.! 233. Two Texts of the Civil Law.— There are two texts of the civil law which treat of this subject, which have been supposed by civilians and jurists to involve an apparent antinomy. One seems to require that the place where the contract is entered into: should alone govern the contract. ‘Si fundus venierit, ex con- suetudine ejus regionis, in qua negotium gestum est, pro evictione caveri oportet;’? if land shall be sold, it is to be warranted against eviction, according to the law of the country in which the business is transacted. The other, on the contrary, seems to require that the place where the contract is to be executed should govern it. ‘Contraxisse unusquisque in eo loco intelligitur, in quo, ut solveret, se obligavit ;’ every one is understood to have contracted in the place in which he has bound himself to perform the contract.’ 234.. Foreign Jurists. — Dumoulin has endeavored to reconcile these texts, by supposing that the former law, Si fundus, truly and fundamentally presupposes that the contracting parties have their domicil in the place of the contract, and that the contract is there to be executed ; but that the latter law, Contraxisse, ap- plies to the case where the party has bound himself to execute the contract throughout in another place than that in which the 1 2 Boullenois, obs. 46, p. 445. 2 Dig. 21, 2,6; Pothier, Pand. 21,2, n.7. See Everhardus, Concil. 178, p. 207; post, s. 3000. See Bartolus’s interpretation of this law. Bartolus, ad Cod. 1, 1, 1, n. 14-16; post, s. 301. 8 Dig. 44, 7, 21; Pothier, Pand. 5,1,n. 36. To the same effect is the text: ‘ Contractum autem non utique eo loco intelligitur, quo negotium gestum sit, sed quo solvenda est pecunia.’ Dig, 42, 5, 8; Pothier, Pand. 42, 5, n. 24. CHAP. VIIL.] FOREIGN CONTRACTS. 317 contract is made. ‘Sed hic venditor eo ipso se obligat, solutionem et traditionem realem, per se vel per alium facere in loco in quo fundus situs est; ergo, ibi contraxisse, censetur. Et sic lex, Si fundus, ex viva et radicali ratione, presupponit contrahentes habere domicilium in loco contractus.’ 1 Le Brun says that when the doctors say, in commenting on the law, Si fundus, ‘locus contractus regit in contractibus,’ they mean in everything which concerns the manner of contracting, the exterior form of the contract. But that the law of the domicil is to govern in whatever respects the substance and effects of the acts done. However the generality of French authors have reconciled these laws in a different manner, by considering that the place of a con- tract admits of a double meaning ; namely, the place where the contract is entered into, ubi verba proferuntur, and that where the contract is to be executed, where payment is to be made, ubi solutio destinatur.2 They think therefore that the law, Si fundus, is to be understood of the place where the contract is entered into, ubi verba prolata sunt; and that it properly applies to cases where it is necessary to decide upon the form, either of the proof, or the substance, or the constitution, or the mode of the contract, or of its extrinsic ceremonies or solemnities; and that the law, Contraxisse, applies to the case where the question is respecting the rights which spring from the contract of which the execution and performance are referred to another place. 235. Boullenois holds both interpretations unsatisfactory, and insufficient for many occasions ; for they suppose that two places only are to be examined in resolving all questions, the place of the making, and the place of performance of the contract; and in effect they put aside the law of the place of the situs of the thing (rei site), and that of the domicil of the parties, which are often imperative, and on many occasions deserve a preference.6 He adds that there is another difficulty which arises in these mixed questions, which is, that the laws in one place affix to certain clauses a certain sense and a certain effect, and the laws of an- 1 Molin. Comment. in Cod. 1,1, 1; Conclusiones de Statutis Molin. Opera, tom. 8, p. 554; Everhardus, Consil. 178, p. 206, 207; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 851-853; 2 Boullenois, obs. 46, p. 445-447. 2 Le Brun, de la Communauté, liv. 1, ¢. 2, s. 46. 3 2 Boullenois, obs. 46, p. 446, 447; post, s. 299-304. 4 Ibid. See also Everhard. Consil. 78, n. 18, 19, p. 207. 5 2 Boullenois, obs. 46, p. 447. : 318 CONFLICT OF LAWS. [s. 235-237. other place give them a sense and an effect either more extensive or more restrained.! He also informs us that many foreign jurists have warned us against two errors, which constitute the quick- sands of the law on this subject, and which are necessary to be avoided.2 One of these errors is the confounding of those things which belong to the solemnities of the acts, and the effects which result from the nature of the acts, on the one side, with those which belong to the charges or liens which spring up after the acts, purely as accidents, on the other side ;3 the other, the omis- sion in a proper case to have a due regard or deference to the law of the situs ‘or locality of the thing.* 236. Mevius has given us a warning in this matter against confounding the solemnities of acts and contracts, as well as the effects caused by them, with the charges thereof, and extrinsic accidents which follow the contracts, but are not in the contracts themselves. ‘Cave, autem, in hac materia, confundas actuum et contractuum solennia, nec non effectus ac ipsis causatos cum eorum onere, et accidenti extrinseco, quod contractus subsequi- tur, sed ex non ipsis contractibus est. Id, dum multi ignorant, aut non discernunt, forenses maxime ledunt, et gravantur.’> So that, according to Mevius, the law of the place of the contract is to govern, first, as to the solemnities of the act or contract; and secondly, as to the effects caused thereby; but as to the charges (onus) and extrinsic accidents, that it is not to govern. ‘ Forenses servare teneri statuta et consuetudines loci, ubi aliquid agunt, et contrahunt ad validitatem actus et contractus. Statutum enim actus seu contractus semper attenditur, cui disponentes vel con- trahentes se alligare et conformare voluisse censetur.® And speaking afterward upon the charges and extrinsic accidents of acts and contracts, he adds: ‘In his enim, quia non spectant ad formam modumque contrahendi, contractum autem extrinsecus subsequuntur, non sectamur statuta loci contractus.’7 In this system he is not generally followed; and Boullenois has observed that it is very difficult to say what ought to be deemed to belong to the solemnities of contracts, what are the effects caused by 1 Post, s. 275. 2 2 Boullenois, obs. 46, p. 447, 449. 3 Td. p. 447-449, 4 Td. p. 449, 450. 5 Mevius, ad Jus Lubecense, Quest. Prelim. 4, n. 18, p. 22. 6 Id. 4, n. 11, 13, 14, p. 22. 7 Id. 4, n. 18, p. 22; 2 Boullenois, obs. 46, p. 448-450. CHAP. VIII] FOREIGN CONTRACTS. 319 them, and what are the charges and extrinsic accidents resulting from them.! - 237. Burgundus has offered the following system. In relation to express contracts, two things are to be considered, the form and the matter of the contract. (‘ Omnis autem obligandi ratio habeat, necesse est, rem et verba, hoc est, formam et materiam.’ 2) But he adds that it is not indiscriminately permitted to contract in all times and places; but it is very often material with what persons we contract; and all these things will be unavailing, un- less the contract is conformable to the laws. ‘Sed nec omni loco et tempore contrahere licet ; plurimum quoque refert, cum quibus stipulemur. Et sane hee omnia supervacua sint, nisi et secun- dum leges paciscamur.’® These things being premised, Burgun- dus lays down the following rules: first, in everything which regards the form of contracts, and the perfecting of them, the law of the place where the contract is entered into is to be fol- lowed. ‘Et quidem in scriptura instrumenti, in solemnitatibus et ceremoniis, et generaliter in omnibus, que ad formam, ejusque perfectionem pertinent, spectanda est consuetudo regionis, ubi fit negotiatio.”* These he deems the substantials of. the contract (substantialia contractus); and among them he includes the necessity of giving a caution or security upon a sale against any eviction, according to the customary law. So the laws which determine the place and time when and where contracts ought to be made belong to the perfection of the form. ‘Conditio loci et temporis perfectionem formz quoque respiciunt; et ideo re- gione contractus pariter diriguntur.’® In like manner, all special stipulations for a limited responsibility, as of particular heirs only, belong to the form.’ And he concludes by observing that in all questions touching the obligation of the contract, or its interpre- _ tation, (as, for example, whom it binds, and to what extent, what is included, what is excluded from it, also in respect to all actions and all ambiguities arising out of the contract,) we are first to follow what has been done by the parties; or if it does not appear what has been done, the consequence will be that we are to 1 2 Boullenois, obs. 46, p. 447-449. 2 Burgundus, tract. 4, n. 1, p. 100. 8 Td. p. 100, 101; Boullenois, obs. 46, p. 450, 451; post, s. 300 a. * Burgundus, tract. 4, n. 7, n. 29, p. 104, 105. 5 Id. n. 7, p. 105. 6 Tbid. 7 Ibid. 320 CONFLICT OF LAWS. [s. 237-239. follow what is usual in the country where the act took place. For the law is the common instructor of the whole country, whose voice all hear; and, therefore, every one who contracts in another province is not supposed to be ignorant of its customs ; but whatever he does not express plainly he refers to the inter- pretation of the law, and wills and intends that which the law itself wills and intends. And all these things may well be said of the solemnities of contracts. ‘Igitur ut paucis absolvam, quo- ties de vinculo obligationis vel de ejus interpretatione queritur, veluti, quos et in quantum obliget, quid sententiz stipulationes inesse, quid abesse credi oporteat: item in omnibus actionibus, et ambiguitatibus, que inde oriuntur, primum quidem id sequemur, quod inter partes actum erit; aut si non paret, quid actum est, erit consequens, ut id sequamur, quod in regione in qua actum est, frequentatur. Imputandum enim ei est, qui dicit, vel agit, quod apertius legem non dixerit, in cujus potestate erat cuncta complecti, et voluntatem suam verbis exprimere. Nec enim sti- pulator ferendus est, si ejus inter sit aliter actum non esse, cum scire debuerit, id quod a contrahentibus est omissum, suppleri legibus, que haud aliter dirigunt humanas actiones, quam corpora nostra luna alternat. Lex enim communis est preceptrix civitatis, cujus vocem cuncti exaudiunt. Et ideo, qui in aliena provincia paciscitur, non credendus est esse consuetudinis ignarus: sed id, quod palam verbis non exprimit, ad interpretationem legum se referre, atque idem velle, et intendere, quod lex ipsa velit. Et hee quidem cuncta de solemnitate dicta sint.’1 He then passes to the consideration of the matter of the contract, by which he means the things of which it disposes; and he affirms, in respect to the matter, that the law of the situation of the property ought to govern. ‘Czeterum, ut sciamus, an contractus, ex parte ma- teriz utilis sit, vel inutilis, ad leges que, de quibus tractatur, impress sunt, hoc est, ad consuetudinem situs respiciemus.’? He applies the same rule to quasi contracts, as to express contracts: ‘Idem in quasi contractibus, quod in contractibus obtinet.’ 8 1 Burgundus, tract. 4, n. 8, p. 105, 106. 2 Td. tract. 4, n. 8, 9. 8 Id. tract. 5,n. 1. See also 2 Boullenois, obs. 46, p. 450-454, where he has given a summary of the doctrine of Burgundus. Burgundus, in exempli- fying what he means by the matter of the contract, where the law of the situs governs, evidently confines himself to real estate or immovable property. See Everhardus, Consil. 78, n. 18, 19, p. 207; post, s. 299 c. CHAP. VIII] FOREIGN CONTRACTS. 321 238. Hertius has laid down three general rules upon the sub- ject of the operation of foreign law.1_ The first is, that, when the law respects the person, the law of the country to which the party is a subject is to be followed. ‘Quando lex in personam dirigitur, respiciendum est ad leges civitatis, que personam habet subjectam.’* Secondly, when the law respects things, the law of the situs is to govern, wherever and by whomsoever the act may be celebrated. ‘Si lex directo rei imponitur, ea locum habet, ubicunque etiam locorum et a quocunque actus celebretur.’3 Thirdly, when the law imposes any form in the transaction of the business (actus), the law of the place where it is transacted is to govern, and not the law of the domicil of the parties, or of the place where the property is situate. ‘Silex actui formam dat, inspiciendus est locus actus, non domicilii, non rei site.’* This last rule, in an especial manner, he applies to contracts, even when they regard property situated in a foreign country. ‘ Valet etiamsi, bona in alio territorio sunt sita.’ 5 239. Huberus lays down the following doctrine. All business and acts done in court and out of court (or, as we should say, in pais or judicial), whether testamentary or inter vivos, regularly executed in any place according to the law of that place, are valid everywhere, even in countries where a different law pre- vails, and where, if transacted in the like manner, they would have been invalid. On the other hand, business and acts exe- cuted in any place contrary to the law of that place where they are executed, as they are in their origin invalid, never can acquire any validity. And this rule applies not only to persons who are domiciled in the place of the contract, but to those who are com- morant there. There is this exception, however, to be under- stood, that if the rulers of another people would be affected with .any notable inconvenience thereby, they are not bound to give any effect to such business and transactions. ‘Inde fluit hee po- sitio: cuncta negotia et acta, tam in judicio, quam extra judicium, seu mortis causa sive inter vivos, secundum jus certi loci rite celebrata, valent, etiam ubi diversa juris observatio viget, ac ubi 1 Ante, s. 80. 2 1 Hertii Opera, de Collis. Leg. p. 123, 8. 8; Id. p. 175, ed. 1716. 8 Ibid. p. 125, . 9; Id. p. 177, ed. 1716. 4 Ibid. p. 126, s. 10; Id. p. 179, ed. 1716. 5 1 Hertii Opera, de Collis. Leg. s. 4, p. 126, s. 10, ed. 1787; Id. p. 179, 180, ed. 1716; post, 371 a. 21 322 CONFLICT OF LAWS. [s. 239-240. sic inita, quemadmodum facta sunt, non valerent. E contra, ne- gotia et acta certo loco contra leges ejus loci celebrata, cum sint ab initio invalida, nusquam valere possunt; idque non modo re- spectu hominum qui in loco contractus habent domicilium, sed et illorum qui ad tempus ibidem commorantur. Sub hac tamen exceptione; si rectores alterius populi exinde notabili incommodo afficerentur, ut hi talibus actis atque negotiis usum effectumque dare non teneantur, secundum tertii axiomatis limitationem.’! He applies the same doctrine indiscriminately to testamentary acts, to acts inter vivos, and to contracts. ‘Quod de testamentis habuimus, locum etiam habet in actibus inter vivos. Proinde contractus celebrati secundum jus loci, in quo contrahuntur, ubique tam in jure, quam extra judicium, etiam ubi hoc modo celebrati non valerent, sustinentur: idque non tantum de forma, sed etiam de materia contractus affirmandum est.’? He adds that the place where a contract is entered into is not to be so precisely regarded that if the parties had another country in view in making the contract, that ought not rather to be considered. ‘Verum tamen non ita precise respiciendus est locus, in quo con- tractus est initus, ut, si partes alium locum respexerint, ille non potius sit considerandus.’? But here the same restriction is to apply, that no injury arise thereby to the citizens of the foreign country in regard to their ownrights. ‘ Datur et alia limitationis seepe dictz applicatio in hoc articulo; effecta contractuum certo loco initorum, pro jure loci illius alibi quoque observantur, si nullum inde civibus alienis creetur prejudicium, in jure sibi queesito ; ad quod potestas alterius loci non tenetur, neque potest extendere jus diversi territorii.’4 And he deduces the following general conclusion, that if the law of a foreign country is in con- flict with the law of our own country, in which a contract is also entered into, conflicting with another contract which is entered into elsewhere, in such a case our own law ought to prevail, and not the foreign law. ‘ Ampliamus hanc regulam tali extensione. Si jus loci in alio imperio pugnet cum jure nostra civitatis, in qua contractus etiam initus est, confligens cum eo contractu, qui alibi celebratus est, magis est, ut jus nostrum, quam jus alienum, servemus,’ 5 1 2 Huberus, de Confl. Leg. lib. 1, tit. 3, 8. 3, 2 Thid. s. 5-9. 2 Thid. s. 10; post, s. 281, 299. 4 2 Huberus, lib. 1, tit. 1, s. 11. 5 Huberus, lib. 1, tit. 3, 5. 11. : OHAP. VIII.] FOREIGN’ CONTRACTS. 323 239 a. Bartolus, on the subject of contracts between foreigners in another country, has expressed himself to the following effect: That we are to distinguish whether the question is (1) as to the law or custom which regulates the solemnities of the contract ; or (2) as to the institution of the remedy ; or (3) as to those things which belong to the jurisdiction in executing the contract. In the first case, the law of the place of the contract is to govern ; in the second case, the law of the place where the suit is instituted. But in the third case, as to those things which arise from the nature of the contraét at the time when it was made, or those which arise afterwards on account of negligence or delay, the law of the place of the contract is to govern. ‘Et primo, quero quid de contracti- bus? Pone contractum celebratum per aliquem forensem in hac civitate ; litigium ortum est, et agitatur lis in loco originis contra- hentis ; cujus loci statuta debent servari, vel spectari? Distingue, aut loquimur de statuto, aut de consuetudine, que respiciunt ipsius contractus solemnitatem, aut litis ordinationem, aut de his que pertinent ad jurisdictionem ex ipso contractu evenientis exe- cutionis. Primo casu, inspicitur locus contractus. Secundo casu, aut queris de his, que pertinet ad litis ordinationem, et inspicitur locus judicii. Autde his que pertinent ad ipsius litis decisionem ; et tunc, aut de his, que oriuntur secundum ipsius contractus natu- ram tempore contractus, aut de his, que oriuntur ex post facto propter negligentiam, vel moram. Primo casu, inspicitur locus contractus.’ 1 ° 240. Boullenois has discussed this subject in a most elaborate manner; and has laid down a number of rules, which are en- titled to great consideration.? First: The law of the place where a contract is entered into is to govern as to everything which concerns the proof and authenticity of the contract and the faith which is due to it; that is to say, in all things which regard its solemnities or formalities.2 Secondly: The law of the place of the contract is generally to govern in everything which forms the obligation of the contract (le lien du contrat), or what is 1 Bartol. Comment. ad Cod. 1, 1, n. 18, cited also 2 Boullenois, obs. 44, p. 455, 456. 2 2 Boullenois, obs. 46, p. 445-538. Mr. Henry has laid down the first eight rules of Boullenois as clear law, without the slightest acknowledgment of the source whence they are taken. In fact, his treatise is in substance taken from Boullenois, whose name, however, occurs only once or twice in it. 2 2 Boullenois, obs. 46, p. 458. 324 CONFLICT OF LAWS. [s. 240-242. called vinculum obligationis.1 Thirdly: The law of the place of the contract is to govern as to the intrinsic and substantive form of the contract.2 Fourthly: When the law has attached certain formalities to the things themselves which are the subject of the contract, the law of their situation is to govern.? This rule is ap- licable to contracts respecting real estates. Fifthly: When the law of the place of the contract admits of dispositions or acts which do not spring properly from the nature of the contract, but have their foundation in the state and condition of the person, there the law which regulates the person, and upon which his state depends, is to govern.! Sizthly: In questions whether the rights which arise from the nature and time of the contract are lawful or not, the law of the place of the contract is to govern.® Seventhly : In questions concerning movable property, of which the delivery is to be instantly made, the law of the place of the contract is to govern.® Highthly : If the rights which arise to the profit of one of the contracting parties in fact arise under a con- tract valid in itself, and not subject to rescission, but arise from a new cause purely accidental, and ex post facto; in this case the law of the place where these rights arise is to govern, unless the parties have otherwise stipulated.’ Ninthly: These rules are to govern equally, whether the contestation be in a foreign tribunal or in a domestic tribunal having proper jurisdiction over the con- troversy.6 Zenthly : In questions upon the true interpretation of any clauses in a contract or in a testament, the accompanying circumstances ought ordinarily to decide them.® 241. Rules of the Common Law.— Without entering further into the examination of the opinions and doctrines of foreign jurists (a task which would be almost endless), we shall now proceed to the consideration of those doctrines touching contracts made in foreign countries, which appear to be recognized and settled in the jurisprudence of the common law. The law which is to govern in relation to the capacity of the parties to enter 1 Ibid. 2 Td. p. 467. 8 Tbid. 4 Ibid.; post, s. 437. 6 Id. p. 472. 6 Id. p. 475. 1 Id. p. 477." 8 Td. p. 489. aes ® 2 Boullenois, obs. 46, p. 489. See also Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 39, p. 344-346. 7° The learned reader who wishes for further instructions as to the opinions of foreign jurists on all these points will find many of them collected in 2 Boul- lenois, obs. 46, from p. 458-538. CHAP. VIII] FOREIGN CONTRACTS. 325 into a contract has been already fully considered.'! It has been shown that although foreign jurists generally hold that the law of the domicil ought to govern in regard to the capacity of per- sons to contract,* yet that the common law holds a different doctrine, namely, that the lex loci contractus is to govern.? 242. (1.) Lex Loci Contractus.— Validity. — Generally speaking, the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed in another country ; for, as we shall presently see, in the latter case, the law of the place of performance is to govern.* If valid there, it is by.the general law of nations, jure gentium, held valid everywhere, by the tacit or implied consent of the parties. (a) The rule is founded, 1 Ante, s. 51-79. 2 Ibid. In addition to the foreign authorities already cited, we may add that of Cochin and D’Aguesseau. The former says that the subjects of the king of France are always subjects, and they cannot break the bonds which attach them to his authority; and parties contracting in a foreign country can- not possess any capacity to contract but according to the law of their own country. It is a personal law which follows them everywhere. Cochin, (Euvres, tom. 1, p. 153, 154; Id. 545, 4to ed.; Id. tom. 4, p. 555, 4to ed. ‘ When,’ says D’ Aguesseau, ‘the question is as to an act purely personal, we consider only the law of the domicil. That alone commands all persons who are subject to it. Other laws cannot make those capable or incapable who do not live within their reach. And this is what Bartolus intended to remark when he said, statutum non potest habilitare personam sibi non subjectam.’ D’ Aguesseau, CEuvres, tom. 4, p. 639, 4th ed. 3 See ante, s. 51-54, 100-106. See also Male v. Roberts, 3 Esp. 163; Thompson v. Ketcham, 8 Johns. (N. Y.) 189; Liverm. Dissert. p. 34, s. 21, p. 35; Id. s. 22-24, p. 88; Id. s. 26, 27, p. 40; Id. s. 31, p. 42; Id. s. 33, p. 43, s. 85; Andrews v. His Creditors, 11 La. 464, 476. * Post, s. 280. 5 Pearsall v. Dwight, 2 Mass. 88, 89. See Casaregis, Disc. 179, s. 1, 2; Willing v. Consequa, 1 Pet. C. C. 317; 2 Kent Com. 457, 458; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, 221, 228; Smith v. Mead, 8 Conn. 253; Medbury v. Hopkins, 8 Id. 472; Houghton v. Page, 2 N. H. 42; Dyer v. Hunt, 5 Id. 401; Erskine’s Inst. B. 3, tit. 2, s. 39-41, p. 514-516; Trimbey v. Vig- nier, 1 Bing. N. C. 151, 159; 4 Moore & Scott, 695; Andrews v. Pond, 13 Pet. 65; Andrews v. His Creditors, 11 La. 465; Fergusson v. Fyffe, 8 Cl. & Fin. 125; post, s. 816 a4; Bayley on Bills, c. (A.) Sth ed. by F. Bayley, p. 78; Id. (a) See White v. Hart, 18 Wall. 646; v. McLean, 24 Iowa, 3829; Bond v. Black v. Zacharie, 3 How. 483; Mus- Cummings, 70 Me. 125; and see post, son v. Lake, 4 How. 262; Hoyt v. s. 263, 279. If no place of payment Thompson, 19 N. Y. 207, 1 Seld. 352; is named, the law of the place where Eubanks v. Banks, 34 Ga. 407; Knowl- the contract is made is to govern. ton v. Erie Ry. Co., 19 Ohio St. 260; Cubbedge »v. Napier, 62 Ala. 518; Mer- Flanagan v. Packard, 41 Vt. 561; chants’ Bank v. Griswold, 72 N. Y. 472; Smith v. Godfrey, 28N. H. 881; Smith Benners v. Clemens, 58 Penn. St. 24, 326 CONFLICT OF LAWS. [s. 242-244. not merely in the convenience, but in the necessities of nations ;_ for otherwise it would be impracticable for them to carry on an extensive intercourse and commerce with each other. The whole system of agencies, of purchases and sales, of mutual credits, and of transfers of negotiable instruments, rests on this founda- tion ; and the nation which should refuse to acknowledge the com- mon principles would soon find its whole commercial intercourse reduced to a state like that in which it now exists among savage tribes, among the barbarous nations of Sumatra, and among other portions of Asia washed by the Pacific. ‘Jus autem gen- tium,’ says the Institute of Justinian, ‘omni humano generi com- mune est; nam, usu exigente, et humuanis necessitatibus, gentes humane jura quedam sibi constituerunt. Et ex hoc jure gen- tium, omnes pene contractus introducti sunt, ut emptio et ven- ditio, locatio et conductio, societas, depositum, mutuum, et alii innumerabiles.’1 No more forcible application can be propounded of this imperial doctrine, than to the subject of international private contracts.? In this, as a general principle, there seems a universal consent of all courts and jurists, foreign and do- mestic.? 242 a. Illustrations of this general doctrine may be derived from cases which have actually occurred in judgment. Thus, for Amer. ed. Phillips and Sewell, 1836, p. 78-86; 1 Burge, Col. & For. Law, pt. 1, c. 1, p. 29, 830; Whiston v. Stodder, 8 Mart. (La.) 95; Bank of the United States v. Donnally, 8 Pet. 361, 372; Wilcox v. Hunt, 13 Pet. 378, 379; French v. Hall, 9 N. H. 187. : 1 1 Inst. lib. 1, tit. 2, 3. 2. 72 Kent Com. 454, 455, and note; 10 Toullier, art. 80, note; Pardessus, Droit Com. vol. 5, art. 1482; Chartres v. Cairnes, 16 Mart. 1. . The cases which support this doctrine are so numerous that it would be a tedious task to enumerate them. They may generally be found collected in the Digests of the English and American Reports, under the head of Foreign Law or Lex Loci. The principal part of them are collected in 4 Cowen, 510, note, and in 2 Kent Com. 457 et seq., in the notes. See also Fonblanque Eq. B. 5, s. 6, note (‘), p. 443; Brackett v. Norton, 4 Conn. 517; Medbury v. Hopkins, 3 Id. 472; Smith ». Mead, 8 Id. 253; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, 221, 228; Trasher v, Everhart, 3 Gill & J. (Md.) 234. The foreign jurists are equally full, as any one will find upon examining the most celebrated of every nation. They all follow the doctrine of Dumoulin. ‘ In concernentibus contractibus, et emergentibus tempore contractus, inspici debet locus in quo contrahitur.’ Molin. Comment. ad Consuet. Paris, tit. ‘1, s..12, gloss. n. 37, tom. 1, 224; post, s. 260, 300d. See Bouhier, c. 21, s. 190; 2 Boullenois, obs. 46, p. 458. Lord Brougham, in Warrender », Warrender, 9 Bligh, 110, made some striking remarks on this subject, which have been already cited, ante, s. 226 b, note. CHAP. VIII.] FOREIGN CONTRACTS. 327 example, where a bill of exchange was made and indorsed in blank in France, and the holder afterwards sued the maker in England, a question arose whether, upon such an indorsement in blank without following the formalities prescribed by the Civil Code of France, the indorsement passed the right of property to the holder; and it being found that it did not by the law of France, the court held that no recovery could be had by the holder upon the note in an English court. The court on that occasion said that the question as to the transfer was a question of the true interpretation of the contract, and was therefore to be governed by the law of France, where the contract and indorsement was made! (a) 243. (2.) The same rule applies, vice versa, to the invalidity of contracts ; if void or illegal by the law of the place of the con- tract, they are generally held void and illegal everywhere? (6) This would seem to be a principle derived from the very ele- ments of natural justice. The Code has expounded it in strong terms. ‘Nullum enim pactum, nullam conventionem, nullum contractum, inter eos videri volumus subsecutum, qui contra- hunt lege contrahere prohibente.’? If void in its origin, it seems difficult to find any principle upon which any subsequent validity can be given to it in any other country. 244, (8.) But there is an exception to the rule, as to the uni- versal validity of contracts ; which is, that no nation is bound to recognize or enforce any contracts which are injurious to its own interests, or to those of its own subjects.t (ec) Huberus has ex- 1 Trimbey v. Vignier, 1 Bing. N.C. 151, 159; post, s. 267, 270. 2 Huberus, lib. 1, tit. 3, De Confl. Leg. s.3, 5; Van Reimsdyk v. Kane, 1 Galli- son, 875; Pearsall v. Dwight, 2 Mass. 88, 89; Touro v. Cassin, 1 Nott & McC. (8. Car.) 178; De Sobry v, De Laistre, 2 Harr. & J. (Md.) 193, 221, 225; Houghton v. Paige, 2 N. H. 42; Dyer v. Hunt, 5 N. H. 401; Van Schaick v. Edwards, 2 Johns. Cas. (N. Y.) 355; Robinson v. Bland, 2 Burr. 1077; Bur- rows v. Jemino, 2 Str. 732; Alves v. Hodgson, 7 T. R. 241; 2 Kent Com. 457, 458; La Jeune Eugénie, 2 Mason, 459; Andrews v. Pond, 13 Pet. 65, 78. § Code, 1, 14, 5. £ Greenwood v. Curtis, 6 Mass. 376, 379; Blanchard v. Russell, 13 Mass. 1, 6; Whiston v. Stodder, 8 Mart. (La.) 95; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, 228; Trasher v. Everhart, 3 Gill & J. (Md.) 234; 3 Burge, Col. (a) See note to s. 314. v. Cochrane, 65 Me. 594; Lindsay (6) McDaniel v. Chicago & North v. Hill, 66 Me. 212; Stevenson v. Western R. Co., 24 Iowa, 417; Moore Payne, 109 Mass. 3878. v. Clopton, 22 Ark. 125; Kennedy (c) See Smith v. Godfrey, 8 Foster, [s. 244, 328 CONFLICT OF LAWS. pressed it in the following terms: ‘ Quatenus nihil potestati aut juri alterius imperantis ejusque civium prajudicetur ;’ land Mr. Justice Martin still more clearly expresses it in saying that the exception applies to cases in which the contract is immoral or unjust, or in which the enforcing it in a state would be injurious to the rights, the interest, or the convenience of such state or its citizens. This exception results from the consideration that the authority of the acts and contract done in other states, as well as the laws by which they are regulated, are not, proprio vigore, of any efficacy beyond the territories of that state; and what- ever effect is attributed to them elsewhere is from comity, and not of*strict right.2 And every independent community will and ought to judge for itself how far that comity ought to ex- tend. The reasonable limitation is, that it shall not suffer pre- judice by its comity.6(a) This doctrine has been on many & For. Law, pt. 2, c. 20, p. 779; post, s. 8348-351; Andrews v. Pond, 13 Pet. 65, 78. 1 Huberus, lib. 1, tit. 3, De Conflict. Leg. s. 2. 2 Whiston v. Stodder, 8 Mart. (La.) 95, 97. 8 Ante, s. 7, 8, 18, 20, 22, 23, 36. * Thid. 5 Ante, s. 25, 27, 29; Huberus, lib. 1, tit. 3, De Conflict. Leg. s. 2, 3,5; Tra- sher v. Everhart, 3 Gill & J. (Md.) 2384; Greenwood v. Curtis, 6 Mass. 378; 2 Kent Com. 457; Pearsall v. Dwight, 2 Mass. 88, 89; Eunomus, Dial. 3, s. 67. (N. H.) 382; Blackv. Zacharie, 3 How. 483; Merchants’ Bank v. Spalding, 9 N. Y. 53; Milnor v. New York R. Co., 53 N. Y. 363; Watkins v. Wallace, 19 Mich. 57; Liverpool Ins. Co. v. Massa- chusetts, 10 Wall. 566 (where an Eng- lish joint-stock company was treated and taxed as a corporation); Eubanks v. Banks, 34 Ga. 407; Fuller v. Steig- litz, 27 Ohio St. 355; Lewis v. Wood- folk, 2 Baxter (Tenn.) 25; Union Locomotive Co. v. Erie Ry. Co., 37 N. J. 23; Donovan ». Pitcher, 53 Ala. 411; Wright v. Remington, 41 N. J. 48 (that the exception will not apply toa foreign statute empowering a mar- ried woman to become surety for her husband in a note); Receiver v. First National Bank, 34 N.J. Eq. 450; Paine v. France, 26 Md. 46; Simpson v. Fogo, 1 Hem. & M. 195. (a) Foreign Laws opposed to Domestic Policy, —What will fall within the rule that a foreign law opposed to domestic policy will not be allowed to prevail in the domestic courts has never been strictly defined. Indeed the rule it- self, as the language of the text shows, is stated in a variety of ways, often vague and indefinite. In the present note some observations will be made chiefly upon the application of the rule to corporations, concerning which the text is nearly silent. It is clear that the mere fact of the non-existence of such a law of the forum as that of the foreign state is not to be treated as indicating that the foreign law is opposed to domestic po- licy, otherwise in no case would the domestic courts hear evidence of the law of another country. Thus in re- gard to the privileges of a foreign cor- poration, the mere fact that there CHAP. VIII.] occasions recognized by the Supreme Court of Louisiana, FOREIGN CONTRACTS. 329 Ona recent occasion it was said by the court; ‘ By the comity of na- exists no law of the forum authorizing the body to hold land within the state will not be sufficient to prevent such body from acquiring land there (if au- thorized by its charter to hold realty), and calling for the protection of the domestic courts over its interests if needed. Christian Union v. Yount, 101 U.S. 352. To prevent a foreign corporation from acquiring and hold- ing realty, or in general from doing business, within the state of the fo- rum, there must be some affirmative statutory prohibition, or some oppos- ing ‘public policy deduced from sta- tutes and adjudications of the highest court’ of the state in which the suit is brought. Ib., Harlan, J.; Cowell v. Springs Co., 100 U. S. 55; Williams »v. Creswell, 51 Miss. 817; Mutual Bene- fit Ins. Co. v. Davis, 12 N. Y. 569. On the other hand, the claim of a foreign corporation of the right under its charter to hold in perpetuity real estate without limit for the purpose of selling and trading, if inconsistent with the powers of domestic corpora- tions, ‘and clearly against the general course of legislation from the organi- zation of the state’ of the forum, will not be sustained. Christian Union v. Yount, supra; Carroll v. East St. Louis, 67 Ill. 568. A fortiori, where the claim in question is opposed both to the law of the state in which the corporation was established and to that of the fo- rum, the claim will be refused. Stark- weather v. American Bible Soc., 72 Ill. 50. It appears to be safe inference from these cases that a foreign corporation claiming rights consistent with the foreign law, and not inconsistent with the spirit of the domestic law concern- ing like corporations, will be entitled to the protection of the domestic courts, though having no statutory recognition by the state. And this principle will apply as well to the question of immu- nities as to that of active rights. Thus the immunity of the members of a foreign corporation from personal lia- bility will be respected, within the limits above indicated. Merrick v. Van Santvoord, 34 N. Y. 208. See Second National Bank v. Hall, 85 Ohio St. 158; Bateman v. Service, 6 App. Cas. (P. C.) 386. The author considers with much ful- ness the application to private persons of the rule under consideration, and later cases have furnished little to add. In England there has been some at- tempt apparently to deduce a general proposition upon the subject. In The Halley, L. R. 2 P. C. 193, Selwyn, L. J., said: ‘The English court ad- mits the proof of the foreign law as part of the circumstances attending the execution of the contract, or as one of the facts upon which the exist- ence of the tort or the right to damages may depend, and it then applies and enforces its own law so far as it is ap- plicable to the case thus established.’ But no redress in damages will be given ‘in respect of an act which ac- cording to its [the English court’s] own principles imposes no liability on the person from whom the damages are claimed.’ . It seems doubtful how- ever if the American courts have gene- rally been inclined to narrow the application of foreign law to this ex- tent. The doctrine thus laid down would (to refer to but one class of cases) cut off, as it seems, all right of action by the next of kin of a person killed by another’s negligence except in those states in which statutes exist creating liability in such cases. Some of our courts have indeed refused re- dress in such cases on grounds perhaps according with the doctrine of Lord Justice Selwyn. Richardson v. New York Central R. Co., 98 Mass. 85; 330 CONFLICT OF LAWS. [s. 244-246: tions a practice has been adopted by which courts of justice ex- amine into and enforce contracts made in other states, and carry them into effect according to the laws of the place where the transaction took its rise. This practice has become so general in modern times, that it may be almost stated to be now a rule of international law, and it is subject only to the exception, that the contract to which aid is required should not, either in itself or in the means used to give it effect, work an injury to the in- habitants of the country where it is attempted to be enforced.’ ! Mr. Justice Best, afterwards Lord Wynford, on another occasion with great force said that, in cases turning upon the comity of nations, comitas inter communitates, it is a maxim that the comity cannot prevail in cases where it violates the law of our own country, or the law of nature, or the law of God. Con- tracts therefore which are in evasion or fraud of the laws of a country, or of the rights or duties of its subjects, contracts against good morals, or against religion, or against public rights, and contracts opposed to the national policy or national institu- tions, are deemed nullities in every country affected by such con- siderations, although they may be valid by the laws of the place where they are made.? (a) 245. Indeed a broader principle might be adopted, and it is to be regretted that it has not been universally adopted by all nations in respect to foreign contracts, as it has been in respect to domestic contracts, that no man ought to be heard in a court of justice to enforce a contract founded in or arising out of moral or political turpitude, or in fraud of the just rights of any foreign nation whatsoever.2 The Roman law contains an affirmation of 1 Mr. Justice Porter, in Ohio Ins. Co. v. Edmondson, 5 La. 295, 299, 300. 2 Forbes v. Cochrane, 2 B. & C. 448, 471. ® Armstrong v. Toler, 11 Wheat. 258, 260 ; Chitty on Bills (8th ed. 1833), p- 143, note; Boucher v, Lawson, Cas. temp. Hard. 84, 89, 194; Planché ». Fletcher, Doug. 251; post, s. 255, 257. Woodard v. Michigan Southern R. (a) See Smith ». Godfrey, 8 Foster Co., 10 Ohio St. 121. But the weight of authority is in favor of the right of action in all states, if such right existed where the tort was committed. Den- nick v. Railroad Co., 103 U. 8. 11; Leonard v. Columbia Nav. Co., 84 N.Y. 48. See post, s. 625, note, for further consideration of these and other like cases. (N. H.) 882; Meservey v. Gray, 55 Me. 540; Milnor v. New York RB. Co., 53 N. Y. 363, that the law of Connecticut as to a Connecticut cor- poration doing business in New York will not prevail over the law of New York in the latter state. CHAP. VIII] FOREIGN CONTRACTS. 331 this wholesome doctrine. ‘ Pacta, qu contra leges constitution- esque, vel contra bonos mores fiunt, nullam vim habere, indubi- tati juris est.1 Pacta, que turpem causam continent, non sunt observanda.’? Unfortunately, from a very questionable subser- viency to mere commercial gains, it has become an established formulary of the jurisprudence of the common law, that no nation will regard or enforce the revenue laws of any other country, and that the contracts of its own subjects, made to evade or defraud the laws or just rights of foreign nations, may be enforced in its own tribunals. Sound morals would seem to point to a very different conclusion. Pothier has, as we shall presently see, reprobated the doctrine in strong terms, as inconsistent with good faith and the just duties of nations to each other.* 246. A few cases may serve to illustrate the exceptions under each of the foregoing heads.5 First, contracts which are in eva- sion or fraud of the laws:of a particular country Thus if a contract is made in France to smuggle goods into America in violation of our laws, the contract will be treated by our courts as utterly void, as an intended fraud upon our laws.’ And in such a case brought into controversy in our courts, it will be wholly immaterial whether the parties are citizens or are foreign- ers. So, if a collusive capture and condemnation are procured in our courts in fraud of our laws by foreigners, who are even enemies at the time, their contract for the distribution of the prize proceeds will be held utterly void by our courts, although the acts are a mere stratagem of war. And it will make no dif- feren¢Okhat the laws have since been repealed, or that the war has sit? %ceased; for the contract being clearly in fraud of the laws existing at the time, the execution of it ought not to be 1 Cod. 2, 3, 6. _ 2 Dig. 2, 14, 27,8.4. See also 1 Chitty on Com. & Manuf. c. 4, p. 82, 83. ; 8 See Boucher v. Lawson, Cas. temp. Hard. 85, 89, 194; post, s. 256, 257. * Post, 8. 257. > » Many of the cases upon this subject will be found referred to in the argu- ment of Armstrong v. Toler, 11 Wheat. 265, 266. 6 See 1 Bell Com. s. 233-247, p. 232-240, 4th ed.; Id. p. 298-314, 5th ed.; Kames on Eq. B. 3, ¢. 8, s. 1. 7 See Holman v. Johnson, Cowper, 341; Armstrong v. Toler, 11 Wheat. 258; Cambioso v. Maffet, 2 Wash. C. C. 98. 332 CONFLICT OF LAWS. [s. 246-250, enforced by the courts of the country whose laws it was designed to evade.! 247. Contracts connected with the Illegal Transaction. —'The same principle applies, not only to contracts growing immediately out of and connected with an illegal transaction, but also to new contracts, if they are in part connected with the illegal trans- action and grow immediately out of it? Thus, for example, a man who, under a contract made in a foreign country, imports goods for another by means of a violation of the laws of his own country, is disqualified from founding any action in the courts of that country, upon such illegal transaction, for the value or for the freight of the goods, or.for other advances made on them. He is thus justly punished for the immorality of the act, and a power- ful discouragement from the perpetration of the act thus pro- vided. And if the importation is the result of a scheme to consign the goods to a friend of the owner, with the security of the former that he may protect or defend them for the owner in case they should be brought into jeopardy, a promise afterwards made by the owner to such friend, to indemnify him for his ad- vances and charges on account of any proceedings against the property, although it purports to be a new contract, will be held utterly void as constituting a part of the res gesta, or original transaction. It will clearly be a promise growing immediately out of and connected with the illegal transaction. 248. Independent Transactions — But the principle stops here, and is not extended to new and independent transactions after the illegal act. If the new contract is wholly unconnected with the illegal act, and is founded on a new consideration, axtmis not a part of the original ‘scheme, it is not tainted by the iboral act, although it may be known to the party with whom the contract is made5 Thus ‘if, after the illegal act is accomplished, a new contract (not being unlawful in itself) is made by the importer fora sale of the goods to a retail merchant, and the merchant * Hannay v. Eve, 3 Cranch, 242. See Jaques v. Withy, 1 H. Bl. 65; Springfield Bank v. Merrick, 14 Mass. 322. a ee v. Toler, 11 Wheat. 261, 262. See Cannan »v. Bryce, 3 B. & A. 179. 83 Thid. 4 Ibid. - 5 Armstrong v. Toler, 11 Wheat. 262, 268, 269. In this case the general principles applicable to the question of illegality as well as the authorities were fully discussed and considered by the court. CHAP. VIIL.] FOREIGN CONTRACTS. 333 afterwards sells the same to a tailor or to a customer who had no participation whatsoever in the original illegal scheme, such new contract will be valid, although the illegality of the original importation was known to each of the vendees at the time when he entered into the new contract. 249, Independent Contract with the Contriver of the illegal Act. —It will make no difference that such new and independent contract is made with the person who was the contriver and con- ductor of the original illegal act, if it is wholly disconnected therefrom ; for a new contract founded on a new consideration, although in relation to property respecting which there have been prior unlawful transactions between the parties, is not in itself unlawful? Thus, if A. should in a foreign country, during war, contrive a plan for importing goods from the country of the enemy on his own account, by means of smuggling or of a collu- sive capture, and goods should be sent in the same vessel by B., and A. should, upon the request of B., afterwards become surety for the payment of the duties, or should afterwards undertake to become answerable for the expenses on account of a prosecution for the illegal importation, or should afterwards advance money to B. to pay these expenses, any such act, if it constituted no part of the original scheme, and if A. was not concerned nor in any manner instrumental in promoting the illegal importation of B., but was merely engaged in a similar illegal transaction, de- vising the plan for himself, would be deemed a new contract upon a valid and legal consideration, unconnected with the origi- nal act, although remotely caused by it.2 Hence such new con- tract would not be so contaminated by the turpitude of the offensive act, as to turn A. out of court when seeking to enforce the new contract in the courts of this country, although the ille- gal introduction of the goods into the country was the conse- quence of the scheme projected by himself in relation to his own goods.* 2 250. The same principle may be illustrated by another ex- ample. If A. should become answerable for expenses on account of a prosecution for the illegal importation, or should advance money to B. to enable him to pay those expenses, these acts would constitute a new contract, on which an action might be 1 Armstrong v. Toler, 11 Wheat. 261. ; 2 Id. 262, 268, 269. 3 Ibid. 4 Ibid. 334 CONFLICT OF LAWS. [s. 250-254, maintained in our courts, if it constituted no part of the original scheme for the illegal importation, but was subsequent to and independent of it.1 ; 251. The same general distinction has been asserted in many cases which have undergone a legal adjudication. Thus in a case where goods were sold in France by a Frenchman to an English- man, for the known purpose of being smuggled into England, it was held that the Frenchman could maintain a suit in England for the price of the goods, upon the ground that the sale was complete in France and the party had no connection with the smuggling transaction. The contract, said the court, is complete, and nothing is left to be done. The seller, indeed, knows what the buyer is going to do with the goods, but he has no concern in the transaction itself? But if it enters at all as an ingredient into the contract between the parties, that the goods shall be smuggled, or that the seller shall do some act to assist or facili- tate the smuggling, such as packing them in a particular way, there the seller is deemed active, and the contract will not be enforced. (a) The same doctrine has accordingly been held in other cases.4 252. Huberus puts a case illustrative of the same doctrine. In certain places, says he, particular merchandise is prohibited. If sold there, the contract is void. But if the same merchandise is sold in another place where there is no such prohibition, and a suit is brought upon the contract in the place where the prohibi- tion exists, the buyer will be held liable (emptor condemnabitur), because the contract therefore was, in its origin, valid. But if the merchandise is sold to be delivered in the other place where it is prohibited, the buyer will not be held liable, because such a contract is repugnant to the law and interest of the country which made the prohibition.5 1 Armstrong v. Toler, 11 Wheat. 258, 260, 268-271. But see Caunan v. Bryce, 3 B. & A. 179. ; 2 Holman v. Johnson, Cowp. 341. But see Pellecat v. Angell, 2 C. M. & R. 811; post, s. 254, and note. ® Waymell v. Reed, 5 T. R. 599; 1 Esp. 91; Lightfoot v. Tenant, 1 B. & P. 551; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Holman v. Johnson, Cowp. 341; post, s. 254, and note. 4 Thid. ° Huber. lib. 1, tit. 3, De Conflictu Legum, s. 5; Greenwood v. Curtis, 6 Mass. 378; Cambioso v. Maffet, 2 Wash. C. C. 98. (2) Brown v. Duncan, 10 B. & C. 98. CHAP, VIII.] FOREIGN CONTRACTS. 335 253. The result of these decisions certainly is, that the mere knowledge of the illegal purpose for which goods are purchased will not affect the validity of the contract of sale of goods in- tended to be smuggled into a foreign country, even in the courts of that country, but that there must be some participation or in- terest of the seller in the act itself. (a) It is difficult however to reconcile this doctrine with the strong and masculine reason- ing of Lord Chief Justice Eyre in an important case upon the same subject, reasoning which has much to commend it in point of sound sense and sound morals. ‘Upon the principles of the common law,’ said he, ‘ the consideration of every valid contract must be meritorious. The sale and delivery of goods, nay, the agreement to sell and deliver goods, is, prima facie, a meritorious consideration to support a contract for the price. But the man who sold arsenic to one who, he knew, intended to poison his wife with it, would not be allowed to maintain an action upon his contract. The consideration of the contract, in itself good, is there tainted with turpitude, which destroys the whole merit of it. I put this strong case, because the principle of it will be felt and acknowledged without further discussion. Other cases where the means of transgressing a law are furnished, with the know- ledge that they are intended to be used for that purpose, will differ in shade more or less from this strong case, but the body of the color is the same in all. No man ought to furnish another with the means of transgressing the law, knowing that he in- tended to make that use of them.’! The wholesome morality and enlarged policy of this passage make it almost irresistible to the judgment, and, indeed, the reasoning seems positively unanswerable. 254. The doctrine of the Lord Chief Justice Eyre has been expressly adopted’ in other cases. Thus, on one occasion,” the Court of King’s Bench in England held that a person who sold drugs to a brewer, knowing that they were intended to be used in the brewing of beer contrary to an act of parliament, was not entitled to recover the money due upon the sale. Lord Ellen- 1 Lightfoot v. Tenant, 1 B. & P. 551, 556. 2 Langton v. Hughes, 1 M. & S. 593. (a) It is enough if the purchaser fact. The latter cannot recover the bought with intent to violate the law, price. Meservey »v. Gray, 55 Me. though the seller was ignorant of the 540. [s. 254, 255. 336 CONFLICT OF LAWS. borough on that occasion said: ‘A person who sells drugs with a knowledge that they are meant to be so mixed, may be said to cause or’procure, quantum in illo, the drugs to be mixed. So, if a person sell goods with a knowledge and in furtherance of the buyer’s intention to convey them upon a smuggling adventure, he is not permitted by the policy of the law to recover such a sale.’1 And the other members of the court concurred in that opinion. Mr. Justice Bayley added : ‘If a principal sell articles in order to enable the vendee to use them for illegal purposes, he cannot recover the price. The smuggling cases which were de- cided on that ground are very familiar.’ (a) There are other eases which adopt the same general principle of enlightened jus- tice.2. It has however been directly denied in some later deci- sions.4| Whether these last decisions will be sustained remains a question for the determination of other tribunals. (5) It is difficult to perceive any just or solid ground upon which a contract is maintainable or ought to be enforced in the tribunals of a coun- try, which is knowingly entered into in a foreign country with the subjects of the former country, for the sale of goods which are to be smuggled into it against its laws, for the sale thus made is the avowed means to accomplish the illegal end. 1 Ibid. 2 Langton v. Hughes, 1 M. &. S. 593. 8 Cannan v. Bryce, 3 B. & A. 179, 181; Catlin v. Bell, 4 Camp. 183. 4 Hodgson v. Temple, 5 Taunt, 182; Pellecat v. Angell, 2 C. M. & R. 311. See also Johnson v. Hudson, 11 East, 180. 5 In Pellecat v. Angell, 2C. M. & R. 311, the case was of a bill of ex- * change accepted in France by the defendant, a British subject, payable to the plaintiff, a Frenchman, being for the price of goods sold by the plaintiff to the defendant in Paris for the avowed purpose of being smuggled into Eng- land. The bill was sued in the English Court of Exchequer. Lord Abinger on that occasion said: ‘It is perfectly clear that, where parties enter into a contract to contravene the laws of their own country, such a contract is void; but it is (a) See Ritchie v. Smith, 6 C. B. cases cited. Other authorities hold 2. 46: that mere knowledge of the intended (6) The later English cases seem to hold that mere knowledge on the part of a vendor that the vendee bought the property to use for an ille- gal or immoral purpose vitiates the contract if the property be so used. See Pearce v. Brooks, L. R. 1 Ex. 213; Cowan v. Milbourn, 2 id. 230; Taylor v. Chester, Id. 4 Q. B. 309; Story on Sales, 4th ed. s. 506, and illegal purpose is not sufficient, but that some participation in the design or purpose must also exist on the part of the vendor. See Tracy v. Tal- mage, 4 Kern. (N. Y.) 162; Kreiss v. Seligman, 8 Barb. (N. Y.) 439; Smith v. Godfrey, 8 Fost. (N. H.) 379; Dater v. Earl, 8 Gray (Mass.) 482; M’Intyre v. Parks, 3 Met. (Mass.) 207; Jameson v. Gregory, 4 Met. (Ky.) 370. CHAP. VIL] FOREIGN CONTRACTS. 337 255. Distinction in Contracts of a Subject and of a Foreigner.— There seems at present a strong inclination in the courts of law to hold that if a contract is made in foreign parts by a citizen or subject of a country, for the sale of goods which he knows at the time are to be smuggled in violation of the laws of his own coun- try, he shall not be permitted to enforce it in the courts of his own country, although the contract of sale is complete, and might be enforced in the like case of a foreigner.!_ The true doc- equally clear from a long series of cases that the subject of a foreign country is not bound to pay allegiance or respect to the revenue laws of this; except indeed that where he comes within the act of breaking them himself, he cannot recover here the fruits of that illegal act. But there is nothing illegal in merely knowing that the goods he sells are to be disposed of in contraven- tion of the fiscal laws of another country. It would have been most fortunate if it were so in this country, where, for many years, a most extensive ‘foreign trade was carried on directly in contravention of the fiscal laws of several other States. The distinction is, where he takes an actual part in the illegal adven- ture, as in packing the goods in prohibited parcels or otherwise, there he must take the consequences of his own act. But it has never been said that merely selling to a party who means to violate the laws of his own country is a bad contract. If the position were true, which is contended for on the part of the defendant, that this appears upon the plea to have been a contract for the express purpose of smuggling the goods, it would follow that it would be a ‘breach of the contract if the goods were not smuggled. But nothing of the kind appears upon the plea; it only states a transaction which occurs about once a week in Paris. The plaintiff sold the goods; the defendant might smuggle them if he liked, or he might change his mind the next day; it does not at all import a contract, of which the smuggling was an essential part.’ It appears to me that this reasoning is wholly unsatisfactory. The question is not whether it is a part of the contract with the Frenchman that the goods shall be smuggled, but whether he does not knowingly co-operate by the very sale, as far as in him lies, to accomplish the illegal intention of 4 British sub- ject to smuggle his goods contrary to the laws of his country. Can a British tribunal be called upon to enforce such a contract? Can it be called upon to aid a Frenchman to recover a debt contracted for the purpose of violating Bri- tish laws? Could a Frenchman selling poison in France to an Englishman for the avowed purpose of poisoning the king or queen of England, recover on such acontract in England? In Wetherell v. Jones, 3 B. & Ad. 225, Lord Tenterden said: ‘When a contract which a plaintiff seeks to enforce is expressly or by implication forbidden by the statute or common law, no court will lend its assistance to give iteffect.. And there are numerous cases in the books where an action on a contract has failed, because either the consideration for the promise or the act tobe done was illegal, as being against the express provi- sions of the law, or contrary to justice, morality, or sound policy.’ Can a con- tract be fit to be entertained in a British court whose very object is to. aid in a violation of British laws and policy and morals? 1 Biggs v. Lawrence, 8 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Weymell v. Reed, 5 T. R. 599; Eunomus, Dial. 3, s. 67; Cambioso v. Maffet, 5 Wash. C. C. 98. 22 ‘ 338 CONFLICT OF LAWS. [s. 255-257. trine would seem to be, to make no distinction whatsoever be- tween the case of a sale between citizens or subjects, and the case of a sale between foreigners, but to hold the contract in each case to be utterly incapable of being enforced at least in the courts of a country whose laws are thus designedly sought to be violated. Sound morals and a due regard to international justice seem equally to approve such a conclusion.’ 256. Foreign Jurists. — Pardessus has asked the question, whether, if Frenchmen have entered into a contract abroad forbid- den by the laws of the place where it is made, they can insist upon its execution in France ; as, for example, a contract for contraband trade or smuggling, against the laws of that country. And he has answered that he rather thinks they may, since this offence is only a violation of the law of the foreign State, and governments in this respect exercise a sort of mutual hostility, and, without openly favoring enterprises of a contraband nature, they do not proscribe them.? But this doctrine of Pardessus is certainly a de- parture from the general principle that the validity of contracts depends upon the lex loci contractus, for, in the case supposed, the contract is clearly void by the laws of the country where it is made. Huberus holds a doctrine somewhat different, and ap- proaching nearly to sound principles. If, says. he, goods are secretly sold in a place where they are prohibited, the sale is void ab initio, and no action will lie thereon, in whatever country it may be brought, nay, not even to enforce the delivery thereof; for if there had been a delivery thereof, and the buyer should refuse to pay the price, he would be bound not so much by the contract as by the fact of having received the goods, and so far he would enrich himself at the expense and loss of another. 257. The Established Doctrine. —It might be different, accord- ing to the received, although it should seem upon principle inde- fensible, doctrine of judicial tribunals, if the contract were made in some other country, or in the foreign country to which the parties belong ; for, as we have seen,‘ it has been long laid down as a settled principle that no nation is bound to protect or to re- gard the revenue laws of another country; and therefore a con- tract made in one country, by subjects or residents there, to evade the revenue laws of another country, is not deemed illegal in the 1 Ante, s. 244, 245. ? 5 Pardessus, art. 1492. 3 Hub. de Conflict. c. 3, 3. 5. ' 4 Ante, s. 245. CHAP. VIII] FOREIGN CONTRACTS. 339 country of its origin.) Against this principle Pothier argued strongly, as being inconsistent with good faith and the moral duties of nations? Valin however supports it ; and Emerigon de- fends it upon the unsatisfactory ground that smuggling is a vice common to all nations.® An enlightened policy, founded upon national justice as well as national interest, would seem to favor the opinion of Pothier in all cases where positive legislation has not adopted the principle as a retaliation upon the narrow and exclusive revenue system of another nation. The contrary doc- 1 See Boucher v. Lawson, Cas. temp. Hard. 84, 89, 194; Holman v. John- son, Cowp. 341; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4T. R. 466; Ludlow v. Van Rensselaer, 1 Johns. (N. Y.) 94; Lightfoot v. Tenant, 1 B. & P. 551, 557; Planché v. Fletcher, Doug. 251; Lever v. Fletcher, 1 Mar- shall Ins. 58-61, 2d ed. 2 Pothier, Assur. n. 58. 8 2 Valin Com. art. 49, p. 127; 1 Emerig. c. 8, s. 5, 212, 215 (p. 216-218, édité par Boulay-Paty), and see note of Estrangin to Pothier, Assur. n. 58; 1 Marshall Ins. c. 3, s. 1, p. 59, 60, 2d ed. # It is gratifying to find that Mr. Marshall and Mr. Chitty have both taken side with Pothier on this point. The following passage from a work of the latter expounds the reasoning with considerable force. ‘There is something in these decisions to which a liberal mind cannot readily assent, and the im- propriety of them seems to have been hinted at by Lord Kenyon in the before- mentioned case of Weymell v. Reed. It is impossible not to feel a greater inclination towards the opinion of Pothier, who observes ‘‘ that a man cannot carry on a contraband trade in a foreign country without engaging the subjects of that country to commit an offence against the laws which it is their duty to obey; and it is a crime of moral turpitude to engage a man to commit a crime; that a man carrying on commerce in any country is bound to conform to the laws of that country; and therefore to carry on an illicit commerce there, and to engage the subjects of that country to assist him in so doing, is against good faith; and consequently a contract made to favor or protect this commerce is peculiarly unlawful, and can raise no obligation.’’ If our law be justifiable in protecting these transgressions, it can be only on the plea of necessity. But where is the necessity? Shall we be told that it is impossible to ascertain in the English courts the complex provisions of another country’s revenue law? Surely this argument can avail but little when it is recollected that in all cases where the argument is not convenient, the law of another country, how- ever complex, is the rule by which contracts negotiated in that country are tried and construed. It may be true that the rule of our law was adopted by way of retaliation for the illiberal conduct of other states, and is continued from a cautious policy. But a cautious policy in a great state is but too often a narrow policy; and, after all, the best policy for a state, as well as for an in- dividual, will perhaps be found to consist in honesty and honorable conduct. Indeed the system is so directly opposite to the clear principles of right feeling between man and man, that nothing could have withheld the states of Europe from concurring for its total abrogation except the smallness of the gain or loss that attends upon it.’ 1 Chitty on Commerce and Manuf. p. 88, 84; 1 [s. 257-259, 340 CONFLICT OF LAWS. ‘ trine seems however firmly established in the actual practice of modern nations without any such discrimination, too firmly per- haps to be shaken except by some legislative act abolishing it. (a) 258. Contracts opposed ‘to Morality. — The second class of excepted contracts comprehends those against good morals, or religion, or public rights.1_ Such are contracts made in a foreign country for future illicit cohabitation and prostitution ;? contracts Marshall Ins. 59-61, 2ded. Mr. Chancellor Kent has also added his own high authority in favor of the rule of Pothier. He has observed: ‘ It is certainly matter of surprise and regret that in such countries as France, England, and the United States, distinguished for a correct and enlightened administration of justice, smuggling voyages, made on purpose to elude the laws and seduce the subjects of foreign states, should be countenanced and even encouraged by the courts of justice. The principle does no credit to the commercial jurispru- dence of the age.’ 3 Kent Com. 266, 267. See also La Jeune Eugénie, 2 Mason, 459, 461. 1 1 Bell, Com. s. 232, p. 282-249, 4th ed.; Id. p. 297-314, 5th ed. ? See 1 Selwyn’s Nisi Prius, Assumpsit, p. 59, 60; Walker v. Perkins, 8 Burr. 1568; Greenwood v. Curtis, 6 Mass. 379; Binnington v. Wallis, 4 B. & A. 650; Lloyd v. Johnson, 1 B. & P. 840; Jones v. Randall, Cowp. 87; Apple- ton v. Campbell, 2 C. & P. 847; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, (a) See also The Renaisance, 5 La. Ann. 25. A contract which has for its object or which contemplates any act prohibited by express statute in the state where the act is done, or which incurs a penalty there, is as much ille- gal and void as if the statute in ex- press terms so declared. Davidson v. Lanier, 4 Wall. 447. Hence a con- tract for the sale and delivery of spiritu- ous liquors, to be sold without license in a state where license is required for such traffic, is void, and no recovery can be had thereon, or for the value of such spirits, although the sale is made in such state by a house situated in another state where the sale is legal, through their agent, and is forwarded by common carriers. Territt v. Bart- lett, 21 Vt. 184; Spalding v. Preston, Id. 9. But if these transactions had occurred wholly out of the state, and the plaintiff's only agency in effecting a violation of the statute of the state consisted in delivering the liquors to common carriers at the place of his business in another state, with the’ knowledge that the purchaser intended to put them to an illegal use on their arrival at the place of destination, the casks being marked with his ad- dress by the seller, it would seem that this will not preclude arecovery. Ibid. See Kling v. Fries, 83 Mich. 275; Roethke v. Philip Best Brewing Co., Id. 340. So too in a late English case it was held, where an attorney entered into an agreement with a client on the terms that the attorney should be allowed to retain for his trouble half the sum recovered, the agreement being entered into in France, where by law it was not illegal, that, as the debt was to be recovered in England, the agreement was void as amounting to champerty, and that an officer of court could not shield him- self in the violation of his official duty under a contract made abroad, where it was not against law, if it still had for its object the violation-of the Eng- lish law. Grell v. Levy, 10 Jur. n. 8 210;'16 C. B. (N.S.) 73. CHAP. VIII.] FOREIGN CONTRACTS, 341 for the printing or circulation of irreligious and obscene publica- tions; contracts to promote or reward the commission of crimes ; contracts to corrupt or evade the due administration of justice ; contracts to cheat public agents, or to defeat the public rights ; and, in short, all contracts which in their own nature are founded in moral turpitude and are inconsistent with the good order and solid interests of society.1(a@) All such contracts, even though they might be held valid in the country where they are made, would be held void elsewhere, or at least ought to be, if the dic- tates of Christian morality, or of even natural justice, are allowed to have their due force and influence in the administration of in- ternational jurisprudence. (6) 259. Contracts opposed to National Policy.— The next class of excepted contracts comprehends those which are opposed to the national policy and institutions.(¢) For example, con- tracts made in a foreign country to procure loans in our own country, in order to assist the subjects of a foreign State in the prosecution of war against a nation with which we are at 228. Lord Mansfield, in the case of Robinson v. Bland, 2 Burr. 1084, puts the very case. In many countries, says he, a contract may be maintained by a courtesan for the price of her prostitution; and one may suppose an action to be brought here; but that could never be allowed in this country. Therefore the lex loci caunot in all cases govern and direct. 1 See Com. Dig., Assumpsit, F. 7; Smith v. Stotesbury, 1 W. BI. 204; 2 Burr. 924; Fores v. Johnes, 4 Esp. 97; Willis v. Baldwin, Doug. 450; Wal- cot v. Walker, 7 Ves. 1; Southey v. Sherwood, 2 Meriy. 435, 441; Lawrence v. Smith, Jac. 471, 474, note; Jones v. Randall, Cowp. 37. authorized the obligees to sell lottery tickets for the benefit of a college in (a) See Fenton v. Livingstone, 3 Macq. 497; Reg. v. Lesley, 6 Jur. N. S. 202, 1 Bell, C. C. 220, 8 Cox, C. C. 269; Bowry v. Bennet, 1 Camp. 348; Jennings v. Throgmorton, Ry. & M. 251; Appleton v.Campbell, 2 Car. & P. 847; Fergusson, Marr. & Div. 396, 397. (6) But to come within this excep- tion a contract must be clearly founded in moral turpitude and not simply contrary to the statutes of the country where it is sought to be enforced. Thus in a case in New York, where the sale of lottery tickets is prohibited by law, an action was brought on a bond conditioned for the faithful performance of certain duties enjoined by a law of Kentucky, which that state, and the bond was held valid, it being so at the place where the condition was to be performed; and it was considered immaterial whe- ther the bond was executed in New York or in Kentucky. Kentucky v. Bassford, 6 Hill (N. Y.) 526. (c) See King v. Sarria, 69 N. Y. 24. But see Kling v. Fries, 83 Mich. 275; Roethke v. Philadelphia Brewing Co., Id. 340; Webber » Donnelly, Id. 469; that contracts made in other states for the shipment of goods of prohibited manufacture (intoxicating liquors) in Michigan will still be upheld in Mi- chigan. 342 CONFLICT OF LAWS. [s. 259, 259 a. peace ; for such conduct is inconsistent with a just and impartial neutrality ;1 contracts entered into with a foreign government or its agents, such as for a loan of money, such government being a new government, unacknowledged by our own government to which the party entering into the contract belongs,” for a like rule of public policy applies to such cases ; contracts entered into by our own citizens or others in violation of a monopoly granted by our own country to particular subjects thereof ;* contracts by our own citizens or others to carry on trade with the enemy, or to cover enemy property, or to transport goods contraband of war ; * contracts to carry into effect the African slave-trade, or the rights of slavery, in countries which refuse to acknowledge its lawful- ness, at least if entered into by subjects of or residents within such countries. In all such cases the contracts would or might be held utterly void, whatever might be their validity in the country where they are made, as being inconsistent with the duties, the policy, or the institutions of other countries where they are sought to be enforced.® 1 De Wiitz v. Hendricks, 9 Moore, 586; 2 Bing. 314. 2 Thompson v. Powles, 2 Sim. 194. See also Jones v. Garcia del Rio, 1 T. & R. 299. 8 Pattison v. Mills, 1 Dow & Clark, 342. 4 1 Marshall, Ins. bk. 1, c. 3, s. 3, p. 78, 8. 4, p. 85, 2d ed.; Griswold ». Waddington, 16 Johns. (N. Y.) 438; 2 Wheat. Appendix, 35; Richardson v. Maine Ins. Co., 6 Mass. 102, 110, 112, 113; Musson v. Fales, 16 Mass. 332; Coolidge v. Inglee, 13 Id. 26. 5 See Somerset’s Case, Lofft, 1; 20 Howell’s State Triais, 79 ; Fergusson on Marr. & Div. 396, 897; Madrazo-v. Willes, 3 B. & A. 853; Forbes v. Cochrane, 2B. & C. 448; and especially the opinion of Best, J. I am not unaware of the bearing of the case of Greenwood v. Curtis, 6 Mass, 358, on this point; and, without undertaking to examine its authority, it may be sufficient to say that it is not without difficulty in its principles and application, as will abundantly appear from the elaborate argument of Mr. Justice Sedgwick in the same case (id. 362, n.), and the later reasoning of Mr. Justice Best, in Forbes v. Coch- rane, 2 B. & C. 448. I have given in the text what seems to me to be the just doctrine resulting from the modern cases, without meaning to assert that the authorities cited are fully in point. Ante,s. 96a. Mr. Chief Justice Shaw, arguendo, in the case of Commonwealth v. Aves, 18 Pick. 193 (ante, s. 96a, note), held that a suit brought here upon a note of hand given in a state where slavery was allowed, for the price of a slave, might be maintainable in our courts, and that the consideration would not be invalidated upon the ground of the consideration. It may be so here; but this doctrine, as one of universal application, may admit of question in other countries, where slavery may be denounced as inhuman and unjust, and against public policy. ® 1 Bell Com. s. 234-250, p. 232-240, 4th ed.; Id. p. 298-314, 5th ed. CHAP. VIIL] FOREIGN CONTRACTS, 343 259 a. Andrews v. His Creditors. — A case illustrative of the same principle, but of far less repugnancy to the policy and in- terests of the particular country, where the rights under a con- tract are sought to be enforced, occurred in Louisiana. A debtor in another State made a contract, and transferred his property to certain creditors in preference to his general creditors, which was not deemed by the laws of that State fraudulent in regard to the latter creditors; he afterwards came to Louisiana and was ar- rested there ; and he then by petition sought the benefit of the in- solvent laws of Louisiana, by whose laws such a preference would be fraudulent, and would deprive the debtor of the benefit of a discharge under the insolvent acts of the State. The court held that, as the debtor sought the benefit of the Louisiana laws, he could entitle himself to it only by showing a compliance with all their provisions ; and that, the preference so given being fraudu- lent by those laws, he was not entitled to the discharge. On that occasion the court said: ‘ But it is said that if we put such a construction upon the act, we give an extra-territorial operation to our law, by treating as null contracts sanctioned by the lex loci, and regarding as fraudulent those transactions which were in fact not only legal but meritorious. To this it may be answered that we leave those contracts undisturbed, and take cognizance of them no further than as the voluntary disposition of property in reference to our own insolvent laws, when the insolvent seeks an extraordinary remedy to which he would not be entitled by the law of his domicil, that of being declared exonerated from the payment of his remaining debts, on the assignment of the remainder of his effects. We look at them only so far as they form a condition upon which depends his right to be discharged, and consequently as pertaining to the remedy sought for. It is further urged that the acts spoken of in the statute must be shown to have been done in contemplation of taking the benefit of the act, and that it cannot be supposed that Andrews had in view the bankrupt laws of Louisiana when he made these assign- ments in Alabama. Taken in their literal sense, it is certainly difficult, if not impossible, to give any legal effect to these ex- pressions, without resorting to the extravagant supposition that the insolvent had procured his own arrest by colluding with some one creditor, and that he had done other acts which would tend to defeat his own project. But the discharge prayed for does not 344 CONFLICT OF LAWS. [s. 259 a—260. omit those expressions; and it is not now our duty to inquire in what sense they are to be understood, and whether by the general principles of our law all contracts of the kind spoken of, within three months preceding insolvency, between debtor and creditor, be not be presumed to be in fraud of other creditors.’ } 259 b. Case put by Lord Brougham. — A case of a more diffi- cult character, if indeed it be not of a more questionable charac- ter, is one put by Lord Brougham, arguendo, in the course of one of his judgments. Speaking upon the point that the lex loci con- tractus is the governing rule in deciding upon the validity or invalidity of all personal contracts, he said: ‘ Thus a marriage, good by the laws of one country, is held good in all others where the question of its validity may arise. For why? The question always must be, Did the parties intend to contract marriage? And if they did what in the place they were in is deemed a mar- riage, they cannot reasonably or sensibly or safely be considered otherwise than as intending a marriage contract. The laws of each nation lay down the forms and solemnities, a compliance with which shall be deemed the only criterion of the intention to enter into the contract. If those laws annex certain qualifica- tions to parties circumstanced in a particular way, or if they im- pose certain conditions precedent on certain parties, this falls exactly within the same rule; for the presumption of law is, in the one case, that the parties are absolutely incapable of the con- sent required to make the contract, and, in the other case, that they are incapable until they have complied with the conditions ' imposed, I shall only stop here to remark that the English juris- prudence, while it adopts this principle in words, would not per- haps, in certain cases which may be put, be found very willing to act upon it throughout. Thus we should expect that the Spanish and Portuguese courts would hold an English marriage avoidable: between uncle and niece, or brother and sister-in-law, though solemnized under papal dispensation ; because it would clearly be avoidable in this country. But I strongly incline to think that our courts would refuse to sanction, and would avoid by sentence, a marriage between those relatives contracted in the Peninsula, under dispensation, although beyond all doubt such a marriage would there be valid by the lex loci contractus, 1 Andrews v. His Creditors, 11 La. 464, 479. 2 ereieaindlll Boe CHAP. VIIL] FOREIGN CONTRACTS. 345 and incapable of being set aside by any proceedings in that country.’ } 260. (4.) Formalities required by the Lex Loci. — Another rule, naturally flowing from, or rather illustrative of, that already stated respecting the validity of contracts, is that all the formali- ties, proofs, or authentications of them, which are required by the lex loci, are indispensable to their validity everywhere else.2. And this is in precise conformity to the rule laid down on the subject by Boullenois.? ‘Tl faut, par rapport 4 la forme intrinséque et constitutive des actes, suivre encore la loi du contrat. Quand la loi exige certaines formalités, lesquelles sont attachées aux choses mémes, il faut suivre la loi de la situation.’ Burgundus has expressed the same doctrine in very pointed terms. ‘ Et quidem in scriptura instrumenti, in solemnitatibus, et ceremoniis, et gene- raliter in omnibus, que ad formam ejusque perfectionem perti- nent, spectanda est consuetudo regionis, ubi fit negotiatio.’® Dumoulin says: ‘Aut statutum loquitur de his, que concernunt nudam ordinationem vel solemnitatem actus ; et semper inspici- tur statutum vel consuetudinem loci, ubi actus celebratur, sive in contractibus, sive in judiciis, sive in testamentis, sive in instru- mentis, aut aliis conficiendis.’® And again: ‘ In concernentibus contractum, et emergentibus, spectatur locus, in quo contrahitur ; et in concernentibus meram solemnitatem cujuscunque actus, locus, in quo ille celebratur.’’ Casaregis says: ‘ Communissima 1 Warrender v. Warrender, 9 Bligh, 111, 112; post, s. 226 c¢. 2 See ante, s. 123; 1 Burge, Col. & For. Law, pt. 1, ¢. 1, p. 29, 80; 3 Id. pt. 2, c. 20, p. 752-764; Foelix, Confi. des Lois, Revue Etrang. et Frang. tom. . 7, 1840, s. 40-51, p. 846-360; Warrender v. Warrender, 9 Bligh, 111; ante, 8. 259 c. 8 Erskine’s Inst. bk. 3, tit. 2, s. 39-41, p. 514, 515; Boullenois, Quest. Mixt. p. 5; Bouhier, Cout. de Bourg. c. 21, s. 205; 2 Boullenois, obs. 46, p. 467; ante, s. 240; 1 Hertii Op. de Collis. Leg. s. 4, n. 59, ed. 1787; Id. p. 209, ed. 1716. See also Voet, ad Pand. 5, 1,s. 51; 1 Boullenois, obs. 23, P. 528; Id. p. 446-466; Henry on Foreign Law, 37, 38, 224; 5 Pardessus, Droit Com. art. 1485; Mr. Justice Martin, in Depau v. Humphreys, 8 Mart. N.S. (La.) 1, 22; ante, s. 122, 2594; post, s. 299 a. 4 2 Boullenois, obs. 46, p. 467; ante, s. 240; 1 Boullenois, obs. 23, p. 491, 492. 5 Burgundus, Tract. 4, n. 7, n. 29; post, s. 8300 a; 2 Boullenois, obs. 46, p. 450, 451. ® Molin. Opera, Comment. Cod. lib. 1, tit. 4, 1. 1, Conclus. de Statut. tom. 3, p. 554, ed. 1681; post, s. 441, 479 k. 7 Molin. Opera, tit. 1, De Fiefs, s. 12, gloss. 7, n. 87, tom. 1, p. 224, ed. 1681. 346 . CONFLICT OF LAWS. (s. 260. enim est distinctio, quod aut disseritur de modo procedendi in judicio, aut de juribus contractus, cui robur et specialis forma tributa est a statuto, vel a contrahentibus. Et in primo casu attendendum sit statutum loci, in quo judicium agitatur ; in se- cundo, vero, casu attendatur statutum loci, in quo fuit celebratus contractus.’! Hertius is still more direct. ‘Si lex actui formam dat, inspiciendus est locus actus, non domicilii, non rei site ; id est, si de solemnibus queratur, si de loco, de tempore, de modo actus, ejus loci habenda est ratio, ubi actus sive negotium celebra- tur’2 Christinzus, Everhardus, and other distinguished jurists, adopt the same doctrine? And it seems fully established in the common law. Thus if by the laws of a country a contract is void unless it is written on stamped paper, it ought to be held void everywhere ; for unless it be good there, it can have no obliga- tion in any other country.t(a) It might be different if the contract 1 Casaregis, Disc. Com. 179, n. 59. 2 Hertii Opera, Collis. Leg. s. 4, n. 10, p. 126; Id. n. 59, p. 148, ed. 1787; Id. p. 179, 209, ed. 1716; ante, s. 3, 8, 10,11. See also Cochin, uvres, tom. 1, p. 72, 4to ed.; Id. tom. 3, p. 26; Id. tom. 5, p. 697; D’ Aguesseau, (Euvres, tom. 4, p. 637, 722, 4to ed. 8 Everhard. Consil. 72, n. 11, p. 206; Id.n. 18, p. 207; Id. 27, p. 209; post, s. 300 6; Christin. Decis. 288, vol. 1, p. 855, n. 1, 4, 5, 8, 9-11; post, s. 300 ¢; Molin. Comm. ad Consuet. Paris. tit. 1, s. 12, gloss. 7, n. 37, tom. 1, p. 224; post, s. 800d; 2 Boullenois, obs. 46, p. 460, 461; ante, s. 122. Dumoulin pushes the doctrine further, and says: Et est omnium Doctorum sententia, ubicumque consuetudo, vel statutum locale, disponit de solemnitate, vel forma actus, ligari etiam exteros, ibi actum illum gerentes, et gestum esse validum, et efficacem ubique, etiam super bonis solis extra territorium consuetudinis. Molin. Consil. 53, s. 9; Molin. Oper. tom. 2, p. 965, ed. 1681; Burge, Col. & For. Law, pt. 2, c. 9, p. 865, 866; post, s. 441. 4 Alves v. Hodgson, 7 T. R. 241; Clegg v. Levy, 3 Camp. 166. But see Chitty on Bills, 8th ed. 143, note, and Wynne v. Jackson, 2 Russ. 351; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 762. The case of Wynne ». Jack- son, 2 Russ. 351, is certainly at variance with this doctrine. It was a bill brought to stay proceedings at law on a suit brought in England by the holder against the acceptor of bills of exchange made and accepted in France; and which, in an action brought in the French courts, had been held invalid for want of a proper French stamp. The vice-chancellor held ‘ that the circum- stance of the bills being drawn in France, in such a form that the holder could not recover on them in France, was no objection to his recovering on them in an English court.’ This doctrine is wholly irreconcilable with that in Alves v. Hodgson, 7 T. R. 241, and Clegg v. Levy, 3 Camp. 166; and if by the laws of France such contracts were void if not on stamped paper, it is equally un- (a) See Satterwaithe ». Doughty, 1 Busb. (N. Car.) 814; Fant v. Miller, 17 Gratt. (Va.) 47. CHAP. VIII] FOREIGN CONTRACTS. 347 had been made payable in another country; or if the objection were not to the validity of the contract, but merely to the admis- sibility of other proof of the contract in the foreign court! where a suit was brought to enforce it; or if the contract concerned real or immovable property situated in another country whose supportable upon acknowledged principles. In the case of James v. Cather- wood, 38 Dowl. & Ry. 190, where assumpsit was brought for money lent in France, and unstamped paper receipts were produced in proof of the loan, evidence was offered to show that by the laws of France such receipts required a stamp to render them valid; but it was rejected by the court, and the receipts were admitted in evidence upon the ground that the courts of England could not take notice of the revenue laws of a foreign country. But this is a very in- sufficient ground if the loan required such receipt and stamp to make it valid as a contract. And if the loan was good per se, but if the stamp was requisite to make the receipt good as evidence, then another question might arise, whether other proof than that required by the law of France was admissible of a writ- ten contract. This case also is inconsistent with the case in 3 Camp. 166. Can a contract be good in any country which is void by the law of the place where it is made because it wants the solemnities required by that law? Would a parol contract made in England, respecting an interest in lands against the statute of frauds, be held valid elsewhere ? Would any court dispense with the written evidence required upon such a contract? On a motion for a new trial, the court refused it, Lord Chief Justice Abbott saying: ‘ The point is too plain for argument. It has been settled, or at least considered as settled, ever since the time of Lord Hardwicke, that in a British court we cannot take notice of the revenue laws of a foreign state. It would be productive of prodigious inconvenience if, in every case in which an instrument was executed in a foreign country, we were to receive in evidence what the law of that country was, in order to ascertain whether the instrument was or was not valid.’ With great submission to his Lordship, this reasoning is wholly inadmissible. The law is as clearly settled as anything can be, that a contract, void by the law of the place where it is made, is void everywhere. Yet, in every such case, whatever may be the inconvenience, courts of law are bound to ascertain what the foreign law is. And itwould be a perfect novelty in jurisprudence to hold that an instrument which, for want of due solemnities in the place where it was executed, was void, should yet be valid in other countries. We can arrive at such a conclusion only by overturning well-established principles. The case al- luded to before Lord Hardwicke was probably Boucher v. Lawson (Cas. t. Hard. 85, Id. 194), which was the case of a contract between Englishmen, to be exe- cuted in England, to carry on a smuggling trade against the laws of Portugal. Lord Hardwicke said that such a trade was not only a lawful trade in England, but very much encouraged. The case is wholly distinguishable from the pres- ent case, and from that of any contract made in a country and to be executed there which is invalid by its laws. A contract made in Portugal by persons domiciled there, to carry on smuggling against its-laws, would or ought to be held void everywhere. See also 3 Chitty on Comm. & Manuf. c. 2, p. 166. 1 Ludlow v. Van Rensselaer, 1 Johns. (N. Y.) 94; James v. Catherwood, 3 Dowl. & Ry. 190. See Clarke v. Cochran, 3 Mart. (La.) 358, 360, 3861; Brown v. Thornton, 6 A. & E. 185; Yates v. Thomson, 3 Cl. & F. 544. 348 CONFLICT OF LAWS. [s. 260-262. laws are different, respecting which, as we shall presently see, there is a difference of opinion among foreign jurists, although in England and America the rule seems firmly established, that the law rei site, and not that of the place of the contract, is to prevail.? 260a. Forms of Public Instruments. —So where the forms of public instruments are regulated by the laws of a country, they must be strictly followed, to entitle them to be held valid else- where. As, for example, if a protest of a bill of exchange, made in another state, is required by the laws of that state to be under seal, a protest not under seal will not be regarded as evidence of the dishonor of the bill.” 261. Ground of this Doctrine. — The ground of this doctrine, as commonly stated, is that every person contracting in a country is understood to submit himself to the law of the place, and silently to assent to its action upon his contract. Paul Voet has expressed it in the following language: ‘ Quid si de contractibus proprie dictis, et quidem eorum solemnibus contentio; quis locus spectabitur, an domicilii contrahentis, an loci ubi quis contrahit ? Respondeo, affirmanter, posterius. Quia censetur quis, semet contrahendo, legibus istius loci, ubi contrahit, etiam ratione so- lemnium subjicere voluisse. Ut quemadmodum loci consuetudo subintrat contractum, ejusque est declarativa ita etiam loci statu- tum.’ It would perhaps be more correct to say that the law 1 Post, s. 863-378, 485-445; Foelix, Confl. des Lois, Revue Etrang. et Franc. tom. 7, 1840, s. 40-50, p. 846-359. 2 Tickner v. Roberts, 11 La. 14; Bank of Rochester v. Gray, 2 Hill, (N. Y.) 227. ‘ 3 P. Voet, de Stat. s. 9, c. 2, n. 9, p. 267; Id. p. 323, ed. 1661; Cochin, Ciuvres, tom. 5, p. 697, 4to ed.; Fergusson on Mar. & Div. 397; 2 Boulle- nois, obs. 46, p. 475, 476; Id. 500-502; Casaregis, Disc. 179, s. 56; ante, s. 122. Boullenois and some other jurists contest the universality of this presumed assent to the law of the place of the contract, and assert that this principle generally and broadly taken, généralement et cruement (nuditer et indistincte), is not correct. But where no other place of performance is pointed out, it seems difficult to see what other law is to govern. See 2 Boullenois, obs. 46, p. 457-459; Id. 501-518; Bouhier, Cout. de Bourg. c. 21, s. 191, 192; Voet, de Stat. s. 9, c. 2, s. 10, p. 269; Td. p. 825, ed. 1661. Hertius even goes so far as to say that the law of the place of a contract does not govern where the party is a stranger, ignorant of its laws: ‘ Non valet, si exterus ignoravit statu- tum.’ 1 Hertii Opera, de Collis. Leg. s. 4, p. 126, 127, s. 10, ed. 1737; Id. p. 179, ed. 1716. See also 2 Boullenois, obs. 46, p. 502. Can a stranger liv- ing in a country plead ignorance of the laws of that country in his defence? Is he not bound by them whether he knows them or not ? Huberus, on the CHAP. VIII] FOREIGN CONTRACTS. 349 of the place of the contract acts upon it, independently of any volition of the parties, in virtue of the general sovereignty possessed by every nation to regulate all persons and property and transactions within its own territory! And in admitting the law of a foreign country to govern in regard to contracts made there, every nation merely recognizes, from a principle of comity, the same right to exist in other nations which it demands and exercises for itself? Some foreign jurists make an exception from the general rule in cases of contract made in a foreign country by any persons for the purpose of evading the revenue system, or the local solemnities prescribed by the laws of their own country respecting such contracts.’ Thus Paul Voet lays it down among his exceptions. ‘ Nisi quis, quo in loco domicilii evitaret molestam aliquam vel sumptuosam solemnitatem, adeoque in fraudem sui statuti nulla necessitate cogente alio proficiscatur, et mox ad locum domicilii, gesto alibi negotio, revertatur.* Nisi etiam extra locum domicilii velit uti statuto suze patrie favora- bili, quoad solemnia ; tum forte contractus alibi ita gestus, ubi alia solemnia erant adhibenda, ex zquo et bono in patria sus- tineretur.’® 262. Statute of Frauds.— Mlustrations of this rule might be easily multiplied. Thus by the English and American law, con- tracts which fall within the purview of what is called the statute of frauds are required to be in writing; such are contracts re- specting the sale of lands, contracts. for the debts of third persons, and contracts for the sale of goods beyond a certain value. If such contracts made by parol (per verba) in a country by whose laws they are required to be in writing, are sought to be enforced in any other country, they will be held void, exactly as they are held void in the place where they are made. (a) And the like contrary, holds that the law of the place of the contract governs, not only in respect to those who are domiciled, but those who are commorant there. Huberus, lib. 1, tit. 8, De Conflict. Leg. s. 3. 1 See the opinion of Mr. Chief Justice Marshall in Ogden v. Saunders, 12 Wheat. 332, 338-347. ® Blanchard v. Russell, 13 Mass. 1, 4. 8 P. Voet, de Statut. s. 9, c. 2, n. 9, p. 268, excep. 3,4; Id. p. 324, ed. 1661. 4 Id. ex. 2, p. 268, ed. 1715; Id. p. 324, ed. 1661. 5 Tbid: (a) See Leroux v. Brown, 12 C. B. Fantv. Miller, 17 Gratt. (Va.) 47. But 801; Bristow v. Secqueville, 5 Ex. 275; if it be merely declared that the want 350 CONFLICT OF LAWS. [s. 262-263. rule applies vice versa where parol contracts are good by the law of. the place where they are made; but they would be void if originally made in another place where they are sought to be enforced, for want of certain solemnities, or for want of being in writing, as required by the local law.t(a) It is a very different question, as we shall presently see, what rule is to prevail where the contract respects real or immovable pro- perty, and the law of the place of the contract and that of the situs rei require different forms and solemnitigs to give validity to them.” 262 a. Safety of Goods to be delivered in a Foreign Country. — But suppose goods are bargained for by a merchant in one coun- try to be paid for on delivery by a merchant in another country, who is domiciled there, and has given the order therefor ; and the law of the country where the bargain is made does not require that there should be any memorandum thereof in writing ; but the law of the country where the delivery is to be made does require such a memorandum in writing. By what law is the bargain to be governed; by the law of the place of the bargain, or by that of the place of delivery? It seems to have been thought 1 2 Boullenois, obs. 33, p. 459-461; 1 Boullenois, obs. 46, p. 492-498; Id. 499 ; Id. 506; Id. 523; Erskine’s Inst. bk. 3, tit. 5, s. 89, 40; Vidal v. Thompson, 11 Mart. (La.) 23; Casaregis, Disc. 179, n. 59, 60; 1 Hertii Opera, de Collis. Leg. p. 148, 8. 59, ed. 1737; Boullenois, Quest. de la Contrar. des Lois, p. 5; Livermore, Dissert. p. 46, s. 41; 1 Burge, Col. & For. Law, pt. 1, ¢. 1, p. 293 3 Id. pt. 2, c. 20, p. 758-762, 769; Alves v. Hodgson, 7 T. R. 241; Clegg v. Levy, 3 Camp. 166. But see Wynne v. Jackson, 2 Russ. 351; and James v. Catherwood, 3 Dowl. & R. 190; ante, s. 260, and note, p. 216; ‘post, s. 362- 373. Hertius seems to think that, if foreigners in another country make a contract according to the law of their own country (both belonging to the same country), in such a case the contract will avail in their own country even if not made according to the lex loci contractus. 1 Hertii Opera, de Collis. Leg. s. 10, p. 126, 128, ed. 1787; Id. p. 179-181, ed. 1716. So is Voet, de Statut. s. 9, c. 2, excep. 4, p. 268, ed. 1716; Id. p. 325, ed. 1661. But Boullenois has observed that he does not find any authors who are of opinion that such a contract made elsewhere, according to the law of their own coun- seh ae to have place even beyond the country. 2 Boullenois, obs. 46, p. ; * Post, s. 363-373, 435-445; 1 Boullenois, obs. 23, p. 448-472. of a stamp shall make a note inadmis- v. Miller, supra; Bristow v.: Secque- sible evidence of debt, the note may ville, supra. still be read in evidence inastate in (a) See Denny v. Williams, 5 Al- which stamps are notrequired, Fant len (Mass.) 1. CHAP, VIIL.] FOREIGN CONTRACTS. 351 that in such a case the law of the place of delivery is to govern.! (a) 263. (5) Nature, Obligation, and Interpretation of Contracts. — Another rule illustrative of the same general principle is, that the law of the place of the contract is to govern as to the nature, the obligation, and the interpretation of the contract, locus con- tractus regit actum.2(d) Again: ‘Quod si de ipso contractu queratur, says Paul Voet, ‘seu de natura ipsius, seu de iis, que ex natura contractus veniunt, puta fidejussione, etc., etiam spec- 1 The case of Acebal v. Levy, 10 Bing. 376, seems to have involved this very question, although it does not appear to have attracted the attention either of the bar or of the court. The case went off upon a supposed variance between the counts and the evidence. The statement of the facts in the body of the report does not show whether the goods in the case which were sold and shipped at Gigon in Spain by order of an agent of the defendants, were to be sent to the defendants in England, were sold to be’paid for in England after their arrival and delivery there, or were to be paid for on their shipment. But Lord Chief Justice Tindal in delivering the opinion of the court said that in point of fact the parol evidence at the trial established that the price of the goods was to be the current shipping price at Gigon, and to be paid for on the delivery thereof in England. The defendants refused to receive them, and the agent of the plaintiff then sold them for account of the plaintiff, and the action was brought for the difference between the price of the purchase and the sale thus made. One of the objections taken was that there was no memorandum in writing required by the English statute of frauds. The objection was not sustained because the court thought that there was a sufficient memorandum ; but the memorandum varied from the counts in the declaration.. But the court and bar seem to have supposed that the English statute of frauds did apply to the case; which is certainly a matter open to much discussion, and as we shall presently see, post, s. 285, 318, has been thought open to a very dif- ferent conclusion. See Vidal v. Thompson, 11 Mart. (La.) 23-25. 21Emer. Assur. c. 4,8. 8, p. 122, 125,128. See Casaregis, Disc. 179, s. 60; Erskine’s Inst. b. 8, tit. 2, s. 39, 40, p. 514, 515; Delvalle v. Plomer, 3 Camp. 47; Harrison »v. Sterry, 5 Cranch, 289; Le Roy v. Crowninshield, 2 Mason, C. C. 151; Van Reimsdyk v. Kane, 1 Gallis. C. C. 871; 2 Kent Com. 394, 458-469; Fergusson v. Fyffe, 8 Cl. & F. 121, 140. (a) See Green v. Lewis, 26 Q. B. Up. Can. 618. (6) See Scudder v. Union Bank, 91 U. S. 406; Liverpool Credit Co. v. Hunter, L. R. 8 Ch. 479; Cobb v. Buswell, 87 Vt. 337; Cantu v. Ben- nett, 89 Tex. 803; Smith v. Chicago Ry. Co., 23 Wis. 267; Elliott Bank v. Western R. Co., 2 Lea (Tenn.) 676; Williams v. Carr, 80 N. Car. 294; Bliss v. Brainard, 41 N. H. 256; Frink v. Buss, 45 N. H. 325; Ivey v. Lalland, 42 Miss. 444; Drew v. Smith, 59 Me. 393; Stone v. Perry, 60 Me. 48; Wright v. Andrews, 70 Me. 86; Ra- bun v. Rabun, 15 La. An. 471; Har- ris v. Nasits, 23 La. An. 457; Archer v. National Ing. Co., 2 Bush (Ky.) 226; ante, s. 242; post, s. 279. 352 CONFLICT OF LAWS. [s. 263. tandum est loci statutum, ubi contractus celebratur; quod ei contrahentes semet accommodare presumantur.’? First, as to the 1 P. Voet, de Stat. s. 9, c. 2, s. 10, p. 269, ed. 1737; Id. p. 253, ed. 1661. J. Voet is still more full on the same point. Voet, ad Pand. 4, 1, 29, p. 240, 241. ‘Si adversus contractum,’ says he, ‘ aliudve negotium gestum factumve restitutio desideretur, dum quis aut metu, aut dolo, aut errore lapsus, damnum sensit contrahendo, transigendo, solvendo, fidejubendo, here- ditatem adeundo, aliove simili modo; recte interpretes statutisse arbitror, leges regionis in qua contractum gestumve est id, contra quod restitutio peti- tur, locum sibi debere vindicare in terminenda ipsa restitutionis controversia, sive res ille, de quibus contractum est, et in quibus lzsio contigit, eodem in loco, sive alibi site sint. Nec intererit, utrum lesio circa res ipsas contigerit, veluti pluris minorisve, quam equum est, errore justo distractas, an vero prop- ter neglecta solemnia in loco contractus desiderata. Si tamen contractus im- plementum non in ipso contractus loco fieri debeat, sed ad locum alium sit destinatum, non loci contractus, sed implimenti leges spectandas esse ratio suadet: ut ita, secundum cujus loci jura implementum accipere debuit con- tractus, juxta ejus etiam leges resolvatur.’ Boullenois says that jurists dis- tinguish four things in contracts. (1.) Substantialia contractuum; (2.) Naturalia contractuum; (3.) Accidentalia contractuum; (4.) Solemnia contrac- tuum. He says: ‘ Ils appellent substantialia contractuum, tout ce qui sert 4 la composition intérieure des contrats; c’est-a-dire, tout ce qui est de l’essence déterminant la nature de chaque acte, et sans quoi il ne serait pas un tel acte. Substantialia sunt, quae ita formam et essentiam uniuscujusque actus consti- tuunt, ut sine iis talis actus esse non possit, cum forma dat unicuique esse id, quod est. Suivant cette définition, le consentement des parties dans tous les contrats, la chose, et les prix de la chose dans un contrat de vente, pertinent ad substantialia contractuum et ad speciem contractus constituendam; et elles sont tellement nécessaires, intrinséques et constitutives d’un contrat, que sine iis actus qui geritur, non valeat. Naturalia contractuum, ce sont les suites et les engagements qui fluent et dérivent de la nature et de l’espéce des contrats, dont il s’agit. Naturalia contractuum dicuntur ea, que pendunt et mananta natura et potestate cujusque actus; sed ejus formam non constituunt. Telle est la garantie dans la vente. Mais par rapport & ces engagements qui deéri- vent des contrats, on en distingue de deux sortes. Ily ena que sunt interna, intrinseca, et inseparabilia; c’est-4-dire, qui sont liés et attachés chaque espéce de contrats, et qui sont propres & chacun de ces contrats, suivant la dif- férent nature, dont ils sont. Que nature contractus coherent, et sunt veluti propriz pessessiones, proprie affectiones ab essentialibus cujusque contrac- tus principiis enate. Telle est, dans un contrat de vente, la nécessité que le domaine de la chose vendue soit transféré & Pacquéreur; et 3 cet égard on ne peut se soustraire 4 ces choses; on ne pourrait pas en effet stipuler, que le domaine de Ja chose vendue ne passerait pas & Pacquéreur; et il yen a quine naissent que de l’usage ordinaire ot on est d’en convenir, et qui, & raison de ceci, sont toujours présumés étre convenus par les parties. Que ex consuetu- dine etiam insunt contractibus, que consuetudo in naturam quasi contractus transiit; et on les appelle, externa et separabilia. Telle est la garantie de fait dans une cession, et & Set égard on peut y déroger, les parties peuvent stipuler quwil n’y aura d’autre garantie que celle que l’on appelle garantie de droit. Accidentalia contractus, ce sont les choses, qui ne sont point de la substance CHAP, VIII.] FOREIGN CONTRACTS, 353 nature of the contract, by which is meant those qualities which properly belong to it, and by law or custom always accompany it or inhere in it! Foreign jurists are accustomed to call such qualities naturalia contractus.? ‘Ea enim, que auctoritate legis vel consuetudinis contractum comitantur, eidem adherent, natu- ralia a doctoribus appellantur. Lex enim altera est quasi natura, et in naturam transit. Atque quoad naturalia contractuum etiam constitutive de l’acte, qui ne fluent et ne dérivent point de sa nature et de son espéce, et ne tombent point en convention ordinaire; mais que nese recontrent dans les contrats que parceque les parties en conviennent. Accidentalia con- tractus ea sunt, que neque substantiam contractuum constituunt, neque ex natura et potestate contractus dimanant, sed pro voluntate contrahentium, adjici contractibus solent, veluti varia pacta. Je voudrais ajouter, et encore celles, qui ne sont requises que par des dispositions légales, & la vérite, mais pures locales, comme la nécessité de donner caution pour la garantie d’un contrat, laquelle a lieu dans certains endroits. Enfin, il y a solemnia contrac- tuum; et on en distingue de deux sortes, solemnia intrinseca, et solemnia ex- trinseca. Solemnia intrinseca sunt ea, que insunt in ipsa forma cujusque actus, neque separari ab ea possunt; telles sont les choses qui appartiennent 4 la preuve et 4 l’authenticité de l’acte, et qui comme telles sont partie de ce qui constitue l’étre et l’existence de cet acte; aussi sont-elles appellées par quelques-uns substantialia contractuum. Solemnia extrinseca sunt ea, que actui per se formam habent et ultra conventionem contrahentium sed ad ipsam conventionem roborandam, extrinsecus accedunt, et ce sont les choses, qui n’appartenant en rien 4 la composition intrinséque de l’acte, sont seulement requises, post actum originatum, pour lui procurer son exécution. . La solem- nité intrinseque est tellement nécessaire, que si on l’omet, l’acte n’est pas acte, il n’a nul étre, nulle existence; l'omission vitiat et corrumpit actum; raison pour laquelle on Ja place volontiers inter substantialia contractuum. Mais & Végard de la solemnité extrinséque, il n’en est pas toujours de méme, aliquando omissa impedit executionem ex omni parte.’ 1 Boullenois, obs. 23, p. 446— 448. See also 2. Burge, Col. & For. Law, pt. 2,¢. 9, p. 848-850; 3 Id. pt. 2, c. 20, p. 758, 759, 762, 763; Don v. Lippmann, 5 C. & F. 1, 12, 13. 1 Pothier, as well as other jurists, distinguish between the essence, the nature, and the accidents of contracts ; the former includes whatever is indis- pensable to the constitution of it; the next, whatever is included in it, without being expressly mentioned, by operation of law, but is capable of a severance without destroying it; and the last, those things which belong to it only by express agreement. Without meauing to contest the propriety of this divi- sion, Iam content to include the two former in the single word nature as quite conformable to our English idiom. Cujas also adopts the same course. See Pothier, Oblig. n. 5. See also 2 Boullenois, obs. 46, p. 460, 461, 462; Bayon v. Vavasseur, 10 Mart. (La.) 61. Merlin, Répert. Convention, s. 2, n. 6, p. 857; Rodenburg, de Div. Stat. tit. 2, c. 5, s. 16; 2 Boullenois, Appx. 50; 1 Boullenois, 688; 8 Burge, Col. & For. Law, pt. 2, c. 20, p. 848-851. 2 1 Boullenois, obs. 28, p. 446; 2 Id. obs. 46, p. 460, 461; Voet, de Stat. 8. 9,¢,10, s. 10, p. 287; Id. p. 825, ed. 1661; Hertius, de Collis. Leg. tom. 1, 8. 10, p. 127; Id. p. 179, 180, ed. 1716, post, s. 801 f 23 354 CONFLICT OF LAWS. [s. 263, 264, forenses statuta loci contractus observare debent.’1_ Thus whether a contract be a personal obligation or a real obligation; whether it be conditional or absolute; whether it be the principal or the accessary ; whether it be that of principal or surety ; whether it be of limited or of universal operation, — these are points properly belonging to the nature of the contract, and are dependent upon the law and custom of the place of the contract whenever there are no express terms in the contract itself, which otherwise con- trol them. By the law of some countries there are certain joint contracts which bind each party for the whole, in solido; and there are other joint contracts, where the parties are, under cir- cumstances, bound only for several and distinct portions. In such case the law of the place of the contract regulates the nature of the contract, in the absence of any express stipula- tions.2 These may therefore be said to constitute the nature of the contract.* 1 Lauterback, Diss. 104, pt. 3, n. 58, cited 2 Boullenois, obs. 46, p. 460. 2 4 Burge; Col. & For. Law, pt. 2, c. 7, s. 2, p. 722-735: post, s. 822. 8 Pothier on Oblig. n. 261-268; Van Leeuwen, Comment. b. 4, c. 4,8. 1; Ferguson v. Flower, 4 Mart. N.S. (La.) 312; 2 Boullenois, obs. 46, p. 463; Code Civil of France, art. 1197, 1202, 1220, 1222; Code de Com. art. 22, 140. One may see how strangely learned men will reason on subjects of this nature by consulting Boullenois. He puts the case of a contract made in a country where all parties would be bound in solido, and by the law of their own domi- cil they would be entitled to the benefit of a division, and vice versa; and asks, What law is to govern? In each case he decides that the law should govern which is most favorable to the debtor. ‘ Ainsi les obligés solidaires ont contracté sous une loi qui leur est favorable; j’embrasse cette loi; elle leur est contraire, j’embrasse la loi de leur domicil.’ 2 Boullenois, obs. 46, p- 463, 464. See also Bouhier, c. 21, s. 198, 199. * See Henry on Foreign Law, 39. Pothier on Obligations, n. 7, has ex- plained the meaning of the words, the nature of the contract, in the following manner: ‘ Things which are only of the nature of the contract are those which, without being of the essence, form a part of it, though not expressly mentioned; it being of the nature of the contract that they shall be included and under- stood. These things have an intermediate place between those which are of the essence of the contract, and those which are merely accidental to it, and differ from both of them. They differ from those which are of the essence of the contract, inasmuch as the contract may subsist without them, and they may be excluded by the express agreement of the parties; and they differ from things which are merely accidental to it, inasmuch as they form a part of it without being particularly expressed, as may be illustrated by the following examples. In the contract of sale the obligation of warranty which the seller contracts with the purchaser is of the nature of the contract of sale; therefore the seller, by the act of sale, contracts this obligation, though the parties do not express it, and there is not a word respecting it in the contract; but as CHAP. VIL] FOREIGN CONTRACTS. 355 264. Nature. — An illustration may be taken from a case often put by the civilians. By the law of some countries a warranty is implied in all cases of sale; by that of others it is not. Suppose a contract of sale is made in any of the former countries by par- ties domiciled in any of the latter countries. If the contract is to be executed in the country where it is made, a warranty will be implied, as an incident arising from the nature of the contract; if it is to be executed in the place of the domicil of the parties, for reasons which we shall presently see, no warranty will be im- plied! By the civil law, there is an implied warranty as to the quality and soundness of goods sold; by the common law there is not.2 A sale of goods in England would be governed by the common law; a sale in a foreign country, under the civil law, the obligation is of the nature and not of the essence of the contract of sale, the contract of sale may subsist without it; and if it is agreed that the seller shall not be bound to warranty, such agreement will be valid, and the contract will continue a real contract of sale. It is also of the nature of the contract of sale, that as soon as the contract is completed by the consent of the parties, although before delivery, the thing sold is at the risk of the purchaser; and that, if it happens to perish without the fault of the seller, the loss falls upon the purchaser, who is, notwithstanding the misfortune, liable for the price; but as that is only of the nature and not of the essence of the contract, the con- trary may be agreed upon. When a thing is lent to be specifically returned [commodatur], it is of the nature of the contract that the borrower shall be answerable for the slightest negligence in respect to the articles lent. He con- tracts this obligation to the lender by the very nature of the contract, and with- out anything being said about it. But as this obligation is of the nature and not of the essence of the contract, it may be excluded by an express agreement that the borrower shall only be bound to act with fidelity, and shall not be re- sponsible for any accidents merely occasioned by his negligence. It is also of the nature of this contract, that the loss of the thing lent, when it arises from: inevitable accident, falls upon the lender. But as that is of the nature and not of the essence of the contract, there may be an agreement to charge the borrower with every loss that may happen until the thing is restored. A great variety of other instances might be adduced from the different kinds of con- tracts. Those things which are accidental to a contract are such as, not being of the nature of the contract, are only included in it by express agreement. For instance, the allowance of a certain time for paying the money due, the liberty of paying it by instalments, that of paying another thing instead of it, of paying to some other person than the creditor, and the like, are accidental to the contract; because they are not included in it without being particularly expressed.’ 1 Pothier, Oblig. n. 7; 2 Boullenois, obs. 46, p. 475, 476; Id. 460-468; Code Civil of France, art. 1135; Voet, de Statut. s. 9, c. 2, s. 10, p. 296, ed. 1715; Td. p. 825, ed. 1661; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 769, 770. 2 Pothier, Pand. 19, 1, 5, s. 48-51; 2 Black. Com. 451; 2 Kent, Com. 478-481. 356 CONFLICT OF LAWS. {s. 264-266 a. would be governed by that law, as to this implied warranty. Boullenois lays down this as one of his fundamental rules in the interpretation of contracts. Whenever, says he, the controversy respects movables of which an immediate delivery is made, the law of the place of the contract is to govern; adopting on this point the doctrine, although not the reasoning, of Colerus. ‘ Con- suetudo si quidem loci, ubi negotium geritur, ita subintrat ipsum contractum, ut secundum leges loci intelligatur actus fuisse cele- bratus, quamvis ea de re nihil fuerit expressum.’ ? 265. Illustration. — Another illustration may be borrowed from an actual decision under the common law. By the law of Eng- land an acceptance of a bill of exchange binds the acceptor to payment at all events. By the law of Leghorn, if a bill is ac- cepted, and the drawer fails, and the acceptor has not sufficient effects of the drawer in his hands at the time of acceptance, the acceptance becomes void. An acceptance in Leghorn is governed by this latter law ; and under such circumstances it has been held void, and not obligatory upon the acceptor.? 266. Obligation. — Secondly, the obligation of the contract, which, though often confounded with, is distinguishable from, its nature.2 The obligation of a contract is the duty to perform it, whatever may be its nature. It may be a moral obligation, or a legal obligation, or both. But when we speak of obligation generally, we mean legal obligation, that is, the right to per- formance which the law confers on one party, and the corre- sponding duty of performance to which it binds the other.! This is what the French jurists calls le lien du contrat (the legal tie of " the contract), onus conventionis, and what the civilians generally call vinculum juris, or vinculum obligationis.6 The Institutes. of Justinian have thus defined it. ‘* Obligatio est juris vinculum, quo necessitate adstringimur alicujus rei solvende, secundum nostre civitatis jura.’® A contract may in its nature be purely voluntary, and possess no legal obligation. It may be a mere 1 2 Boullenois, obs. 46, p. 475, 476. ? Burrows v. Jemino, 2 Str. 733; 2 Eq. Abr. 526; Pardessus, tom. 5, art. 1495, p. 270, 271. ® See 2 Boullenois, obs. 46, p. 454, 460, 462, 463, 464; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 764, 765. * See 3 Story, Const. s. 1372-1379; Ogden v. Saunders, 12 Wheat. 213; Pothier on Oblig. art. 1, n. 1, p. 173-175. 5 2 Boullenois, obs. 46, p. 458-460. ® Inst. 8, 14; Pothier, Pand. 44, 7, p- 1, art. 1, 8.1; Pothier, Oblig. n. 173, 174. CHAP. VIII.] FOREIGN CONTRACTS. 357 naked pact (nudum pactum). It may possess a legal obligation ; but the laws may limit the extent and force of that obligation in personam, orin rem. It may bind the party personally, but not bind his estate; or it may bind his estate, and not bind his person. The obligation may be limited in its operation or duration; or it may be revocable or dissoluble in certain future events, or under peculiar circumstances. 266 a. Illustration. — An illustration may be readily seen in the common case of a Scotch heritable bond. It is well known that by the common law of England a bond, which is also a charge on land, as, for example, a bond accompanying a mortgage of land as a security, is primarily, in a contest between the heir and the administrator, a charge on the personal estate, and of course the heir has a right in equity to be relieved therefrom, so far as there are personal assets to discharge the bond.? In the Scotch law the same rule prevails as to movable debts, which are pri- marily and properly chargeable upon the personal assets. But, as to heritable bonds, a different rule prevails ; and they are pri- marily a charge on the real estate of the debtor. Now, suppose a question should arise in England, as indeed it has arisen, whether, in the case of a Scotch movable debt, the heir, upon payment of it, was entitled to be exonerated therefrom, and to receive the amount out of the personal assets in England. Upon principle it should seem clear that he would be entitled to the relief and exoneration; for the heir, having by the law of the country where the land lies, a right to such relief and exonera- tion, would have the same right in regard to the same debt in every other country, since it properly belongs to the nature, obli- gation, and interpretation of the contract. On the other hand a 1 See 2 Boullenois, obs. 46, p. 452, 454; Code Civil of France, art. 1168-1196. 2 1 Story, Eq. Juris. s. 571, 574; Earl of Winchelsea v. Garetty, 2 Keen, 293, 309. 3 Winchelsea v. Garetty, 2 Keen, 293, 309, 310; post, s. 487, 529. * Post, s. 486-489, 529; Drummond v. Drummond, 6 Bro. P. C. by Tom- lins, 601. 5 Winchelsea v. Garetty, 2 Keen, 293, 308-310. Upon this occasion Lord Langdale said: ‘By the law of England, the personal estate is the primary fund for the payment of all debts contracted by the deceased person, whose estate it was. By the law of Scotland movable debts are primarily and pro- perly chargeable upon the personal estate. The creditor may, indeed, enforce payment against the real estate in the hands of the heir; but if he does so, the heir is entitled to relief against the executors out of the personal estate;. in 358 CONFLICT OF LAWS. [s. 266 a, 267. Scotch heir, paying a heritable bond, would be entitled to no such relief or exoneration, because the debt is primarily by the local law other words, according to the law of Scotland, the real estate, though subject to the payment of movable debts, is only a subsidiary fund for the purpose of payment. Payment by the heir does not extinguish the debt, but vests in him the right to recover the amount against the personal estate, and constitutes him a creditor against the personal estate; and whether he can enforce pay- ment against the personal estate, which is to be distributed according to the laws of another country, which makes the personal estate the primary fund for the payment of debts, is the question. Prima facie there would seem to be no difficulty; the heir, having by the law of the country in which the land lies a right to relief or exoneration, would seem to be at liberty to make that right available in a country where the personal estate is the primary fund for the payment of all debts. But it is objected that, in all the opinions upon which the finding of the master rests, it has been assumed that the law of domicil makes no difference; whereas it is clear that the domicil determines the law by which the personal estate is to be distributed; and that, although it be true that in England the personal estate must be applied in exoneration of the Eng- lish heir of real estate, yet that the right of the heir to be exonerated is founded on the law peculiar to England, and that a foreign heir of foreign lands is not entitled to the same relief as an English heir of English lands. The law of England, it is said, affords no relief to foreign real estate out of English per- sonal estate; and although the law of Scotland regulates the administration of the real estate, and provides that the real estate, if applied in payment of personal debts, shall be exonerated out of the personal estate, the proposition must be limited to personal estate, of which the distribution is regulated accord- ing to the law of Scotland, and consequently to the personal estate of debtors domiciled in Scotland. Several cases were cited. They sufficiently establish the propositions, which are not disputed on either side; and Drummond ». Drummond, 6 Bro. P. C. 601 (Tomlins’ ed.), establishes that a Scotch heir is ultimately liable to pay heritable debts which have in the first instance been paid out of the personal estate distributable according to the law of England; but no case has occurred in which it has been decided that the Scotch heir, having paid movable debts, is entitled to be relieved out of the per- sonal estate distributable according to the law of England; and that is the question here. The personal estate is taken by the administrator, according to the law of England, subject to the payment of all the debts of the intestate. The real estate is taken by the heir, according to the law of Scotland, subject to the payment of all movable debts, but with a right of relief out of the personal estate, and subject to the payment of all heritable debts without such right of relief. As to the heritable debts, in respect of which there is no such right of relief, the heir is not entitled to the benefit of the English law, which makes the personal estate subject to the payment of all debts. The Scotch law, which makes the heir ultimately liable to the payment of such debts, and which governs the distribution of the real estate, prevails in favor of the persons entitled to the personal estate distributable according to the laws of England. As to personal debts, in respect of which there is such a right to relief, the English law subjects the personal estate to all debts; the Scotch law relieves the real estate, as far as it can consistently with the claims of the creditors. The heir, by paying, satisfies the creditor, but at the same CHAP. VIII.] FOREIGN CONTRACTS. 359 a a charge on the real estate ;! and if such heritable bond should be paid by an English administrator out of the personal assets, he would be entitled to reimbursement from the Scotch heir.? 267. Illustrations. —It would be easy to multiply illustrations under this head. Suppose a contract by the law of one country to involve no personal obligation (as was supposed to be the law of France in a particular case which came in judgment,®) but merely to confer a right to proceed in rem; such a contract would be held everywhere to involve no personal obligation whatsoever. Suppose, by the law of a particular country, a mortgage for money borrowed should, in the absence of any express contract to repay, be limited to a mere repayment thereof out of the land, a foreign court would refuse to entertain a suit giving to it a personal obligation. Suppose a contract for the payment of the debt of a third person, in a country where the law subjected such a contract to the tacit condition that pay- time acquires for himself a right of demand against the executor; he may, if he pleases, take an assignation for the debt, and make it available; but that is not necessary, because, without any assignation, his own claim to relief sub- sists and constitutes him a creditor against the personal estate. Under these circumstances the question does not appear to me to be fully stated, when it is said to be, whether a foreign heir of foreign lands is entitled to the same re- lief as an English heir of English lands. The case is, that a foreign heir of foreign lands is, in respect of those lands, subsidiarily liable to pay debts, to which the personal estate, distributable according to the law of England, is primarily liable; and that, having paid the debt, he is, by the law of the coun- try in which the land lies, constituted a creditor upon the personal estate distributable according to the law of that country. And it is under these cir- cumstances, and without reference to English tenures, or the title to exonera- tion which an English heir may possess, that the question arises, whether the subsidiary debtor, or the person who, by the law of a foreign country, is con- stituted surety for the payment of debts primarily chargeable on another fund, “and paying the debts by force of and according to the law which constitutes him a creditor upon that other fund, is or is not entitled to make his title as to creditors available in another country where the personal estate is distribu- table, and where the law makes the personal estate primarily liable to the pay- ment of all debts. And, upon consideration of the case, I am of opinion that the right of relief or demand against the personal estate, which in the adminis- tration. of the real estate by the law of Scotland is vested in the heir, who has paid movable debts, is capable of being made available in England, where the personal estate is the primary fund for the payment of all debts.’ 1 Drummond v. Drummond, 6 Bro. P. C. by Tomlins, 601; post, s. 486- 489, 529; Elliott v. Lord Minto, 6 Madd. 16; Earl of Winchalias v. Garetty, 2 Keen, 293, 308-810. 2 Robertson on Personal Succession, 209-214. ® Melan v. Fitz James, 1 B. & P. 188. 360 CONFLICT OF LAWS. [s. 267-268 a. ment must first be sought against the debtor and his estate; that would limit the obligation to a mere accessorial and secondary character; and it would not be enforced in any foreign country, except after a compliance with the requisitions of the local law. Sureties, indorsers, and guarantors are therefore liable every- where, only according to the law of the place of their con- tract.1 (a) Their obligation, if treated by such local law as an accessorial obligation, will not anywhere else be deemed a princi- pal obligation.2 So, if by the law of the place of a contract, its obligation is positively and ex directo extinguished after a certain period by the mere lapse of time, it cannot be revived by a suit in a foreign country whose laws provide no such rule, or apply it only to the remedy.? To use the expressive language of a learned judge, it must be shown, in all such cases, what the laws of the foreign country are, and that they create an obligation which our laws will enforce.* (6) 267 a. This doctrine was fully recognized in a recent case, where the question was as to the rights of parties, growing out of various bonds executed in a state which was governed by the common law, some of the bonds being designed as security or indemnity to a surety on the other bonds. The court said: ‘These different bonds were entered into in states of the Union where the common law prevails, and consequently the rights and liabilities of the parties are to be measured by that system of ju- risprudence; and whatever the plaintiff (the assignee of the surety) would be entitled to recover (upon the indemnity bond) in a court of law or equity in the state where the transaction originated, he is entitled to in this court, in the present form of action.’ ® (¢) 268. Another Case. — Let us take another case which has actu- 1 Aymar v. Sheldon, 12 Wend. (N. Y.) 439. 2 See Pothier on Oblig. n. 407; Trimbey v. Vignier, 6 C. & P. 25; 1 Bing. N.C. 151, 159; 4 M. & Scott, 695; post, s. 314, 316 a; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 764-766. 5 See Le Roy v. Crowninshield, 2 Mason, 151; Pothier, Oblig. n. 636-689; Voet, ad Pand. 4, 1, 29, ad finem. 4 Lord Chief Justice Eyre, in Melan v. Fitz James, 1 B. & P. 141. 5 Mr. Justice Bullard, in King v. Harman’s Heirs, 6 La. 607, 617. (a) As to indorsers, -drawers, ac- — (b) See the note to s. 637, post. ceptors, and makers of bills and notes, (c) See Collins Iron Co. v. Burkam, see note tos. 314. 10 Mich. 283. CHAP. VIII] FOREIGN CONTRACTS, 361 ally passed into judgment. By the common law, heirs are not bound by the simple contracts of their ancestor, but only by in- struments under seal declaring them expressly bound. By the law of Louisiana, the heirs are ipso facto bound by such simple con- tracts of their ancestors.!_ Ifa simple contract is made in a State governed by the common law, it cannot be enforced in Louisiana against the heirs of the debtor, although they are domiciled in Louisiana.2~ The remedy must be sought through the instru- mentality of an administration of the assets there? 268 a. Dissolubility of Contracts. — To this head of the obliga- tion of contracts may also be appropriately referred the con- sideration of the nature and extent of the obligation of contracts, in respect to their dissolubility or indissolubility in point of dura- tion. This topic has been already incidentally discussed in ex- amining the nature and obligation of the contract of marriage, which indeed is truly a contract; but, properly speaking, it is something more, an institution of civil society. It has been often urged, especially in regard to the contract of marriage, that indissolubility is of its very essence; and that what is of the es- sence of a contract must be judged of according to the lex loci contractus. It has been remarked by an eminent judge that this is somewhat a vague, and for its vagueness a somewhat suspicious, proposition, and that there are many other things which may just 1 Brown v. Richardsons, 1 Mart. N.S. (La.) 202. Mr. Justice Porter, in deliver- ing the opinion of the court in this case, said: ‘ We recognize the distinction made by the plaintiff’s counsel between the right and the remedy, and agree with him that contracts should be expounded according to the laws of the country where they are made, and enforced according to the regulations which prevail where the debtor is found. It is that distinction which gives the defendants immunity in this case. For, in order to ascertain who is debtor, we must recur to the laws of the country where the contract was made; and if these laws do not make persons standing in the character of the appellants liable under the circumstances now in proof, they cannot be made so by a change of jurisdiction. It is true that, according to our jurisprudence, the heir is obliged to pay the debts of the ancestor, if he accepts the succession unconditionally ; but it does not follow that the same rule exists in other countries. An embar- rassment is created in considering the case, from a feeling which it is difficult to check, that there exists something like a natural obligation on the child to pay the parent’s debts; particularly if he takes any of his property. But that obligation is, in fact, nothing but the creature of positive law, and is of course subject to all the modification which the policy of different states may induce them to adopt. Id. p. 208. 2 Brown v. Richardsons, 1 Mart. N.S. (La.) 202. 3 Ibid. 4 Ante, s. 108 a; s. 218-230, 226 ¢, note. 362 CONFLICT OF LAWS. [s. 268 a-270. as well be reckoned of the essence of the contract as this. He afterwards added: ‘ The fallacy of the argument, “that indis- solubility is of the essence,” appears plainly to be this; it con- founds incidents with essence; it makes the rights under a contract, or flowing from and arising out of it, parcel of the contract; it makes the mode in which judicatures deal with those rights, and with the contract itself, part of the contract; instead of considering, as in all soundness of principle we ought, that the contract and all its incidents and the rights of the parties to it, and the wrongs committed by them respecting it, must be dealt with by the courts of the country where the parties reside, and where the contract is to be carried into execution.’! These considerations are certainly entitled to great weight; but they only show the intrinsic difficulty of laying down any general rules, on such complicated subjects, which shall be of universal application. It will probably be found that the proposition that a contract cannot be dissolved, except in the manner and under the circumstances prescribed by the law of the place where it was made, if true at all, must be asserted with many qualifica- tions and exceptions. Contracts of marriage, and other contracts of a peculiar nature, may perhaps require a different exposition in this respect from other ordinary pecuniary contracts. And even if a contract be indissoluble by the lex loci contractus, ex- cept ina special mode, it may nevertheless be thought reasonable that that rule should not prevail upon a change of domicil, as to an act of the parties done in the latter place, where another mode is prescribed or allowed for its dissolution? But of this we shall speak hereafter.? 269. Judgment founded on Mistake of Foreign Law. — Cases sometimes occur in which the tribunals of a foreign country are called upon to decide upon the law of another country where the contract is made, and they by mistake misinterpret that law. In such a case, if they discharge the parties from the obligation of the contract, in consequence of such misinterpreta- tion of the foreign law, that discharge will not be held obligatory upon the courts of the country where the contract was made A . Lord Brougham, in Warrender v. Warrender, 9 Bligh, 114; ante, s. 226 c, note. ? Warrender v. Warrender, 9 Bligh, 114; ante, s. 226 ¢, note. ® See post, s. 351 @; ante, s.226a, note. 4 Novelliv. Rossi, 2 B. & Ad. 757. CHAP, VIII] FOREIGN CONTRACTS. 363 recent case has occurred on this subject. A bill of exchange drawn in France, and indorsed there, and accepted. and payable in England at a banker’s, was passed by an indorsee in discharge of an antecedent debt; and upon presentment for payment it was dishonored, and the banker’s clerk by mistake cancelled the acceptance, and then wrote on it, ‘cancelled by mistake.’ After- wards the indorser, who had so passed the bill in discharge of his debt, cited all the parties, and, among others, the creditor and holder of the bill, before the tribunals of France, who decreed that the cancellation operated as a suspension of legal remedies against the acceptor, and consequently discharged the other par- ties, the indorsers as well as the drawer. A suit was afterwards brought by the creditor against the debtor-indorser in England ; and it was held that the courts of France had mistaken the law of England as to the effect of the cancellation; and that the plaintiff was entitled to recover against the defendant the full amount of the debt, notwithstanding the decree in the French courts.! (a) ; 270. Interpretation. — Thirdly. The interpretation of contracts. Upon this subject there would scarcely seem to be any room for doubt or disputation. There are certain general rules of inter- pretation recognized by all nations, which form the basis of all reasoning on the subject of contracts. The object is to ascertain the real intention of the parties in their stipulations ; and when the latter are silent or ambiguous, to ascertain what is the true sense of the words used, and what ought to be implied in order to give them their true and full effect.2 The primary rule in all 1 Ibid. 2 See Lord Brougham’s striking remarks on this subject already cited ante, s. 226 c. In Prentiss v. Savage, 13 Mass. 23, Mr. Chief Justice’ Parker said: “Tt seems to be an undisputed doctrine, with respect to personal contracts, that the law of the place where they are made shall govern in their construc- tion, except when made with a view to performance in some other country, and then the law of such country is to prevail. (a) The difficulty in Novelli v. Rossi was mainly one of jurisdiction in the foreign court. That mere mistake of the English law by a French court would not affect the judgment when brought before a court in England, see Castrique v. Imrie, L. R. 4 H. L. 414; Castrique v. Behrens, 3 El. & E. This is nothing more than 722; Doglioni v. Crispin, L. R. 1 H. L. 301. See Simpson v. Fogo, 1 Hem. & M. 195, holding otherwise of a per- verse disregard by the court of the law that ought to govern. And see Liver- pool Credit Co. v. Hunter, L. RB. 3 Ch. 479, 484. 364 CONFLICT OF LAWS. [s. 270, 271. expositions of this sort is that of common sense So well expressed inthe Digest. ‘In conventionibus contrahentium voluntas, potius quam verba, spectari placuit.”? But in many cases the words used in contracts have different meanings attached to them in different places by law and by custom. And where the words are in themselves obscure or ambiguous, custom and usage in a particular place may give them an exact and appropriate mean- ing. Hence the rule has found admission into almost all, if not into all, systems of jurisprudence, that if the full and entire intention of the parties does not appear from the words of the contract, and if it can be interpreted by any custom or usage of the place where it is made, that course is to be adopted. Such is the rule of the Digest. ‘Semper in stipulationibus, et in ceteris contractibus id sequimur, quod actum est, erit consequens, ut id sequamur, quod in regione in qua actum est, frequentatur.’? ‘ Conservanda est consuetudo regionis et civitatis,’ says J. Sande, ‘ubi contractum est. Omnes enim actiones nostre (si non aliter fuerit provisum inter contrahentes) interpretationem recipiunt a consuetudine loci in quo contrahitur.’? Usage is indeed of so much authority in the interpretation of contracts, that a contract common sense and sound justice, adopting the probable intent of the parties as the rule of construction. For when a citizen of ‘this country enters into a contract in another with a citizen or subject thereof, and the contract is intended to be there performed, it is reasonable to presume that both parties had regard to the law of the place where they were, and that the contract was shaped accordingly. And it is also to be presumed, when the contract is to be exe- cuted in any other country than that in which it is made, that the parties take into their consideration the law of such foreign country. This latter branch of the rule, if not so obviously founded upon the intention of the parties as the former, is equally well settled as a principle in the law of contracts.’ Mr. Chancellor Walworth, in Chapman v. Robertson, 6 Paige (N. Y.), 627, 680, used equally strong language. ‘It is an established principle,’ said he, ‘that the construction and validity of personal contracts, which are purely personal, depend upon the laws of the place where the contract is made, unless it was made with reference to the laws of some other place or country where such contract in the contemplation of the parties thereto was to be carried into effect and performed.’ 2 Kent Com. 457, 458; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 752-764. 1 Dig. 50, 16, 219. Many rules of interpretation are found in Pothier on Obligations, n. 91-102; in Fonblanque on Equity, b. 1, c. 6, s. 11-20, and notes; 1 Domat, Civil Law, b. 1, tit. 1, s. 2; 1 Powell on Contracts, 370 et seq.; Merlin, Répertoire, Convention, s. 7, 366. 2 Dig. 50, 17, 84; 1 Domat, Civil Law, b. 1, tit. 1, s. 2, n. 9; 2 Boulle- nois, obs. 46, p. 490; 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 775, 776. 8 J. Sande, Op. Comm. de Reg. Jur. 1. 9, p. 17. CHAP. VIII] FOREIGN CONTRACTS. 365 is understood to contain the customary ‘clauses, although they are not expressed, according to the known rule, ‘In contractibus tacite veniunt ea que sunt moris et consuetudinis.’! Thus, if a tenant is by custom to have the outgoing crop, he will be entitled to it, although not expressed in the lease.2 And if a lease is entirely silent as to the time of the tenant’s quitting, the custom of the country will fix it.2 By the law of England a month means ordinarily in common contracts, as in leases, a lunar month ; but in mercantile contracts it means a calendar month.4 A contract therefore made in England for a lease of land for twelve months would mean a lease for forty-eight weeks only. A promissory note to pay money in twelve months would mean in one year or in twelve calendar months.® If a contract of either sort were required to be enforced in a foreign country, its true interpretation must be everywhere the same that it is according to the usage in the country where the contract was made. 271. Illustrations. — The same word, too, often has different significations in different countries. Thus the term usance, which is common enough in negotiable instruments, means in some countries a month, in others two or more months, and in others half a month. A note payable at one usance must be construed everywhere according to the meaning of the word in the country where the contract is made.” There are many other cases illus- trative of the same principle. A note made in England for 100 pounds would mean 100 pounds sterling. A like note made in America would mean 100 pounds in American currency, which is one-fourth less in value. It would be monstrous to contend that on the English note, sued in America, the less sum only ought to be recovered ; and on the other-hand, on the American 1 Pothier, Oblig. n. 95; Merlin, Repertoire, Convention, s. 7; 2 Kent Com. 555. . 2 Wigglesworth v. Dallison, Doug. 201, 207. 3 Webb v. Plummer, 2 B. & A. 746. 4 2 Black, Com. 141; Catesby’s Case, 6 Rep. 62; Lacon v. Hooper, 6 T. R. 224; 3 Burge, Col. & For. Law, pt. 3, c. 20, p. 776, 777. 5 Thid. ® Chitty on Bills, 8th ed. 1883, p.406; Lang v. Gale, 1 M. & S. 111; Cockell v. Gray, 3 Br. & B. 187; Leffingwell v. White, 1 Johns. Cas. (N. Y.) 99. 7 Chitty on Bills, 8th ed. 1883, p. 404, 405. See also 2 Boullenois, obs. 46, p. 447. 366 CONFLICT OF LAWS. [s. 271-272. note sued in England, that one-third more ought to be re- covered.4 271 a. Another illustration may easily be suggested which is not quite so simple in its circumstances. Suppose a contract is made in England between two Englishmen for the sale of lands situated in Jamaica; and the vendee agreed to give £20,000 for the lands without specifying in what currency. The difference between Jamaica pounds currency and English sterling pounds currency, by thé par of exchange, exclusive of any premium on bills of exchange on England, is forty per cent. Consequently £28,000 Jamaica currency would constitute only £20,000 ster- ling. The question might then arise, according to which cur- rency the purchase-money is to be paid. In the absence of all expressions and circumstances from which a different intention may be inferred, the interpretation of the contract would be that it was payable in the currency of the country where the contract was made, and not in that of the situs of the property.? Another illustration may be in case of a sale of lands situated in one coun- try, and the contract made in another, and the sale to be a certain number of acres for a gross price, or at a specific price per acre, the mode of measuring an acre, or the contents thereof, being different in different countries. The question might arise whe- ther the acre was to be according to the measurement in the one country or in the other. Now upon this very point different opinions and judgments have been held by different jurists and tribunals on the continent of Europe; some holding that the lex loci contractus ought to govern, and others that the lex situs ought to govern the admeasurement.2 Choppin has reported a case where the highest tribunal of Orleans held that the laws of the place of the contract should determine the admeasurement of the acre. But he disapproves of it and says: ‘ Justior tamen est diversa opinio, venditi agri mensuram ex lege petendam situs prediorum non logi pact venditionis.’* John Voet holds the 1 See also Powell on Contracts, 876; 2 Boullenois, obs. 46, p. 498, 503; Henry on Foreign Law, Appendix, 233; Pardessus, Droit Com. art. 1492; 8 Burge, Col. & For. Law, pt. 3, c. 20, p. 772, 773; post, s. 272 a, s. 307, 308. 22 Burge, Col. & For. Law, pt. 2, c. 9, p. 860, 861. 8 Td. 858, 859. * Choppini Opera, de Feudis Andeg. tom. 2, lib. 2, tit. 8, n. 10, p. 182, 133, ed. 1611; 2 Boullenois, obs. 46, p. 497; 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 858, 859. CHAP. VIII] FOREIGN CONTRACTS. 367 same opinion: ‘Si res immobiles ad certam mensuram debeantur, et ea pro locorum diversitate varia sit, in dubio solvi debent juxta mensuram loci in quo site sunt.’1 In respect to movables he holds the opposite opinion, that they are governed by the law of the place of the contract. Dumoulin holds the same opinion as to immovables, that they are governed by the lex situs. ‘Unde stantibus mensuris diversis, si fundus venditur ad mensuram, vel affrmatur, vel mensuratur, non continuo debet inspici mensura, que viget in loco contractus, sed in dubio debet attendi mensura loci, in quo fundus debet metiri, et tradi, et executio fieri.”? He admits that other jurists differ from him, and that other circum- stances may vary this interpretation. ‘ Et ita tenendum, nisi ex aliis circumstantiis constet, de qua mensura senserint.’? Indeed he denies that any universal rule can be established.4 The same doctrine that the lex situs ought to govern in the like cases would seem to be favored, if not positively established, in the jurispru- dence of England and America.® 272. General Rule.— The general rule then is that, in the interpretation of contracts, the law and custom of the place of the contract are to govern in all cases where the language is not directly expressive of the actual intention of the parties, but it is to be tacitly inferred from the nature and objects and occasion of the contract.6(a) The rule has been fully recognized in the courts of common law ; and it has been directly decided by those courts that the interpretation of the contract must be governed by the laws of the country where the contract is made.” (6) And 1 J. Voet, 46, 3, n. 8, p. 949; 2 Burge, Col. & For. Law, pt. 2, ¢. 9, p. 859; 2 Boullenois, obs. 46, p. 497. 2 Molin. Oper. Com. ad Cod. 1, 1, 1, tom. 3, Conclus. de Statut. p. 554, 3 Ibid. * Ibid.; post, s. 274 a. 5 Ante, s. 270. 8 See the opinion of the court delivered by Mr. Justice Martin in the case of Depau v. Humphreys, 8 Mart. N.S. (La.) 1, 8, 9, 18, 22-24; Mr. Justice Porter in the case of Morris v. Eves, 11 Mart. (La.) 730; Courtois v. Car- penteir, 1 Wash. C. C. 3876. 7 Trimby v. Vignier, 1 Bing. N. C. 151, 159; post, s. 316 a; De la Vega v. Vianna, 1B. & Ad. 284; British Linen Co. v. Drummond, 10 B. & C. 903; Bank of the United States v. Donnally, 8 Pet. 868, 872; Pope v. Nickerson, 3 Story, 484; Harrison v. Sterry, 5 Cranch, 289; Wilcox v. Hunt, 13 Pet. 378, 379. We shall presently see that the same rule is adopted in the interpretation of wills. See Lansdowne v. Lansdowne, 2 Bligh, 60, 88, 89, 91, and cases there (a) Bent v. Lauve, 3 La. An. 88. (b) See ante, s. 242, 263; post, s. 314, and note. 368 CONFLICT OF LAWS. [s. 272-274. the rule is founded in wisdom, sound policy, and general conve- nience. Especially in interpreting ambiguous contracts ought the domicil of the parties, the place of execution, the various pro- visions and expressions of the instrument, and other circum- stances, implying a local reference, to be taken into consideration." Thus Gothofredus says: ‘ Consuetudo regionis sequemur, et ideo conducere, concedere, contrahere, et quidvis agere pro modo re- gionis in dubio presumitur. Nam sicut natura non separatur a subjecto, ita nec a consueto. Quod est de consuetudine habetur pro pacto.’2 Burgundus is more full and pointed to this point, as we have already seen.2 John 4 Sande expresses the same doc- trine in these words. ‘Quando verba sunt dubia et ambigua, tune inspicimus, quod verisimiliter a contrahentibus actum sit, aut quid testator senserit.’ + 272. One of the simplest cases, to illustrate the rule, is the case of a promissory note made and dated in a particular country, payable in a currency which has the same name, but is of a diffe- rent value in different countries. The question is, what currency is presumed to be intended by the parties? The answer would seem to be equally certain, the currency of the country where it is payable. Suppose then a promissory note dated in Dublin, and thereby the maker promises to pay to the payee, or order, one hundred pounds in forty days after date, and the note is afterwards sued in England; the question would arise, whether the note meant a hundred pounds English currency, or Irish cur- rency. This would depend upon another question, where the note was payable, as no place of payment was named, in England or in Ireland. Now, by the rules of law in the interpretation of all such contracts, when no other place of payment is named, the contract is treated as a contract made in and governed by the law of the place where it is made and dated, and therefore it would be interpreted to mean one hundred pounds Irish currency, because payable there, and indeed payable everywhere, where the cited. Holmes v. Holmes, 1 Russ. & My. 660, 662; Chapman v. Robertson, 6 Paige (N. Y.) 627, 630; post, s. 479 a-479 n. ae Ante, 8.287, See Lansdowne v. Lansdowne, 2 Bligh, 60, 87; post, s. 479 m- n. 2 Gothofred. ad Pand. 50, 17, 34; Le Brun, Traité de la Communauté, liv. 1, c. 2, s. 46. ; 3 Ante, s. 237; 2 Boullenois, obs. 46, p. 451. 4 J. & Sande, Op. Com. de Reg. Juris. 1. 9, p. 17. ° CHAP. VIIT.] FOREIGN CONTRACTS. 369 maker should afterwards be found.!_ The converse rule would be applied if the note, though drawn in the same terms and dated at Dublin, were upon its face made payable in London? 273. Foreign Jurists.— Boullenois, while he admits the general propriety of the rule locus contractus regit actum, contests its universality. He seems to think, and some other jurists have adopted the same opinion, that where a contract is made between foreigners belonging to the same country, who are not domiciled, but are merely transient persons, in the place where the contract is made, it ought to be governed by the law of their own country ; and that this rule applies, a fortiori, where they are ignorant of the laws of the place where the contract is made.t Without undertaking to say that the exception may not be well founded in particular cases, as to persons merely in transitu, it may unhesi- tatingly be said that nothing but the clearest intention on the part of foreigners to act upon their own domestic law, in exclu- sion of the law of the place of the contract, ought to change the application of the general rule.6 And indeed even then, if the performance of the contract is to be in the same country where it is made, it seems difficult upon principle to sustain the exception. Huberus has applied the same rule to those who are domiciled and to those who are merely commorant in the place of the con- tract, that the law of the place of the contract is to govern. 274. Grotius has also affirmed the doctrine in a general form. ‘Tf,’ says he, ‘a foreigner makes a bargain with a native, he shall be obliged by the laws of his state; because he who enters into 1 Kearney v. King, 2 B. & A. 301; Sprowle v. Legge, 1 B. & C. 16. 2 Thid.; ante, s. 271; post, s. 317; 3 Burge, Col. & For. Law, pt. 2, c. 20; p. 772, 773; 2 Id. pt. 2, c. 9, p. 860-862. 8 2 Boullenois, obs. 46, p. 456, 489, 490. 4 Id. p. 455-458, 495-497, 501-503, and note. Boullenois (in p. 494, 495) says: ‘ To return to our question upon the interpretation of contracts or testa- ments, I think the sole rule which can be prescribed is that of determining it according to the different circumstances. These different circumstances will lead us sometimes in favor of the law of the place of the contract, sometimes in favor of that of the situs, often in favor of that of the domicil, and often in favor of that where the payment is to be made.’ And hence he agrees to Dumoulin’s opinion in his Commentary on the Code, Molin. Com. ad Cod. 1,1, 1, Conclus. de Statut. p. 554; ante, s. 263; Bartol. Com. ad Cod. 1,1, 1, n. 13; post, s. 279; 8 Burge, Col. & For. Law, pt. 2, c. 20, p. 775-777. 5 See Pardessus, Droit Com. n. 182, 191; 1 Emerigon, c. 4, s. 8. ; 6 Huberus, lib. 1, tit. 3, De Confl. Leg. s. 2,3; ante, 261, note. See Liver- more Dissert. p. 46, s. 42. ‘ 24 370 CONFLICT OF LAWS. [s. 274-275. a contract in any place is a subject for the time being, and must be obedient to the laws of that place.’ ‘Quare etiamsi peregri- nus cum cive paciscatur, tenebitur illis legibus ; quia qui in loco aliquo contrahit, tanquam subditus temporarius legibus loci subji- citur.’! Emerigon follows Grotius, and adopts his very language. ‘A stranger,’ says he, ‘ who contracts in the territories of a state, is held as a temporary subject of the state, subject to the laws thereof. “ L’étranger, qui contracte dans les terres d’un état, est tenu, comme sujet 4 temps de cet état, de se soumettre aux lois du pays.”2 Lord Stowell, in a passage in one of his most cele- brated judgments, has refused to acknowledge ignorance of the law of a foreign country to be any foundation to release a party from the obligation of a contract made there.’ # 274 a. Dumoulin, while he admits the general rule to be that the law and custom of the place where a contract is made ought generally to govern in the interpretation of the contract, at the same time denies that it is of universal application. On the con- trary he holds that there are cases in which it ought to be disre- garded. ‘Et animadvertendum,’ says he, ‘ quod doctores pessime intelligunt, d.1., quia putant ruditer et indistincte, quod debeat ibi inspici locus et consuetudo, ubi fit contractus, et sic jus in loco contractus. Quod est falsum; quinimo jus est in tacita et verisimiliter mente contrahentium. Fac, civem Tubingensem peregre euntem per urbem Italiz, vendere ibi domum suam Tu- bing vel Auguste, an teneatur dare duos fidejussores evictionis, et de duplo, prout probat statutum loci contractus. Et omnes dicunt, quod sic, in quo errant, non intelligentes praxim, et hic non perspicientes mentem, d.1., que est practica. Ideo contra- rium dicendum ; quia venditor non est subditus statutis Italia, et statutum illud non concernit rem, sed personam, et sic non potest ligare exteros, qui non censentur sese obligare ad statu- tum, quod ineunt. Ideo non tenetur ‘cavere, nisi secundum morem sui domicilii, vel secundum jus commune ; nec verum est, quod istud statutum concernat solemnitatem et modum contra- hendi. Quinimo respicit effectum, meritum, et decisionem, et dicta lex male allegatur ad materiam prime conclusionis. Facia- 1 Grotius, b. 2, c. 11, 8. 5, n. 2. ° Emerigon, Assur. c. 4, s. 8, tom. 1, p. 124,125. See also Casaregis, Disc. 179, n. 60-62. ® Dalrymple v. Dalrymple, 2 Hagg. Cons. 60, 61. CHAP. VIII.] FOREIGN CONTRACTS. 371 mus civem Tubingensem hic vendere vicino domum Geneve, vel Tiguri sitam, ubi sit statutum, quod venditor fundi tenetur de duplo cavere, per duos idoneos cives, ne teneantur litigare extra forum suum. Iste est proprius casus et verus, intellectus, d.1. in qua dicitur; Venditorem teneri cavere secundum consuetudinem loci contractus ; quod est intelligendum non de loco contractus fortuiti, sed domicilii, prout crebrius usu venit, immobilia non vendi peregre, sed in loco domicilii. Lex autem debet adaptari ad casus vel hypotheses, que solent frequenter accidere: nec extendi ad casus raro accidentes. Saltem quando contrarium apparet de ratione diversitatis, vel quando sequeretur captio inge- rentis, Quia qua ratione dicta lex, excludit externum locum situs rei, in quo contrahentes non habent domicilium; multo fortius excluditur locus fortuitus contractus, in quo partes peregre trans- eunt. Patet: Quia quis censetur potius contrahere in loco, in quo debet solvere, quam in loco, ubi fortuito transiens contrabit. Sed hic venditor eo ipso se obligat, solutionem et traditionem tealem, per se, vel per alium, facere in loco, in quo fundus situs est: ergo ibi contraxisse censetur. Et tamen in dubio non atten- ditur consuetudo loci contractus. Quia venditor illi non subest, nec ejus notitiam habere presumitur, ergo multo minus consue- tudo loci fortuiti, quam magis ignorat.’! 275. Importance of the General Rule.— Cases illustrative of the importance of the general rule may be easily found in the juris- prudence of modern nations. ‘In some countries,’ says Boulle- Hois, ‘ the laws give a certain sense and a certain effect to clauses in an instrument, while the laws of another country give a sense and effect more extensive or more restrained. For example, at Toulouse, the clause, sz sine liberis, added to a substitution, means a gradual substitution ; and in other places it means only a condi- tion, if other circumstances do not concur.’? The full effect of 1 Molin. Opera, Com. ad Cod. 1, 1, 1, Conelus. de Statut. tom. 3, p. 554; 3 Burge, Col. & For. Law, pt. 2, c..20, p. 851, 852; Id. p. 858, 859. 2 2 Boullenois, obs. 46, p. 447, 518, 519. In the French law substitution is either simple or gradual. It is called simple when one person only is substi- tuted for another in a donation; as, a donation to A, and if he refuses or dies, to B. It is called gradual when there are several substitutes in succession; as, a donation to A, and if he refuses or dies, to B, and if B refuses or dies, to C, and if C refuses or dies, to D, &c. Pothier, Traité des Substitutions, art. prélim.; Id. s. 8, art. 1. See also 8 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 855-857. 372 CONFLICT OF LAWS. [s. 275-27. this example may be felt only by a civilian. But an analogous one may be put from the common law. A contract in England for an estate there situate, or a conveyance of such an estate to A and the heirs of his body begotten, would, before the statute de donis, have been interpreted to mean a contract for or a con- veyance of a conditional fee-simple; but since that statute it would be construed to be a contract for or a conveyance of a fee- tail. The rights growing out of these different interpretations are, as every common lawyer knows, exceedingly different ; and to construe them otherwise than according to the common law would defeat the intention of the parties, and uproot the solid doctrines of law. The sense of the terms and the legal effect of the instrument ought, and it is to be presumed would be every- where ascertained by the same mode of interpretation, wherever the point should come, directly or indirectly, in judgment in any foreign country. 276. Marriage Contracts and Settlements. — The language of marriage contracts and settlements must, in like manner, be interpreted according to the law of the place where they are contracted. (a) A moment’s consideration would teach us the inextricable confusion which would ensue from disregarding the habitual construction put by courts of law upon instruments of this sort, executed in England or in France, and brought into controversy in any other country. The whole system of inter- pretation of the clauses of marriage contracts and settlements in England is in a high degree artificial ; but it is built upon uniform principles which could not now be swept away without leaving innumerable difficulties behind. What could a foreign court do in interpreting the terms, heirs of the body, children, issue, con- nected with other words of limitation or description in a marriage settlement or a will made in England? The intricate branch of English jurisprudence upon which the true exposition of such clauses depends has tasked and exhausted the diligence and learning of the highest professional minds, and requires almost the study of a life to be thoroughly mastered.2_ Probably the system of interpretation in similar cases in France does not involve fewer difficulties, dependent upon the nice shades of 2 Black. Com. 110-112. * See Fearne on Contingent Remainders, passim. (a) See McLeod v. Board, 80 Tex. 238. CHAP. VIII] FOREIGN CONTRACTS. 373 meaning of words in different connections, and the necessary complexity of matrimonial rights and nuptial contracts and pro- spective successions.'_ The general rule is in no cases more firmly adhered to than in cases of nuptial contracts and settlements, that they are to be construed and enforced according to the lex loci contractus.? 276 a. Case in England. — The same doctrine was fully recog- nized in a recent case in England. In that case the parties were domiciled and married in Scotland, and executed a nuptial con- tract containing mutual provisions for the benefit of the parties and their offspring. Afterwards the wife, upon the death of her mother in England, became entitled to certain stock; and the husband filed a bill in chancery to have the stock conveyed to him by the trustee thereof, without a settlement being made upon his wife in regard thereto. The question was whether the wife was entitled to the common equity to a settlement out of the stock, according to the English law. It appeared that, by the law of Scotland, acting upon the interpretation and construction of the provisions of the nuptial contract, the wife was not entitled to any such equity to a settlement. The Lord Chancellor held that the court, in administering the rights of the parties under that nuptial contract, was bound to give the same construction and effect to it in England as the Scottish law would give to it; and he therefore awarded the stock to the husband without any settlement.’ (a) 277. Commercial Contracts. — The same rule is also universally acknowledged in relation to commercial contracts. Where the terms of an instrument executed by foreigners in a foreign country are free from obscurity, it will be construed according to the ob- vious import of those terms, unless there is some proof that, ac- cording to the law of the foreign country, the true interpretation of them would be different. But where a particular interpreta- 1 See 2 Boullenois, obs. 46, p. 489-494, 503, 504, 505, 518; Mosyn v. Fa- brigas, Cowper, 174. 2 Feaubert v. Turst, Prec. Ch. 207; De Couche v. Savatier, 3 Johns. Ch. (N. ¥.) 190. 8 Anstruther v. Adair, 2 My. & K. 518, 516. See also Breadalbane v. Chan- dos, cited in 4 Burge, Col. & For. Law, Appx. 749, 755. 4 Pardessus, Droit Com. tom. 5, n. 1491, 1492; 2 Kent Com. 457, 458. 5 King of Spain v. Machado, 4 Russ. 225; post, s. 286. (a) See Thurburn v. Steward, L. R. 8 P.C. 504. 874 CONFLICT OF LAWS. [s. 277-279. tion is established, that must be followed. Indeed the courts of every country must be presumed to be the best expositors of their own Jaws, and of the terms of contracts made with reference to them. And no court, professing to be governed by principle, would assume the power to declare that a foreign court misun- derstood the laws of their own country, or the operation of them on contracts made there.! 278. The remarks already suggested upon this rule cannot be better enforced than by a quotation from an opinion of the late learned Mr. Chief Justice Parker: ‘ That the laws of any state cannot by any inherent authority be entitled to respect extra- territorially, or beyond the jurisdiction of the state which enacts them, is the. necessary result of the independence of distinct sovereignties. But the courtesy, comity, or mutual convenience of nations, amongst which commerce has introduced so great an intercourse, has sanctioned the admission and operation of foreign laws relative to contracts. So that it is now a principle generally received, that contracts are to be construed and interpreted ac- cording to the laws of the state in which they are made, unless from their tenor it is perceived that they were entered into with a view to the laws of some other state. And nothing can be more just than this principle. For when a merchant of France, Hol- land, or England, enters into a contract in his own country, he must be presumed to be conusant of the laws of the place where he is, and to expect that his contract is to be judged of and car- ried into effect according to those laws; and the merchant with whom he deals, if a foreigner, must be supposed to submit himself to the same laws, unless he has taken care to stipulate for a per- formance in some other country, or has in some other way ex- cepted his particular contract from the laws of the country where he is.’ ? 278 a. Promissory Note.— Policy of Insurance. — Hence it is adopted by the common law, as a general rule in the interpreta- tion of contracts, that they are to be deemed contracts of the place where they are inade, unless they are positively to be per- formed or paid elsewhere. Therefore a note made in France, and payable generally, will be treated as a French note, and go- 1 Mr. Chief Justice Marshall, in Elmendorf v. Taylor, 10 Wheat. 159; Mr. Justice Porter, in Saul v. His Creditors, 5 Mart. N.S. (La.) 587. 2 Blanchard v. Russell, 13 Mass. 1,.4;:5. CHAP. VIIL] FOREIGN CONTRACTS. 375 verned accordingly by the laws of France as to its obligation and construction. So a policy of insurance, executed in England on a French ship for the French owner, on a voyage from one French port to another, would be treated as an English contract, and in case of loss the debt would be treated as an English debt. In- deed all the rights and duties and obligations growing out of such a policy would be governed by the law of England, and not by the law of France, if the laws respecting insurance were different in the two countries. 279. The Rule not affected by the Domicil.—It has sometimes been suggested, and especially by foreign jurists, that contracts made between foreigners in a foreign country ought to be con- strued according to the law of their own country, whenever they both belong to the same country.27 Where they belong to diffe- rent countries, some controversy has arisen as to the point, whe- ther the law of the domicil of the debtor or that of the creditor ought to prevail. Where a contract is made in a country be- tween a citizen and a foreigner, it seems admitted that the law of the place where the contract is made ought to prevail, unless the contract is to be performed elsewhere. In the common law of England and America all these niceties are discarded. Every contract, whether made between foreigners or between foreigners and citizens, is deemed to be governed by the law of the place where it is made and is to be executed.5 1 Donn v. Lippmann, 5Cl. & F. 1, 18-20; post, s. 317. 2 Ante, s. 273; 2 Boullenois, obs. 46, p. 455-458; Id. p. 495-593. Hertius seems to make the following distinction. After having stated the general rule to be: Silex actui formam dat, inspiciendum est locus actus, non domicilii, non rei sites; he adds: Nimirum valet hee regula, etiam in extero, qui actum celebrat, licet enim hic subjectus revera maneat patrie su, tamen illud, de acto primo est intelligendum, quoad actum vero secundum subditus illius loci sit temporarius, ubi agit, vel contrahit, simulque ut forum ibi sortitur, ita sta- tutis ligatur. Non valet si exterus ignoravit statutum. Hertii Opera, tom. 1, de Collis. Leg. s. 4, n. 10, p. 126, 128; Id. ed. 1716, p. 179-181. 8 See Foelix, Conflit des Lois, Revue Etrang. et Frang. 1840, tom. 7, s. 21-23, p. 200-209; Id. s. 40-50, p. 46-49; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 775, 776. : 4 See Livermore, Dissert. s. 42, p. 46; 1 Hertii Opera, de Collis. Leg. s. 10, p. 126, 128; Id. p. 179-181, ed. 1716; Voet, de Statut. s. 9, c. 2, excep. 4; Id. s. 10, p. 268, ed. 1715; Id. p. 825, ed. 1661. But see contra, 2 Boullenois, obs. 46, p. 459; ante, s. 263, 278, 274. 5 Smith v. Mead, 3 Conn. 253; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 198, 228. 376 CONFLICT OF LAWS. [s. 279 a-281. 279 a. Contract subject to a Condition to take place in another Country. — Hertius has put a case where a contract made in a country is subject to a condition, and the performance of that condition takes place in another country, the laws of which are different; and the question is whether the laws:of the one or those of the other ought to govern the contract. He answers that the laws of the country where the contract was made, be- cause the condition, when fulfilled, refers back to the time of the contract. ‘ Quia conditio retrotrahitur ad tempus conventionis.”! J. & Sande adopts the same doctrine almost in the same words.? 280. Place of Performance.— The rules already considered suppose that the performance of the contract is to be in the place where it is made, either expressly or by tacit implication.? But where the contract is, either expressly or tacitly, to be performed in any other place, there the general rule is in conformity to the presumed intention of the parties that the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance. This would seem to be a result of natural justice; and the Roman law has adopted it as a maxim: ‘Contraxisse unusquisque in eo loco intelligitur, in quo ut solveret, se obligavit.”® And again, in the law, Aut ubi quisque contraxerit: ‘Contractum autem non utique eo loco intelligitur, quo negotium gestum sit; sed quo solvenda est pecunia.’® The rule was fully recognized and acted on in a recent case by the Supreme Court of the United States, where the court said that the general principle in relation to contracts made in one place to be executed in another was well settled, that they are to be governed by the laws of the place of per- formance.’ (a) : zi aoe Opera, de Collis. Leg. s. 4, n. 54, p. 147, ed. 1787; Id. p. 207; ed. : 2 J. & Sande, Com. ad Reg. Jur. 1. 9, p. 18; post, s. 287. 8 Ante, s. 242. ‘2 Kent Com. p. 393, 394, 459; Casaregis Disc. 179; 1 Emerigon, c. 4, s. 8; Voet, de Stat. s. 9, ¢. 2,8. 15, p. 270, ed. 1715; Id. p. 828, ed. 1661; Boullenois, Quest. Contr. des Lois, p. 339, &c ; 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 771, 772; Don v. Lippman, 5 Cl. & F. 1, 18, 19; Fergusson v. Fyffe, 8 Cl. & F, 121. 5 Dig. 44, 7, 21; ante, s. 233. 6 Dig. 42, 5, 8. 7 Andrews v. Pond, 18 Pet. 65. (a) Place of Performance. — Special See note to s. 814, post. The main tules prevail upon this subject with rule itself is illustrated in cases with- regard to the parties to bills and notes. out number. It may be of some ser- CHAP, VIII] FOREIGN CONTRACTS. 377 281. Foreign Jurists.— Common Law.— Paul Voet has laid down the samerule. ‘ Hine, ratione effectus et complimenti ipsius vice to cite the body of the decisions in the order of the states, though many of them are elsewhere considered or cited. New Hampshire: Thayer », Elliott, 16 N. H. 102; Little v. Riley, 43 N. H. 109; Chase v. Dow, 47 N. H. 405. Vermont: Peck v. Hibbard, 26 Vt. 698, 703; Peck v. Mayo, 14 Vt. 33. Massachusetts: Murphy v. Collins, 121 Mass. 6; Woodruff v. Hill, 116 Mass. 810; Stevenson v. Payne, 109 Mass, 378; Akers v. Demond, 103 Mass. 318. Connecticut: Richardson v. Rowland, 40 Conn. 565; Koster v. Merritt, 82 Conn. 246. New York: Wayne Bank v. Low, 81 N. Y. 566; Curtis v. Dela- ware R. Co., 74 N. Y. 116; Mer- chants’ Bank v. Griswold, 72 N. Y. 472; King v. Sarria, 69 N. Y. 24; First National Bank v. Shaw, 61 N. Y. 288; Croninger v. Crocker, 62 N. Y. 151; Ockerman v. Cross, 54 N. Y. 29; Dike v. Erie Ry, Co., 45 N. Y. 1138; Barry v. Equitable Soc., 59 N. Y. 587; Cut- ler v. Wright, 22 N. Y. 472; Bowen v. Newell; 13 N. Y. 290; Merchants’ Bank v. Spalding, 9 N. Y. 53; Jacks v. Nichols, 5 N. Y. 178; Davis v. Garr, 6 N. Y. 124; Western v. Gene- see Ins. Co.,.12 N. Y¥. 258. Pennsyl- vania: Mills v. Wilson, 88 Penn. St. 118; Brown v. Camden R. Co., 83 Penn. St. 316; Benners v. Clemens, 58 Penn. St. 24; Townsend v. May- nard, 45 Penn. St. 198. Virginia: Freeman’s Bank v. Ruckman, 16 Gratt. 126. North Carolina: Roberts v. Mc- Neely, 7 Jones, 506. Georgia: Dunn v. Welsh, 62 Ga. 241; Goodrich v. Williams, 50 Ga. 425; Green v. East Tenn. R. Co., 87 Ga. 456. Alabama: Hunt v. Hall, 37 Ala. 702; Cowles v. Townsend, Id. 77. Mississippi: Al- len v. Bratton, 47 Miss. 119; Frazier v. Warfield,.9 Sm. & M. 220. Louisi- ana: Galliano v. Pierre, 18 La. An. 10. Michigan: Roethke v. Philip Best Brewing Co., 338 Mich. 840; My- ers v. Carr, 12 Mich. 68; Collins Iron Co. vu. Burkam, 10 Mich. 283. In- diana: Butler v, Myer, 17 Ind. 77; Alford v. Baker, 53 Ind. 279. Tlli- nois: Michigan Cent. R. Co. v. Boyd, 91 Ill. 268; Milwaukee R. Co. ». Smith, 74 Ill. 197; Evans v. Ander- son, 78 Ill. 558; Pennsylvania Co. v. Fairchild, 69 Ill. 260; Adams v. Rob- ertson, 37 Ill. 45; Lewis v.: Headley, 36 Ill. 483; Mason v. Dousay, 35 II. 424. Kentucky: Tyler v. Trabue, 8 B. Mon. 806. Tennessee: Parham v. Pulliam, 5 Cold. 497; Senter v. Bow- man, 5 Heisk. 14; Lewis v. Woodfolk, 2 Baxter, 25. Arkansas: White v. Friedlander, 35 Ark. 52; Bowles v. Ed- dy, 33 Ark. 645. Missouri: Golson v. Ebert, 52 Mo. 260; Garesché »v. Chouteau, 37 Mo. 418; Bank of Louis- ville v. Young, Ib. 398. Iowa: Bur- rows v. Stryker, 47 Iowa, 477; Me- Daniel v. Chicago Ry. Co., 24 Iowa, 412; Arnold v. Potter, 22 Iowa, 194; Boyd v. Ellis, 11 Iowa, 97; Butters v. Olds, Id. 1. Nebraska: Kittle v. De Lamater, 3 Neb. 325; Sands v. Smith, 1 Neb. 108. United States: Railroad Co. v. Bank of Ashland, 12 Wall. 226; Miller v. Tiffany, 1 Wall. 298; Bell v. Bruen, 1 How. 169; Musson v. Lake, 4 How. 262; Tilden v. Blair, 21 Wall. 241. Some of the cases indicate that the ‘place of performance’ of a contract means the place where the engagement is to be completed, though begun in another jurisdiction, as where goods are delivered to a carrier in one state to be transported to another. Or per- haps it would state the effect of the cases as truly to say that where goods are entrusted to a carrier for trans- portation, the fact of the naming a place of delivery affords evidence that the law of that place was intended by the parties as the law which should govern their rights and duties. Cur- 378 CONFLICT OF LAWS. [s. 281. contractus, spectatur ille locus, in quem destinata est solutio: id, quod ad modum, mensuram, usuras, etc., negligentiam, et moram tis v. Delaware R. Co., 74 N. Y. 116; Brown v. Camden R. Co., 83 Penn. St. 316. Comp. Gay v. Rainey, 89 Til. 221; Chatham Bank v. Allison, 15 Iowa, 357; Dickinson v. Edwards, 77: N. Y. 578; Tilden v. Blair, 21 Wall. 241. And see Dolan v. Green, 110 Mass. 322. The courts however are not agreed upon this proposition. Thus it is sometimes held that where a car- rier’s contract is to be performed partly in the state in which the con- tract was executed, especially where such partial. performance is consider- able, the law of that state will govern the rights of the parties in the absence of evidence of a different intention. McDaniel v. Chicago R. Co., 24 Iowa, 412; Pennsylvania Co. v. Fairchild, 69 Ill. 260; Michigan Cent. R. Co. v. Boyd, 91 Ill. 268. And see the sug- gestion of Brett, L.J., in Cohen v. Southeastern Ry. Co., 2 Ex. D. 258. In the last-named case a contract had been made at Boulogne by an Eng- lishwoman with an English railway for transportation of herself and lug- gage to England. Several of the judges inclined to the opinion that this was an English contract (see Brown v. Camden R. Co., supra, which seems to be to the same effect); but the case was decided on other grounds. Brett, L.J., suggested that if the contract had been to carry from Paris to Eng- land, the French law might govern in France during the transportation in French vehicles. And in Moore »v. Harris, 1 App. Cas. 818, 331, it was laid down by the Privy Council that a bill of lading made in England by the master of an English ship, for trans- portation of goods to Canada, was an English contract. See, to the same effect, Peninsula Nav. Co. v. Shand, 3 Moore, P. C. N.S. 272. And see, as suggesting some qualification, at all events, to the declared rule that the place of delivery may be treated as the place of performance, First National Bank v. Shaw, 61 N. Y. 283. Fur- ther, see Carpenter v. Grand Trunk Ry. Co., 72 Me. 388; Westlake, s. 207, 210 (ed. 1880). It is difficult to escape the convic- tion that the courts, in applying the law of the place of delivery as the place of performance, have sometimes been actuated in part by a desire to impose liability on the carrier. Tt really seems idle in such cases to speak of any in- tention in the parties concerning the law to be applied in case of a failure of the carrier to transport successfully. In all probability they never thought of such a thing. The mere fact that delivery was to be made in a particu- lar state can hardly be evidence of an intention that the law of that state should govern. The loss might occur before it reached such state; and why might it not be as reasonable to as- sume that the parties had in mind the law of the state in which the damage was done, as the law of a more distant state? And yet it is not denied that the law of the place of loss is not to govern in the absence of evidence of intention. Brown v. Camden R. Co., 83 Penn. St. 316; Curtis v. Delaware R. Co., 74 N. Y. 116; Dike v. Erie Ry. Co., 45 N. Y. 118. It seems doubtful then whether the rule con- cerning the place of performance has any proper application to this class of cases, unless there is better evidence of intention than is afforded by the fact of delivery. Where the parties live and contract in the same state, the presumption should be they have contracted with reference to a law which they are supposed to know; where they live in different states, a difficulty arises, to be overcome only by the special facts of the case. But the c CHAP, VIII] post contractum initum accedentem referendum est.’ } FOREIGN CONTRACTS, 379 He puts the question: * Quid si in specie, de nummorum aut redituum 1 P. Voet, de Stat. s. 9, ¢. 2, p. 270, s. 12, 14-16, p. 269-273, ed. 1715; Id. p. 826-329, ed. 1661; post, s. 3017. intention, if ascertainable and lawful, should govern. The place where a contract is signed is not necessarily the place where the contract in contempla- tion of law is made, for it may not be the intention of the parties that it should go into effect there. Tilden v. Blair, 21 Wall. 241; Myers v. Carr, 12 Mich. 63; Campbell v. Nichols, 33 N. J. 81; Gay v. Rainey, 89 Ill. 221; Chatham Bank v. Allison, 15 Iowa, 857; Mills v. Wilson, 88 Penn. St. 118; Bullard v. Thompson, 35 Tex. 318; Lee v. Selleck, 33 N. Y. 615; Cook v. Litchfield, 9 N. ¥. 279; Hyde v. Goodnow, 8 Comst. (N. Y.) 270; Dickinson v. Edwards, 77 N. Y. 573; Overton v. Bolton, 9 Heisk. (Tenn.) 762. Tt may be too that both of the par- ties are but transiently in the place where the contract is executed; and it could hardly be supposed in such a case that it could have been their in- tention to be bound by a strange law, unless indeed the contract was ex- pressed by a mercantile instrument, as a bill of exchange or a promissory note, due and payable there. The law of the country of the parties (ex- cepting such a case as that just indi- cated) would doubtless be the law con- templated. See Peninsular Navigation Co. v. Shand, 3 Moore, P. C. N.S. 272. What law would govern if the parties were of different states or nationali- ties might be difficult to determine, in the absence of evidence of intention. On the other hand, the fact that a contract is to be ratified in another state than that in which it is signed by an agent does not make the state of ratification the locus contractus. Golson v. Ebert, 52 Mo. 260; Findlay v. Hall, 12 Ohio St. 610; Pugh v. Cameron, 11 W. Va. 523; post, s. 286 a. Nor is the fact that paper is payable in a particular state conclusive in all cases that the law of that state is to govern the case. Tilden v. Blair, 21 Wall. 241; Dickinson v. Edwards, 77 ‘N. Y. 573; Wayne Bank »v. Low, 81 N. Y. 566; Akers v. Demond, 103 Mass. 318. Further, what constitutes the place of making or performance, see Western Transp. Co. »v. Kilder- house, 87 N. Y. 430; Pine v. Smith, 11 Gray (Mass.) 38; Milliken v. Pratt, 125 Mass. 874; Dolan v. Green, 110 Mass. 322; French v. French, 126 Mass. 860; McIntyre v. Parks, 3 Met. (Mass.) 207; M’Carty v. Gordon, 16 Kans. 85; Worden v. Nourse, 36 Vt. 756; Broughton v. Bradley, 86 Ala. 689, (contract made in Alabama in substi- tution for one made in South Carolina treated as a South Carolina contract) ; Wayne Bank v. Low, 81 N. Y. 566 (to the same effect); Bowman v. Mil- ler, 25 Gratt. (Va.) 331 (to the same effect). And see Jacks v. Nichols, 5 N. Y. 178; Cromwell v. Royal Ins. Co., 49 Md. 366; Read v. Edwards, 2 Nev. 262; Houston v. Potts, 64 N. Car. 33; Sharp v. Davis, 7 Baxter (Tenn.) 607; Garland v. Lane, 46 N. H. 245; Backhouse v. Selden, 29 Gratt. (Va.) 581; Lyon v. Ewings, 17 Wis. 61; Ex parte Holthausen, L. R. 9 Ch. 722; Hooper v. Gumm, L. R. 2 Ch. 282; Colliss v. Hector, L. R. 19 Eq. 384; post, s. 287-290. Of course if the contract is contra bonos mores, it will not be enforced in another state, though it would be en- forceable in the state in which it was to be performed. Kentucky v. Bassford, 6 Hill (N. Y.) 526; ante, s. 258. A distinction has been taken be- tween questions going to the legality of 380 CONFLICT OF LAWS. [s. 281, 282. solutione difficultas incidat, si forte valor sit immutatus, an spec- tabitur loci valor, ubi contractus erat celebratus, an loci, in quem destinata erat solutio. Respondeo; ex generali regula, spectan- dum esse loci statutum, in quem destinata erat solutio.’1 So that, according to him, if a contract is for money or goods, the value is to be ascertained at the place of performance, and not at the place where the contract is made. And the same rule applies to the weight or measure of things, if there be a diversity in dif- ferent places. Everhardus adopts the same doctrine. * Quod, wstimatio rei debitee consideratur secundum locum ubi destinata est solutio, seu deliberatio, non obstante quod contractus alibi sit celebratus.t Ut videlicet inspiciatur valor moneta, qui est in loco destinate solutionis.’® Huberus adopts the same exposition. ‘Verum tamen non ita precise respiciendus est locus, in quo con- tractus est initus, ut si partes alium in contrahendo locum res- pexerint, ille non potius sit considerandus.’® Indeed, it has the general consent of foreign jurists ;7 although to this, as to most other doctrines, there are to be found exceptions in the opinions of some distinguished names. Thus, John & Sande maintains that the law of the place where the contract is made is to govern, although the payment is to be made in another place. ‘ Denique inspicitur locus contractus, etiamsi solutio in alium locum sit des- tinata. Et proinde mensura usurpanda est non loci, ubi frumen- tum vel vinum exigitur, sed ubi de eo conventum est.’8 The 1 P. Voet, de Stat. s. 15, 16, p. 271, ed. 1715; Id. p. 328, ed. 1661; post, s. 301 f. 2 Tbid. 3 Thid. * Everhard. Consil. 78, n. 9, p. 205; post, s. 300 0B. 6 Huberus, lib. 1, tit. 8, s. 10; ante, s. 239; post, s. 299. 7 2 Boullenois, obs. 46, p. 475, 476; Id. p. 488; 1 Hertii Opera, de Collis. Leg. s. 4, n. 53, p. 147, ed. 1787; Id. p. 207, ed. 1716; Voet, ad Pand. 4, 1, s. 29; post, s. 800 a-300 f. 8 J. & Sande, Opera, Com. de Reg. Jur. 1. 9, p. 18. See also Colerus, de Process. Exec. pt. 2, n. 79, cited 2 Boullenois, obs. 46, p. 475, 476. 5 Tbid. a contract and questions incident to a valid contract. The law of the place of execution is deemed to govern the former, while that of the place of pay- ment governs the latter. Akers »v. . Demond, 103 Mass. 818. Thus, if the contract is declared absolutely void where it was made, it will not be up- held elsewhere, though performable in a state in which it would be valid. Hyde v. Goodnow, 3 Comst. (N. Y.) 266; McDaniel v. Chicago Ry. Co., 24 Towa, 412. See Arnold v. Potter, 22 Towa, 194; Butler »v. Myer, 17 Ind. 77; Adams v. Robertson, 87 Ill. 45; ante, s. 243; post, s. 814, note, CHAP. VIII.] FOREIGN CONTRACTS. 381 general rule has however been adopted both in England and America. In one of the earliest cases Lord Mansfield stated the doctrine with his usual clearness. ‘The law of the place can never be the rule where the transaction is entered into with an express view to the law of another country as the rule by which it is to be governed.’! And this has uniformly been recognized as the correct exposition in the common law? 282. Difficulties in applying the Rule. — But although the gene- ral rule is so well established, the application of it in many cases is not unattended with difficulties; for it is often a matter of serious question, in cases of a mixed nature, which rule ought to prevail, the law of the place where the contract is made, or that of the place where it is to be performed. In general it may be said that if no place of performance is stated, or the contract may indifferently be performed anywhere, it ought to be referred to the lex loci contractus.4 (a) But there are many cases where this rule will not be a sufficient guide; and, as the subject is im- portant in its practical bearing, it may be well to illustrate it by some cases.® 1 Robinson v. Bland, 2 Burr. 1077, 1078; post, s. 308-314. ° Ludlow v. Van Rensselaer, 1 Johns. (N. Y.) 94; Thompson v. Ketcham, 8 Johns. (N. Y.) 189; Fanning v. Consequa, 17 Johns. (N. Y.) 511; Powers »v. Lynch, 8 Mass. 77; 4 Cowen, 510, note; Van Reimsdyk v. Kane, 1 Gall. 371; Cox v. United States, 6 Pet. 172, 203; 2 Fonbl. Eq. b. 5, c. 1, s. 6, and note; Prentiss v. Savage, 13 Mass. 20, 23, 24; ante, s. 270, 280; 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 752-754; Id. 771-773; Don v. Lippman, 5 Cl. & F. 1, 13, 19, 20. 8 See 2 Kames, Eq. b. 3, c. 8, 8. 4; Voet, de Statut. s. 9, c. 2, s. 10. Her- tius puts some questions under this head. A condition is added to a contract in Belgium, which is performed by the debtor in Germany; if the laws of the countries are different, which are to prevail? Hertius says those of Belgium, because the condition performed relates back to the time of making the con- tract. Again a contract made in one place is confirmed in another; what laws are to govern? He answers, if the confirmation is to give greater credit to the contract, as putting it in writing for the sake of proof, the law of the place of the contract is to prevail. If to give validity to the contract, the law of the place of the confirmation. 1 Hertii Opera, de Collis. Leg. p. 147, s. 54, 55; Td. p. 207, 208, ed. 1716. 4 Don v. Lippman, 5 Cl. & F. 1, 18, 19, 20; post, s. 817. 5 Mr. Burge has expressed the true sense of the general rule and its quali- fications in the following terms: ‘ It may be stated generally that, with respect to contracts of which movable property is the subject, the law of the place in which the contract is made will in some respects exclusively prevail, although the contract is to be performed in another; and that, in those respects in (a) Benners v. Clemens, 58 Penn. St. 24. 382 CONFLICT OF LAWS. [s. 283-285. . 283. Mutual Accounts between Merchants. — One of the most simple cases is where two merchants, doing business with each other, reside in different countries and have mutual accounts of debt and credit with each other for advances and sales. What rule is to be followed as to the balance of accounts existing from time to time between them? Is it the law of the one country or of the other, if there is a conflict between their laws on the sub- ject? If the business transactions are all on one side, as in case of sales and advances made by a commission merchant in his own country for his principal abroad ; there the contracts may well be referred to the country of the commission merchant, and the balance be deemed due to him according to its laws.’ For, although it may be truly said that the debt is due from the princi- pal, and he is generally expected to pay it where he dwells; yet it is equally true that the debt is due where the advances are made, and that payment may be insisted upon there. 284. Illustrations. — But suppose the advances have been made in the country of the principal, and the goods sold in the other country; is the same rule to prevail? Or are the advances to be governed by the law of the place where they are advanced, and the sales of the goods by that of the place where they are received by the commission merchant? Suppose both the merchants, in different countries, sell goods and make advances mutually for each other, and upon the accounts a balance is due from one to the other; by the law of what place is such balance to be ascer- tained and paid? In these and many other like mixed cases, the amount of the balance, the time, and the manner, and the place of payment, the true principle of the adjustment of the mutual accounts, may materially depend upon the operation of the lex loci, when the law of one country conflicts with that of the other. The habits of business and trade between the parties may some- times decide these points ; but if no such governing circumstances are established, the cases must be reasoned out upon principle. Upon principle, it may perhaps be found most easy to decide that each transaction is to be governed by the law of the place where which it does not prevail, the law of the place where the contract is to be per- formed must be adopted. But this conclusion is subject to some qualifica- tions and exceptions.’ 1 Coolidge v. Poor, 15 Mass. 427; Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 587, 610. See also Bradford ». Farrand, 18 Mass. 18; Milne v. More- ton, 6 Binn, (Penn.) 858, 359, 365, CHAP. vil. ] FOREIGN CONTRACTS, 383 it originated ; advances by the law of the place where they are advanced ; and sales of goods by the law of the place where they are received.1 The importance of the true rule is peculiarly felt in all cases of interest to be paid on balances. 284 a. Case. — This subject was a good deal discussed in a re- cent case, where goods had been consigned for sale in Trieste by a merchant of Boston, and advances were made by the agent of the consignees in Boston to an amount exceeding the amount of the proceeds of the goods when sold. A suit was brought by the consignees to recover the balance, and the question was, at what rate of exchange the balance was to be allowed ; and that depended upon another question, whether the balance was reim- bursible at Boston, or in Trieste. The court held that the balance was reimbursible at Boston where the advances were made ; but that, if the advances had been made at Trieste, the balance would have been reimbursible there. The court consequently allowed the par of exchange at Boston upon the balance, it being payable there.? (a) 285. Principal and Agent.— Another case may serve to illus- trate the same doctrine. A merchant in America orders goods to be purchased for him in England. In which country is the con- tract to be deemed complete, and by the laws of which is it to be 1 See Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 588, 610; 17 Johns. (N. Y.) 511; Casaregis, Disc. 179. 2 Grant v. Healey, 3 Sum. 523. See post, s. 311, a. (a) On the other hand it has been 113; 8 Summer, 523; but we feel a determined in Louisiana that where an advance was obtained in that State from an agent residing there, of a fo- reign principal, on merchandise to be shipped to and «sold by the latter abroad, the rate of interest on a ba- lance due the foreign principal by reason of the proceeds of the sale falling short of the advances must be determined by the law of the domicil of the principal, where the merchan- dise was sold. Ballister v. Hamilton, 8 La. An. 401. Slidell, J., who de- livered the judgment in this case, ob- served: ‘We are aware that this view conflicts with the opinion of Judge Story in Grant v. Healey, 2 Law Rep. strong conviction that the rule we have followed accords with the gene- ral mercantile opinion, which in a matter of this sort is entitled to great weight.’ It would seem that ques- tions of interest and exchange should depend not upon the place where the advances were made, but upon the place where it is presumable they were expected to have been paid; which, in such cases, will ordinarily be where the deficiency occurred. In both the cases named in the two preceding sections this was the place where the goods were sold and fell short of the advances. 384 CONFLICT OF LAWS. [s. 285, 286. governed? Casaregis has affirmed that in such a case the law of England ought. to govern, for there the final assent is given by the person who receives and executes the order of his corre- spondent. ‘Pro hujus materie declaratione premittenda est regula ab omnibus recepta, quod contractus vel negotium inter absentes gestum dicatur eo loci, quo ultimus in contrahendo as- sentitur, sive acceptat; quia tune tantum uniuntur ambo con- ‘sensus.!. Sic mandati contractus dicitur initus in loco, quo diriguntur, litere missive alicujus mercatoris, si alter ad quem diriguntur, eas recipit, et acceptat mandatum.’2 He goes on to illustrate the doctrine by putting the case of a merchant direct- ing his correspondent in a foreign country to buy goods for him; in which case he says, if the correspondent accepts the order, and in the execution of it he buys the goods of a third person, two contracts spring up; the first of mandate between the principal and his agent, and the second of purchase and sale between the vendor and the agent, as purchaser in the name of the principal ; and both are to be deemed contracts made in the place where the agent resides. His language is: ‘ Quando‘ mercator alteri suo corresponsori mandat, ut aliquas merces pro se emat, easque sibi transmittat, quo casu si corresponsor acceptet mandatum, et in illius executionem ab aliqua tertia persona merces commissas emat, duo perficiuntur contractus: Primus, mandati inter mandantem, et mandatarium, et alter, emptionis, et respective venditionis inter eundem mandatarium, uti emptorem nomine mandantis, et vendi- torem, et ambo perficiuntur in loco mandatarii : Nam, quoad man- dati contractum, ratio est, quia consensus mandantis per literas unitur cum ultimo consensu mandatarii in loco, quo mandatarius reperitur, et acceptat mandatum, eoque magis quoad alterum venditionis, et respective emptionis, quia mandatarius vere emit in loco, in quo et ipse, et venditor existunt.’? This doctrine, so reasonable in itself, has been expressly affirmed by the Supreme Court of Louisiana.t It has also received a sanction in a recent case in the House of Lords, where the Lord Chancellor said: ‘If I, residing in England, send down my agent to Scotland, and he 1 Casaregis, Disc. 179, s.1,2. See 1 Hertii Opera, de Collis. Leg. s. 56, p. 147; Id. p. 208, ed. 1716; 3 Burge, Col. & For. Law, pt. 2, e. 20, p. 753. 2 Thid. ® Casaregis, Disc. 179, n. 10, p. 199. * Mr. Justice Martin, in Whiston v. Stodder, 8 Mart. (La.) 95. See also Malpica v. McKown, 1 La. 254, 355. CHAP. VIII.] FOREIGN CONTRACTS. 385 makes contracts for me there, it is the same as if I myself went there and made them.’! The same rule has been held to ap- ply even to an English corporation, contracting by its agent in Scotland; for the contract takes effect as a contract in Scot- ‘land.? (a) 286. Ratification. — And if a contract of purchase is made by an agent without orders, and the correspondent ratifies it, Casaregis says that the contract is not to be deemed a contract in the country of the ratification, but of the purchase, because the ratification has reference back to the time and place of the purchase. ‘ Ratio est, quia ille ratificationis consensus, licet emitatur in loco ratifi- cantis, et ibi videatur se unire cum altero precedenti gerentis con- sensu qui venita loco gerentis ad locum ratificantis, retrotrahitur ad tempus et ad locum, in quo fuit per gestorem ihitus contractus emptionis ; vel aliud negotium pro absente ; et ratio rationis est, quia consensus ratificantis non unitur in loco suo ad aliquem actum seu contractum perficiendum, sed acceptandum contractum vel negotium pro se in loco gestoris jam factum ; ac si eodem tem- pore et loco, in quo fuit per gestorem negotium gestum, ipsemet ratificans esset presens, ibique contraxisset.’? So a like rule ap- plies, if a merchant in one country agrees to accept a bill drawn on him by a person in another country. It is deemed a contract in the place where the acceptance is to be made.* Paul Voet adopts the same conclusion. ‘Quid si de literis cambii incidat 1 Pattison v. Mills, 1 Dow & C. 342; Albion Ins. Co. v. Mills, 3 Wils. & Shaw, 218, 233. It is difficult to reconcile this doctrine with the views of the court and bar in Acebal v. Levy, 10 Bing. 376, 379, 880, 381 (ante, s. 262 a), where upon a sale of goods in Spain to be delivered in England, the purchase having been made by an agent of the purchasers by orders sent to Spain, the court and- bar seem to have thought that the contract was governed by the English statute of frauds. See ante, s. 262 a; post, s. 318, and note. Did the place of the delivery and payment make any difference? See post, s. 318, and note. 2 Albion Insur. Co. v. Mills, 3 Wils. & Shaw, 218, 233, 234. See also 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 753. 3 Casaregis, Disc. 179, s. 20, 64, 76-80, 83. * Boyce v. Edwards, 4 Pet. 111. (a) See Heebnerv. Eagle Ins. Co., for value and without notice, the law 10 Gray, 181. On the other handitis of the latter state will prevail over held that if A in Georgia, having the law of the former in respect of the bought there of B, sell and deliver rights of the first seller. Comer »v. and send cotton to C in New York Cunningham, 77 N. Y. 397. 25 386 CONFLICT OF LAWS. [s. 286-286 8. questio, Quis locus erit spectandus? Is spectandus est locus, ad quem sunt destinate, et ibidem acceptatee.’ 286 a. Hertius. — Hertius takes a curious distinction on this subject. If, says he, a contract is made in one country and is ratified in another, it may be asked, if the laws of the different places vary, which is to govern?(a) To which he answers: If the confirmation is made to add additional faith to the contract, as, for example, if the contract is reduced to writing for the sake of proof, then the law of the place where the contract is made is to be looked to. But if to give validity to the contract itself, the law of the place of confirmation: ‘ Contractus in alio loco fit, in alio confirmatur; queritur, cujus loci leges, si discrepare eas usuveniat, intueri debeamus? Si confirmatio accedat ad con- ciliandam conttactui majorem fidem, v. g. contractus probationis gratia in scripturam redigatur, arbitramur, spectandam loci, ubi contrahitur legem. Sin, ut contractus sit validus, loci, ubi con- firmatur, jura prevalebunt.’? So that Hertius seems to put the solution of the case upon the point of the supposed intention of the parties to give validity to a defective contract, or only to im- part a better proof of its original validity. 286 b. Authority of Master of a Ship. — A question of a some- what analogous nature, growing out of agency, and of very familiar occurrence, deserves notice in this place. It is well known that by the common law the master of a ship has a limited authority to take up money in a foreign port and give a bottomry bond, in cases of necessary repairs and other pressing emergen- cies. But he is not at liberty to give such a bond for mere useful supplies or advances which are not strictly necessary. (6) It is 1 P. Voet, de Stat. s. 9, c. 2, 5. 14, p. 271, ed. 1715; Id. p. 327, ed. 1661. 2 1 Hertii Opera, de Collis. Leg. s. 4, n. 55, p. 147, ed. 1737; Id. p. 208, ed. 1716; ante, s. 297. (a) See Findlay v. Hall, 12 Ohio St. 610. In this case the co-obligors of F in a promissory note made in New Mexico and bearing ten per cent interest, after a partial payment thereon, assumed in the absence of F to renew the same for the balance due; and accordingly they made a new note at Sante Fé, stipulating for ten per cent interest, and F after- wards, with knowledge of the facts, signed the new note in Missouri. It was held that he had thereby ratified the acts of the co-obligors, and that the new note was to be treated a8 made in New Mexico, and governed by the laws of that territory. See also Golson v. Ebert, 52 Mo. 260; Pugh v. Cameron, 11 W. Va. 523; note to s. 280, ante. (6) The Gaetano, 7 P. D. 187, 144. CHAP. VIIL] FOREIGN CONTRACTS. 387 highly probable that in some maritime countries, the basis of whose jurisprudence is the civil law, a broader authority is allowed to the master, or at least a broader liability may attach upon the vessel and the owner.! In such a case the question might arise whether the liability of the ship or of the owner was to be decided by the authority of the master according to the law of the foreign place where the money was advanced, or by the law of the place of the domicil of the ship and owner. In England it would be held (at least such seems the course of the adjudica- tions) that the master’s authority to bind the ship or the owner in a foreign port would be governed by the law of the domicil of the owner; and that consequently the master of an English ship could not bind the owner for advances or supplies in a foreign port, which were not justifiable by the English law.? But it is 1 See 2 Emerigon, Contrats & la Grosse, c. 4, s. 2-6, 8, p. 422-445. 2 The Nelson, 1 Hagg. Adm. 169, 175, 176. In the case of The Nelson, Lord Stowell said: ‘ It is certainly the vital principle of this species of bonds that they shall have been taken where the owner was known to have no credit, no resources for obtaining necessary supplies. It is that state of unprovided necessity that alone supports these bonds. The absence of that necessity is their undoing. If the master takes up money from a person who knows that he has a general credit in the place, or at least an empowered consignee or agent willing to supply his wants, the giving a bottomry bond is a void trans- action, — not affecting the property of the owner, — only fixing loss and shame on the fraudulent lender; but where honorably transacted under an honest ignorance of this fact, an ignorance that could not be removed by any reason- able inquiry, it is the disposition of this court to uphold such bonds, as neces- sary for the support of commerce in its extremities of distress, and as such recognized in the maritime codes of all commercial ages and nations. To the bond exhibited here some objections are taken respecting its form, but not affecting its validity. One objection is that it binds the owners personally as well as the ship and freight, which it cannot do. That is held in this court to be no objection to the efficacy of what it is admitted itcan do. Here we do not take this bond in toto, as is done in other systems of law, and reject it as unsound in the whole if vicious in any part. But we separate the parts, ‘reject the vicious, and respect the efficiency of those which are entitled to operate. The form of these bonds is different in different countries; so is their authority. In some countries they bind the owner or owners, in others not; and where they do not, though the form of the bond affects to bind the owners, that part is insignificant, but does not at all touch upon the efficiency of those parts which have an acknowledged operation. It is objected likewise that this bond does not express the obligation to be on the sea risk, and it does not expressly, or in exact terms; but it does in terms amounting to the same effect. The money is to be paid at such a time “ after the ship arrives at her port.” If the ship never arrives at her port, or is lost upon the voyage, that is a sufficient description of searisk. I take no notice of the other objections 388 CONFLICT OF LAWS. .[s. 286 d, 286 «, far from being certain that foreign courts, and especially the courts of the country where the advances or supplies were fur- made to this bond. They are objections invariably paraded on these occa- sions, and as invariably overruled by the court.’ Mr. Brodie, in his notes on Lord Stair’s Institutes (vol. 2, p. 955, 956), has gone into a full examination of this subject, and said: ‘ It may be laid down as a general, though not ab- solute, principle, that people may be held to contract in reference to the law of the country under whose protection they happen to be at the time. Grant this however, and the conclusion follows that the lex loci contractus becomes in reality a constituent quality of their agreements. Hence it may be argued that if, on account of a vessel, a debt be contracted in a foreign country which admits the principle of a tacit hypothecation for repairs, &c., such a jus in re ought to be implied as the actual import and understanding of the transac- tion, and as therefore no less acquired ex lege loci, than if it had been consti- tuted by a formal writing. But if in this way such a right do arise ex lege loci, then ex justitia, and on principles of international law, it ought to be rendered effectual with us; a point which will be manifest if we consider that the validity of a written instrument must be tried by the law of the place in which it was executed. Still however must it be remembered that it is merely as the presumed understanding and intention of parties that the jus in re can so arise; as a right conceived in favor of the creditor, it can unquestion- ably be renounced by him; and then comes the question whether circumstan- ces do not exclude the presumption quoad a mutual understanding founded on the law of the place. When, not to speak of necessary advances, a foreign ship is repaired here, the shipwright, who parts with the possession without stipulating for and obtaining in due form a security over the thing, may be supposed to have, according to the principle of the common law, relied exclu- sively on the personal credit of his debtor; did therefore the other party even conceive that he had likewise bound the vessel, there would be wanting the mutual understanding to infer an agreement. So far then does the lex loci operate against the contraction of a jus in re for the debt; but it does not thence follow that elsewhere the lex loci should operate in favor of a tacit hypothecation. A distinction is ever to be attended to between the case of a party casually entering a foreign country and that of one who resides in it; and the distinction is particularly strong in regard to an individual who, as master, has the charge of a vessel in a foreign port. Well may such a person, when he orders repairs on personal credit, be presumed to be ignorant of any further condition which the law of his own country denies; and while, if the other party leave that unexplained, it may be argued with great plausibility that he has consented to waive the additional security, tacitly admitted in ordinary cases, ex lege loci, it must be considered that there would at all events be wanting the mutual assent which constitutes the basis of a contract. But this is not all. The contract in such cases is made with the shipmaster, who acts as the implied mandatory of the owners; and the effect of the trans- action must greatly depend on the extent of his authority. Now it is true that, as a person who has been appointed to an office must be presumed to be invested with the usual powers, so restrictions upon the ordinary authority will not be effectual against another party who has not been apprised of them; yet it will be observed that, since it is the duty of those who deal with an agent to make themselves acquainted with the extent of his powers, whether CHAP. VIII.] FOREIGN CONTRACTS. 389 nished, would adopt the same rules if the lender or supplier had acted with good faith, and in ignorance of the want of authority in the master.} 286 c. Cases in Louisiana. —In a recent case in Louisiana, where the question arose as to the liability of the owner for the property on board, belonging to a passenger who died on the voyage, the property being afterwards lost, the point was made whether, as the passenger and property were taken on board at a foreign port, the law of that port or the law of the place where the vessel and owner belonged ought to govern as to the owner’s liability. On that occasion the court said: ‘ We are of opinion that the law of the place of the contract, and not that of the owner’s residence, expressed or fairly implied from his office, so the presumed mandate here must be measured either by some general principle of maritime law, or by the law of the country to which the ship belongs. Such a general principle of maritime law would of itself, though in a different way, tend, in my apprehen- sion, to exclude the lex loci; but there is no such universally received prin- ciple, and the more positive exclusion of the principle of the lex loci is the consequence. Thus the English law does not allow the master to hypothecate the vessel, at least expressly, unless in a foreign port, where personal credit is unattainable; but entitles him to pledge the absolute personal responsibility of his constituents for the amount of necessary repairs, furnishings, &c.; while, on the other hand, the French law authorizes him to hypothecate the vessel, &c., not bind his constituents personally, at least not beyond the eventual value of the ship and freight, &c., on her return. And it is quite clear that the merchants and artisans of the respective countries must contract with the shipmasters of each other, according to the powers respectively inherent in those offices. It would be to no purpose for the English artisan or merchant to plead in France the law of his own country in support of his action for absolute responsibility; and to allow the Frenchman to have the benefit of a privilege ex lege loci, while he has acquired the absolute personal liability of the owners, would, while an opposite measure of justice was awarded to the English, be to afford him a double advantage, the combined effect of the law of both countries, — would give him a right the opposite party never con- tracted for, nor himself could fairly anticipate. The clear result then is, that the transactions must be held to have reference to the master’s implied man- date, according to the law of his own country, — a mandate which it is the duty of those who deal with him as an agent to ascertain the extent of; and that, while they never can justly complain of having their right limited by such a principle, the shipmaster cannot be supposed to intend an abuse of his powers, — whence the very gist of all contracts, the understanding of parties, would be wanting to infer a right, ex lege loci contractus, which the scope of his authority did not import. Thus much for the principle of the lex loci contractus. We shall now proceed to inquire into the principles recognized in England.’ : 12 Emerigon, Contrat & la Grosse, c. 4,8. 8, p. 441, 442; Malpica v. McKown, 1 La. 249, 254, 255. 390 CONFLICT OF LAWS. [s. 286 ¢, 286 d. must be the rule by which his obligations are to be ascertained. The lex loci contractus governs all agreements unless expressly — excluded, or the performance is to be in another country where different regulations prevail. What we do by another we do by ourselves ; and we are unable to distinguish between the responsi- bility created by the owner sending his agent to contract in another country and that produced by going there and contracting him- self.’! Perhaps the case itself did not require so broad an expression of opinion, since the court seemed to have assumed that the law of the owner’s domicil coincided with the law of the place of the contract, as to the owner’s responsibility and the authority of the master. But the same doctrine has been elaborately maintained by the same court in another case. (a) 286 d. Authority of Agent after Death of Principal. — Another case may readily be suggested as to the conflict of laws in cases of agency. Let us suppose that A in Massachusetts should, by a letter of attorney duly executed in Boston, authorize B, his agent in New Orleans, to sell his ship, then lying in New Or- leans, and to execute a bill of sale in his, A’s, name to the pur- chaser, and B should accept the agency and sell the ship after the death of A, but before he had received or could receive any notice thereof, and should execute a bill of sale in A’s name to 1 Mr. Justice Porter in Malpica v. McKown, 1 La. 249, 254; ante, s. 258. (a) The doctrine of the Louisiana owner’s domicil, and was distin- cases was disapproved in Pope v. Nickerson, 3 Story, 465. In thatcase it appeared that a vessel owned in Massachusetts, being on a voyage from Spain to Pennsylvania, was com- pelled by stress of weather to put into Bermuda, where the master sold the vessel and cargo. In an action by the shippers against the owners to re- cover the amount of their consign- ment, in which the master’s right to sell the cargo was drawn in question, it was held that the liability of the owners was to be governed by the law of Massachusetts. See also Lloyd v. Guibert, L. R. 1 Q. B. 115 (Exch. Ch.), which has sometimes been cited in support of the same view. That case however was deemed not an authority in favor of the law of the guished in The Gaetano, 7 P. D. 187, reversing 7 P. D. 1. The decision of Dr. Lushington in The Hamburgh, Brown & L. 253, which has also been supposed to favor the rule of the own- er’s domicil, was explained and dis- tinguished. It was laid down by the Court of Appeal in The Gaetano that he who ships goods on board a foreign ship, ships them to be dealt with by the master according to the law of the country of the ship, unless there is some special stipulation on the sub- ject. Brett, L. J. It was also held that it mattered not where the con- tract of affreightment was made. See also King v. Sarria, 69 N. Y. 24, 33. In regard to questions of collision be- tween foreign vessels, see The Scotland, 105 U. 8. 24; post, s. 423 g, and note. CHAP. VIII] FOREIGN CONTRACTS. 391 the purchaser. In such a case the question might arise (espe- cially if A died insolvent, or the money was invested, in pur- suance of other orders of A, in goods which had perished by fire or other accident) whether the bill of sale was valid or not valid. By the law of Massachusetts a letter of attorney is revoked by the death of the principal, whether known or unknown, and all acts done after his death under it are mere nullities!. By the law of Louisiana, if any attorney, being ignorant of the death or of the cessation of the rights of his principal, should continue to act under his power of attorney, the transactions done by him during this state of ignorance would be valid.? Assuming that this pro- vision covers all cases, not only when the transaction is executed in the name of the agent, but also when it is executed in the name of the principal, upon which some doubt may be enter- tained, as a dead man cannot act at all,? still the question would be, by what law the letter of attorney, with reference to its re- vocability, duration, and effect, is to be governed. The general rule certainly is that all the instruments made and executed in a country take effect and are to be construed, as to their nature, operation, and extent, according to the law of the country where they are made and executed. Locus regit actum.* But the ques- tion here would be, whether, as the execution of the power was to be in another country, the power should not be construed and executed, and its nature, operation, and extent ascertained, by the law of the latter, as an exception to the general rule. There is no doubt that, where an authority is given to an agent to trans- act business for his principal in a foreign country, it must be construed, in the absence of any counter-proofs, that it is to be executed according to the law of the place where the business is to be transacted.® But this may well be admitted to be the rule while the authority is in full force, without making the law of that place the rule by which to ascertain whether the original power of attorney is still subsisting or is revoked or dead by ope- ration of law in the place of its origin. The point has never, as far as my researches extend, been directly decided either at home 1 Story on Agency, s. 488, 489. 2 Code Civil of Louisiana, art. 3001. The Civil Code of France contains a similar regulation. Code Civil of France, art. 2008; Pothier on Oblig. n. 81. 3 See Story on Agency, s. 491-499. 4 Ante, s. 263. 5 Owings v. Hull, 9 Pet. 607, 627, 628. [s. 286 d-288, 392 CONFLICT OF LAWS. or abroad ; and therefore it is submitted to the learned reader for his consideration. Some of the cases already alluded to may be thought to furnish an analogy unfavorable to the validity of the sale.} 287. Advances of Money.— Another class of cases may be stated. A merchant in one country sends a letter to a merchant in another, requesting him to purchase goods, and to draw on him for the amount of the purchase-money by bills. In which country is the contract for the repayment of the advances, if the purchase is made, to be deemed to be made? Is it in the coun- try where the letter is written, and on which the drafts are au- thorized to be drawn? Or where the goods are purchased? The decision has been that, when such advances are made, the under- taking is to replace the money at the same place at which the advances are made; and therefore the party advancing will be entitled to interest on the advances according to the law of the place of the advances.2(a) So if advances are made for a foreign merchant at his request, or security is given for a debt, the party paying or advancing is in like manner entitled to repayment in the place where the advances are made or the security is given, unless some other place is stipulated therefor.’ (0) 287 a. Loans secured by Mortgage. —So where a loan is made in one state, and security is to be given therefor in another state by way of mortgage, it may be asked what law is to govern in re- 1 Ante, s. 286 b, 286 c. ? Lanusse v. Barker, 3 Wheat. 101, 146; Grant ». Healey, 3 Sumner, 523; ante, s. 284. See also Hertii Opera, tom. 1, de Collis. Leg., s. 4, n. 55, p. 147, ed. 1737; Id. p. 208, ed. 1716. 5 Boyle v. Zacharie, 6 Pet. 635, 648, 644; post, s. 820 a. (a) See First National Bank v. Shaw, 61 N. Y. 283. But see Ballis- ter v. Hamilton, 3 La. An. 401. (6) So where a proposal to pur- chase goods is made by letter sent from one state to another state, and is there assented to, the contract of sale is made in the latter state. M’Intyre v. Parks, 3 Met. (Mass.) 207. Sales of personal property are generally held to be made in the state or country where the vendor resides and finally assents to the contract or delivers the article; and if valid by the law of that place they are held valid in the state or country where the vendee resides; although, if entirely made and com- pleted in the latter place, they would have been contrary to the law thereof. See Kline v. Baker, 99 Mass. 254; Finch v. Mansfield, 97 Mass. 89; M’- Intyre v. Parks, 3 Met. (Mass.) 207; Jameson v. Gregory, 4 Met. (Ky.) 870; Garland v. Lane, 46 N. H. 245; Marchant v. Chapman, 4 Allen (Mass.) 362; Hardy v. Potter, 10 Gray (Mass.) 89; Bligh v. James, 5 Allen (Mass.) 106. CHAP, VIIL] FOREIGN CONTRACTS. 393 lation to the contract and its incidents? The decision has been that the law of the place where the loan is made is to govern; for the mere taking of a foreign security does not, it is said, neces- sarily alter the locality of the contract. Taking such security does not necessarily draw after it the consequence that the con- tract is to be fulfilled where the security is taken. The legal fulfilment of a contract of loan on the part of the bondsman is repayment of the money; and the security given is but the _ means of securing what he has contracted for, which, in the eye of the law, is to pay where he borrows, unless another place of payment be expressly designated by the contract.1 But if the mortgage is actually to be executed in a foreign country, and the money is to be paid there, the loan will be deemed to be there completed, although the money may have been actually advanced elsewhere.” (a) 288. Portions charged on Lands. — A case somewhat different in its circumstances, but illustrative of the general principle, occurred formerly in England. By asettlement made upon the marriage of A in England, a term of five hundred years was created upon estates in Ireland, in trust to raise £12,000 for the portions of daughters. The parties to the settlement re- sided in England; and a question afterwards arose, whether the £12,000, charged on the term of years, should be paid in Eng- ~ land without any abatement or deduction for the exchange from Ireland to England. It was decided that the portions ought to be paid in England, where the contract was made and the parties resided; and not in Ireland, where the lands lay which were charged with the payment; for it was a sum in gross, and not a rent issuing out of the land. 1 De Wolf v. Johnson, 10 Wheat. 367, 888. See also Ranelaugh v. Cham- pante, 2 Vern. 395, and Raithby’s note; Connor v. Bellamont, 2 Atk. 382; post, s. 298, See Chapman v. Robertson, 6 Paige (N. Y.) 627, 630; post, s. 293 d. 2 De Wolf v. Johnson, 10 Wheat. 367; Hosford v. Nichols, 1 Paige (N. Y.) 221; Lloyd v. Scott, 4 Pet. 211, 229. Whether a contract made in one State for the sale of lands situate in another state on credit, reserving interest at the legal rate of interest of the state where the lands lie, but more than that of the state where the contract is made, would be usurious, has been much discussed in the state of New York. In Van Schaick v. Edwards, 2 Johns. Cas. (N. Y.) 355, the judges were divided in opinion upon the question. See also Hosford ». Nichols, 1 Paige (N. Y.) 220, and Dewar v. Span, 3 T. R. 425; ante, s. 279 a. ® Phipps v. Anglesea, cited 5 Vin. Ab. 209, pl. 8; 2 Eq. Ab. 220, pl. 1; (2) See Cope v. Alden, 53 Barb. (N. Y.) 353. 1 394 CONFLICT OF LAWS. [s. 289-291. 289, Bills of Exchange signed in Blank. — Let us take another case. A merchant, resident in Ireland, sends to England certain bills of exchange, with blanks for the dates, the sums, the times of payment, and the names of the drawees. These bills are signed by the merchant in Ireland, indorsed with his own name, and dated from a place in Ireland, and are transmitted to a corre- spondent in England, with authority to him to fill up the remain- ing parts of the instrument. The correspondent in England accordingly fills them up, dated at a place in Ireland. Are the bills, when thus filled up and issued, to be deemed English or Irish contracts? It has been held that, under such circum- stances, they are to be deemed Irish contracts, and of course to be governed, as to stamps and other legal requisitions, by the law of Ireland ; and that, as soon as they are filled up, the whole transaction relates back to the time of the original signature of the drawer.1 One of the learned judges on that occasion said, that if the drawer had died while the bills were on their passage, and afterwards the blanks had been filled up, and the bill nego- tiated to an innocent indorsee, the personal representatives of the drawer would have been bound.? 290. Bonds of Government Officers: — Bonds for the faithful discharge of the duties of office are often given with sureties, by public officers, to the government of the United States; and it sometimes happens that the bonds are executed by the principals in one state, and by the sureties in a different state, or in diffe- rent states. What law is in such cases to regulate the contract? The rights and duties of sureties are known to be different in different states. In Louisiana one system prevails, deriving itself mainly from the civil law; in other states a different system pre- vails, founded on the common law. It has been decided that the bonds in such cases must be treated as made and delivered, and to be performed by all the parties, at the seat of the government of the Union, upon the ground that the principal is bound to account there; and therefore, by necessary implication, all the other parties look to that as the place of performance, by the law of which they are to be governed.’ Id. 754, pl. 3; 1P. Wms. 696; 2 Bligh, 88, 89. See also Lansdowne v. Lans- downe, 2 Bligh, 60; Stapleton v. Conway, 3 Atk. 726; 1 Ves. 427. 1 Snaith vo. Mingay, 1M. & §. 87. ? Mr. Justice Bayley, id. p. 95. ® Cox v. United States,6 Pet. 172, 202; Duncan v. United States, 7 Pet. 435. CHAP. VIII.] FOREIGN CONTRACTS. 395 ‘ 291. Interest. — The question also often arises in cases respect- ing the payment of interest. The general rule is, that interest is to be paid on contracts according to the law of the place where they are to be performed, in all cases where interest is expressly or impliedly to be paid(a) ‘ Usurarum modus ex more regionis, 1 Fergusson v. Fyffe, 8 Cl. & F. 121, 140; post, s. 292, 298, 298 a-293 e, 804; Connor v. Bellamont, 2 Atk. 382; Cash v. Kennion, 11 Ves. 314; Robin- son v. Bland, 2 Burr. 1077; Ekins v. East India Company, 1 P. Wms. 395; Ranelaugh v. Champante, 2 Vern. 395, and note by Raithby; 1 Chitty on Com. & Manuf. c. 12, p. 650, 651; 3 Id.c. 1, p. 109; Eq. Ab. Interest, E.; Henry on Foreign Law, 48, note, 53; 2 Kames, Equity, b. 3, c. 8,s. 1; 2 Fonbl. Eq. b. 5, c. 1, s. 6, and note; Bridgman’s Equity Digest, Interest, VII.; Fanning v. Consequa, 17 Johns. (N. Y.) 511; 3 Johns. Ch. (N. Y.) 610; Hosford v. Nichols, 1 Paige (N. Y.) 220; Houghton v. Page, 2 N. H. 42; Peacock v. Banks, 1 Minor (Ala.) 887; Lapice v. Smith, 13 La. 91, 92; Thompson v. Ketcham, 4 Johns. (N. Y.) 285; Stewart v. Ellice, 2 Paige (N. Y.) 604; Mullen v: Morris, 2 Barr (Pa.) 85; Healy v. Gorman, 3 Green (N. J.) 328; 2 Kent Com. 460, 461. A case illustrative of this principle recently occurred before the House of Lords. A widow in Scotland entered into an obligation to pay the whole of her deceased husband’s debts. It was held by the court of session in Scotland that the English creditors on contracts madein England were entitled to recover interest in all cases where the law of England gave interest, and not where it did not. Therefore on bonds and bills of exchange interest was allowed, and on simple contracts not. Montgomery v. Bridge, 2 Dow. & C. 297. affirmed by the House of Lords. (a) See Miller v. Tiffany, 1 Wall. 298; Dickinson v. Edwards, 77 N. Y. 573 (following Jewell v. Wright, 30 N. Y¥. 259); Wayne Bank v. Low, 81 N. Y. 566; Tilden v. Blair, 21 Wall. 241; Bard v. Pool, 12 N. Y. 495; Jacks v. Nichols, 5 N. Y. 178; Faulk- ner v. Hart, 82 N. Y. 4138 (that the decisions of a foreign court contrary to mercantile law which is to prevail in this particular case, will be disregarded ; to the same effect, Franklin v. Two- good, 25 Iowa, 520); Mills v. Wilson, 88 Penn. St. 118; Bank of Louisville v. Young, 87 Mo. 398; Arnold v. Potter, 22 Iowa, 194; Sands v. Smith, 1 Neb. 108; Townsend v. Riley, 46 N. H. 300; Freese v. Brownell, 35 N. J. 285; Parham v. Pulliam, 5 Cold. (Tenn.) 497; Senter v. Bowman, 5 Heisk. (Tenn.) 14 (that a promissory note need not be payable on its face in a foreign state to make the law of such And this decision was state govern) ; Bolton v. Street, 3 Cold. (Tenn.) 81; Cromwell v. Sac, 96 U. S. 51 In Massachusetts, interest not sti- pulated for is awarded, when given, as damages, and is therefore governed by the lexfori. Ayer v. Tilden, 15 Gray, (Mass.) 178; Grimshaw v. Bender, 6 Mass. 157; Eaton v. Mellus, 7 Gray, (Mass.) 566; Barringer v. King, 5 Gray, (Mass.)9. Contraif there was an agree- ment for interest. Ayer v. Tilden, su- pra; Von Hemert v. Porter, 11 Met. (Mass. ) 210; Winthrop v. Carleton, 12 Mass. 4 (a doubted case); Lanusse v. Barker, 8 Wheat. 147; Railroad Co. v. Bank of Ashland, 12 Wall. 226; Hunt v. Hall, 87 Ala. 702; Cartwright v. Greene, 47 Barb. (N. Y.) 9. But the Massachusetts rule that non-stipulated interest is to be determined by the lex fori is repudiated in Ex parte Heidel- back, 2 Lowell, 526. 396 CONFLICT OF LAWS. [s. 291, 292, ubi contractum est, constituitur,” says the Digest.1_ Thus a note made in Canada, where interest is six per cent, payable with in- terest in England, where it is five per cent, bears English interest only.2, Loans made in a place bear the interest of that place, unless they are payable elsewhere.? And, if payable in a foreign country, they may bear any rate of interest not exceeding that which is lawful by the laws of that country. And, on this account, a contract for a loan made and payable in a foreign country may stipulate for interest higher than that allowed at home.®(a) If the contract for interest be illegal there, it will be The case of Arnott v. Redfern, 2 C. & P. 88, may at the first view seem in- consistent with the general doctrine. There the original contract was made in London begween an Englishman and a Scotchman. The latter agrees to go to Scotland as agent four times a year to sell goods, and collect debts for the other party, to remit the money, and to guarantee one fourth part of the sales; and he was to receive one per cent upon the amount of sales, &c. The agent sued for the balance of his account in Scotland, and the Scotch court allowed him interest on it. The judgment was afterwards sued in England; and the question was, whether interest ought to be allowed. Lord Chief Justice Best said: ‘Is this an English transaction? For, if it is, it will be regulated by the rules of English law. But if it is a Scotch transaction, then the case will be different.’ He afterwards added: ‘ This is the case of a Scotchman who comes into England and makes a contract. . As the contract was made in England, although it was to be executed in Scotland, I think it ought to be regulated according to the rules of the English law. This is my present opi- nion. ‘These questions of international law do not often occur.’ And he refused interest, because it was not allowed by the lawof England. The court afterwards ordered interest to be given upon the ground that the balance of such an account would carry interest in England. But Lord Chief Justice Best rightly expounded the contract as an English contract, though there is a slight inaccuracy in his language. So far as the principal was concerned, the contract to pay the commission was to be paid in England. The services of the agent were to be performed in Scotland. But the whole contract was not to be executed exclusively there by both parties. A contract made to pay money in England for services performed abroad is an English contract, and will carry English interest. 1 Dig. 22,1, 1; 2 Burge, Col. & For. Law, pt. 2,¢. 9, p. 860-862. ? Scofield v. Day, 20 Johns. (N. Y.) 102. ® De Wolf v. Johnson, 10 Wheat. 367, 383; Consequa v. Willings, Pet. - 225; 2 Boullenois, obs. 46, p. 477, 478; Andrews v. Pond, 13 Pet. , 78. * Ibid.; 2 Kent Com. 460, 461; Thompson v. Ketcham, 4 Johns. (N. Y.) 285; Healy v. Gorman, 8 Green (N. J.) 328. 5 2 Kent Com. 460, 461; Hosford v. Nichols, 1 Paige (N. Y.) 220; Hough- ton v. Page, 2 N. H. 42; Thompson v. Powles, 2 Sim. 194. In this last case (2) Bard v. Pool, 12 N. Y. 495; other hand, it has been recently held Davis v. Garr, 6 N. Y. 124. On the in Ohio that a contract made in that CHAP. VIII. ] FOREIGN CONTRACTS. 397 illegal everywhere.! But if it be legal where it is made, it will be of universal obligation, even in places where a lower interest is prescribed by law.? 292. Usury. — The question therefore whether a contract is usurious or not depends not upon the rate of the interest allowed, but upon the validity of that interest in the country where the contract is made and is to be executed.27(a) A contract made in the Vice-chancellor said: ‘ With respect to the question of usury, in order to hoid the contract to be usurious, it must appear that the contract was made here, and that the consideration for it was to be paid here. It should appear at least that the payment was not to be made abroad; for if it was to be made abroad it would not be usurious.’ See also Andrews v. Pond, 13 Pet. 65, 78; De Wolf v. Johnson, 10 Wheat. 383. : 12 Kames, Equity, b. 3, c. 8, s. 1; Hosford v. Nichols, 1 Paige (N. Y.) 220; 2 Boullenois, obs. 46, p. 477. In the case of Thompson v. Powles, 2 Sim. 194, the Vice-chancellor said: ‘In order to have the contract (for stock) usuri- ous, it must appear that the contract was made here, and that the consideration for it was to be paid here.’ See also Yrisarri v. Clement, 2 C. & P. 223. In Hosford v. Nichols, 1 Paige (N. Y.) 220, where a contract was made for the sale of lands in New York by citizens then resident there, and the vendor afterwards removed to Pennsylvania, where the contract was consummated, and a mortgage given to secure the unpaid purchase-money with New York interest, which was higher than that of Pennsylvania, the court thought the mortgage not usurious, it being only a consummation of the original bargain made in New York. » Tbid. * Harvey v. Archbold, 1 Ry. & M. 184; 3 B. & C, 626; Andrews v. Pond, 13 Peters, 65,78; ante, s. 243. state and payable in Pennsylvania may stipulate for the payment of interest according to Ohio law, though the rate would be usurious in Pennsyl- vania. Kilgore v. Dempsey, 25 Ohio St. 418; post, s. 298. In Pecks v. Mayo, 14 Vt. 33, 38, the following propositions are laid down: — 1. If a contract is entered into in one country to be performed in another, and the rate of interest differs in the two countries, the parties may stipu- late the rate of interest of either coun- try, and thus, by their own express contract, determine with reference to the law of which country that incident of the contract shall be decided. 2. If the contract so entered into stipulate for interest generally, it shall be the rate of interest of the place of payment, unless it appear the parties intended to contract with reference to the law of some other place. 8. If the contract stipulate for the payment of money at a time and place named, and no interest be stipulated, and payment be delayed, interest by way of damages shall be allowed ac- cording to the rate at the place of pay- ment, where the money may be sup- . posed to be required by the creditor for use, and where he might be sup- posed to have borrowed to supply the deficiency caused by the default, and to have paid the rate of interest of that country. See Ex parte Heidelback, 2 Lowell, 526. (a) See Railroad Co. v. Ashland, 398 CONFLICT OF LAWS. [s. 292-293 a. England for advances to be made at Gibraltar, at a rate of interest beyond that of England, would nevertheless be valid in England ; and go a contract to allow interest upon credits given in Gibral- tar at such higher rate would be valid in favor of the English creditor.! 292 a. Rodenburg and Burgundus. — This too seems to be the doctrine propounded by Rodenburg,.who says: ‘Status quidem aut conditio personarum dirigitur a loco domicilii : caeterum tamen in vinculo cujusque obligationis, ut sciamus, quos obliget con- ventio, spectamus leges regionis, ubi illa celebratur. Quemadmo- dum et in illicita stipulatione, que legibus est interdicta, ut puta, si debitum modum usurarum excedit, traditum est valere pactum, quo foris secundum mores illius regionis stipulati sumus prohibi- tam domi usurarum quantitatem. Unde non longe abire videtur, quod nemini nuper apud nos responsum esse, si contracta sit eo loci obligatio, ubi sortem liceat’ exigere cum usuris, ut maxime jam earum alique essent persolute, jure caput cum usuris et apud nos exigi, ubi usurarum solutione protinus via petitioni sortis precluditur, locumque sibi vindicat decantata adéo parcemia.’? Burgundus is still more direct and positive.® 293. Security. — New Contract. — And in cases of this sort it will make no difference (as we have seen) that the due per- formance of the contract is secured by a mortgage or other security upon property situate in another country where the in- terest is lower. (a) For it is collateral to such contract, and the interest reserved being according to the law of the place where the contract is made and to be executed, there does not seem to be any valid objection to giving collateral security elsewhere to enforce and secure the due performance of a legal contract. 1 Ibid. 2 Rodenburg, Diversit. Stat. tit. 4, p. 2, c. 2, p. 92. ® Burgundus, Tract. 4, n. 10, p. 109; post, s. 298 e, 300 a; 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 860-862, * Ante, s. 287. . ° Connor v. Bellamont,-2 Atk. 382; Stapleton ». Conway, 3 Atk. 726; 1 Ves. 427; De Wolf v. Johnson, 10 Wheat. 367 , 383. 12 Wall. 226; Bard v. Pool, 12 N. Y. (N. Y¥.) 352; Newman v. Kershaw, 495; Mills v. Wilson, 88 Perin. St. 118; 10 Wis. 333. Phelps v. Kent, 4 Day (Conn.) 96; (a) See Cope v. Alden, 53 Barb. Pratt v. Adams, 7 Paige (N. Y.) 616; (N. Y.) 352; Mills v. Wilson, 88 Penn. ‘Greenwade v. Greenwade, 3 Dana St. 118; Chase v. Dow, 47 N. H. (Ky.) 497; Cope ». Alden, 58 Barb. 405; Kavanaugh v. Day, 10 R. I. 398. CHAP. VIIL.] FOREIGN CONTRACTS. 399 But suppose a debt is contracted in one country, and afterwards, in consideration of further delay, the debtor in another country enters into a new contract for the payment of interest upon the debt at a higher rate than that allowed by the country where the original debt was contracted, but not higher than that allowed by the law of the country where it is so stipulated ; it may be asked whether such stipulation is valid? It has been decided that it is! (a) On the other hand, suppose the interest so stipulated is according to the rate of interest allowed in the country where the debt-was contracted, but higher than that in the country where the new contract is made, is the stipulation invalid? It has been decided that it is.2(6) In each of these cases the lex loci contractus was held to govern as to the proper rate of interest. 293 a. Transactions intended to evade Usury Laws. + In the cases hitherto stated the transaction is supposed to be bona fide between the parties. For if the transaction is a mere cover for usury, as if the transaction is in form a bill of exchange drawn upon and payable in a foreign country, but in reality the parties resort to that as a mere machinery to disguise usury in the trans- action against the laws of the country where the contract is made, the form of the transaction will be treated as a mere nullity ; and the court will decide according to the real object of the parties. (¢c) Thus, for example, where a bill of exchange was drawn in New York payable in Alabama, and the bill was for an antecedent debt, and a large discount was made from the bill, greater than the interest in either state for the supposed diffe- rence of exchange, the court considered the real question to be as to the bona fides of the transaction. If a mere cover, it was usurious.® 1 1 Connor v. Bellamont, 2 Atk. 882. See also. Hosford v. Nichols, 1 Paige, (N. Y.) 220. 2 Dewar v. Span, 8 T. R. 425. See also Stapleton v. Conway, 3 Atk. 726; 1 Ves. 427. See Chapman v. Robertson, 6 Paige (N. Y.) 627, 681. 3 Andrews v. Pond, 18 Pet. 65, 77,78. On this occasion Mr. Chief Jus- tice Taney said: ‘ Another question presented by the exception, and much discussed here, is whether the validity of this contract depends upon the laws of New York or those of Alabama. So far as the mere question of usury is concerned this question is not very important. There is no stipulation for (a) See Arnold v. Potter, 22 Towa, (c) See Miller v. Tiffany,1 Wall. 298; 194. Cutler v. Wright, 22 N. Y. 472; Par- (8) See Rose v. Phillips, 38 Conn. ham v. Pulliam, 5 Cold. (Tenn.) 497; 570. Bolton v. Street, 3 Cold. (Tenn.) 31. 400 CONFLICT OF LAWS. [s. 293 8. 298 b. Case in New York. — Indeed in all cases of this sort we are to look to the real intentions of the parties, and their acts are expressive of them. Thus, where a citizen of New York applied interest apparent upon the paper. The ten per cent in controversy is charged as a difference in exchange only, and not for interest and exchange. And if it were otherwise, the interest allowed in New York is seven per cent and in Alabama eight; and this small difference of one per cent per annum, upon a forbearance of sixty days, could not materially affect the rate of exchan ge, and could hardly have any influence on the inquiry to be made by the jury. But there are other considerations which make it necessary to decide this question. The laws of New York make void the instrument when tainted with usury; and if this bill is to be governed by the laws of New York, and if the jury should find that it was given upon a usurious consideration, the plaintiff would not be entitled to recover, unless he was a bona fide holder without notice, and had given for it a valuable consideration; while by the laws of Alabama he would be entitled to recover the principal amount of the debt without any interest. The general principle in relation to contracts made in one place to be executed in another is well settled. They are to be governed by the law of the place of performance; and if the interest allowed by the laws of the place of performance is higher than that permitted at the place of the contract, the parties may stipulate for the higher interest, without incurring the penal- ties of usury. And in the case before us, if the defendants had given their note to H. M. Andrews & Co. for the debt then due to them, payable at Mobile in sixty days, with eight per cent interest, such a contract would undoubtedly have been valid, and would have been no violation of the laws of New York, although the lawful interest in that state is only seven per cent. And if, in the account adjusted at the time this bill of exchange was given, it had ap- peared that Alabama interest of eight per cent was taken for the forbearance of sixty days given by the contract, and the transaction was in other respects free from usury, such a reservation of interest would have been valid and obli- gatory upon the defendants, and would have been no violation of the laws of New York. But that is not the question which we are now called on to decide. The defendants allege that the contract was not made with reference to the laws of either state, and was not intended to conform to either. That a rate of interest forbidden by the laws of New York, where the contract was made, was reserved on the debt actually due, and that it was concealed under the name of exchange in order to evade the law. Now, if this defence is true, and shall be so found by the jury, the question is not which law is to govern in executing the contract, but which is to decide the fate of a security taken upon an usurious agreement, which neither will execute. Unquestionably, it must be the law. of the state where the agreement was made, and the instru- ment taken to secure its performance. A contract of this kind cannot stand on the same principles with a bona fide agreement made in one place to be exe- cuted in another. In the last-mentioned cases the agreements were permitted by the lex loci contractus, and will even be enforced there if the party is found within its jurisdiction. But the same rule cannot be applied to contracts for- bidden by its laws and designed to evade them. In such cases the legal con- sequences of such an agreement must be decided by the law of the place where the contract was made. If void there, it is void everywhere.’ See Chapman v, Robertson, 6 Paige (N. Y.) 627, 630, 631. CHAP. VIL] FOREIGN CONTRACTS. 401 in England to a British subject for a loan of money upon the security of a: bond and mortgage upon land in New York at the legal rate of interest (seven per cent) of that state; and it was agreed that the borrower should, upon his return to New York, execute the bond and mortgage, and duly record the same; and upon the bond and mortgage being received in England, the lender agreed to deposit the money loaned at the bankers of the borrower in London for his use; and the bond and mortgage were executed and received, and the money paid accordingly to the bankers; the question arose whether the transaction was usurious or not, and that depended upon the law of the place by which it was to be governed, whether by the law of England (where interest is only five per cent) or by the law of New York. It was held by the court that the contract was to be construed according to the laws of New York, and therefore that a bill to foreclose the mortgage, filed in New York, was maintainable, and that the law of usury of England was no defence to the suit. On that occasion the learned chancellor said that, as no place of pay- ment was mentioned in the bond or mortgage, the legal construc- tion of the contract was that the money was to be paid where the obligee resided or wherever he might be found; that the residence of the obligee being in England at the time of the execution of the bond, that must be considered the place of payment for the purpose of determining the question where that part of the contract was to be performed, and that the execution of the bond in New York did not make it a personal contract there, becanse it was inoperative until received there and the money deposited with the bankers for the borrower. And he concluded by saying: ‘Upon a full examination of all the cases to be found upon the subject, either in this country or in Eng- ‘ land, none of which however appear to have decided the precise question which arises in this cause, I have arrived at the conclu- sion that this mortgage, executed here, and upon property in this state, being valid by the lex situs, which is also the law of the domicil of the mortgagor, it is the duty of this court to give full effect to the security, without reference to the usury laws of Eng- land, which neither party intended to evade or violate by the execution of a mortgage upon the lands here.’} 1 Chapman v. Robertson, 6 Paige (N. Y.) 627, 630, 633. 26 402 CONFLICT OF LAWS. [s. 293 e-294. 298 c. Remarks on the Case.— Whatever objections may be made to the reasoning of the learned chancellor, and it is cer- tainly open to some observation, (a) the decision itself seems well supported in point of principle ; for the parties intended that the whole transaction should be in fact, as it was'in form, a New York contract, governed by the laws thereof, and the payment of the debt was there to be made. It is easily reconcilable with other laws and principles, if viewed in this light; if viewed as the chancellor interpreted the case, it is perhaps irreconcilable with other cases and with general principles. 293 d. Views of John Voet.— John Voet, in his Commentaries on the Pandects, holds this very doctrine, which appears to me to 1 Chapman v. Robertson, 6 Paige (N. Y.) 627-630, 633. It appears to me that the case was correctly decided; but, with the greatest deference for the learned chancellor, upon principles and expositions to which I cannot assent, and which appear to me inconsistent with the general reasoning of the authori- ties. It appears to me that there being no place of payment designated in the bond and mortgage, which was executed at New York, where the borrower was domiciled, that, although it was not operative until received by the lender, yet when received and adopted by him the transaction related back to its origin, and it was valid, not as a bond and mortgage executed in England for the payment of money there, but as a bond and mortgage for the payment of the money in New York, as having originated there, and having its whole validity and operation from the law of New York. If an order for goods were sent from New York to England, and the order were complied with, and the goods received in New York; after the receipt of the goods the debt would be treated as an English debt, since the contract of purchase would there be deemed to be negotiated and perfected. Ante, s. 285, 286. In truth, where no place of paymént was mentioned, the law of the place where the contract is made fixes it in that place, wherever the parties may be domiciled. The bond and mort- gage took effect as contracts of the borrower executed at New York. Ifa negotiable note is made in one state, and is negotiated to an indorsee in another state, the contract with the indorsee by the maker takes effect as a promise in the state where the note was made, and not where it was indorsed. The pay- ment of the money to the bankers of the borrower in London was merely for his accommodation, and it by no means made the money repayable there. The case of Stapleton v. Conway, 8 Atk. 726; 1 Ves. 427, is, as far as it goes, in opposition to the decision in 6 Paige (N. Y.) 627. It is not however my de- sign in this place to enter upon the reasons of my dissent from the doctrines stated by the learned chancellor in 6 Paige (N. Y.) 627. The principles stated from s. 280-321 sufficiently explain some of the grounds upon which that dis- sent may be maintained, See also 2 Kent Com. 460, 461, and Andrews v. Pond,.13 Pet. 65; ante, s. 291; post, s. 804. (a) In Fisher v. Otis, 8 Chand. ever Cope v. Alden, 53 Barb. 353. (Wis.) 83, 107, the case of Chapman And see Curtis v. Leavitt, 15 N. Y. v. Robertson was approved. See how- 88, CHAP. VIII] FOREIGN CONTRACTS, 403 be entirely in harmony with the received principles of interna- tional law. He considers that the interest must be according to the law of the place where the contract is to be performed, whether that place be where the contract is made, or it be another place. If the interest is in either case stipulated for beyond that rate, he deems it usurious. ‘Si alio in loco graviorum usurarum stipulatio permissa, in alio vetita sit, lex loci, in quo contractus celebratus est, spectanda videtur in questione, an moderate, an vero modum excedentes, usure per conventionem constitute sint. Dummodo meminerimus, illum proprie locum contractus in jure non intelligi, in quo negotium gestum est, sed in quo pecuniam ut solveret se quis obligavit. Modo etiam bona fide omnia gesta fuerint, nec consulto talis ad mutuum contrahendum locus electus sit, in quo graviores usure, quam in loco, in quo alias contrahendum fuisset, probate inveniuntur. Etiamsi de cetero hypotheca, in sortis et usurarum securitatem obligata, in alio loco sita sit, ubi sole leviores usure permisse ; cum equius sit contractum accessorium regi ex loco principalis negotii gesti, quam ex opposito contractum principalem regi lege loci, in quo accessorius contractus celebratus est.’ 1 293 e.. Burgundus. — Burgundus adopts the same doctrine, and says: ‘ Licita vero sit, an illicita stipulatio, a forma quoque videtur, proficisci, et ideo ejusdem legibus dirigitur, quibus ipsa forma, et ad locum contractus collimare, oportet. Quare et usu- rarum modus is constituendus est, qui in regione in qua est, con- tractum legitime celebratur. Et cum reditus duodenarius, in Gallia stipulatus, in controversiam incidisset, patrocinante me judicatum est, in curia Flandrie valere pactum: nec obesse, quod in Flandria, ubi reditus constitutus, sive hypothece imposi- tus proponeretur, usuras semisse graviores stipulari non liceat ; quia ratio hypothece non habetur, que hac in re nihil conferens ad substantiam obligationis, tantum extrinsecus accedit legitime stipulationi. Sed hoc intellige de usuris in stipulationem de- ductis, non autem de iis, que ex mora debentur, in quibus ad locum solutionis (ut docebimus postea) respicere oportet.’? 294, Other Foreign Jurists. — In cases of express contracts for interest, foreign jurists generally hold the same doctrine. Du- moulin, and after him, Boullenois, says: ‘ In concernentibus con- 1 J. Voet, ad Pand. 22, 1, 6, p. 938; post, s. 304. 2 Burgundus, tract. 4, s. 10, p. 108, 109; post, s. 302. 404. ‘CONFLICT OF LAWS. [s. 294-296, tractum, et emergentibus tempore contractus spectatur locus, in quo contrahitur.’1 And hence the latter deduces the general conclusion that the validity of contracts for rates of interest de- pends upon the laws of the place where the contract is made and payable, whether it be in the domicil of the debtor, or in that of the creditor, or in that where the property hypothecated is situ- ated, or elsewhere.2 He holds this also to be a just inference from the language of the Digest. ‘Cum judicio bone fidei dis- ceptatur, arbitrio judicis usurarum modus ex more regionis, ubi contractum est constituitur;’® and that it applies where the parties have designedly contracted in the one place rather than in the other. But, where'there is no express contract, and in- terest is to be implied, foreign jurists are not so well agreed? Some contend that, if the contract is between foreigners, the law of interest of the domicil of the creditor ought to pre- vail; and others, that that of the domicil of the debtor ought, to prevail.6 295. Same. — Boullenois is of opinion that, where there is no express contract, the interest for which a delinquent debtor is tacitly liable, on account of his neglect to pay the debt, is the in- terest allowed by the law of the place where the debt is pay- able; because it is there that the interest has its origin.’ And in this he follows the doctrine of Everhardus, who says: ‘ Quia, ubi certus locus solutionis faciende destinatus est, tunc non facta solutione in termino et loco preefixo, mora dicitur contrahi in loco destinate solutionis, non in loco celebrati contractus.’® Strykius holds the same opinion. ‘Si lis oritur ex post facto propter negli- gentiam et moram, consideratur locus, ubi mora contracta est.’ ® Boullenois puts a distinction, which also deserves notice, between cases where the debt for money loaned is payable at a fixed day, 1 Molin. Opera, Com. ad Consuet. Paris, tit. 1, s. 12, gloss. 7, n. 87, tom. 1, p. 224; 2 Boullenois, obs. 46, p. 472; Henry on Foreign Law, p. 53; Boullenois, Quest. de la Contr. des Lois, p. 380-338; ante, s. 82 a. 2 2 Boullenois, obs. 46, p. 472. 8 Dig. 22, 1, 1. 4 Boullenois, obs. 46, p. 472. 5 Td. 472, 477-479, 496. 6 Ibid.; Bouhier, Cout. de Bourg. c. 21, s. 194-199; Livermore, Dissert. 8. 42, p. 46, 47. 7 2 Boullenois, obs. 46, p. 477. 8 Everhard. Consil. 78, n. 10, p. 205. ® 2 Boullenois, obs. 46, p. 477; Henry on Foreign Law, p.53. For the cita- tion from Strykius I have been obliged to rely on Boullenois; as I have not been able, after considerable research in the voluminous works of Strykius, to find the particular passage. , CHAP. VIII.] FOREIGN CONTRACTS. 405 and where no day is fixed for payment, but it is at the pleasure of the creditor when it shall be paid, and no place of payment is mentioned.!’ In the former case he holds that the debtor is bound, in order to avoid default, to seek the creditor and pay him ; and therefore the neglect to make payment arises in the domicil of the creditor, and interest ought to be allowed according to the law of that place.? In the latter case the creditor is to demand payment of the debtor; and the neglect of payment is in the domicil of the debtor, and therefore interest ought to be allowed according to the law of his domicil.2 And if, between the time of contracting the debt and the demand of the creditor, the debtor has changed his domicil, Boullenois is of opinion that, if the demand is in the new domicil, interest for neglect of payment should be according to the law of the latter; especially if the change of domicil is known to the creditor. And he applies the same rule to a case where, by the law of the old domicil, a simple demand only is required, and, by the law of the new domicil, a demand by judicial process is necessary.2 The distinction does not appear to have any foundation in our jurisprudence; for, whether the debt be payable at a fixed day or upon a demand of the creditor, if no place of payment is prescribed, the contract takes effect as a contract of the place where it is made ; and being payable generally, it is payable everywhere, and after a demand and refusal of payment, interest will be allowed according to the law of the place of the contract.® 296. Rule of the Common Law. — It may therefore be laid down as a general rule, that, by the common law, the lex loci contrac- tus will, in all cases, govern as to the rule of interest, following out the doctrine of the civil law already cited: ‘Cum judicio bona fidei disceptatur, arbitrio judicis usurarum modus, ex more regionis, ubi contractum constituitur ; ita tamen ut legi non offendat.’7 But if the place of payment or of performance is different from that of the contract, then the interest may be validly contracted for at any rate not exceeding that which 1 2 Boullenois, obs. 46, p. 477, 478. 2 Ibid. 8 Ibid. * Ibid. 5 Td. p. 477-479. ® Ante, s. 272, 278 a; post, s. 817, 329. 7 Dig. 22, 1, 1, 87; ante, s. 294; 1 Eq. Abr. Interest, E.; Champant v. Renelagh, Prec. Ch. 128; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, 228. See 1 Burge, Col. & For. Law, pt. 1, c. 1,.p. 29, 80. 406 CONFLICT OF LAWS. [s. 296-298. is allowed in the place of payment or performance. (4) And. in the absence of any express contract as to interest, the law of the same place will silently furnish the rule, where interest is to be implied or allowed for delay, ex mora, of payment or performance.! (6) 297. Difficulties in Application of the Rule. — Case in New York. — But clear as the general rule as to interest is, there are cases in which its application has been found not without embarrass- ments. Thus where a consignor in China consigned goods for sale in New York, and delivered them to the agent of the con- signee in China, and the proceeds were to be remitted to the con- signor in China, and there was a failure to remit, the question arose, whether interest was to be computed according to the rate in China or the rate in New York. Mr. Chancellor Kent held that it should be according to the rate in China. But the appel- late court reversed his decree, and decided in favor of the rate in New York. Each court admitted the general rule that the inte- rest should be according to the law of the place of performance, where no express interest is stipulated. But the Court of Chan- 1 Ante, s. 291; 2 Kent, Com. 460, 461; Robinson v. Bland, 2 Burr. 1077; Ekins v. East India Company, 1 P. Wms. 396; Boyce v. Edwards, 4 Pet. 111; 2 Fonbl. Eq. b. 5, c. 1, 8. 6; Fanning v. Consequa, 17 Johns. (N. Y.) 511; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, 228; Smith v. Mead, 3 Conn. 253; Winthrop v. Carleton, 12 Mass. 4; Foden v. Sharp, 4 Johns. (N. Y.) 183; Henry on Foreign Law, p. 53. (a) See Lewis v. Ingersoll, 3 Abb. App. Dec. (N. Y.) 55; Croninger v. Crocker, 62 N. Y. 152. (6) In the case of Ex parte Heidel- back, 2 Lowell, 526, 580. Mr. Justice Lowell says: ‘ In the case of a bill of exchange the contracts of the various parties are distinct, and the drawer is bound, génerally speaking, according to the law of the place where the bill is drawn, which is in most cases the same as that in which it is to be paid by him if he pays it. Still he is toa certain extent involved in the same law with the acceptor, because upon due protest, demand, and notice, he is bound to make good to the holder what the acceptor ought to have paid at the place where he was to pay, which makes it necessary to ascertain what that amount was by the law of that place, and whether by the same law due demand was made of the acceptor and due protest upon the dishonor. - What the drawer should pay as inte- rest ex mora, oras damages, does not depend upon the law of the place where the acceptor was to pay the bill, if that is different from the place where the drawer’s contract is to be performed.’ In this case the Massachusetts rule that the question of interest and dam- ages in cases in which there is no stipulation upon the subject is to be determined by the lex fori as_pertain- ing to the remedy (see ante, s. 291, note) is repudiated. See also post, s. 814, note. CHAP, VIII] FOREIGN CONTRACTS. A407 cery thought that the delivery of the goods being in China, and ‘the remittance being to be made there, the contract was not com- plete, until the remittance arrived, and was paid there. The appellate court thought that the delivery of the goods in China, to be sold at New York, was not distinguishable in principle from a delivery at New York; and that the remittance would be com- plete, in the sense of the contract, the moment the money was put on board the proper conveyance in New York for China; and it was then at the risk of the consignor. The duty of remittance was to be performed in New York, and the failure was there ; and consequently the rate of interest of New York only was due.! 298. Case in Louisiana.— Rule concerning Usury. — Another case has arisen of a very different character. The circumstances of the case were somewhat complicated ; but the only point for con- sideration there arose upon a note, of which the defendants were the indorsers, and with the amount thereof they had debited them- selves in an account with the plaintiff; and which they sought now to avoid upon the ground of usury. The note was given in New Orleans, payable in New York, for a large sum of money, bearing an interest of ten per cent, being the legal interest of Louisiana, the New York legal interest being seven per cent only. The question was, whether the note was tainted with usury, and therefore void, as it would be if made in New York. The Su- preme Court of Louisiana decided that it was not usurious; and that, although the note was made payable at New York, yet the interest might be stipulated for, either according to the law of Louisiana or according to that of New York. The court seems to have founded their judgment upon the ground that, in the sense of the general rule already stated,? there are, or there may be, two places of contract, that in which the contract is actually made, and that in which it is to be paid or performed ; locus, ubi contractus celebratus est; locus, ubi destinata solutio est; and therefore, that if the law of both places is not violated in respect to the rate of interest, the contract for interest will be valid.’ (a) 1 Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 587, 610; 17 Johns. (N. Y.) 511,520, 521. See Grant v. Healey, 3 Sum. 523; ante, s. 284 a. 2 Ante, s. 280. 8 Depau v. Humphreys, 8 Mart. N.S. (La.)1. Mr. Chancellor Walworth, (a) See, to the same effect, Kilgore And see Carnegie v. Morrison, 2 Met. v. Dempsey, 25 Ohio St. 418; Bank (Mass.) 381; Pecks v. Mayo, 14 Vt. of Louisville v. Young, 87 Mo. 398. 33. 408 CONFLICT OF LAWS. [s. 298-299 a. In support of their decision the court mainly relied upon the doctrines supposed to be maintained by certain learned jurists of continental Europe, whose language however does not appear to me to justify any such interpretation, when properly considered, | and is perfectly compatible with the ordinary rule that the in- terest must be, or ought to be, according to the law of the place where the contract is to be performed and the money is to be paid. It may not be without use to review some of the more important authorities thus cited, although it must necessarily in- volve the repetition of some which have been already cited. 299. Place of Celebration and Place of Performance. — There is no doubt that the phrase, lex loci contractus, may have a double meaning or aspect, and that it may indifferently indicate the place where the contract is actually made, or that where it is virtually made, according to the intent of the parties, that is, the place of payment or performance.! We have seen that the rule of the civil law clearly indicates this. ‘Contractum autem non utique eo loco intelligitur, quo negotium gestum sit; sed quo solvenda est pecunia.’? Many distinguished jurists refer to this distinction. Huberus, in the passage already cited, says: ‘ Verum tamen non ita precise respiciendus est locus, in quo contractus est initus, ut si partes alium in contrahendo locum respexerint, ille non potius sit considerandus.’? Everhardus, as we have seen, says: ‘Ubi certus locus solutioni faciende destinatus est, tune non facta solutione in termino et loco preefixo mora dicitur con- trahi in loco destinate solutionis, et non in loco celebrati contrac- tus. Nimirum, ergo, si inspiciatur valor rei debite secundum locum, ubi destinata est solutio. Tum etiam, quia locus contrac- tus, conventio, sive obligatio, perficitur, seu verba proferuntur. Secundo, ubi solutio seu deliberatio destinatur.’4 And he adds: ‘Quia dico, ut supra dixi; quod locus contractus dicitur duobus modis ; primo, ubi contractus celebratus est ; secundo, ubi solutio destinata est.’5 And again: ‘ Duplex est locus contractus, ut in Chapman v. Robertson, 6 Paige (N. Y.) 627, 634, has expressed his entire concurrence in the decision in 8 Mart. N.S. (La.) 1. But see Van Schaick v. Edwards, 2 Johns. Ch. (N. Y.) 855. 1 2 Boullenois, obs. 46, 446; ante, s, 235. ? Dig. 42, 5, 3; Pothier, Pand. 42, 5, n. 24; ante, s. 280. 8 Ante, s. 239, 281; Huber, lib. 1, tit. 8, s. 10. 4 Everhard. Consil. 78, n. 10, 11, p. 205; ante, s. 295. 5 Everhard. Consil. 78, n. 18. CHAP. VIII.] FOREIGN CONTRACTS. 409 supra dixi, quo casu in tantum censetur contractus celebratus in loco destinate solutionis, quod nullo modo censetur celebratus in loco, ubi verba fuerunt prolata, quoad ea, que veniunt post con- tractum in esse productum.’! Paul Voet places it in a strong light. ‘Ne tamen hic oriatur confusio, locum contractus dupli- cem facio; alium, ubi fit, de quo jam dictum; alium, in quem destinata solutio. Tlud locum verum, hune fictum appellat Sali- cetus.2, Uterque tamen recte locus dicitur contractus, etiam secundum leges civiles, licet postremus aliquid fictionis con- tineat.’ § 299. a. Language of Foreign Jurists. — But for what purpose do these foreign jurists refer to the distinction? Is it that the validity of the same contract is to be at the same time ascer- tained in part by the law of one country, and in part by that of another? By no means. They nowhere assert that the validity of the contract is not to be judged of throughout by one and the same law, that is, by the law of the place where it is made, or by the law of the place where it is to be performed, according as, in a just sense, with reference to the nature and objects of the par- ticular contract, the one or the other is properly to be deemed the place of the contract. They nowhere assert that one and the same rule is not to apply throughout to all the stipulations in the contract. That the contract is good, notwithstanding it does not conform either to the law of the place where.it is made, or to that where it is to be performed. That’ the contract is to be treated not as a whole, but is to be distributed into parts, so that, if in some of the stipulations it violates the law of each place, it shall still be good throughout, if it does not violate in the whole the law of both places. In many of the passages cited in support of the supposed mixed character and mixed interpre- tation and mixed operation of the contract, these learned jurists were considering questions of a very different nature. Some of them were considering the question as to the rule which is to govern generally in regard to the formalities, solemnities, and modes.of execution of contracts, where the place of execution is the same place where it is made; others again were considering 17d. n. 17; Id. n. 20. 2 Cod. 1, 1, Summ. Trinit. n. 4. 8 Voet, de Stat. s. 9, c. 2, 8. 11, p. 270, ed. 1715; Id. p. 826, ed. 1661. See also 2 Boullenois, obs. 46, p. 488; Boullenois, Quest. sur. Contr. des Lois, p. 880-338, ’ 410 CONFLICT OF LAWS. [s. 299 a-300 6. the rule as to the interpretation and extent of the obligation of contracts generally, under the like circumstances ; and others again were considering the rule where the contract 1s made in one place and is to be executed in another. We are therefore to understand their language according to the particular occasion and the particular circumstances to which it is applied. 300. Alexander. — Let us examine then the particular language which is used by these jurists in the passages cited. Thus Alex- ander is said to use the following passage :*—‘ Tn scriptura instru- menti, in ceremoniis, et solemnitatibus, et generaliter in omnibus, que ad formam et perfectionem contractus pertinent, spectanda est consuetudo regionis, ubi fit negotium. Debet enim servari statutum loci contractus, quoad hc, que oriuntur secundum na- turam ipsius contractus.’ This language expresses only a general truth, and we have no means of knowing that the author intended to speak here of anything further than the general rule appli- cable to all contracts made and to be performed in the same place.” 300 a. Burgundus. — Burgundus says: ‘Et quidem in scrip- tura instrumenti, in solemnitatibus, et ceremoniis; et generaliter in omnibus, que ad formam ejusque perfectionem pertinent, spectanda est consuetudo regionis, ubi fit negotiatio. Rationem assignant doctores quod consuetudo influat in contractus, et con- venientes ad eam respicere, ac voluntatem suam accommodare videantur. Et recte.’2 Now we know upon what occasion this 1 I cite the passage from Alexander, Consil. 87, as I find it in 8 Mart. N.S. (La.) 22. 23, not having been able to obtain the works of Alexander. But I have some doubt whether the first part of the passage is not copied by mistake from Burgundus, who uses almost the identical language. Burgun- dus, tract. 4, n. 7, p. 104; post, s. 300 a. I now suspect that the citation is not, as I supposed it was, from Alexander al Alexandro, but by a mistake of the court in 8 Mart. N.S. (La.) 22, 23 (probably taking it at second hand from some other author), from Alexander Tartagni Imolens, or de Imola, who wrote a large work in 5 and 7 vols. folio, of Consilia, published Mediol. 1488, 1489. Lipenius in his Bibl. Jurid. vol. 1, p. 833, refers to this work. 1842. ver- hardus in his Consil. 78, in several sections, refers to Alex. de Imola, Consil. 87, and Consil. 49. 2 From other passages cited by Everhardus from Alexander de Imola, and Bartolus, and Baldus, it seems clear that they all consider the locus solutionis to be the proper locus contractus, except sofar as regards the solemnities and creation of the contract. (Solemnitatem et subsistentiam contractus.) See Everhard. Consil. 78, n. 20, p. 207; Id. n. 24, p. 208. 3 Burgundus, tract. 4, n. 7, p. 104; ante, s. 260. CHAP, VIII] FOREIGN CONTRACTS. 411 language was used. Burgundus was here considering the ques- tion solely with reference to the point when a contract is to be deemed lawful or not, or, in other words, by what law its validity is to be governed. ‘ Illicita stipulatio est,’ says he, * que legibus est interdicta, ut puta, si debitum modum usurarum excedat. Nunc ergo considerandum, cujus loci ratio haberi debeat.’! He does not even allude to a case where the contract is made in one place and is to be performed in another place. Headds: ‘ Igitur, ut paucis absolvam, quoties de vinculo obligationis, vel de ejus interpretatione queritur, veluti, quos et in quantum obliget, quid sententiz, stipulationis inesse, quid abesse credi oporteat; item in omnibus actionibus, et ambiguitatibus, que inde oriuntur, primum quidem id sequemur, quod inter partes actum erit, aut si non apparet, quid actum est, erit consequens, ut id sequamur, quod in regione, in qua actum est, frequentatur.’2 And he con- cludes by saying: ‘ Doctores toties ingerunt ea, que respiciunt solemnitatem actus, vel que tempore contractus ex natura ipsius adhibentur, oriunturque, ex more regionis, ubi contractum est, legem accipere. Ea vero, que ad complementum vel execu- tionem contractus spectant vel absoluto eo superveniunt, solere a statuto loci dirigi, in quo peragenda est solutio.’ ? 800 6. Everhardus. — Everhardus says: ‘Quod quo ad perfec- tionem contractus seu ad solemnitatem ad esse seu substantiam ejus requisitam semper inspicitur statutum seu consuetudo loci celebrati contractus. Et est ratio, quia ex quo agitur de consue- tudine contrahendi non mirum, si inspiciatur locus inite conven- tionis, ubi contractus accepit perfectionem.’* But he immediately adds: ‘Sed ubi agitur de consuetudine solvendi, ut in casu prae- senti’ (that is, where a contract made in one place was payable in another), ‘ vel de his, que veniunt implenda diu post contrac- tum, et in alio loco impletioni destinato, tune inspicitur locus destinate solutionis.’ Now this latter passage would seem as strictly to apply to the case of payment of interest as to the case of payment of principal. If the parties have not stipulated for a particular rate of interest, the usage of the place of payment ought constantly to govern. If they have stipulated for a parti- cular rate of interest, inconsistent with that of the lex loci solu- 1 Td. n. 6, p. 104. 2 Burgundus, tract. 4, n. 7, p. 105. 8 Id. n. 29, p.116. See also id. n. 10, p. 109; ante, s. 292 a, 293 e. 4 Everhard. Consil. 78, n. 11, p. 206; Id. n. 18, p. 207; Id. n. 27, p. 209. 412 CONFLICT OF LAWS: [s. 300 6-300 «. tionis, the question will still remain, whether it can lawfully be done. Everhardus has not here discussed it; far less has he de- cided it. And he cites Baldus in support of his opinion, as say- ing: ‘Quod in expeditivis contractus non inspiciuntur ordinativi contractus, sed locus solutionis.’1 He afterwards adds that this rule, in regard to the forms and solemnities required in order to create and perfect: any contract, equally applies to cases where the performance is to be in the same place, and where it is to be in another place. ‘Ubi vero in uno loco celebratus est contrac- tus, et in alio loco destinata est solutio, tunc quoad ea, que concernunt solemnitatem actus, item ad esse et perfectionem contractus, inspicitur consuetudo loci celebrati contractus. Unde si ex statuto loci contractus requiratur certa solemnitas in ipso contractu, &c., tale statutum vel consuetudo debet observari, licet in loco destinatz solutionis non sit simile statutum.’? How far this latter doctrine is correct and maintainable as a general rule we have already had occasion in some measure to consider? It is not material to the present discussion, which turns upon another point, that is, whether the validity of a contract may de- pend partly upon the law of one place, and partly on the law of another place, some of its stipulations being contrary to the law of each place. 300 ¢. Christineus. — Christineeus expressly professes to follow the doctrine of Everhardus on this subject. ‘Consuetudo loci,’ says he, ‘ubi contrahitur spectanda est, scilicet quoad observan- tiam solemnitatum ipsius actus. Generaliter enim in omnibus, que ad formam ejusque perfectionem pertinent, spectanda est consuetudo regionis ubi fit negotiatio, quia consuetudo influit in contractus, et videtur ad eos respicere, et voluntatem suam eis accommodare. Itaque recte. Conditio quoque loci et temporis perfectionem forme etiam respicit, et idcirco a regione contractus vicissim diriguntur.’* He adds: ‘Sed quoad ejus executionem, utpote quoad solutionem faciendam, inspicienda venit consuetudo destinate solutionis.’® And again: *Quoad ea, que celebrato contractu veniunt facienda, inspicitur consuetudo loci, ubi ea debent fieri, puta, tradi, solvi.’ 6 1 Everhard. Consil. 78, n. 11, p. 206; Id. n. 17, p. 207; Id. n. 27, p. 209. 2 Everhard. Consil. 78, n. 18, p. 207. 3 Ante, s. 280. ‘ Christin. Decis. 288, vol. 1, n. 1,4, 5, 9-11, p. 255. 5 Id. n. 8, 9; p. 355. § Id. n. 10, 11, 855. CHAP. VIII.] FOREIGN CONTRACTS. 413 300d. Gregorio Lopez. — Dumoulin.— Gregorio Lopez states only the general doctrine. ‘Quando contractus celebratur in uno loco, puta in Hispali, et destinata solutio in Corduba; tune non inspicitur locus contractus, sed locus destinate solutionis; ut habetur in ista lege ff. 1. contraxisse.’!_ Dumoulin (Molinzus) says: ‘In concernentibus contractum, et emergentibus tempore contractus, spectatur locus, in quo contrahitur, et in concernenti- bus meram solemnitatem, cujus actus, locus, in quo ille actus celebratur.’? In another place he says: ‘Aut statutum loquitur de his, que concernunt nudam ordinationem et solemnitatem actus; et semper inspicitur statutum vel consuetudo loci, ubi actus celebratur, sive in contractibus, sive in judiciis, sive in testamentis, sive in instrumentis aut aliis conficiendis. Aut statutum loquitur de his, que meritum scilicet cause, vel deci- sionem concernunt; et tune, aut in his, que pendent a voluntate partium, vel per eas immutari possunt, et tune inspiciuntur circumstantiz, voluntatis, quarum una est statutum loci, in quo contrahitur ; et domicilii contrahentium antiqui vel recentis, et ‘similes circumstantie.’? In another passage he finds fault with those who exclusively look to the place where the contract is made in all cases. ‘Quia putant nuditer et indistincte quod debeat ibi inspici locus et consuetudo, ubi fit contractus, et sic jus in loco contractus.4 Quod est falsum; quinimo jus est in tacita et verisimiliter mente contrahentium.’ He adds: ‘ Quia quis censetur potius contrahere in loco in quo debet solvere, quam in loco ubi fortuito transiens contraxit.’® It is plain that these passages do not justify the inference sought to be adduced from them. They import no more than that the law which is to govern contracts is not, in all cases, to be exclusively the law of the place where they are made. 300.¢. Boullenois. — Boullenois is also relied on in support of the doctrine. In one of the passages cited he says: When the ques- tion is, whether, in contracts upon any subject, the rights which spring from the nature and time of the contract (natura et tem- 1 8 Mart. N.S. (La.) 9, 17; ante, s. 233; Dig. 44, 7, 21. * Dumoulin, cited in 8 Mart. N.S. (La.) 24; Molin. Com. ad Consuet. Paris, tit. 1, s. 12, gloss. 7, n. 37, tom. 1, p. 224, ed. 1681; 2 Boullenois, obs. 46, p. 472. 3 Molineus, Com. in Cod. 1, 1, tom. 3, p. 554, ed. 1681. * Thid. 5 Ibid. . 414 CONFLICT OF LAWS. [s. 300 e, 301. pore contractus) are lawful or not, it is necessary to follow the law of the place where the contract is made. And in another passage he says: When the question is to determine the lawful- ness of a rate of rent or annuity (taux de rentes), and, in the place where the contract is made, the rate is different from that which is to be paid, either in the country of the domicil of the debtor or in that of the domicil of the creditor, or, finally, in the place where the property hypothecated is situated, — the rate will be adjudged lawful; if it conforms to the law of the place where the contract is made.2. The context shows that Boullenois was only contemplating the case where the contract was made in the place of its intended performance. For he adds: This is the provision of the law of the Digest (De Usuris), where it is de- clared: Cum judicio bone fidei disceptatur, arbitrio judicis usura- rum modus ex more regionis, ubi contractum est, constituitur ; ita tamen, ut legi non offendat;* and I believe it takes place whenever the parties designedly contract in one place rather than another. The true meaning of Boullenois, in this citation, may be gathered from his own interpretation of the law of the Digest in another page, where he cites with approbation the opinion of Gothofredus, that the words, ubi contractum, ought to be under- stood to mean the place where the payment ought to be made. ‘Hee verba, ‘ ubi contractum est,” sic intellige, ubi actum est, ut ‘solveret,’ § 301. Bartolus. — Bartolus has discussed the question somewhat at large, how far the law of the place of the contract is obligatory upon foreigners, and what effects the laws of the place of the con- tract have beyond the territory. And first (he says) let us sup- pose a contract made by a foreigner in one place, and afterwards a suit is litigated thereon in another place, that of the origin of the contracting party ; of which place ought the laws to be ob- served and followed in deciding it? He says we should make a distinction. Either we speak of the statute or custom which respects the solemnities of the contract, or of the process and proceedings in the suit, or of those things which appertain to the jurisdiction in the execution of the contract. In the first 1 2 Boullenois, obs. 46, p. 472. 2 Tbid. 3 Dig. 22, 1,1; Pothier, Pand. 22, 1, n. 52; ante, s. 296. 4 2 Boullenois, obs. 46, p. 472; Id. p. 446. 5 Id. p. 446. ® Gothofred. n. 10, ad Dig. 22,1, 1. CHAP. VIII] FOREIGN CONTRACTS, 415 case we are to look to the law of the place of the contract; in the second case, as to the process and proceedings in the suit, to the place of judgment.! Or else we speak respecting those things which belong to the decision of the cause; and then the question is as to those things which arise from the very nature of the contract itself in its origin, or as to those things which arise afterwards on account of negligence or delay. In the first case the law of the place of the contract is to be looked to, that is, the place where the contract is made, and not where it is performed. In the second case, either the payment is to be made in a fixed place, or alternately in several places, so that the plaintiff has his election ; or it is to be made in no particular place, because the promise is simply made. In the first case the custom of the place is to be looked to in which the payment is to be made. In the second and third cases the place is to be looked to where the suit is brought. His language is: ‘Et primo, utrum statutum porri- gatur extra territorium ad non subditos; secundo, utrum effectus statuti porrigatur extra territorium statuentium. Et primo, quero, quod de contractibus. Pone contractum celebratum per aliquem forensem in hac civitate ; litigium ortum est, et agitatur lis in loco originis contrahentis, cujus loci statuta debent servari et spectari. Distingue. Aut loquimur de statuto, aut de con- suetudine, que respiciunt ipsius contractus solemnitatem, aut litis ordinationem, aut de his, que pertinent ad jurisdictionem ex ipso contractu evenientis executionis. Primo casu, inspicitur locus contractus. Secundo casu, aut queris de his, que pertinent ad contractus solemnitatem, aut de his, que pertinent ad litis ordi- nationem ; et inspicitur locus judicii. Aut de his, que pertinent ad ipsius litis decisionem ; et tunc, aut de his, que oriuntur se- cundum ipsius contractus naturam tempore contractus, aut de his, que oriuntur ex post facto propter negligentiam, vel moram. Primo casu, inspicitur locus contractus, ubi est celebratus con- tractus ; et intelligo locum contractus, ubi est celebratus con- tractus, non de loco, in quem collata est solutio. Secundo casu, aut solutio est collata in locum certum, aut in pluribus locis al- ternative, ita quod electio sit actoris ; aut in nullum locum, quia promissio fuit facta simpliciter. Primo casu inspicitur consue- 1 Everhardus manifestly understands Bartolus to speak with reference to contracts, where payment is to be made in loco celebrati contractus. Ever- hard. Consil. 78, n. 26, 27, p. 208. . 416 CONFLICT OF LAWS. [s. 301-301 a. tudo, que est in illo loco, in quem est collata solutio ; secundo et tertio casu, inspicitur locus, ubi petitur. Ratio predictorum est, quia ibi est contracta negligentia vel mora.’ 1 Now taking this whole passage together, it is difficult to misunderstand the mean- ing of Bartolus. It is plain that he did not intend to repudiate the common distinction as to the lex loci contractus and. the lex loci solutionis. He gives full effect to the latter, where a fixed place is prescribed for payment ; and whether he is right or not, that where no place of payment is named the payment is to be made according to the law of the place where it is demanded by the promisee, he goes no further than to assert the general proposition that the law of the place where the contract is made is to govern in respect to its solemnities, and that the law of the place of payment is to be regarded in cases of payment. He does not at all discuss the point which we have now under consideration. 801 a. Result of these Authorities. — These are the ‘principal passages adduced from foreign jurists as authorities in support of the doctrine that a contract is or may be valid, notwithstanding it does not in its entirety conform either to the law of the place. where the contract is made or to that of the place where it is to be performed. Now in the first place it is manifest that many of these jurists, in the passages cited, speak exclusively as to the formalities and solemnities and modes of execution of contracts; and they hold that in these respects they must conform to the law of the place where they are made. Some of them make no distinction, in the application of this rule, between cases of con- tracts to be performed in foreign places, and cases of contracts to be performed in the place where they are made. And perhaps the generality of language used by most of them, even when they do not refer to this distinction, may be fairly applied, indifferently to both classes of cases. But several, and indeed most of them, do expressly and directly recognize the rule that where the con- tract is made in one place and is to be performed in another, not only may the law of the latter be properly called the locus con- tractus, but that it ought in all respects, except as to the formali- ties and solemnities and modes of execution, to be deemed the rule to govern such cases. 1 Bartolus, ad Cod. 1, 1, 1, n. 14-16, tom. 7, p. 4, 4a: 1602. 2 Bartolus, ad Cod. 1, 1, n. 14-16, tom. 7, p. 4, ed. 1602. See Vidal v. Thompson, 11 Mart. (La.) 23. CHAP. VIII.] FOREIGN CONTRACTS. 417 301 6. Same Rule applicable to Principal and Interest. — In the next place, when these foreign jurists speak of payment or per- formance, they all agree that the contract must. be governed by the law of the place of payment or performance, and not by the law of the place where the contract is made. How then are we to distinguish between different parts of the payment? If prin- cipal and interest are both to be paid in a foreign place, how can the law of that place govern as to the one and not as to the other? As these jurists make no distinction in respect to the payment of principal and that of interest, but say generally that the payment must be according to the Jaw of the place where the payment is to be made, it is certainly a reasonable inference that they did not intend to make any exception whatsoever, but deemed both the principal and the interest governed by the same rule. Indeed it will be found exceedingly difficult to main- tain any distinction between them which is not purely artificial and arbitrary ; for interest is but an incident or accessory to principal. 801 ¢. Absence of any Hxception.— But we need not rest en- tirely on the silence of foreign jurists in these passages; for the subject of interest will be found to be expressly treated by some of them ; and therefore, if any exception was intended by them, there the exception would naturally have found its appropriate place. The omission of any exception becomes, under such cir- cumstances, peculiarly significant. Let us therefore review, in this connection, some of the passages in which the subject of in- terest is expressly or impliedly discussed. 301 d. Foreign Jurists. — Everhardus says: ‘Aut querimus, quis locus inspiciatur, quoad accessoria, ut pute expensas et damna de jure canonico, et usuras de jure civili, si minores vel leviores sunt in uno loco, quam in alio, et similiter ; certum est, quod inspicitur locus destinate solutionis; nedum quoad prin- cipalem obligationem, sed etiam quoad accessoria.’} And he insists that the leading jurists whom he quotes hold the same opinion. This language would seem to be as direct as possible to the present inquiry; and it affirms that the lex loci solutionis must govern as well as to the-interest as to the principal, the former being merely accessorial to the latter. It is no answer to sug- gest that he meant to speak of interest ex mora, or interest not 1 Evethard. Consil. 78, n. 24, p. 208; Id. n. 27-29, p. 208, 209. 27 418 CONFLICT OF LAWS. [s. 301 d-303. expressly provided for, because there is no such qualification in his language, and it is positive as well as general as to the acces- sorial rights, under all circumstances. 301 ¢. Christinzus avows the same doctrine: ‘Sic etiam in- spicitur statutum loci destinatz solutionis, si agatur de extinc- tione actionis per prescriptionem statutariam vigentem in uno loco, et non in alio. Item si agatur de accessoriis, ut de expen- sis, damnis et interesse, aut denique usuris, si majores vel minores sint in uno loco, quam in alio.’ 1 301 f. Paul Voet may fairly be deemed to hold the same opinion. After having said in the passage already cited, that there may be a double place of the contract, one where it is made, and the other where it is to be paid or performed, he im- mediately adds; ‘Hine ratione effectus, et complementi ipsius contractus, spectatur ille locus, in quem destinata est solutio, id, quod ad modum, mensuram, usuras, &c., negligentiam et moram post contractum dinitum accedentem referendum est ;’? and he then refers to several authorities in support of this opinion. It seems plain from this language, in this connection, that, as to in- terest, he deemed the true law by which the legality of the con- tract was to be adjudged was the law of the place of payment. 802. In one passage Burgundus says that interest is to be al- lowed according to the place of the contract; and that, if the question comes under consideration in a foreign court, the inte- rest stipulated, though higher than what is lawful by the lex fori ought to be allowed. But where no interest is stipulated, there the interest is to be ex mora, according to the law of the place of payment.? His language is: ‘ Quare et usurarum modus is con- stituendus est, qui in regione, in qua est contractum, legitime celebratur. Et cum redditus duodenarius in Gallia stipulatus, in controversiam incidisset, patrocinante me, judicatum est, in curia Flandria, valere pactum ; nec obesse, quod in Flandria, ubi red- ditus constitutus, sive hypothece impositus proponeretur, usuras emisse graviores stipulari non liceat. Quia ratio hypothece non habetur, que hac in re nihil conferens ad substantiam obliga- 1 Christin. Decis. 288, n. 12, 13, vol. 1, p. 355. ? P. Voet, de Statut. s. 9, c. 2, n. 12, p. 270, ed. 1715; Id. p. 326, ed. 1661; ante, s. 281, 5 8 Mart. N.S. (La.) 28; Burgundus, tract. 4, n. 10, p. 109. See also Vidal v. Thompson, 11 Mart. (La.) 28. : CHAP, VIIL] - FOREIGN CONTRACTS, 419 tionis, tantum extrinsecus accedit legitimee stipulationi. Sed, hoc intellige de usuris in stipulationem deductis, non autem de iis, que ex mora debentur, in quibus ad locum solutionis Cut doce- mus postea) respicere oportet.’! Now, if such be the rule where the contract is made in France, and to be performed there, the converse would seem equally to be correct, if the contract had been made in France to be performed in Flanders, that the con- tract would be void for usury as against the law of the latter. In another place he says : ‘Idem ergo de solutionibus dicendum, scilicet, ut in omnibus, que ex ea sunt, aut inde oriuntur, aut circa illam consistunt, aut aliquo modo affinia sunt, consuetudines loci spectemus ubi eamdem implere convenit.’? He adds: ‘ Itaque ex solutione sunt solemnia, valor rei debite, pretium monete ; ex solutione oriuntur prestatio apoche, antigrapha, similiaque ; circa solutionem consistunt pondera, mensure bonitas expense, mora, damna, interesse, usura ex mora debits, et ejusmodi.’ 3 And he concludes by stating the reason of the doctrine as given by all jurists. ‘ Rationem mutuantur a juris consultis qui unum- quemque vult in eo loco contraxisse intelligi, in quo ut solveret se obligavit.’* So that, if this language is to be interpreted in its broad sense, the interest must in all cases be according to the law of the place of performance.’ Burgundus’s opinion may per- haps by some persons be thought of less value however, because he applies the like rule to prescriptions. ‘ Affinia solutioni sunt prescriptio, oblatio rei debite, consignatio, novatio, delegatio, et ejusmodi.’ § 303. Boullenois has nowhere, to my knowledge, directly and positively treated the question, whether the interest may be stipu- lated for according to the place of the contract, when payment is to be made in another place where it would be illegal. The cita- tions already referred to,’ which are supposed to countenance the affirmative, put the case only of a rate of interest, or of an an- nuity, good by the law of the place of the contract (and for aught 1 Burgundus, tract. 4, n. 10, p. 109. 2 Burgundus, tract. 4, n. 25, 26, p. 114, 115; Id. n. 10, p. 109; 2 Boulle- nois, obs. 46, p. 488, 498; ante, s. 293 e. 8 Burgundus, tract. 4, n. 27, p. 115. 4 Td. n. 29, p. 116. 5 Id. n. 10, p. 109; ante, s. 293 a. 6 Burgundus, tract. 4, n. 28, p. 116; 2 Boullenois, obs. 46, p. 488, 498; ante, s. 300 e. 7 Ante, s. 300 e. 420 CONFLICT OF LAWS. {s. 303, 304. that appears, payable there), and hold that it will be good, al- though different from the law of the domicil of the creditor or debtor, or even from the law of the place where the property pledged for security is situate. There is however a passage which seems to indicate, although not directly, an opinion of Boullenois in the negative. After referring to and approving the doctrine of Gothofredus, that interest is to be according to the law of the place of payment, he adds that it is in this sense that Gothofredus is to be understood in what he says of the Law 20, of the title of the Digest de Jurisdictione,? where he supposes a Parisian, who has contracted at Rome (Demus Rome contractum - essa) ; and inquires whether the Parisian, if sued at Paris, shall be condemned to pay the interest prescribed by the law of Rome for the delay; and he answers in the affirmative, saying: ‘Id videtur. Contractus enim istius initium vitio caret.’ Boullenois says that this decision is very just in effect, if we suppose that the Parisian has not only made the contract at Rome, but also has promised to pay at Rome.’ The natural inference certainly would be, that if he expressly agreed to pay interest, that he should pay according to the rate of interest at the place of payment. 304. It may then be affirmed with some confidence that the foreign jurists who have been relied on do not establish the as- serted doctrine. On the other hand there are other foreign jurists whose doctrines lead to an opposite conclusion. Thus, John Voet says, if a stipulation for a high interest is allowed in one place, and in another it is prohibited, the law of the place where the contract is made is to decide whether it is good, or whether it exceeds that which is allowable. Nevertheless we must re- member that, in point of law, that is not properly to be deemed the place of the contract where the business is transacted, but where the money is by the contract to be paid. But good faith must also be observed; and the place of the contract, where higher interest is allowed, must not be sought for the purpose of evading the law. He adds that an hypothecation of property, as security, situated in another place where the interest is lower, will not vary the rule, for the security will be treated as merely accessorial. And it is more equitable that the accessorial contract should be governed by the law of the place where the principal 1 2 Boullenois, obs. 46, p. 472, 473. 2 Dig. 2, 1, 20; Gothofred. n. 37. 8 2 Boullenois, obs. 46, p. 446, CHAP. VIII.] FOREIGN CONTRACTS. 421 contract is made, than, on the contrary, that the principal con- tract should be governed by the law of the place in which the accessorial contract is made. 1 Voet, ad Pand. 22, 1, s. 6, tom. 1, p. 938; Id. 4, 1, s. 29, tom. 1, p. 241; ante, s. 293 d. I have given the sense, although not a precisely literal trans- lation of the passage. The words are: Si alio in loco graviorum usurarum stipulatio permissa, in alio vetita sit, lex loci in quo contractus celebratus est, spectanda videtur in quastione, an moderate, an vero modum excedentes usure per conventionem constitute sint. Dummodo meminerimus, illum pro- prie locum contractus in jure non intelligi, in quo negotium gestum est, sed in quo pecuniam ut solveret, se quis obligavit. Modo etiam bona fide omnia gesta fuerint, nec consulto talis ad mutuum contrahendum locus electus sit, in quo graviores usurz, quam in loco in quo alios contrahendum fuisset, probate convenientur. Etiamsi de cxetero hypotheca in sortis et usurarum securitatem obligata, in alio loco sita sit, ubi sole leviores usure permisse; cum equius sit, contractum accessorium regi ex loco principalis negotii gesti, quam ex opposito contractum, principalem regi lege loci, in quo accessorius contractus celebratur. It appears to me that the first part of the passage has been mis- understood, or at least mistranslated, in Depau v. Humphreys, 8 Mart. N.S. (La.) 82. The reasoning of the court upon the passage will here be given in justice to that learned tribunal: ‘ The authority of the passage,’ says Martin, J., in delivering the opinion of the court, ‘from Voet remains to be examined. This author says: Si alio in loco graviorum usurarum stipulatio permissa, in alio vetita sit, lex loci, ubi contractus celebratus est, spectanda videtur, an moderate, an vero modum excedentes usure, per conventionem stipulate: sint. If in a place the stipulation of higher interest be permitted, in another forbid- den, the law of the place in which the contract was celebrated is to be resorted to, in order to ascertain whether the lesser or the greater rate of interest be stipulated by the contract. Thus far Voet teaches what we have seen Alexander, Bartolus, Burgundus, Everhard, Strykius, and Boullenois teach, and the contrary of which no other commentator positively asserts, what in our opinion every sound principle of law dictates. But the appellant’s counsel urges that Voet unsays in the succeeding paragraph what he appears to have so emphatically expressed. The words of the second paragraph are: Dummodo meminerimus illum proprie locum contractus, in jure non intelligi, in quo negotium gestum est, sed in quo ut pecuniam solveret se obligavit. In the argument which the appellee’s counsel draws in this respect, he is fully supported by what is said, arguendo, by Lord Mansfield, in Robinson v. Bland, and in some degree by Judge Kent in the same manner, in the case of Van Schaick v. Edwards, already cited. In endeavoring to ascertain the character of the rate of interest stipulated in a note given in Massachusetts, Judge Kent says: ‘‘ Had the money, for in- stance, in this case been made payable at Albany, or elsewhere in this state (New York), then perhaps the decision in Robinson v. Bland would have applied.”? Jf, in the second paragraph, Voet meant to introduce an exception to the rule laid down in the first; if he meant to teach that the legality of a rate of conventional interest, arising not ex mora, but tempore contractus, is exclusively to be tested by the Jaw loci solutionis, even when it is different from the law loci celebrati contractus, then we cannot consider him as afford- ing to us a legitimate rule of decision in the present case; because the weight of his authority is borne down by that of a crowd of the most respectable com- 422 CONFLICT OF LAWS. [s. 304 a, 305. 304 a. True Test of Validity as regards Usury. — If to this doc- trine, thus maintained by John Voet (himself an auithor of dis- tinguished weight and ability) we add the concurrent testimony of Huberus, Everhardus, Christinzus, and Paul Voet, already cited,! on the same side, and the entire absence of any direct and absolute authority to the contrary, it is not perhaps too much to affirm that the decision, already alluded to, of the Supreme Court of Louisiana? is not supported by the reasoning or the principles of foreign jurists.(a) It is certainly also at variance with the doctrine maintained by Lord Mansfield and the judges of the King’s Bench, in a highly interesting case (although not posi- tively necessary to the judgment then pronounced), that the law of the place of payment or performance constitutes the true test by which to ascertain the validity or invalidity of contracts? And finally, in a very recent case, the Supreme Court of the United States have adopted the doctrine that where a contract is made in one place, to be executed in another, it is to be governed as to usury by the law of the place of performance, and not by the law of the place where it is made. So that, if the transaction is bona fide, and not with intent to evade the Jaw against usury, and the law of the place of performance allows a mentators of the law he cites. Perhaps he must be understood, in the second paragraph, to convey to the student a warning that, by what he teaches in the first, he must not be understood to impugn the proposition that, in a great degree, the law loci solutionis influences the obligation of the party who bound himself, ut solveret pecuniam. Upon the whole we must conclude, as we did in Norris v. Eves, and Vidal v. Thompson, that contracts are governed by the law of the country in which they were made, in everything which relates to the mode of construing them, the meaning to be attached to the expressions by which the parties bound themselves, and the nature and validity of the engagement. But that, wherever the obligation be contracted, the performance must be according to the law of the place where it is to take place. In other words, that in a note executed here, on a loan of money made here, the credi- tor may stipulate for the legal rate of conventional interest authorized by our law, although such a rate be disallowed in the place in which payment is to be made.’ If I am right in the remarks in the text, it will be found that the authorities cited by the learned j udge by no means justify the judgment. See Bouhier, Cout. de Bourgogne, vol. 1, c. 21, p. 313; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 773-775. 1 Ante, s. 299, 300 b, 800 ec. ? Depau v. Humphreys, 8 Mart. N.S. (La.) 1. * Robinson v. Bland, 2 Burr. 1077. See also Van Schaick v. Edwards, 2 Johns. Cas. (N. Y.) 355. (a) See Ex parte Heidelback, 2 Lowell, 526. CHAP. VIIL] FOREIGN CONTRACTS. 423 higher rate of interest than that permitted at the place of the contract, the parties may lawfully stipulate for the higher interest.1 But then the transactions must be bona fide, and not intended as a mere cover of usury.2_ Bouhier indeed thinks that every con- tract of this sort would almost from its very terms and nature import a design to evade the laws and to cover usury. But he manifestly presses the presumption far beyond its legitimate appli- cation; for the circumstances of the case may often establish that the contract is perfectly innocent and praiseworthy. 805. Application of the Principle. —It has been said that if the principle be that a contract, valid in the place where the contract is celebrated, is void if it is contrary to the law of the place of payment, it must establish the converse proposition, that a con- tract void by the law of the place where it is made is valid if good by the law of the place of payment. This would seem to be reasonable; and the doctrine is supported by the modern cases, notwithstanding the old cases have been supposed to lead to a contrary conclusion. In one case,* a bond was exe- cuted in Ireland for a debt contracted in England; and because it constituted a security on lands in Ireland, Lord Chancellor Hardwicke held that it was valid, although it bore the Irish in- terest of seven per cent. But he thought it would have been otherwise if it had been a simple contract debt, or if the bond had been executed in England Mr. Chancellor Kent has cor- rectly laid down the modern doctrine; and he is fully borne out by the authorities. ‘The law of the place,’ says he, ‘ where the contract is made is to determine the rate of interest when the contract specifically gives interest; and this will be the case though the loan be secured by a mortgage on lands in another state, unless there be circumstances to show that the parties had in view the law of the latter place in respect to interest, When that is the case, the rate of interest of the place of payment is to govern.’ ® (a) 1 Andrews v. Pond, 18 Pet. 65, 77, 78. 2 Bouhier, Cout. de Bourg. vol. 1, ¢. 21, p. 418. 8 Depau v. Humphreys, 8 Mart. N.S. (La.) 1, 30. * Connor v. Bellamont, 2 Atk. 382. 5 Stapleton v. Conway, 3 Atk, 726; 1 Ves. 427. See Dewar v. Span, 3 T. R. 425. 6 2 Kent Com. 460, 461; DeWolf v. Johnson, 10 Wheat. 367; Scofield v. (a) See Pine v. Smith, 11 Gray, 38. 424 CONFLICT OF LAWS. [s. 306-308, 306. Limits of the Operation of Foreign Laws. — But it has been asked, if this be the established doctrine, of what use is it for any legislature to pass a law for the protection of the weak and necessitous?1 And the case of minors has been mentioned, as exhibiting the inconvenience of the principle. But we have already seen that minors in one country may lawfully contract in another in which they are deemed of age.? The true answer to all such suggestions is, that no country can give to its own laws any extra-territorial authority, so as to bind other nations. If it undertakes to legislate in regard to acts done or contracts per- formed elsewhere, it can claim for its own laws no other validity than such as the comity of other nations may choose to allow to- wards them. It may, if it chooses, deem all such acts and con- tracts valid or invalid, according to its own laws; but it cannot impose a like obligation on other nations so to treat them. The repose and common interest of all nations therefore require each to observe towards all others the principles of reciprocal justice and comity ; and these, as we have seen, are best subserved by the adoption of the general rule, that the law of the place of the contract and payment shall govern. 807. Damages. — Analogous to the rule respecting interest would seem to be the rule of damages in cases of contract, where damages are to be recovered for a breach thereof ex mora, or where the right to damages arises ex delicto, from some wrong or injury done to personal property. Thus if a ship should be illegally or tortiously converted in the East Indies by a party, the interest there will be allowed by way of damages in a suit against him.t(a) So the rate of damages on a dishonored bill of ex- change will be according to the lex loci contractus of the par- ticular party.® So if a bill of exchange be made in one state and Day, 20 Johns. (N. Y.) 102; Thompson v. Powles, 2 Sim. 194; Robinson v. Bland, 2 Burr. 1077; Boyce v. Edwards, 4 Pet. 111. But see Chapman v. Robertson, 6 Paige (N.Y.) 627, 680. 1 Depau v. Humphreys, 8 Mart. N.S. (La.) 1, 30. ? Saul v. His Creditors, 5 Mart. N.S. (La.) 596, 597; ante, s. 82. 8 Ante, s. 242, 280. 4 Ekins v. East India Company, 1 P.Wms. 395, 396; Consequa v. Willings, Pet. C. C. 225, 303. 5 Slacum v. Pomery, 6 Cranch, 221; Hazelhurst v. Kean, 4 Yeates (Penn.) 19; Pothier on Oblig. n. 171. (a) See Holmes v. Barclay, 4 La. Ann. 64. CHAP. VIII] FOREIGN CONTRACTS. 425 indorsed in another state, and again indorsed by a second indorser in a third state, the rate of damages upon the dishonor of the bill will be against each party according to the law of the place where his own contract had its origin, either by making or by indorsing the bill So if a note made in a foreign country is for the pay- ment of a certain sum in sugar, and by the custom of that place the like notes are payable in sugar at a valuation, the law of the place is to govern in assessing the damages for a breach thereof? (a) ; 308. Hxchange.— Where a contract is made in one country, and is payable in the currency of that country, and a suit ‘is afterwards brought in another country to recover for a breach of the contract, a question often arises as to the manner in which the amount of the debt is to be ascertained, whether at the nomi- nal or established par value of the currencies of the two countries, or according to the rate of exchange at the particular time exist- ing between them. In all cases of this sort, the place where the money is payable, as well as the currency in which it is promised to be paid, are, as we shall presently see, material ingredi- ents.3(b) For instance, a debt of £100 sterling is contracted in England, and is payable there ; and afterwards a suit is brought -in America for the recovery of the amount. The present par fixed by law between the two countries is to estimate the pound sterling at four dollars and forty-four cents.* But the rate of exchange on bills drawn in America on England is generally at from eight to ten per cent advance on the same amount. In a recent case, it was held by the King’s Bench, in an action for a debt payable in Jamaica and sued in England, that the amount should be ascertained by adding the rate of exchange to the par 1 Post, s. 314, 317. 2 Courtois v. Carpentier, 1 Wash. C. C. 376. 8 Post, s. 310. 4 This is the par for ordinary commercial purposes. But by the Act of Congress of 1832, c. 224, s. 16, the par for the purpose of estimating the value of goods, paying an ad valorem duty, and for that purpose only, is declared to be to estimate a pound sterling at four dollars and eighty cents. The still more recent Act of 22d July, 1842, c. 66, makes the par for estimating duties, in like cases, at four dollars and eighty-four cents for the pound sterling. (a) See further In re State Ins. Co., (6) See Marburg ». Marburg, 26 9 Jur. N.S. 298; Suse v. Pompe, 8 Md. 8; Capron v. Adams, 28 Md. 529. C. B. N.S. 588. 426 CONFLICT OF LAWS. [s. 308-310. value, if above it; and so vice versa, by deducting it, when the exchange is below the par.! Perhaps it is difficult to reconcile this case with the doctrine of some other cases.? In a late American case, where the payment was to be in Turkish pias- tres, but it does not appear, from the report, where the contract was made or was made payable, it was held to be the settled rule ‘where money is the object of the suit, to fix the value accord- ing to the rate of exchange at the time of the trial.’? It is impossible to say that a rule laid down in such general terms ought to be deemed of universal application ; and cases may easily be imagined which may justly form exceptions. 309. The Proper Rule.— The proper rule would seem to be, in all cases, to allow that sum in the currency of the country where the suit is brought, which should approximate most nearly to the amount to which the party is entitled in the country where the debt is payable, calculated by the real par, and not by the nominal par, of exchange. (a) This would seem to be the rule also which is adopted by foreign jurists.6 In some countries there is an established par of exchange by law, as in the United States, where the pound sterling of England is now valued at four dollars and forty-four cents for all purposes, except the esti- mation of the duties on goods paying an ad valorem duty.’ In other countries the original par has, by the depreciation of the 1 Scott v. Bevan, 2 B. & Ad. 78. Lord Tenterden in delivering the opinion of the court in favor of the rule, said: ‘Speaking for myself personally, I must say that I still hesitate as to the propriety of the conclusion.’ See Dele- gal v. Naylor, 7 Bing. 460; Ekins v. East India Company, 1 P. Wms. 396. 2 See Cockerell v. Barber, 16 Ves. 461; post, s. 312. 8 Lee v. Wilcocks, 5 Serg. & R. (Pa.) 48. It is probable that in this case the money was payable in Turkey. * In Cash v. Kennion, 11 Ves. 314, Lord Eldon held that, if a man ina foreign country agrees to pay £100 in London upon a given day, he ought to have that sum there on that day. And if he fails in that contract, wherever the creditor sues him, the law of that country ought to give him just as much as he would have had if the contract had been performed. J. Voet says: ‘Si major, alibi minor, eorundem nummorum valor sit, in solutione facienda ; non tam spectanda potestas pecuniz, que est in loco, in quo contractus celebratus est, quam potius quae obtinet in regione illa, in qua contractus implementum faciendum est.’ Voet, ad Pand. 12, 1, s. 25; Henry on Foreign Law, 43, note. See also ante, s. 281; 3 Burge, Col. & For. Law, pt. 2, c. 20, p- 771-778. 5 Ante, s. 281. 6 Ante, s. 808, n. 2. (a) See Benners v. Clemens, 58 Penn. St. 24. CHAP, VIII. ] FOREIGN CONTRACTS. 427 currency, become merely nominal; and there we should resort to the real par. Where there is no established par from any depre- ciation of the currency, there the rate of exchange may justly furnish a standard, as the nearest approximation of the relative value of the currencies. And where the debt is payable in a particular known coin, as in Sicca rupees or in Turkish piastres, there the mint value of the coin, and not the mere bullion value in the country where the coin is issued, would seem to furnish the proper standard, since it is referred to by the parties in their contract by its descriptive name as coin. 310. Place of Performance to be regarded. — But in all these cases we are to take into consideration the place where the money is, by the original contract, payable ; for wheresoever the creditor may sue for it, he is entitled to have-an amount equal to what he must pay, in order to remit it to that country.1 Thus if a note were made in England for £100 sterling, payable in Boston, Mass., if a suit were brought in Massachusetts, the party would be entitled to recover four hundred and forty-four dollars and forty-four cents, that being the established par of exchange by our laws. But if our currency had become depreciated by a debasement of our coinage, then the depreciation ought to be allowed for, so as to bring the sum to a real par, instead of the nominal par But if a like note were given in England for £100 payable in England, or payable generally, which in legal effect would be the same thing there, in a suit in Massachusetts, the party would be entitled to recover, in addition to the four hun- dred and forty-four dollars and forty-four cents, the rate of exchange between Massachusetts and England, which is ordi- narily from eight to ten per cent above par. And if the exchange were below par, a proportionate deduction should be made; so that the party would have his money replaced in Eng- land at exactly the same amount which he would be entitled to recover in a suit there. 1 See 1 Chitty on Com. & Manuf. c. 12, p. 650, 651. See ante, s. 281, 308. 2 Paul Voet has expressed an opinion upon this subject in general terms: ‘ Quid, si in specie de nummorum aut redituum solutione difficultas incidat, si forte valor sit immutatus; an spectabitur loci valor, ubi contractus erat cele- bratus, an loci, in quem destinata erat solutio? Respondeo, ex generali regula, spectandum esse loci statutum, in quem destinata erat solutio.’” P. Voet, de Stat. s. 9,c. 2,8. 15, p. 271; Id. p. 328, ed. 1661. And he applies the same rule where contracts are for specific articles, the measures whereof are different in different countries, Id. s. 16, p. 271; Id. p. 828, ed. 1661. 428 CONFLICT OF LAWS. [s. 311, 311 a. 811. Reconciliation of some Cases. — This distinction may per- haps reconcile some of the cases between which there might seem, at first view, to be an apparent contrariety. It was evi- dently acted on in an old case, where money, payable in heland, ‘was sued for in England; and the court allowed Ivish interest, but directed an allowance to the debtor for the payment of it in England, and not in Ireland! It is presumable that the money was of less value in Ireland than in England. A like rule was adopted in a later case, where money payable in India was reco- vered in England; and the charge of remitting it from India was directed to be deducted.? 311 a. Difference in some of the Cases. — There is however an irreconcilable difference in some of the authorities on this sub- ject. Thus it has been held in New York that, where a debt is contracted in a foreign country and is payable there, if the credi- tor afterwards sues the debtor here for the debt, he is entitled to recover only for the debt according to the par of exchange, and not according to the rate of exchange necessary to remit the amount to the foreign country. On that occasion the court said: ‘The debt is to be paid according to the par, and not the rate of exchange. It is recoverable and payable here to the plaintiffs or their agent, and the courts are not to inquire into the disposition of the debt after it reaches the hands of the agent. He may remit the debt to his principal abroad in bills of exchange, or he may invest it here on his behalf, or transmit it to some other part of the United States, or to other countries on the same account. We cannot trace the disposition which is to take place subse- quent to the recovery, nor award special damages upon such uncertain calculations? The same doctrine has been adhered to in subsequent decisions.* It has also been adopted by the Supreme Court of Massachusetts, as the proper rule in all cases, except bills of exchange.’(a@) On the contrary, in the Circuit : oe cing v. Hackett, 1 Eq. Cas. Abr. 288, 289. kins v. The East India Com 1 P. Wms. 396; .C ‘oa pany, ms. 896; s.c. 2 Bro. P. 5 Martin v. Franklin, 4 Johns. (N. Y.) 124, 195. 4 Scofield v. Day, 20 Johns. (N. Y.) 102. 5 Adams v. Cordis, 8 Pick. (Mass.) 260, 266, 267. (a) See Alcock v. Hopkins, 6 Cush. len (Mass.) 263; Burgess v. Alliance (Mass.) 484; Lodge v. Spooner, 8 Gray Ins. Co., 10 Allen (Mass.) 226. (Mass.) 166; Hussey v. Farlow, 9 Al- CHAP. VIUI.] FOREIGN CONTRACTS. 429 Courts of the United States the opposite doctrine has been maintained.! 1 Smith v. Shaw, 2 Wash. C. C. 167, 168; Grant v. Healey, 3 Sumner, 523; ante, s. 284 a. In this last case the subject was considered at great length, . and the following remarks were made by the judge in delivering the opinion of the court: ‘I take the general doctrine to be clear that whenever a debt is made payable in one country, and is afterwards sued for in another country, the creditor is entitled to receive the full sum necessary to replace the money in the country where it ought to have been paid, with interest for the delay; for then, and then only, is he fully indemnified for the violation of the con- tract. In every such case the plaintiff is therefore entitled to have the debt due to him first ascertained at the par of exchange between the two countries, and then to have the rate of exchange between those countries added to or sub- tracted from the amount, as the case may require, in order to replace the money in the country where it ought to be paid. It seems to me. that this doctrine is founded on the true principles of reciprocal justice. The question there- fore, in all cases of this sort, where there is not a known and settled commer- cial usagg to govern them, seems to me to be rather a question of fact than of law. In cases of accounts and advances the object is to ascertain where, according to the intention of the parties, the balance is to be repaid. In the country of the creditor or of the debtor? In Lanusse v. Barker, 3 Wheat. 101, 147, the Supreme Court of the United States seem to have thought that where money is advanced for a person in another state, the implied under- standing is to replace it in the country where it is advanced, unless that con- clusion is repelled by the agreement of the parties, or by other controlling circumstances. Governed by this rule, the money being advanced in Boston, so far as it was not reimbursed out of the proceeds of the sales at Trieste, would seem to be proper to be repaid in Boston. In relation to mere balances of account between a foreign factor and a home merchant, there may be more difficulty in ascertaining where the balance is reimbursable, whether where the creditor resides, or where the debtor resides. Perhaps it will be found, in the absence of all controlling circumstances, the truest rule and the easiest in its application, that advances ought to be deemed reimbursable at the place where they are made, and sales of goods accounted for at the place where they are made or authorized to be made. Thus, if a consignment is made in one country for sales in another country, where the consignee resides, the true Tule would seem to be to hold the consignee bound to pay the balance there, if due from him; and if due to him on advances there made, to receive the bal- ance from the consignor there. The case of Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 587, 610, which was reversed in 17 Johns. (N. Y.) 511, proceeded upon this intelligible ground both in the court of chancery and in the court of errors and appeals; the difference between these learned tribunals not being so much in the rule as in its application to the circumstances of that particular case. Dam aware that a different rule in respect to balances of account and debts due and payable in a foreign country, was laid down in Martin v. Frank- lin, 4 Johns. (N. Y.) 125, and Scofield v. Day, 20 Johns. (N. Y.) 102; and that it has been followed by the supreme court of Massachusetts in Adams . Cordis, 8 Pick. (Mass.) 260. It is with unaffected diffidence that I venture to express a doubt as to the correctness of the decisions of these learned courts upon this point. It appears to me that the reasoning in 4 Johns. 125, which 430 CONFLICT OF LAWS. [s. 812. 312. Cockerell v. Barber. — In one case where, by a will made in India, a legacy was given of 30,000 Sicca rupees, and the constitutes the basis of the other decisions, is far from being satisfactory. It .states very properly that the court have nothing to do with inquiries into the disposition which the creditor may make of his debt after the money has reached his hands; and the court are not to award damages upon such uncer- tain calculations as to the future disposition of it. But that is not, it is respectfully submitted, the point in controversy. The question is, whether if a man has undertaken to pay a debt in one country, and the creditor is com- pelled to sue him for it in another country, where the money is of less value, the loss is to be borne by the creditor, who is in no fault, or by the debtor, who by the breach of this contract has occasioned the loss. The loss of which we here speak is not a future contingent loss. It is positive, direct, immedi- ate. The very rate of exchange shows that the very same sum of money paid in the one country is not an indemnity or equivalent for it when paid in an- other country, to which by the default of the debtor the creditor is bound to resort. Suppose a man undertakes to pay another $10,000 in China, and vio- lates his contract; and then he is sued therefor in Boston, when the money, if duly paid in China, would be worth at the very moment twenty per cent more than it is in Boston; what compensation is it to the creditor to pay him the $10,000 at the par in Boston? Indeed, I do not perceive any just foundation for the rule that interest is payable according to the law of the place where the contract is to be performed, except it be the very same on which a like claim may be made as to the principal, viz., that the debtor undertakes to pay there, and therefore is bound to put the creditor in the same situation. as if he had punctually complied with his contract there. It is suggested that the case of bills of exchange stands upon a distinct ground, that of usage, and is an exception from the general doctrine. J think otherwise. The usage has done nothing more than ascertain what should be the rate of damages for a viola- tion of the contract generally, as a matter of convenience and daily occurrence in business, rather than to have a fluctuating standard dependent upon the daily rates of exchange; exactly for the same reason that the rule of deducting one third new for old is applied to.the cases of repairs of ships, and the deduc- tion of one third from the gross freight is applied in cases of general average. It cuts off all minute calculations and inquiries into evidence. But in cases of bills of exchange drawn between countries where no such fixed rate of damages exists, the doctrine of damages applied to the contract is precisely that which is sought to be applied to the case of a common debt due and payable in an- other country; that is to say, to pay the creditor the exact sum which he ought to have received in that country. That is sufficiently clear from the case of Mellish v. Simeon, 2 H. Black. 378, and the whole theory of re-exchange. © My brother, the late Mr. Justice Washington, in the case of Smith v. Shaw, 2 Wash. C. C. 167, 168, in 1808, which was a suit brought by an English merchant on an account for goods shipped to the defendant’s testator, where the money was doubtless to be paid in England, and a question was made, whether, it being a sterling debt, it should be turned into currency at the par of exchange, or at the then rate of exchange, held that the debt was payable at the then rate of exchange. To which Mr. Ingersoll, at that time one of the ablest and most experienced lawyers at the Philadelphia bar, of counsel for the defendant, assented. It is said that the point was not started at the argu- CHAP. VILL. ] FOREIGN CONTRACTS. 431 testator afterwards died in England, leaving personal property both in England and in India, upon a suit in chancery for the legacy, the master, to whom it was referred, estimated the Sicca rupees at 2s. 6d. per Sicca rupee, being the East India Company’s rate of exchange between India and Great Britain, i. e., on bills drawn in India on Great Britain, at the time the legacy became due. At the same time, the par or sterling value of the Sicca rupees in India and England was 2s. 1d. per Sicca rupee; and the East India Company’s rate of exchange between Great Britain and India, i. e. on bills drawn in England on India, was 2s. 8d. Upon exceptions taken to the report, it was contended that either the par of exchange, or the rate of exchange between Great Britain and India, ought to have been adopted. Lord Eldon on that occasion said: ‘In all the cases reported upon the wills of persons in Ireland or Jamaica, and dying there, and vice versa in this country, some legacies being expressed in ster- ling money, others in sums, without reference to the nature of the coin in which they are to be paid, the legacies are directed here to be computed according to the real value of the currency of the country to which the testator belonged, or where the property was; and I apprehend no more was done in such cases than ascertaining the value of so many pounds in the current coin of the country, and paying that amount out of the funds in ment, and was settled by the court suddenly without advancing any reasons in support of it. 1 cannot but view the case in a very different light. The point was certainly made directly to the court, and attracted its full attention. The learned judge was not a judge accustomed to come to sudden conclusions, or to decide any point which he had not most scrupulously and deliberately considered. The point was probably not at all new to him; for it must fre- quently have come under his notice in the vast variety of cases of debts due on account by Virginia debtors to British creditors, which were sued for du- ring the period in which he possessed a most extensive practice, at the Rich- mond bar. The circumstance that so distinguished a lawyer as Mr. Ingersoll assented to the decision is a further proof to me that it had been well under- stood in Pennsylvania to be the proper rule. If, indeed, I were disposed to indulge in any criticism I might say that the cases in 4 Johns. 125, and 20 Johns. 101, 102, do not appear to have been much argued or considered; for no general reasoning is to be found in either of them upon principle, and, no authorities were cited. The arguments and the opinion contained little more than a dry statement and decision of the point. The first and only case in which the question seems to have been considered upon 2 thorough argument, is that in 8 Pick. 260. I regret that I am not able to follow its authority with a satisfied assent of mind.’ 1 Cockerell v. Barber, 16 Ves. 461, 465. 432 CONFLICT OF LAWS. [s. 312, 313. court. On the other hand, I do not believe the court have ever said they would not look at the value of the current coin of the country, but would take it as bullion. At the time of Wood’s halfpence in Ireland, whatever was their actual worth, yet payment in England must have been according to their nominal current value, not the actual value. So whatever was the cur- rent value of the rupee at the time when this legacy ought to be paid, is the ratio according to which payment must be made here in pounds sterling. If twelve of Wood’s halfpence were worth sixpence in this court, sixpence must have been the sum paid. And in a payment in this court the cost of remittance has nothing to do with it. So if the value of 30,000 rupees, at the time the payment ought to have been made in India, was £10,000, that is the sum to be paid here, without any considera- tion as to the expense of remittance.’ And he accordingly directed the master to review his report, and the legacies to be paid according to the current value of the Sicca rupee in Cal- cutta.! (a) 313. Consideration of this Case. — In considering this decision it is material to observe that the will was made in India, and of course the legacy payable there; and the testator died in Eng- land, leaving personal assets in both countries. Under these circumstances the legatee was not compellable to resort to England for payment of the legacy; but he elected of his own mere choice to receive it there. He might have resorted to India if he had pleased ;? and if so, he would have been entitled to the exact amount of 30,000 Sicca rupees, according to their current value there. He ought not then, by resorting to a court in England, to oblige the estate to bear the charge of the remittance of the amount to England, with which it was charged by the master’s report. Nor ought the estate, upon his mere election to receive the amount in England, to pay for the remit- tance of the same from England to India. The decree of the court was, therefore manifestly right and consistent with the principles above stated. The language of the court however 1 Thid. 2 See Bourke v. Ricketts, 10 Ves. 332, and Raithby’s notes to Ranelaugh v. Champante, 2 Vern. 895; Saunders v. Drake, 2 Atk. 466; Stapleton v. Con- way, 1 Ves. 427. (a) See Bowditch v. Soltyk, 99 Mass. 136. CHAP. VIII.} FOREIGN CONTRACTS. 433 does not seem to put the case upon this clear ground ; but to put it upon the ground that the value at the par of exchange (not indeed the nominal, but the real par), without any reference to the place of payment or of remittance, was in all cases the true rule. It admits however of some doubt, whether the court intended to make so general an application of its language, and did not intend to restrain it to the circumstances of the particu- lar case. Suppose the executor in India had remitted all the funds to England, and had become domiciled there, and the legatee had always lived in India, would not the latter, having no other means of getting payment but by a suit in England, have been entitled to the charge of remittance to India? Without expressing any opinion upon. the subject, it may perhaps be thought worthy of further consideration. Some of the cases! already cited are certainly at variance with this decision, if it is to be deemed to assert a doctrine of universal application.” 1 Scott v. Bevan, 2 B. & Ad. 78. See also Delegal v. Naylor, 7 Bing. 460, which apparently supports the rule in Scott v. Bevan, and ante, s. 308, 309, 811, 311 a. 2 In the case of mixed money, in Sir John Davies’s Reports [28], 48, there is a curious discussion as to the nature and changes of English currency. A bond was given in England for the payment of ‘£100 sterling, current and lawful money of England,’ to be paid in Dublin, Ireland; and, between the time of giving the bond and its becoming due, Queen Elizabeth by proclama- tion recalled the existing currency in Ireland, and issued a new debased coin- age, called mixed money, declaring it to be the lawful currency in Ireland. A tender was made in this debased coin, or mixed coin, in Dublin, in payment of the bond. The question before the Privy Council of Ireland was whether the tender was good, or ought to have been in currency or value equal to the current lawful money then current in England. The court held the tender good, first, because the mixed money was current lawful of England, Ireland being within the sovereignty of the British crown; and secondly, because the payment being to be in Dublin, it could be made in no other currency than the existing currency of Ireland, which was the mixed money. The court do not seem to have considered that the true value of the English current money might, if that was required by the bond, have been paid in Irish currency, though debased, by adding so much more as would bring it to the par. And it is extremely difficult to conceive how a payment of current lawful money of England could be interpreted to mean current or lawful money of Ire- land, when the currency of each kingdom was different, and the royal procla- mation made a distinction between them, the mixed money being declared the lawful currency of Ireland only. Perhaps the desire to yield to the royal prerogative of the Queen a submissive obedience as to all payments in Ireland may account for a decision so little consonant with the princi- ples of law in modern times. See also the comments on this case in the case of Pilkington v. Commissioners for Claims, 2 Knapp, 18-21; cited 2 28 434 CONFLICT OF LAWS. [s. 313 a, 318 a. Depreciation of Currency.— The question touching the effect of a depreciation of the currency, between the time when the debt is contracted or it becomes due, and the subsequent payment thereof, which was hinted at in the preceding case, has since arisen in a more direct and solemn form and undergone no inconsiderable discussion. The French government, during the war between England and France, had confiscated a debt due from a French subject to a British subject ; and subsequently an indemnity was stipulated for on the part of the French govern- ment; and there having been a great depreciation of the French currency after the time when the debt was confiscated, the ques- tion arose, whether the debt was to be calculated at the value of the currency at the time when the confiscation took place, or subsequently ; and it was held that it ought to be calculated according to the value at the time of the confiscation. On that occasion the case in Sir John Davies’s Reports already alluded to,! was referred to, as well as the opinions of foreign jurists on the same subject; and Sir William Grant, in delivering the opinion of the court, said: ‘ Great part of the argument at the bar would undoubtedly go to show that the commissioners have acted wrong in throwing that loss upon the French government in any case, for they resemble it to the case of depreciation of currency happening between the time that a debt is contracted and the time that it is paid; and they have quoted authorities for the purpose of showing that in such case the loss must be borne by the creditor and not by the debtor. That point it is unnecessary for the present purpose to consider, though Vinnius, whose authority was quoted the other day, certainly comes to a conclusion directly at variance with the decision in Sir Jobn Davies’s Reports. He takes the distinction that if, between the time of contracting the debt and the time of its payment, the cur- rency of the country is depreciated by the State, that is to say, lowered in its intrinsic goodness, as if there were a greater pro- portion of alloy put into a guinea or a shilling, the debtor should Bligh, 98, note. See Kearney v. King, 2 B. & A. 301; Sprowle v. Legge, ] B. & C. 16 (a) 1 Ante, s. 312, 818, note 2. (a) See Bowditch v. Soltyk,99 Mass. ble Safety Ins. Co., 12 Allen (Mass.) 140; Stewart v. Chambers, 2 Sandf. 390; Otis v. Coffin, 7 Gray (Mass.) Ch. (N. Y.) 882; Blanchard ». Equita- 513. CHAP. VIL] FOREIGN CONTRACTS. 435 not liberate himself by paying the nominal amount of his debt in the debased money, that is, he may. pay in the debased money, being the current coin, but he must pay so much more as would make it equal to the sum he borrowed. But he says if the nominal value of the currency, leaving it unadulterated, were to be increased, as if they were to make the guinea pass for 80s., the debtor may liberate himself from a debt of 12. 10s, by paying a guinea, although he had borrowed the guinea when it was but worth 21s. I have said it is unnecessary to consider whether the conclusion drawn by Vinnius or the decision in Davies’s Reports be the correct one ; for we think this has no analogy to the case of creditor and debtor. There is a wrong act done by the French government ; then they are to undo that wrong act, and to put the party in the same situation as if they never had done it. It is assumed to be a wrong act, not only in the treaty, but in the repealing decree. They justify it only with reference to that which as to this country has a false foundation; namely, on the ground of what other governments had done towards them, they having confiscated the property of French subjects; therefore they say we thought ourselves justified at the time in retaliating upon the subjects of this country. That being destitute of foundation as to this country, the republic themselves in effect confess that no such decree ought to have been made, as it affected the subjects of this country. Therefore it is not merely the case of a debtor paying a debt at the day it falls due, but it is the case of a wrong-doer, who must undo, and completely undo, the wrongful act he has done; and if he has received the assignats at the value of 50d. he does not make compensation by returning an assignat which is only worth 20d.: he must make up the difference between the value of the assignat at different periods. And that is the case stated by Sir John Davies, where restitutio in integrum is stated. He says, two cases were put by the judges who were called to the assistance of the Privy Council, although they were not positively and formally resolved. He says, it is said if a man upon marriage receive 1,000J. as a portion with his wife, paid in silver money, and the marriage is dissolved causa precontractus, so that the portion is to be restored, it must be restored in equal good silver money, though the state shall have depreciated the currency in the mean time. So if a man recover 1007. damages, and he levies that in good silver money, 436 CONFLICT OF LAWS. [s. 318 a, 313 8. and that judgment is afterwards reversed by which the party is put to restore back all he has received, the judgment creditor cannot liberate himself by merely restoring 1007. in the debased currency of the time; but he must give the very same currency that he had received. That proceeds upon the principle that if the act is to be undone it must be completely undone, and the party is to be restored to the situation in which he was at the time the act to be undone took place. Upon that principle there- fore undoubtedly the French government, by restoring assignats at the end of thirteen months, did not put the party in the same situation in which he was when they took from him assig- nats that were of a very different value. We have said that, as this point is not directly or immediately before us, it can make no part of our decree. At the same time it may not perhaps have been without some utility to have given an opinion upon it, inasmuch as it was argued and discussed at the bar. And we think therefore the commissioners have proceeded on a perfectly tight principle in those cases in which we understand they have made an allowance for the depreciation of paper-money; and, considering that this case does not differ from those in which they have made that allowance, we are of opinion that the claimants ought to have the same equity administered to them in remunerating them for the loss they have sustained.’ ! 813 6. Foreign Jurists, —The opinions of Vinnius and Pothier, alluded to in the opinion of Sir William Grant, fully confirm his statements. Vinnius is of opinion that the value of the money at the time when it ought to be paid is the value which is to be allowed to the creditor. Of the same opinion, he adds, are Bar- tolus and Baldus and De Castro, and indeed jurists generally, with the exception of Dumoulin and Hotomannus and Donellus, who think the value at the time of making the contract ought to govern. Hence, after having discussed the principle, Vinnius says, in conformity with the opinions of the former jurists: ‘Hoc autem fundamento posito, siquidem neutri contrahentium injuriam fieri volumus, ita definiendum videtur, ut si bonitas monete intrinseca mutata sit, tempus contractus, si extrinseca, id est valor imposititius, tempus solutionis in solutione facienda, spectari debeat.’? Pothier holds the opposite opinion, and says: 1 Pilkington v. Commissioners for Claims, 2 Knapp, 17-21. ? Vinnius, ad Instit. lib. 8, tit. 15, Textus, De Mutuo, Com. n. 12, p. 599, ed- CHAP, VIII.] FOREIGN CONTRACTS. 437 ‘It remains to be observed, in regard to the price, that it may be rendered in a money different from that in which it is paid. 1726; Id. p. 664, ed. 1777, Lugduni. The whole passage deserves to be cited. ‘Atque hine pendet decisio nobilissim queestionis, si post contractum esti- matio nummorum creverit aut decreverit, utrum in solutione facienda spectare oporteat valorem, quem habebant tempore contractus, an qui nunc est tempore solutionis: intellige si nihil, de ea re expresse dictum sit, neque mora inter- venerit. Molinzeus, Hotomannus, Donellus contendunt, tempus contractus inspiciendum esse, id est, ea estimatione nummos reddendos, non que nunc est, sed que initio fuit,cum dabantur. Nimirum nihil illi in pecunia nume- rata preter estimationem considerandum putant, totamque nummi bonitatem in hac ipsa estimatione consistere: ac proinde creditori non facere injuriam, qui eandem ezstimationem, quam accepit, reddit: tantum enim reddere eum, quantum accepit, quod ad solutionem mutui sit satis. Itaque secundum horum sententiam, si 100 aurei mutuo dati sint, cum aureus valebat asses 50 reddantur autem, cum singuli valent asses 55 debitor reddens creditori aureos 90 aut in singulos aureos 50. asses reddit, quantum accepit, et liberatur: et Vicissim si imminuta sit ad eundem modum accepit, et liberatur: et vicissim si imminuta sit ad eundem modum aureorum estimatio, non liberatur, nisi reddat aureos 110, aut in singulos aureos asses 55. Bartolus vero (in 1. Paulus. 101 de solut.) Baldus (in |. res in dotem, 24 de jur. dot.) Castro (in lib. 8, de reb. cred.) et DD. comm. ut videre est apud Boer. decis. 327, contra cen- sent, spectandum esse in proposito tempus solutionis, id est, aucto vel dimi- nuto nummorum valore, ea zstimatione reddi eos oportere, non que tune fuit, cum dabantur, sed que nunc est, cum solvuntur; neque aliud statui posse sine creditoris aut debitoris injuria. Que sententia, ut mihi videtur, et verior et zquior est. Nam quod contrarie sententie auctores unicum urgent, in num- mis non materia, sed solius zstimationis imposite atque extern, quam ob id vulgo extrinsecam numtmi bonitatem vocant, rationem duci, nummumque nihil aliud esse, quam quod publice valet, vereor, ut simpliciter verum sit. Utique enim materia numismatis fundamentum est et causa valoris: quippe qui variatur pro diversitate materi : oportetque valorem hunc justa aliqua proportione materize respondere: neque in bene constituta repub. nummo ea xstimatio imponi debet, que pretium materie, ex qua cuditur, superat, aut superet ultra modum expensarum, que in signanda, pecunia fiunt; quod ad singularum specierum -valorum parum addere potest. Sed hoc ad actus et prestationes privatorum non pertinet. Illud pertinet, quod si dicimus, creditis nummis nihil preter estimationem eorum creditum intelligi, necessario sequitur, creditorem teneri in alia forma aut materia nummos accipere contra definitionem Pauli in d. 1. 99 de solut. etiamsi dam- num ex eo passurus sit: nam, qui recipit, quod credidit, nihil habet, quod conqueratur, Sequitur et hoc, si contingat mutari nummorum bonitatem in- trinsecam, id est, si valore veteri retentio percutiantur novi nummi ex dete- riore materia, quam ex qua cusi, qui dati sunt, puta, si qui dati sunt, cusi fuerint ex puro auro, postea alii feriantur ex auro minus puro et mixto ex ere, debitorem restituendo tot mixtos et contaminatos, quot ille puros accepit, liberari cum insigni injuria creditoris: et contra interpp. pene omnium doctri- nam, qui hoc casu solutionem faciendam esse statuunt ad valorem intrinsecum Monete, qui currebat tempore contractus, testibus Gail. 2, obs. 73, n. 6 and 7. Borcholt, de feud. ad cap. un. que sunt regal. num. 62. Illud enim maxime 438 CONFLICT OF LAWS. [s. 313 8, 314, If it is paid to the seller in gold, the seller may repay it in pieces of silver, or vice versa. In like manner, though, subse- quent to the payment of the price, the pieces in which it is paid are increased or diminished in value, though they are discredited, and at the time of their redemption their place is supplied with new ones of better or worse alloy, the seller, who exercises the redemption, ought to repay, in money which is current at the time he redeems, the same sum or quantity which he received in payment, and nothing more nor less. The reason is that in money we do not regard the coins which constitute it, but only the value which the sovereign has been pleased that they shall signify: ‘aque materia forma publica percussa, usum domini- umque non tam ex substantia prebet, quam ex quantitate.” D. 18, 1,1. When the price is paid, the seller is not considered to receive the particular pieces, so much as the sum or value which they signify; and, consequently, he ought to repay, and it is sufficient for him to repay, the same sum or value in pieces which are current, and which have the signs authorized by the prince to signify that value. This principle being well esta- blished in our French practice, it is sufficient merely to state it. It cuts off all the questions made by the doctors concerning the changes of money.’ ! 314. Bills of Exchange. — Negotiable instruments often pre- sent questions of a like mixed nature.? Thus suppose a nego- tiable bill of exchange is drawn in Massachusetts on England, and is indorsed in New York, and again by the first indorsee in Pennsylvania, and by the second in Maryland, and the bill is in hac disputatione considerandum est, quoniam hic finis nummi principalis est, ut serviat rebus necessariis comparandis, auctore Aristotele, 1 Polit. 6, quod mutata monete bonitate sive extrinseca, sive intrinseca, pretia rerum omnium mutentur, et pro modo auctz aut imminute bonitatis nummorum crescant aut decrescant: quod ipsa docet experientia: eoque facit 1. 2 C. de vet. num. pot. lib. 11. Crescunt rerum pretia, si deterior materia electa, aut manente eadem materia valor auctus sit: decrescunt electu materiz melioris, aut si eadem bonitate materiz manente valor imminutis fuerit. Fallitur enim imperitum vulgus, dum sibi persuadet, ex augmento valoris aurei aliquid sibi lucri acce- dere. Hoc autem fundamento posito, siquidem neutri contrahentium injuriam fieri volumus, ita definiendum videtur, ut si bonitas monet intrinseca mutata sit, tempus contractus si extrinseca, id est, valor imposititius tempus solutionis in solutione facienda spectari debeat. Atque ita sepissime judicatum est.’ ‘ Pothier, Traité du Contrat de Vente, n. 416. I quote from Mr. Cush- ing’s excellent translation, n. 419, p. 264, 265. See Pardessus, tom. 5, art. 1495, p. 269-271. 2 See post, s. 344, 353-361. CHAP. VIL] FOREIGN CONTRACTS. 439 dishonored ; what damages will the holder be entitled to? The law as to damages in these States is different. In Massachusetts it is ten per cent, in New York and Pennsylvania twenty per cent, and in Maryland fifteen per cent.1 What rule then is to govern? The answer is that, in each case, the lex loci con- tractus. The drawer is liable on the bill according to the law of the place where the bill was drawn; and the successive indorsers are liable on the bill according to the law of the place of their indorsement, every indorsement being treated as a new and sub- stantive contract.2. The consequence is, that the indorser may render himself liable, upon a dishonor of the bill, for a much higher rate of damages than he can recover from the drawer. But this results from his own voluntary contract ; and not from any collision of rights arising from the nature of the original contract.? (a) 13 Kent Com. 116-120. 2 Ante, s. 307; post, s. 316; Powers v. Lynch, 3 Mass. 77; Prentiss v. Savage, 18 Mass. 20, 23, 24; Slacum v. Pomery, 6 Cranch, 221; Depau v. Humphreys, 8 Mart. N.S. (La.) 1, 14, 15; Hicks v. Brown, 12 Johns. (N. Y.) 142; Bayley on Bills, c. A, p. 28; Phillips & Sewall’s edition; Trimbey v. Vignier, 1 Bing. N. C. 151, 159, 160; ante, s. 267; post, s. 316 a, 353-361; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 771-774. 3 Pardessus has discussed this matter at large. He adopts the general doc- trine here stated, that the law of the place of each indorsement is to govern, as each indorsement constitutes a new contract between the immediate parties. And he applies the same rule to damages, and says that if the law of the place where a bill of exchange is drawn admits of the accumulation of costs and charges on account of re-exchanges, as is the law of some countries, in such a case each successive indorser may become liable to the payment of such suc- cessive accumulations, if allowed by the law of the place where they made their indorsement. He seems indeed to press his doctrine further, and to hold that if the law of the place of such indorsement does not allow such accumulation of re-exchanges, but the law of the place where the bill is drawn does, the ‘indorsers will be liable to pay, as the drawer would. But his rea- soning does not seem satisfactory; and it is certainly inconsistent with the acknowledged doctrines of the common law. Pardessus, Droit Com. art. 1500. See also Henry on Foreign Law, 53, Appx. 289-242; 3 Kent. Com. 115. See Rothschild v. Currie, 1 Q. B. 43. (a) Billsand Notes. —The question maker of a note or the acceptor of a of the rights and the liabilities of par- ties to bills of exchange and promis- sory notes, growing out of the fact of execution or indorsement in a foreign country, as determined in England, may be thus stated: — 1. In regard to the liability of the bill. If the paper is made or accepted abroad and also indorsed there, the question whether a, title has been con- veyed to the plaintiff indorsee will depend upon the law of the foreign country; the acceptor’s engagement in that case being to pay to any irfdorsee 440 CONFLICT OF LAWS. [s. 315, 315. Contract of Drawer and Indorser. — It has sometimes been suggested that this doctrine is a departure from the rule that the who acquires a title by the law of the acceptor’s domicil. If by that law the plaintiff has not acquired a, title, he cannot recover in England though his title would have been good had the indorsement been made in England. Trimbey v. Vignier, 1 Bing. N. C. 151. (Long after the decision in this case, in which it was held that no title had passed by the foreign and govern- ing law to the plaintiff, it was dis- covered that the court had mistaken the law of the foreign country; but the principle of law declared was not affected. Bradlaugh, v. De Rin, L. R. 5 C. P. 478.) But if the paper —e. g. anote — was made in England and payable there, and indorsed abroad, so as to pass a title by the English law, though not by the foreign law, then the indorsee may sue in England. Lebel v. Tucker, L. R. 8Q. B. 77. For as Lush, J., says in the case just cited, it would be anomalous that a contract made in England could be affected by the negotiation and circulation in an- other country of the instrument by which it was constituted. ‘* The original contract cannot be varied by the law of any foreign country through which the instrument passes.”” See also Woodruff »v. Hill, 116 Mass. 310. Shortly after the decision of this case it was however held: by the Com- -mon Pleas, with Lebel ». Tucker be- fore the court, that in the case of a bill drawn in France and accepted in England, and then indorsed in France, effectively according to English law but not so according to French law, the indorsee could not sue the acceptor in England. Bradlaugh v. De Rin, L. R.3C. P. 588, Montague Smith, J., dissenting. The case was reversed by the Exchequer Chamber, but simply on thé ground that the lower court had mistaken the law of France. 5 C. P. 473. See supra. Whether this case is consistent with the clearly cor- rect decision in Lebel v. Tucker may deserve consideration; for though the bill was drawn in France, it was ac- cepted and payable in England. Could the acceptor’s contract be ‘varied by the law of any foreign country ”’ ? 2. In regard to the liability of an indorser or the drawer of a bill. When presentment and demand should be made to charge such party is to be de- termined by the law of the country in which the paper is payable. Rou- quette v. Overmann, L. R. 10 Q. B. 525. See Rothschild v. Currie, 1 Q. B. 48; Hirschfield v. Smith, L. R.1C. P. 840. In Rouquette v. Overmann, Cockburn, C.J., lays down the pro- position that the drawer or indorser ‘“‘engages as surety for the due per- formance by the acceptor of the obli- gations which the latter takes upon himself by the acceptance. His lia bility therefore is to be measured by that of the acceptor, whose surety he is; and as the obligations of the ac- ceptor are to be determined by the lex loci of performance, so also must those of the surety,” that is, with re- gard to presentment and demand. In a word, the indorser cannot on theone hand become liable before the matu- rity of the contract of the acceptor or ‘the maker; and on the other, when the liability of the acceptor or the maker does accrue by force of law, then the liability of the indorser may be fixed. The question when notice of dis- honor (on a demand good by the law of the place of payment) should be given is governed by the law of the country where the indorsement is made. Horne v. Rouquette, 3 Q. B. D. 514 (Court of App.), doubting Rothschild v. Currie, 1 Q. B. 48, 49. CHAP. -VIII.] FOREIGN CONTRACTS. 441 law of the place of payment is to govern.! But, correctly con- sidered, it is entirely in conformity to the rule. The drawer and 12 Kent Com, 459, 460; Chitty on Bills, p, 191-194, 8th ed.; ante, s. 313 a, et seq. In Hirschfield v. Smith, L. R. 1 C. P. 340, the place of payment was thought, on authority of Rothschild v. Currie, to give the law of the time of notice; but it was laid down that if this view was doubtful, and the law of the place of indorsement was to govern, then the ‘reasonable notice’’ of the law (which is in reality the rule, though what constitutes such notice in com- mon cases is strictly defined) would ordinarily permit notice by the law of the place where the demand of pay- ment was to be made. In this view only, it may be remarked, is Roths- child v. Currie deemed good law; that case appears to be overruled so far as it declares against the law of the place of indorsement in the particular of time of notice. The importance of the rule (notwithstanding the fact that notice by the law of the country of payment is ordinarily to be regarded as reasonable notice) may be seen by supposing that by the law of the do- micil of the drawee of a bill no notice of non-acceptance is required, as is the case in Spain and in Pennsylvania. Horne v. Rouquette, supra; Read v. Adams, 6 Serg. & R. 856. Now if an indorsement of the bill had been made in England, or in any of our States where notice of non-acceptance is re- quired, failure to give notice would discharge the indorser; some reason- able notice, according to the situation, would be necessary, notwithstanding the state of the foreign law. Horne v. Rouquette, supra. On the other hand, speaking in the language substantially of judicial au- thority, the indorser’s contract with reference to notice is that if his own or a later indorsee is compelled by Jaw to pay, he, the indorser, will indemnify him on receiving due notice of dis- honor. Hence where there is a foreign indorsee who has been compelled to pay by the law of his country in re- gard to notice, though he would not have been bound by the law of the country of the indemnifying indorser, the latter will be bound to reimburse him if notified according to the law of his own country. Horne v. Rouquette, Brett, J. Turning to the American cases, it has sometimes been broadly said that the drawer’s and indorser’s contract is governed by the lawof the state where it was made. Aymar v. Sheldon, 12 Wend. (N. Y.) 489, 443; Holbrook v. Vibbard, 2 Scam. (Ill.) 465; and other cases. But none of the actual decisions go to this extent; indeed there is little divergence from the doctrines above laid down as the rule of the English courts. All that was held in Aymar v. Sheldon was that an indorsee of a bill indorsed in New York could sue the drawer in that state upon notice of non-acceptance, though he could not have done so had the indorsement been made. where the bill was drawn. And all that the court decided in Hol- brook v. Vibbard was that a New York indorser was discharged by fail- ure of the holder in Illinois to make demand at the place of payment (in Illinois). Again, in Hibernia Bank v. Lacombe, 84 N. Y. 367, 378, it was said in general terms that the con- tracts of parties to bills and notes were to be construed according to the laws of each place at which the doing of anything is contemplated by any of the parties. But this was said of a bill drawn in Louisiana upon a party in New York, by whom it was dis- honored, the court well deciding that 442 CONFLICT OF LAWS. [s. 315. indorsers do not contract to pay the money in the foreign. place on which the bill is drawn; but the holder might give notice of the dishonor at the place thereof. Few of the peculiar questions of title against a maker or an acceptor upon an indorsement under a law dif- ferent from that of the forum, such as the English courts have had to con- sider, appear to have arisen in this country. A question somewhat simi- lar in principle to that in Lebel v. Tucker, supra, arose in Woodruff v. Hill, 116 Mass. 310, and a similar conclusion was reached; the title of indorsees suing in Massachusetts on a note payable in that State, but in- dorsed to them in New York, being held to depend on Massachusetts law. Still more like Lebel v. Tucker was Everett v.' Vendryes, 19 N. Y. 436, with the same result. ‘The liability of the maker or acceptor has more often been considered with reference to questions of interest, usury, and damages; and it has been generally held that the law of the place of pay- ment must govern. Railroad Co. »v. Ashland,12 Wall. 226; Lee v. Selleck, 33 N. Y. 615; Dickinson v. Edwards, 77 N. Y. 573; Hibernia Bank v. La- combe, 84 N. Y. 367, 377; Roberts v. McNeely, 7 Jones (N. C.) 506; Hunt v. Hall, 87 Ala. 702; Howard v. Bran- ner, 23 La. An. 869; White v. Fried- lander, 85 Ark. 52; Short v. Trabue, 4 Met. (Ky.) 299; Trabue v. Short, 18 La. An. 257; Trabue v. Short, 5 Coldw. (Tenn.) 293; Ex parte Heidel- back, 2 Lowell, 526; ante, 5s. 296. See also Suse v. Pompe, 8 C. B. N.S. 538; In re State Ins. Co.,9 Jur. N.S. 298. As to the rule in Massachusetts con- cerning interest, see note (a) to s. 291, ante; Ex parte Heidelback, supra. If however all contracts affected with usury are declared absolutely void, then it seems they will be held void everywhere, regardless of the place of performance. Akers v. De- only to guarantee its acceptance mond, 108 Mass. 318; Hyde v. Good- now, 8 Comst. (N. Y.) 266; Andrews». Pond, 13 Peters, 65; McDaniel v. Chi- cago Ry. Co., 24 Iowa, 412. See ante, s. 248, 280, note. So if the place of performance be inserted for the mere purpose of evading the local law, that law, it is said, will still be applied. Railroad Co. v. Ashland, 12 Wall. 226; Miller v. Tiffany, 1 Wall. 298. On the other hand it is held that a note made in good faith at a rate of inte- rest allowable in the state in which it was executed, but payable in a state in which such rate would be usurious, will be governed by the law of the state of the making. Miller v. Tiffany, su- pra; Arnold v. Potter, 22 Iowa, 194, 198; Butters v. Olds, 11 Iowa, 1. See Chapman v. Robertson, 6 Paige (N. ¥.) 627. There is want of harmony among the American cases upon the question of the right of an indorser or the drawer of a bill to raise the defence of usury in the contract of the maker or acceptor, where that contract was made in another state by the laws of which usury is a defence. In some of the cases it is laid down on the autho- rity of English decisions that the law of the place of indorsement or drawing must govern concerning the question of interest and of usury. The English cases referred to are Gibbs v. Fremont, 9 Ex. 25, Allen v. Kemble, 6 Moore, P. C. 314, 821, and Cooper v. Walde- grave, 2 Beav. 282, 285 (concerning which see the observations of Cock- burn, C.J., in Rouquette ». Overmann, L. R. 10 Q. B. 525). The cases in ap- parentaccord with these are the follow- ing: Bank of Georgia v. Lewin, 45 Barb. (N. Y.) 340; Balme v. Wombough, 38 Barb. 352; Bowen v. Bradley, 9 Abb. Pr. N.S. (N. Y.) 895; Wayne Bank ». Low, 6 Abb. N. C. (N. Y.) 76; Opdyke v. Merwin,18 Hun (N. Y.) 401; Aymar CHAP. VIII.] FOREIGN CONTRACTS. 443 and payment in that place by the drawee ; and in default of such payment they agree upon due notice to reimburse the holder in v. Sheldon,12 Wend. (N. Y.) 439; Short v. Trabue, 4 Met. (Ky.) 299, 304; Dun- das v. Bowler, 3 McLean, 397, 400. None of these cases however were de- cided by courts of final resort except Short v. Trabue, and that contains only a dictum on the subject. The law of the place of payment was on the other hand held to be the governing law in Jewell v. Wright, 30 N. Y. 259, and in Dickinson v. Edwards, 77 N. Y. 573; unless an in- tention were shown that it was con- templated that the paper, before the liability of the drawer or indorser at- tached, should be negotiated in some state other than, the one whose law was set up in defence. Upon this ground the court in. Dickinson v. Ed- wards distinguished Tilden v. Blair, 21 Wall. 241, where a bill, though payable in New York, was returned by the New York acceptors to the drawer in Illinois, that it might be there negotiated by him. ‘The rul- ing consideration in that case,’ said Folger, J. in Dickinson v. Edwards, ‘was the intention of the acceptors that the draft should be used in IIli- nois as a contract of that state, in ac- cordance with its laws.’ See Wayne Bank v. Low, 81 N. Y. 566, 570. On. the same ground the court in Dickin- son v. Edwards distinguished Bank of Georgia v. Lewin, 45 Barb. (N. Y.) 340, and National Bank v. Morris, 1 Hun (N. Y.) 680, and considered that Ken- tucky v. Bassford, 6 Hill (N. Y.) 526, Hyde v.Goodnow, 3 Comst. (N. Y.) 266, and Merchants’ Bank v. Spalding, 9 N. Y. 538, were not inconsistent with the decision laid down in Jewell v. Wright, supra, and now reaffirmed. The following cases were overruled: Bowen v. Bradley, 9 Abb. N.S. (N. Y.) 895; Wayne Bank v. Low, 6 Abb. N. C. (N. Y.) 76. But see Wayne Bank v. Low, 81 N. Y. 566. See also, as declaring Jewell v. Wright to be the law, Hildreth v. Shepard, 65 Barb. (N. Y.) 269. Other cases were also reviewed in Dickinson v. Ed- wards; and that case may be consi- dered as having settled the law of New York. See Hibernia Bank v. Lacombe, 84 N. Y. 367, 377. In the absence of evidence to indi- cate some other intention by the par- ties, the rulein Dickinson v. Edwards, and Jewell v. Wright, must be correct if it is true (and there can be no doubt on that point) that the drawer or in- dorser, for the purpose in question, stands as surety to the acceptor. The liability of the principal and surety, in the absence of fraud upon the latter, must be commensurate. If the prin- cipal debtor must pay a certain sum, how can the surety escape liability to ” the creditor for any part of that sum when nothing has been done by the creditor to affect his liability? And on the other hand if by the law of the place of payment the principal debtor has a defence in whole or in part, or if the rate of interest there is lower than where the indorsement or the drawing was effected, how can the indorser or drawer be compelled to pay the whole, or to pay at the rate fixed by the lex loci contractus? The question of the time for pre- sentment and demand in relation to the liability of drewers and indorsers, as well as of acceptors and makers, must, according to the same principles, be governed by the law of the place of payment; and so our courts hold, with the English. Aymar v. Sheldon, 12 Wend. 489;. Chatham Bank »v. Allison, 15 Iowa, 357; Thorp v. Craig, 10 Iowa, 461. But see Hatcher v. McMorine, 4 Dev. 122, 124. Whether notice of dishonor should be given, and whether, on demand good at the place of payment, such 444 CONFLICT OF LAWS. [s. 315-316 8, principal and damages at the place where they respectively entered into the contract. 816. Time of Payment. — Nor is it any departure from the rule to hold that the time when the payment of such a bill is to accrue is to be according to the law of the place where the bill is payable; so that the days of grace (if any) are to be allowed according to the law or custom where the bill is to be accepted and paid ;? for such is the appropriate construction of the con- 1 Potter v. Brown, 5 East, 124, 130; Hicks v. Brown, 12 Johns. (N. Y.) 142; Powers v. Lynch, 3 Mass. 77; Prentiss v. Savage, 18 Mass. 20, 24; Par- dessus, Droit Com. art. 1497. 2 See 2 Kent Com. 459, 460; Chitty on Bills, p. 191, 8th ed ; Pothier, Contrat de Change, n. 15, 155; 5 Pardessus, s. 1495; post, s. 347, 361. notice will be effective, are to be de- termined by the law of the place of indorsement. The matter of notice (unlike presentment and demand) has nothing to do with the liability of the maker or acceptor; it concerns the party notified alone. Aymar v. Shel- don, 12 Wend. (N. Y.) 439; Thorp v. Craig, 10 Iowa, 461; Allen v. Mer- chants’ Bank, 22 Wend. (N. Y.) 215; Short v. Trabue, 4 Met. (Ky.) 299; Holbrook v. Vibbard, 2 Scam. (IIl.) 465; Hatcher v. McMorine, 4 Dev. (N. C.) 122; Lowry v. Western Bank, 7 Ala. 120; Hunt v. Standart, 15 Ind. 33 (overruling Shanklin ». Cooper, 8 Blackf. (Ind.) 41); Huse v. Ham- blin, 29 Iowa, 501. Whether protest is necessary is said to depend on the law of the place of payment. Dunn v. Adams, 1 Ala. 527. Sed quere, because protest (like notice) has no- thing to do with the liability of the payor. But if protest is required by the law of the indorser’s contract, it may be made according to the prac- tice in the country of the demand; any other requirement would be unrea- sonable. Aymar v. Sheldon, 12 Wend. (N. Y.) 489; Bank of Rochester »v. Gray, 2 Hill (N. Y.) 227; Tickner v. Roberts, 11 La. 14. The law of the place of indorsement, limiting the lia- bility of an indorser in a way un- known to the law merchant, will also govern in an action against the in- dorser. Williams v. Wade, 1 Met. (Mass.) 82; Short v. Trabue, 4 Met. (Ky.) 299; Trabue v. Short, 18 La. An. 257; Trabue v. Short, 5 Coldw. (Tenn.) 298; Carlisle v. Chambers, 4 Bush (Ky.) 268; Hyatt v. Bank of Kentucky, 8 Bush (Ky.) 193; Mix v. State Bank, 13 Ind. 521; Nichols v. Porter, 2 W. Va. 13; Dunn v. Adams, 1 Ala. 527; Cox »v. Adams, 2 Kelly (Ga.) 158; Dundas v. Bowler, 3 McLean, 397, 400. But see Coffman v. Bank of Kentucky, 41 Miss. 212, which appears to have been wrong- ly decided. (Whether, in an action against the maker of a note, the paper is negotiable, will depend upon the law of the place where it is made, unless payable elsewhere. Dow v. Rowell, 12 N. H. 49). Indorsement however is not neces- sarily effected in contemplation of law in the place where the signature is written. Where an indorsement is written in one state, but is not to be- come effective until negotiation and delivery of the paper in another, the indorsement is deemed to be made in the state of delivery. Lee v. Selleck, 33 N. Y. 615; Cook v. Litchfield, 9 N. Y. 279; Hyde v. Goodnow, 3 Comst. (N. Y.) 270; Gay v. Rainey, 89 Tl, 221; Chatham Bank v. Allison, 15 Towa, 357; Freese v. Brownell, 35 N. J. 285. CHAP. VIII.] FOREIGN CONTRACTS. 445 tract according to the rules of law and the presumed intention of the parties. 316 a. Indorsement.—Another illustration of the general doc- trine may be derived from the case of negotiable paper, as to the binding obligation and effect of a blank indorsement. It seems that by the law of France an indorsement in blank of a promis- sory note does not transfer the property to the holder unless certain prescribed formalities are observed in the indorsement, such as the date, the consideration, and the name of the party to whose order it is passed; otherwise it is treated as a mere procuration.? Now let us suppose a note made at Paris, payable to the order of the payee, and he should there indorse the same in blank without the prescribed formalities, and afterwards the holder should sue the maker of the note in another country, as, for example, in England, where no such formalities are prescribed ; the question would arise, whether the holder could recover in such a suit inan English court upon such an indorsement. It has been held that he cannot; and this decision seems to be founded in the true principles of international jurisprudence ; for it re- lates not to the form of the remedy, but to the interpretation and obligation of the contract created by the indorsement, which ought to be governed by the law of the place of indorsement.® 316 b. Contract of Indorser. — Another illustration may be de- rived from the different obligations which an indorsement creates in different States. By the general commercial law, in order to entitle the indorsee to recover against any antecedent indorser upon a negotiable note, it is only necessary that due demand should be made upon the maker of the note at its maturity, and due notice of the dishonor to the indorser. But by the laws of some of the American States it is required, in order to charge an antecedent indorser, that not only due demand should be made and due notice given, but that a suit shall be previously com- menced against the maker, and prosecuted with effect in the country where he resides; and then, if payment cannot be obtained from him under the judgment, the indorsee may have recourse to the indorser. In such a case it is clear, upon prin- 1-Mr. Justice Martin, in Vidal v. Thompson, 11 Mart. (La.) 28, 24. 2 Code de Commerce, art. 137, 138; Trimbey v. Vignier, 1 Bing. N.C. 151, 158-160. 8 Trimbey v. Vignier, 1 Bing. N. C..151, 158-160; ante, s. 272. 446 CONFLICT OF LAWS. [s. 3168, 317. ciple, that the indorsement, as to its legal effect and obligation and the duties of the holder, must be governed by the law of the place where the indorsement is made. This very point has been recently decided in a case where a note was made and indorsed in the state of Illinois. On that occasion Mr. Chief Justice Shaw, in delivering the opinion of the court, said: ‘The note declared on, being made in Illinois, both parties residing there at the time, and it also being indorsed in Ilinois, we think that the contract created by that indorsement must be governed by the law of that state. The law in question does not affect the remedy, but goes to create, limit, and modify the contract effected by the fact of indorsement. In that which gives force and effect to the contract, and imposes restrictions and modifica- tions upon it, the law of the place of contract must prevail when another is not looked to as a place of performance. Suppose it were shown that, by the law of Illinois, the indorsement of a note by the payee merely transferred the legal interest in the note to the indorsee so as to enable him to sue in his own name, but imposed no conditional obligation on the indorser to pay; it would hardly be contended that an action could be brought here upon such an indorsement if the indorser should happen to be found here, because by our law such an indorsement, if made here, would render the indorser conditionally liable to pay the note. By the Jaw of Illinois the indorser is liable only after a judgment obtained against the maker; and as no such judgment appears to have been obtained on this note, the condition upon which alone the plaintiff may sue is not complied with, and therefore the action cannot be maintained.’ 1 317. Defences to Negotiable Securities. — But suppose a nego- tiable note is made in one country and is payable there, and it is afterwards indorsed in another country, and by the law of the former country equitable defences are let in in favor of the maker, and by the latter such defences excluded ; what rule is to govern, in regard to the holder, in a suit against the maker to recover the amount upon the indorsement to him? The answer is, the law of the place where the note was made; for there the maker undertook to pay; and the subsequent negotiation of the note did not change his original obligation, duty, or rights? ' Williams v. Wade, 1 Met. (Mass.) 82, 83. * Ory v. Winter, 4 Mart. N.S. (La.) 277; post, s. 882, 343, 344. CHAP. VIII] FOREIGN CONTRACTS. 447 Acceptances of bills are governed by the same principles. They are deemed contracts of acceptance in the place where they are made and where they are to be performed.!_ So Paul Voet lays down the doctrine.2 * Quid si de literis cambii incidat queestio ; quis locus erit spectandus? Is spectandus est locus, ad quem sunt destinate, et ibidem acceptate.’ But suppose a negotiable acceptance, or a negotiable note, made payable generally with- out any specification of place ; what law is to govern in case of a negotiation of it by one holder to another in a foreign country in regard to the acceptor or to the maker? Is it a contract by them to pay in any place where it is negotiated, so as to be deemed a contract of that particular place and governed by its laws? The Supreme Court of Massachusetts have held that it creates a debt payable anywhere, by the very nature of the con- tract ; and it is a promise to whosoever shall be the holder of the bill or note. Assuming this to be true, still it does not follow that the law of the place of the negotiation is to govern; for the transfer is not, as to the acceptor or the maker, a new contract ; but it is under and a part of the original contract, and springs up from the law of the place where that contract was made. A contract to pay generally is governed by the law of the place where it is made; for the debt is payable there as well as in every other place.*(@) To bring a contract within the general 1 Lewis v. Owen, 4 B. & A. 654; ante, s. 307; post, s. 333-345. If made in one place and accepted there, payable in another place, the Jaw of the place where the bill is payable governs. Cooper v. Earl of Waldegrave, 2 Beav. 282. What bills are deemed foreign? Bills drawn in one state, pay- able in another state, are deemed foreign. Buckner v. Finley, 2 Pet. 586; Halliday v. McDougal, 22 Wend. (N. Y.) 264, 272; Wells v. Whitehead, 15 Wend. (N. Y.) 527; Rothschild v. Currie, 1 Q. B. 43. 2 P. Voet, de Statut. s. 9, c. 2, n. 14, p. 270, ed. 1713; Id. p. 327, ed. 1661; post, s. 346, note. 8 Braynard v. Marshall, 8 Pick. (Mass.) 194. And see Savoye v. Marsh, 10 Met. (Mass.) 594; post, s. 341, 343-846. * See Kearney v. King, 2 B. & A. 301; Sprowle v. Legge, 1 B. & C. 16; ante, s. 272 a; post, s. 829; Don v. Lippmann, 5 Cl. & F. 1, 12,18. In this last case a bill of exchange was drawn and accepted in Paris by a Scotch- man domiciled in Scotland, and it was payable generally. It seems that, by the law of Scotland, an acceptance is deemed payable at the place of the domi- cil of the acceptor at the time when it becomes due. Lord Brougham on this occasion said: ‘It appears that in Scotland, — and it is rather singular that it . Should be so, — where a bill is accepted generally, without any particular place being named, it shall be deemed payable at the place at which the ac- (a) See Peck v. Hibbard, 26 Vt. 702. 448 CONFLICT OF LAWS. [s. 317-319. rule of the lex loci, it is not necessary that it should be payable exclusively in the place of its origin. If payable everywhere, then it is governed by the law of the place where it is made; for the plain reason that it cannot be said to have the law of any other place in contemplation to govern its validity, its obligation, or its interpretation. All debts between the original parties are payable everywhere unless some special provision to the contrary is made; and therefore the rule is that debts have no situs, but accompany the creditor everywhere! The holder then takes the contract of the acceptor or maker, as it was originally made, and as it was in the place where it was made. It is there that the promise is made to him to pay every where.? 318. Formalities required by the Lex Solutionis. — A case a litile more difficult in its texture is when a contract is made in one country for payment of money in another country, and, by the laws of the latter, a stamp is required to make the contract valid, and it is not by those of the former; whether it is governed by the lex solutionis, or by the lex loci contractus, as to the stamp. Tt has been held that a stamp is not required in such a case to give validity to the contract, upon the ground that an instru- ment, as to its form and solemnities, is to be governed by the lex loci contractus, and not by the law of the place of pay- ment ; and that therefore a stamp is not required by the princi- pal. On that occasion the court said: «An instrument, as to its form and the formalities attending its execution, must be tested ceptor is domiciled when it becomes due. It becomes of some importance to know where the bills were payable, because this principle, which has been adopted of late years in many of the Scotch decisions, and towards which I admit the great leaning of the Scotch profession is, renders it material to con- sider whether this is a Scotch or a foreign debt. Yet sometimes this expres- sion is used in the cases without affording any accuracy of description; for sometimes the debt is called English, or French, in respect of the place where the contract was made; sometimes it is the place of the origin, sometimes of the payment of the contract, and sometimes of the domicil of one of the par- ties. But at all events it becomes important to consider whether this was a foreign or a Scotch debt. In the present case it was held most properly to be a foreign debt. That is a fact admitted; it is out of all controversy. This therefore must now be taken to be a French debt; and then the general law is that where the acceptance is general, naming no place of payment, the place of payment shall be taken: to be the place of the contracting of the debt. I ' shall therefore deal with this bill as if it was accepted payable in Paris.’ * Blanchard v. Russell, 13 Mass. 1, 6; Slacum v. Pomery, 6 Cranch, 221; post, s. 329, 362, 399, 400, 2 Post, s. 343, 344. 8 Mr. Justice Martin, in Vidal v. Thompson, 11 Mart. (La.) 23-25. But CHAP. VIIL] FOREIGN CONTRACTS. 449 by the laws of the place where it is made; but the laws and usages of the place where the obligation of which it is evidence is to be fulfilled must regulate the performance. A billdrawn out of London must be paid at the expiration of the days of grace which the laws and usages of that place recognize, but need not have those stamps which are by law required on a bill drawn there.’ ! 319. Case as to Place of Contract.— But a case more difficult to reconcile with established principles in its actual adjudication has occurred in Massachusetts. A bill of exchange was drawn in Manchester, in England, upon a firm established at Boston, in Massachusetts, payable in London, and was accepted at Man- chester by one of the firm then there. The bill was therefore drawn in England, accepted in England, and payable in Eng- land. But upon its dishonor it was held that it was to be deemed a bill accepted in Boston, because the domicil of the firm was there, and that damages were recoverable of ten per cent, as they would be upon a like bill accepted in Boston.2 There was nothing upon the face of the bill that alluded to an acceptance in Boston, and nothing in the circumstances that pointed in that di- rection. It was certainly competent for the firm to contract in England, and to accept in England ; and, beyond all question, if the bill had been drawn solely on the person who accepted it, the acceptance must have been deemed to be made in England, not- withstanding his domicil was in Boston. Is there any difference between an acceptance by a firm and an acceptance by a single person? Is not the general principle of law that which is affirmed by Casaregis, that a contract or acceptance is to be deemed made where the contract or acceptance is perfected ; ‘ eo loci, quo ulti- mus in contrahendo assentitur?’*® It has certainly been put see ante, s. 260 and note, 262, 262 a; Wynne v. Jackson, 2 Russ. 351; Clegg v. Levy, 3 Camp. 166; James v. Catherwood, 3 Dow]. & Ry. 190.. 1 Tid. 2 Grimshaw v. Bender, 6 Mass. 157. The case of Acebal v. Levy, 10 Bing.. 376, 879, seems to have involved a question very nearly the same, arising under the statute of frauds of England, the contract having been made in Gijon, in Spain, for the delivery of the goods purchased in England. The court and bar seem to have thought that the contract was to be governed by the English statute of frauds, although made in Spain. See ante, s. 262 a, and note. See also Cooper v. Earl Waldegrave, 2 Beay. 282. (a) 8 Casaregis, Disc. 179, n. 1; ante, s. 285. (a) Leroux v. Brown, 12 C. B. 801, is an express decision to that effect. 29 450 CONFLICT OF LAWS. [s. 319-322. upon that ground in many modern authorities! And therefore, if the acceptor be an accommodation acceptor in one country, payments made by him of the bills drawn by the drawer in a for- eign country will be deemed payments under a contract made with the drawer in the place of acceptance and payment.” 320. Case in New York. —The doctrine maintained in Massa- chusetts in this last case is directly in conflict with that main- tained under similar circumstances by the Supreme Court of “New York. The latter court has held that the bill, having been drawn in England, and made payable there, and accepted there, it was to be treated as an English contract; and that the Eng- lish interest of five per cent only was to be allowed for the delay of payment.’ This decision, being in entire harmony with the general principles on this subject, will probably obtain general credit in the commercial world.* 320 a. Limited Partnerships. — Many other cases might easily be put to illustrate the law in relation to the conflict of the laws of different countries in cases of contract. In some countries there are limited or special partnerships, called in France part- nerships en commandité. In these partnerships the contract is between one or more partners who are jointly and severally re- sponsible for the whole contracts and orders of the partnership, and one or more partners who merely furnish a particular amount of funds, and are responsible only to the amount of such funds, and who are called commandataires, or partners en comman- dité.5 Similar limited partnerships are also authorized in some of the American states. Now let us suppose an order given by the general partner in such a firm in one of such states, upon 4 house in England, for the purchase of goods there; and they were accordingly purchased in England on the credit of the firm. If the partnership became insolvent, the question might then arise, whether the partner en commandité was liable to pay for the goods beyond the amount of the funds which he had contrib- uted or was bound to contribute for the partnership. That ques- tion might essentially depend upon another, whether the contract 1 Boyce v. Edwards, 4 Pet. 111; P. Voet, de Statut. s. 9, c. 2,8. 14. See also M’Candlish v. Cruger, 2 Bay (S. C.) 877; Bain v. Ackworth, 1 Mill (S. C.) 107; Lewis v. Owen, 4B. & A. 654. ~- 2 Lewis v. Owen, 4 B. & A. 654. 8 Foden v. Sharp, 4 Johns. (N. Y.) 183. 4 See Bayley on Bills (5th ed.), c. A, p. 72-86, Phillips & Sewall’s ed. 5 Code of Commerce of France, art. 23-37. CHAP. VII] FOREIGN CONTRACTS. 451 is to be treated as made in the American states, where the partner- ship was established, or in England, where the contract was con- summated. And it might also be important in the case, whether the seller knew that the partnership was so limited or not. No point of this sort has as yet arisen for decision ; and therefore it is left for the more full consideration of those who may be called upon to examine it in the case of a judicial controversy.) (a) 321. Effects of Contracts.— In stating the foregoing rules we. have been necessarily led to the consideration of many of what are properly deemed the effects of contracts, which, like the va- lidity of contracts, are dependent upon, and are to be governed by, the lex loci contractus. These effects are: the right con- ferred on the party for whose benefit the contract is made; the correspondent duty of the other party to fulfil it; the right of action which arises from the non-fulfilment of it; and the conse- quential right to interest or damages, for the injury done by such non-fulfilment, belonging to the injured party.2. The manner in which remedies are to be administered will fall under another and distinct head. 822. Other Incidents of Contracts. — But there are some other effects which may be deemed accompaniments, effects, or inci- dents of contracts which may here deserve a passing notice. They are properly collateral to them, and arise by operation of law or by the act of the parties. Among these may be placed the liability of partners and part owners for partnership debts. If, by the law of the place where the contract is made, they would be liable in solido, although, by the law of the domicil of the part- nership, they might be liable only for a proportionate share, the law of the former will follow the debt everywhere; or, in other words, the effect of the lex loci of the contract upon the liabil- ity of the partners and part owners will be of universal obliga- tion! By the law of some countries the acceptor of a bill of ex- 1 Ante, s. 285-287. 2 See Pothier, Oblig. n. 141-172; P. Voet, de Statut. s. 9, c. 2,6. 12; Boul- lenois, Quest. de la Contr. des Lois, p. 330-338. 8 Post, s. 556-575. 4 Ferguson v. Flower, 4 Mart. N.S. (lua.) 312. See also Carroll v. Waters, 9 Mart. (La.) 500; Pardessus, Droit Com. art. 1495. (a) See Lawrence v. Batcheller, 181 446, showing that the local law will Mass. 504, 509; King v. Sarria, 69 be recognized in other jurisdictions. N. Y. 24; Barrows v. Downs, 9 R. I. 452 CONFLICT OF LAWS. [s. 322-322 b, change is discharged from his acceptance, if, when he accepted, the drawer was bankrupt; and this effect of the acceptance regu- larly accompanies it everywhere as an incident. 322 a. Mlustration. — Another illustration may be found in the law of some countries, as in Alost in Flanders, which allows to a debtor, who has assigned or transferred a debt, the right of redemption of it upon payment back of the price. In such a case, according to Burgundus, the right of redemption will exist, notwithstanding the debt has been contracted in another coun- try ; for, in such a case, the right is for the benefit of the debtor, and the debts and the rights of action are judged of by the law of his domicil, without any consideration of the place where the debts were contracted. ‘Unde recte dici potest, consuetudinem Alostensem, que indulget debitori redemptionis cessi nominis, eo pretio, quod actionis auctori solutum est, etiam locum habere in wre alicno extra territorium Alostense contracto. Cum enim ejusmodi redemptio in favorem debitoris introducta, situm nomi- num, et actionum ex domicilio ejus metitur, sine consideratione qua regione contracta fuerint.’?_ A more unexceptionable illus- tration is the incidental right of warranty, conferred by the civil law in cases of sales of merchandise, not merely as to title, but as to quality.’ 322 6. Other Cases. — Of the like nature is the benefit of the tight of discussion as it is called. By the Roman law sureties were not primarily liable to pay the debt for which they became bound as sureties, but were liable only after the creditor had sought payment from the principal debtor, and he was unable to pay. This was called the benefit or right of discussion. Under those systems of jurisprudence which adopt the Roman law, and under the present law of France, the rule is similar ; and the ob- ligation contracted by the surety with the creditor is, that the latter shall not proceed against him until he has first discussed the principal debtor, if he is solvent. This right the surety en- joys, as the beneficium ordinis vel excussionis.5 And again: if other persons are joined with him in the obligation as sureties, he 1 Pardessus, Droit Com. art. 1495. 2 Burgundus, tract. 2, n. 24, 25. 8 Ante, s. 264; Henry on Foreign Law, 51, 52; 2 Boullenois, obs. 46, p. 475, 476; P. Voet, de Statut. s. 9, c. 2, . 10. * 1 Domat, b. 3. tit. 4,8. 2, art. 1; Dig. 46, 1, 68; Novell. tit. 4, cap. 1. 5 Pothier on Oblig. n. 407-414; Code Civil of France, art. 2021-2026. CHAP. VIII.] FOREIGN CONTRACTS. 453 is not in the first instance to be proceeded against for the whole debt, but only for his share of it, if his co-sureties and co-obligees are solvent.! This is commonly known as the benefit of division, or beneficium divisionis. If the suit should be brought in a different country from that where the contract or obligation is made, the right of discussion or division would still belong to the surety as an incident to his contract, although it did not exist by the law of the place where the suit was brought (lex fori).2. The converse proposition would be equally true.? Such, also, is the lien of a vendor upon a real estate sold for the payment of the pur- chase-money, according to the law of England ; the lien given for the purchase-money, upon goods or merchandise sold, by the civil law and by the law of some modern countries ;4 the right of stop- page in transitu of the vendor of goods in case of the insolvency of the purchaser in the course of the transit ;5 the lien of a bot- tomry bond on the thing pledged ; the lien of mariners on the ship for their wages ; the priority of payment in rem, which the law sometimes attaches to peculiar debts, or to particular persons. In these, and like cases, where the lien or privilege is created by the lex loci contractus, it will generally, although not univer- sally, be respected and enforced in all places where the property is found, or where the right can be beneficially enforced by the lex fori.6 And on the other hand, where the lien or privilege 1 Pothier on Oblig. n. 415-427; Code Civil of France, art. 2026. 2 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 765, 766; Carroll v. Waters, 9 Mart. (La.) 500. 3 Ibid; ante, 316 b. * 1 Domat, Civil Law, b. 4, s. 2, n. 8; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 770, 771. See, as to lien of vendor on real estate, Gilman v. Brown, 1 Mason, 219-221; Warrender v. Warrender, 9 Bligh, 127. It seems that a lien created by the lex loci contractus may be dissolved and extinguished not only according to the law of that place, but also by any act done in a foreign country which, according to the law of that country, would work such dissolu- tion or extinguishment. See post, s. 351 a-851 d. 5 Post, s. 401. § See 8 Burge, Col. & For. Law, pt. 2, c. 20, p. 770, 771, 779; post, s. 401; Foelix, Confl. des Lois, Revue Etrang. et Franc. 1840, tom. 7, s. 83, p. 227, 228. The latter says: ‘Nous avons vu que la régle suivant laquelle les meubles sont régis par la loi du domicile de celui & qui ils appartiennent, repose sur le rapport intime entre les meubles et la personne du proprictaire, sur une fiction légale qui les répute exister au lieu du domicile de ce dernier. De 1a il suit que cette régle ne peut s’appliquer qu’aux circonstances ou actes dans lesquels les meubles n’apparaissent que comme un accessoire de la per- sonne; par exemple: en cas de succession ab intestato, de dispositions de der- 454 CONFLICT OF LAWS. [s. 322. 5-323, does not exist in the place of the contract, it will not be allowed in another country, although the local law where the suit is brought would otherwise sustain it.) Thus, if goods:are pur- chased in England by a citizen of Louisiana, no lien or privilege will exist for the unpaid price, in case of his insolvency, although the law of Louisiana allows it in common cases; because it is not given by the law of the place of the contract (England).? (a) Nor would there seem to be any just ground of doubt that a bot- tomry bond would generally be held valid in rem in all com- mercial countries, if the lien is good by the law of the place of the contract.3 322 c. Liens — We have said that such liens will be generally, although not universally, respected; for, although the foreign jurists generally assert the doctrine, they do not universally agree in it as to all kinds of property, or under all circumstances. Some of them take a distinction between personal or movable property and real or immovable property; giving effect to the former according to the law of the place of the contract, and in- sisting, as to the latter, that no lien can exist, except it is founded in the law of the place where the property is situated (rei site). Others make no distinction whatsoever in respect to such lien or privilege between movable property and immovable property; nibre volonté ou entre-vifs (telles que les contrats de mariage exprés ou tacites). La régle est sans application & tous les cas o& les meubles n’ont pas un rap- port intime avec la personne du propriétaire: par exemple, lorsque la propriété de meubles est réclamée et contestée, lorsqu’on invoque la maxime qu’en fait de meubles possession vaut titre ; lorsqu’il s’agit d’exercer des priviléges ou des voies d'exécution sur les meubles, d’en prohiber l’aliénation, d’en pro- noncer la confiscation, ou de déclarer une succession mobiliére en déspérence au profit du fisc, ou enfin d’interdire exportation des meubles. Dans tous ces cas, il faut appliquer Ja loi du lieu ot les meubles se trouvent effective- ment: car la dite fiction cesse par le fait. Par rapport aux priviléges sur les meubles, Hert soutient l’opinion contraire, en faisant observer que toutes les questions de privilége sur les meubles doivent étre décidées dans le lieu du domicile du débiteur, par suite de la connexité des causes. Cette opinion revient 4 celle qui attribue a la loi du domicile son effet sur )’universalité des biens d’un individu: nous réfuterons cette opinion au n°, 37 ci-aprés. Ce que nous venons de dire des meubles s’applique non seulement aux meubles cor- porels, mais aussi aux meubles incorporels; il y a identité de raison.’ See post, s. 401-403. 1 Thid. 2 Whiston v. Stodder, 8 Mart. (La.) 95, 184, 185. 3 Post, s. 823, note 3. (a) See Tyree v. Sands, 24 La. An. 363. CHAP. VIII] FOREIGN CONTRACTS. 455 some holding that, in both cases, the lex loci contractus is equally to govern; and some, that in both cases the lex rei site is equally to govern.} 822 d. Rodenburg. — Rodenburg notices these distinctions ; and says that although, by the laws of some countries where a marriage is had, the wife has an hypothecation upon all the: pro- perty of her husband for her dotal portion (pro restitutione dotis), yet a question may arise whether this hypothecation can reach the property of the husband situate in another country, where no such law exists, or the law is to the contrary. He remarks also that Christinzus has stated that the affirmative has been main- tained in many decisions. But Rodenburg adds that he dares not affirm that they have been rightly made. ‘ Que tamen an recte se habeant, affirmare non ausim.’ And he thinks, that the hy- pothecation does not extend to the real property of the husband situate in a foreign country, because the statute is real and can- not have an extra-territorial authority. ‘Consequenter non ta- cita seu legalis hypotheca adstringit bona alia, quam quibus lex poterit imperare; ea nimirum, que legislatoris territorio sunt supposita, cujus solius loci legis est, tanquam statuti realis, realem in rebus effectum producere, cum ulterius judicis auctoritas non efficiat hypothecam.”’ ? 323. Priority of Liens. — But the recognition of the existence and validity of such liens by foreign countries is not to be con- founded with the giving them a superiority or priority over all others liens and rights justly acquired in such foreign countries under their own laws, merely because the former liens in the countries where they first attached had there, by law or by custom such a superiority or priority. Such a case would present a very different question, arising from a conflict of rights equally well founded in the respective countries. This very distinction was 1 See some of these opinions cited in Rodenburg, de Divers. Statut. tit. 2, c. 5, 8. 16; 2 Boullenois, Appx. p. 49-51; Matthzus, de Auctionibus, lib. 1, ce. 21, n. 85-41, p. 294-299; 1 Boullenois, obs. 30, p. 833, 834, 838; Foelix, Conflit des Lois, Revue Etrang. et Franc. 1840, tom. 7, s. 32-34, p. 222- 228. 2 Rodenburg, de Divers. Stat. tit. 2, c. 5, s. 16; 2 Boullenois, Appx. p. 47. See also Rodenburg, tit. 2, c. 5, s. 5-7; 2 Boullenois, Appx. p. 37, 38. See also post, s. 8324, 325; 1 Boullenois, 684, 685. 8 Post, s. 824, 327, 524-527, 582; Foelix, Conflit des Lois, Revue Etrang. et Franc. tom. 7, 1840, s. 33, p. 227, 228. This question might arise even in relation to a bottomry bond, which by the law of most maritime countries 456 CONFLICT OF LAWS. [s. 8323-325. pointed out by Mr. Chief Justice Marshall in delivering the opinion of the court in an important case. His language was: ‘The law of the place where a contract is made is, generally speaking, the law of the contract; i.e., it is the law by which the contract is expounded. But the right of priority forms no part of the contract. It is extrinsic, and rather a personal privilege, dependent on the place where the property lies, and where the court sits which is to decide the cause.’! And the doctrine was on that occasion expressly applied to the case of a contract made in a foreign country with a person resident abroad.? (a) 324. Foreign Jurists. —Huberus has also laid down the same qualifying doctrine: Foreign contracts are to have their full effect here, provided they do not prejudice the rights of our own country, or its citizens. ‘Quatenus nihil potestati aut juri alte- rius imperantes ejusque civium prejudicetur.’? Or, as he has more fully expressed it in another place: ‘ Effecta contractuum certo loco initorum, pro jure loci illius alibi quoque observantur, si nullum inde civibus alienis creatur prejudicium in jure sibi quesito; ad quod potestas alterius loci non tenetur, neque po- test extendere jus diversi territorii.’”* Hence he adds that the general rule should be thus far enlarged. If the law of another country is in conflict with that of our own state, in which also a contract is made, conflicting with a contract made elsewhere, we « should in such a case, rather observe our own law than the foreign law.6 ‘Ampliamus hance regulam tali extensione. Si jus loci in alio imperio pugnet cum jure nostra civitatis, in qua contractus etiam initus est, confligens cum eo contractu, qui alibi celebratus fuit; magis est, ut jus nostrum, quam jus alienum, has a priority or preference over most other claims in case of a deficiency of the proceeds to satisfy all claims. In such a case if the local law of the coun- try where the bond was sought to be enforced differed, as to such priority or preference from that of the place where the bond was made and executed, it might be a very nice question which ought to prevail, and would therefore probably be disposed of upon considerations of local and municipal policy. But upon this subject we shall have occasion to speak hereafter. See post, s. 401-403. 1 Harrison v. Sterry, 5 Cranch, 289, 298. See Ogden v. Saunders, 12 Wheat. 361, 362. 2 Tbid. 8 Huberus, de Confl. Leg. tom. 2, lib. 1, tit. 3, s. 2. * Huberus, tom. 2, lib. 1, tit. 8, de Confl. Leg. s. 11; post, s. 525. 5 Huberus, tom. 2, lib. 1. tit. 8, 8. 11; post, s. 525. : (a) See also Ex parte Melbourn, L. BR. 6 Ch. 67. CHAP. VIIL] FOREIGN CONTRACTS. 457 servemus. 1 And he puts several cases to illustrate the rule. By the Roman law and the law of Friesland, an express hypo- thecation of movable property, oldest in date, is entitled to a preference or priority, even against a third possessor. But it is not so among the Batavians. And therefore, if upon such an hypothecation the party brings a suit in Holland against such third possessor, his suit will be rejected ; because the right of such third possessor cannot be taken away by the law of a foreign country.? (a) 825. He also puts another case. In Holland if a marriage contract is privately or secretly made, stipulating that the wife shall not be liable for debts contracted solely. by the husband, it is valid, notwithstanding it is to the prejudice of subsequent creditors. But in Friesland such a contract is not valid, unless published ; nor would the ignorance of the parties be any excuse according to the Roman law and equity. If the husband should contract debts in Friesland, on a suit there, the wife would be held liable for a moiety thereof to the Frisian creditors, and could not defend herself under her private dotal contract; for the creditors might reply that such a private dotal contract had no effect in Friesland, because it was not published. But the Batavian creditors contracting in Holland, although suing in Friesland, would not be entitled to a similar remedy ; for in such a case the law of the place of their contract alone, and not the law of both countries, would come under consideration? The author was probably here treating of a case where the debts were contracted in Friesland after the husband and wife had removed their domicil there ; or at least, if there was no change - of domicil, where the property of the parties to be affected by 1 Thid.; ante, s. 239. 2 Huberus, tom. 2, lib. 1, tit, 3, s. 11; post, s. 525; ante, s. 239. See also Rodenburg, de Divers. Stat. tit. 2, c. 5; 2 Boullenois, Appx. p. 47; 1 Boulle- nois, p. 683, 684. 8 Huberus, lib. 1, tit. 83, de Confl. Leg. s. 11. Huberus adds: Et hoc pre- valet apud nos, in contractibus heic celebratis, ut nuperrime consultus respondi. The sense of this passage in Huberus is mistranslated in the note to 3 Dallas, 375. The translator has translated the words in contractibus heic celebratis, ‘where the marriage was contracted here,’ and jus lact contractus, ‘the law of the place where the marriage was contracted;’ whereas the author in this clause is manifestly referring to the contracts (debts) of the respective creditors. (a) See Thurburn v. Steward, L. R. 3 P. C. 507. 458 CONFLICT OF LAWS. [s. 825-325 d. the marriage contract was situated in Friesland. Under any other aspect it would be difficult to maintain the doctrine. 325 a. Huberus in another place asserts a similar doctrine. A creditor, says he, on account of a bill of exchange, exercising _ his right in due time, has a preference in Holland to all other creditors against the movable property of his debtor. The debtor has property of the same kind in Friesland, where no such law obtains, The question is whether such a creditor will be preferred there to all other creditors ? Certainly not, since by the law there the right of the creditor is established. + Creditor ex causa cambii, jus suum in tempore exercens, prefertur apud Batavos omnibus aliis creditoribus in bona mobilia debitoris. Hic habet ejusmodi res in Frisia, ubi hoe jus non obtinet. An ibi creditor etiam preferetur aliis creditoribus? Nullo modo; quoniam his creditoribus vi legum hic receptarum jus pridem quesitum est.’ ? 3256. The same doctrine is adopted by Hertius. After re- marking that, in this matter of preferences and privileges of creditors, the statute laws of particular countries have changed the common (the civil) law; in answer to the question, what law ought to govern in such cases, he says: If the controversy respects immovables, the law of the country of the situs rei is, without doubt, to govern. But in respect to movables, if the question arises in cases of contract or of quasi contract, the law of the place of the contract is to be examined. But inasmuch as the preference arises from some peculiar law or privilege, it ought not to be extended to the prejudice of the state where the debtor resides and his movables are deemed to be collected. In the conflict (concursus) of creditors, the law of the place of domicil of the debtor ought to be observed. ‘ Enimvero, quia antelatio ex jure singulari vel privilegio competit, non debet in prejudicium illius civitatis, sub qua debitor degit, et res ejus mobiles contineri consentiuntur, extendi. Ad juraigitur domicilii debitoris, ubi fit concursus creditorum, et quo omnes cujuscunque generis lites adversus illum debitorem propter connexitatem cause traduntur, regulariter respiciendum erit.’ 2 * D. Hub. lib. 3, J. P. Univer. cap. 10, s. 44, cited 1 Hertii Opera, de Collis.. Leg. 8. 4, n. 64, p. 150, ed. 1737; Id. p. 511, ed. 1716; post, s. 627. ‘ oo ae Opera, de Collis. Leg. s. 4, n. 64, p. 150, ed. 1737; Id. p. 211, ed. , CHAP. VIII] FOREIGN CONTRACTS. 459 825 ¢. Rodenburg has discussed this subject at large in rela- tion to the liens, the privileges, and the priorities of creditors in cases of insolvency, and in other cases where their property, mov- able or immovable, is situated in different countries, and is not sufficient to satisfy all their debts. This is commonly known by the name of concursus creditorum, and the privilege or priority itself by the name of the jus prelationis. It may be useful to present a brief sketch of the substance of his remarks and his conclusions on the subject. In respect to the property of debtors in different countries, he says that jurists have distin- guished between those things which concern the form and order of the suit, and those which concern the decision or matter of the suit. The suit is to be according to. the law of the place where it is instituted. As, for example, if the debtor’s property is to be taken in satisfaction of a judgment, the execution and sale thereof are to be according to the law of the place where the goods are situated or where they are taken upon the judgment. But if the debtor has become bankrupt or notoriously insolvent, so that there is no further opportunity for the seizure of his movables, or for execution thereon, all the creditors being in the same condition, the question as to their rights and privileges should be discussed or litigated in the place of his domicil; for it is properly a question as to the proceedings in the suit, de litis ordinatione.1 But a different rule prevails as to the decision and merits of a suit; and the rights of the creditors, in respect to the priority of their debts upon the property of the debtor, ought to be measured according to the law of the place where it is really situated, or is presumed to be situated.? 325 d. In respect to movable property, as it is always sup- posed to be in the place of the domicil of the debtor (for all effects not having a fixed location are presumed to adhere to his person), it is the law of his domicil which ought to decide the rights of creditors as to such movables. This rule will prevail where the goods are in his possession, unless indeed a creditor has by his diligence, according to the laws of the place, acquired a superior right by an execution over them; for he will then 1 Rodenburg, de Div. Stat. tit. 2, c. 5,8. 16; 2 Boullenois, Appx. p. 47, 48; 1 Boullenois, 684, 685. 2 Rodenburg, ibid.; 2 Boullenois, Appx. p. 48; 1 Boullenois, 685; post, 8. 524-527, 582. 460 CONFLICT OF LAWS. [s. 325 d—325 g. retain that privilege, since it is not so much founded in the quality of the debt as that the creditor has by his diligence gained a priority ; so that this privilege being attached to the formalities regulating the execution, it ought therefore to be regulated by the law of the place of execution. And besides, the judge who puts the creditor judicially in possession of pro- perty seized within his jurisdiction is regarded as acting in the name of the debtor; so that it may be deemed affected by the same reasoning as if the debtor himself had given it in pledge to the creditor in the place where the property is seized.’ 325 e. Rodenburg afterwards puts the case of a merchant having different shops of trade in different places; and he says that the question has been put whether in such a case the credi- tors in each place are entitled to be paid out of the property there in trade, or the whole property is to be divided among all the creditors. Some jurists maintain the affirmative. But others, with whom Rodenburg agrees, hold that the whole should be distributed among the creditors generally in cases of insol- vency.? 825 f. Rodenburg then puts the case of a contract made ina foreign country, not being the domicil of the debtor, by whose laws a preference is granted to creditors by promissory notes of hand ; and he says that it might seem in such a case that the law of the place where the contract is made ought to govern; for that is the law by which the obligation of contracts is ordinarily expounded and governed ;3 ‘ Eo quod obligationes dirigi soleant a loco, ubi contrahuntur.’*(@) But after stating that Mascar- dus has expressed a similar opinion, following Decianus, he adds: That it is a nearer approach to the truth to say, that the law of the place of the contract ought not to govern; because that law can determine only the greater or less extent of the engagements of the debtor, and concerns only the contracting parties who, having contracted in another place than that of their domicil, are presumed to have referred to the laws of that place the form, 1 Rodenburg, ibid.; 2 Boullenois, Appx. p. 48; 1 Boullenois, 685. 2 Rodenburg, ibid.; 2 Boullenois, Appx. p. 49, 50; 1 Boullenois, 687, 688. ; Rodenburg, ibid.; 2 Boullenois, Appx. p. 50; 1 Boullenois, 688. Ibid. (a) See also Ex parte Melbourn, L. R. 6 Ch. 67. CHAP. VIIL] FOREIGN CONTRACTS. 461 the obligation, the mode, the condition and whole nature of the contract. ‘ Verum non esse respiciendum locum contractus vero proprius est ; utpote, qui eo duntaxat pertineat quo vel arctius, vel remissius ex contractu suo teneatur ipse debitor, adeoque spectatur, quoad ipsos contrahentes, quod eo ipso, quod alio in loco contractum celebrant, ad ejusdem leges, formam, vinculum, modum, conditionem, totam denique negotii naturam, sui respectu, componunt.’! He proceeds to render the reasons of his opinion that this preference of creditors constitutes no part of the law of the contract, obligatory in other countries, and says: Moreover what does not arise from the act of man, but simply from the authority of the law, of which sort all privileges of preference among creditors are, it should be said that the authority of the legislator has no effect upon property not subjected to him, when the controversy respects the interest of third persons or of other creditors who have not contracted in that place, and who conse- quently have submitted themselves to the laws of that place. Besides it is manifest that we do not exercise these sorts of privileges upon the persons of debtors, because, being directed upon the property, they have their place properly among all the creditors. ‘ Ceterum, si quid non ab actu hominis, sed a po- testate legis proficiscitur, cujusmodi sunt prelationis privile- gia omnia, dicendum est vim legislatoris nullam esse in bona sibi non subjecta tertii respectu, seu creditorum aliorum, qui inibi nullum gesserint negotium, nee legibus loci istius se sub- miserint. Ad hee constat privilegiis istis non agi in debitoris personam, utpote que in res directa, locum habeant inter credi- tores.’? 325 g. Rodenburg further insists that the same rule applies when the debtor has changed his domicil to another country. If in the country of his original domicil where the contract is made, there would be a privilege thereby created upon the movables of the debtor, and he afterwards removes to another country where no such privilege exists, Rodenburg says that, although it might seem that the privilege ought still to continue on his movables in his old domicil, yet the true rule is that the law of the new domicil is to prevail; for movables are governed by the law of the domicil. ‘Nec aliud de eo debitore dicendum est, qui in 1 Thid. 2 Ibid.; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 770, 771. 462 CONFLICT OF LAWS. [s. 825 g, 325 A, loco illo privilegii domicilium foverit tempore celebrati contrac- tus; quamvis enim videri possit jus illud prelationis creditori per leges loci domicilii in rebus mobilibus legitime quesitum, subsecuta domicilii mutatione non debere amitti ; mobilia tamen, in quibus prioris domicilii lege tenuit prelationis privilegium, tra- ductis alio domesticis laribus, traducuntur quoque in leges novi domicilii, eaque lege administrantur; mutatione enim domicilii mutatur et mobilium conditio eorum, que in manum aliis tradita non sunt, etiam dispendio tertii.’ } (a) 325 h. His Doctrine as to Immovables.—In regard to immo- vables, Rodenburg holds that if there is either an express or tacit hypothecation or lien by the law of the domicil of the debtor, which is not equally allowed by the law of the situs thereof, the law of the situs or situation is to govern ; and that the creditor will in vain seek to assert any right of priority or privilege ; for as no man has authority expressly to create such a charge under a foreign law by a judicial proceeding, so neither can the foreign law itself exert such an authority; since real statutes have no operation beyond the territory where they are enacted. ‘Tandem ut ad immobilia transeam. Fac, jus tacite seu legalis hypothece non obtinere idem in loco rei site, quod obtinet in loco domicilii debitoris, dicendum frustra est esse creditorem, qui hujusmodi hypothece obtentu prioritatem sibi asseruerit ; cum eque atque expressim facto hominis, coram uno judicio, hypothecee nexu devinciri nequeunt alterius territorii bona, ita nec legis ullius potestas est afficere predia extera; quod statuta realia territorium non egrediantur.’? The result, there- fore of the doctrine of Rodenburg seems to be that the proper * Rodenburg, de Div. Stat. tit. 2, c. 5,8. 16; 2 Boullenois, Appx. p. 50; 1 Boullenois, 688, 689; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 770, 771. ? Rodenburg, ibid.; 2 Boullenois, Appx. p. 50, 51; 1 Boullenois, 689, 690; Id. obs. 30, p. 818-875. (a) See Donald v. Hewitt, 33 Ala. / try, and there gives an instrument 546; Goodsill v. Brig St. Louis, 16 to secure payment, which by the laws Ohio, 178; McMahan v. Green, 12 Ala. 71; Merrick v. Avery, 14 Ark. 370; Marsh v. Elsworth, 87 Ala. 85; * note to s. 883, post. In Pardo v. Bingham, L. R. 6 Eq. 485, it was held that if an English- man contracts a debt in a foreign coun- of that country entitles the creditor to a priority out of the general assets of the debtor, it will not have that effect in England, as to equitable assets ex- isting there, which by the laws of Eng- land are to be distributed equally to all creditors. CHAP. VIII] FOREIGN CONTRACTS. 463 forum to decide upon all questions of the priorities and prefe- rences of creditors is the place of the domicil of the debtor; and that the law of that place, and not the law of the place of the contract, is to govern in all cases of such priorities and pre- ferences, in respect to movables situated in his place of domicil. But as to movables situate elsewhere, as well as to immovables, the law rei site is to govern; although to prevent confusion and inconvenience, the administration and adjudication thereof in all cases is to be by the forum or tribunal of the debtor's domicil.? 1 1 Boullenois, obs. 30, p. 818-820. As the work of Rodenburg is rarely found in our libraries, and the subject here discussed is of. great practical con- sequence, it may be useful to subjoin the whole passage in this note. ‘ Perga- mus querere ulterius, creditoribus de prelatione contendentibus, quod jus cujusque loci oporteat inspicere. Primum utamur vulgata DD. distinctione, qua separantur ea, que litis formam concernunt ac ordinationem, ab iis, que decisionem aut materiam. Lis ordinanda secundum morem loci, in quo venti- latur. Ut, si judicati exequendi causa bona debitoris distrahantur, qui sol- vendo sit, executio peragatur eo loci, ubi bona sita sunt, aut in causam judicati capiuntur. Sin cesserit foro debitor, aut propalam desierit esse sol- vendo, ut isti mobilium captioni, aut ulli omnino executioni non sit ultra locus, facta jam omnium creditorum conditione pari, disputatio de privilegiis, aut concursu creditorum veniat instituenda, ubi debitor habuerit domicilium. Unde cum apud nos relictis fortunis solum vertisset debitor oberatus, ac res ejus sitas in Hollandia venum proscriberet curator, creditores Hollandi, apud Pro- vincize suze curiam venditioni intercedentes, causa ibidem ventilata tulerunt repulsam: audito in et curatore, quod apud nos super universis debitoris facul- tatibus, adeoque et pretio ex venditione illa redigendo, ab uno eodemque judice peragenda decidendaque sit creditorum contentio: ex communi scri- bentium placito. Ob manifestam quoque cause continentiam, ne super credi- torum jure a diversis judicibus dissonz sententiz pronuntientur. Hec de litis ordinatoriis. Aliud fere a precedentibus obtinere dixeris' in ejusdem decisoriis: jus enim creditorum super prioritate in bonis debitoris demeteri oportet a loco ubi distracta bona sita sunt, vel esse, intelliguntur. Et quidem de mobilibus si queratur, cum semper ibi esse existimentur, ubi creditor [debitor] fovet domicilium, cujus ossibus vage he res intelligentur adherere, utique ex lege ejusdem domicilii discutienda causa creditorum est. Hec ita nisi forsan executio directa sit in ejus debitoris mobilia, qui adhuc in posses- sione suorum bonorum sit, feret enim tum creditor diligentiz ac vigilantie suz premium, si quod eo nomine loci mores, ubi in causam judicati ceperit mobi- lia, pre aliis creditoribus ipsi indulserint; quod privilegium illud non tam proficiscatur ex credito, quam ex actu ipso executionis, qua alios creditor pree- vertit, adeoque hesc res tanquam concernens exequendi ordinem, legem accipiat a loco, ubi illa peragitur, ac preterea pignus illud judiciale ita constituens judex in bonis, apud se in causam judicati captis, dicitur supplere vicem debi- toris; ut perinde res habeatur, ac si ipse debitor bona illa eo loci pignori tradi- disset. Hec ita si in uno loco debitoris sit domicilium.’ Again: ‘ Fac foris contractum celebratum, ubi per mores ejusdem loci jus prelationis inter chiro- 464. CONFLICT OF LAWS. [s. 325 7, 325 k. 325 7. Boullenois, in commenting upon Rodenburg, says that every hypothecation or privilege upon property is to be deemed a grapharios competit, locus videri posset attendendus esse contract obliga- tionis: eo quod obligationes dirigi soleant a loco ubi contrahuntur. Verum non esse respiciendum locum contractus vero proprius est: utpote qui eo dun- taxat pertineat, quo vel arctius, vel remissius ex contractu suo teneatur ipse debitor, adeoque spectetur quoad ipsos contrahentes, quod eo ipso, quod alio in loco contractum celebrent, ad ejusdem leges, formam, vinculum, modum, conditionem, totam denique negotii naturam, sui respectu, componunt. Cwte- rum si qui non ab actu hominis, sed a potestate legis proficiscitur, cujusmodi sunt prelationis privilegia omnia, dicendum est vim legislatoris nullam esse in bona sibi non subjecta tertii respectu, seu creditorum aliorum, qui inibi nullum gesserint negotium, nec legibus loci istius se submiserint. Ad hee constat privilegiis istis non agri in debitoris personam, utpote que in res directa, locum habeant inter creditores. Ecquid autem juris est alieno judici circa reg sibi non suppositas, dispendio tertii, qui apud se non contraxit ? Nec est, quod retorserit creditor suum non minus spectari oportere, atque debitoris domicilium. Constat quippe, qui cum alio contrahit, non esse vel debere esse conditionis ejus ignarum. Ut nihil imputetur ei, qui in mobilibus a loci domi- cilii debitoris sua mensus est privilegia, ad quem locum palam est mobilia pertinere: cum culpa non vacent alii, qui privilegium sibi assumpserint a potestate legislatoris alieni, cui de mobilibus disponendi nullum jus est. Nee aliud de eo debitore dicendum est, qui in loco illo privilegii domicilium foverit tempore celebrati contractus: quamvis enim videri possit jus illud prelationis, creditori per leges loci domicilii in rebus mobilibus legitime quesitum, subse- cuta domicilii mutatioue non debere amitti; mobilia tamen, in quibus prioris domicilii lege tenuit prelationis privilegium, traductis alio domesticis laribus, traducuntur quoque in leges novi domicilii, eaque lege administrantur: muta- tione enim domicilii mutatur et mobilium conditio eorum, que in manum aliis tradita non sunt, etiam dispendio tertii: quo argumento, alia quanquam in specie, usus est Senatus Parisiensis, apud Chopin. Et hue spectat quod Bur- gundus tradit, mobilia sequi personam, hoc est (inquit) in domicilio ejus existere, et non aliter quam cum domicilio transferri. Tandem ut ad immo- bilia transeam. Fac jus tacite, seu legalis hypothecse non obtinere idem in loco rei site, quod obtinet in loco domicilii debitoris, dicendum frustra esse creditorem, qui hujusmodi hypothecse obtentu prioritatem sibi asseruerit: cum gque atque expressim facto hominis, coram uno judicio, hypothece nexu devinciri nequeunt alterius territorii bona, ita nec legis ullius potestas est affi- cere predia extera; quod statuta-realia territorium non egrediantur, ut supra tractatum est. Ita si Hollandus, cui generaliter bona debitoris coram quo- cunque Hollandiz judicio, hypothece data sunt, apud nos cum reliquis credi- toribus experiatur de pralatione, profutura erit ei hypotheca in bonis, in qua- cunque Hollandie parte, extra districtum Amstelodamensem, sitis; non autem in bonis suppositis territorio nostratium, quibus nulla subsistit hypothece datio, nisi pacta coram judice rei site. Contra cum apud Hollandos hypo- theca generalis extinguatur alienatione, non juvabitur creditor moribus nostris, quibus res ita obligata ad emptores transit cum suo onere. Consimiliter, si teneat alibi consuetudo, ut in bonis debitoris concurrant creditores, nulla habita ratione hypothecarum quale statutum profert florentium straccha. Ex lege loci rei sitze dirimenda creditorum contentio.’ Rodenburg, de Div. Stat. tit. 2, c. 5, s. 16; 2 Boullenois, Appx. p. 47-51. CHAP. VIII] FOREIGN CONTRACTS. 465 real right (jus ad rem, or, jus in re). An action without any hypothecation or privilege is purely personal. The existence of a real right must depend either upon local ordinances, or upon the law of the situs of the property; and if the law of the situs differs from the ordinances of the place where the parties create the hypothecation or privilege in allowing or disallowing such an hypothecation or privilege, the law of the situs must govern. In regard to movables, they are presumed to have their situs in the place of the domicil of the owner; and if the law of that domicil gives a privilege upon them, that privilege ought to be regarded in every other place in which those movables may be found.!. Boullenois in this respect adopts the language of Lau- tenburg. ‘In rebus mobilibus observari debent jura illius loci, in quo illorum dominus vel creditor habet domicilium, etiam quando agitur de concursu et prelatione creditorum.’? In re- gard to immovables Boullenois adopts the doctrine that all pre- ferences and privileges thereon are real, and are therefore governed by the law rei site.? 325 k. John Voet has treated this question with great fulness. In respect to priority and privileges in cases of hypothecations, he insists that, as to movable property, the law of the domicil of the debtor ought to govern the order thereof, as well because all movables are understood to be in the place where the owner lives, and are to be governed by the law of that place, as because all creditors who ought to bring their suit in the tribunal where the property is (forum rei), are deemed in their contracts to have had reference to the place of domicil of the debtor, since in that place the debtor, as the principal forum, ought to be sued; and also because if the laws of the place where the contract is made, © or of the forum in which is the controversy respecting the con- flict of rights and preferences between creditors, are to be ob- served, inexplicable difficulties will arise, or notorious absurdities will be fallen into; of which he proceeds to give some illustra- tions. But in respect to immovables he holds that the law of the place of the situs ought to govern in all questions of priority and privileges. ‘Immobilia regenda esse jure loci, in quo sita sunt,’ 4 ‘ 2 1 Boullenois, obs. 30, p. 832-834. 2 Td. p. 834. 8 Ibid. 4 J. Voet, ad Pand. 20, 4, 88, p: 904. The whole passage deserves to be cited. ‘In questione, cujus loci statuta in prelatione tum hypothecariorum 30 466 CONFLICT OF LAWS. [s. 825.0. 325 1. Mattheus holds in a great measure the same opinion, and has discussed the subject at large. The whole passage is too long for insertion in this place; but a moderate extract will pre- sent his views in a very clear manner. Speaking of movables, he says: ‘Quantum igitur ad res mobiles attinet, tametsi omnes sint ejusdem generis atque nature, motu tamen et quiete discriminari possunt. Earum enim aliz nullo certo loco disposite, huc illue tum chirographariorum privilegio munitorum spectari debeant, dicendum vide- tur secundum fundamenta generalia in tit. de constitut. Princip. parte altera, de statutis proposita. In mobilibus debitoris bonis illum observari oportere prelationis ordinem, qui in loco domicilii debitoris probatus est; tum quia mobilia omnia, ubicunque existentia, illic domino suo presentia esse intelli. guntur, ac propterea isto quoque jure regenda sunt; tum quia creditores omnes, qui sequi in agendo debent forum rei, etiam maxime locum domicilii in con- trahendo respexisse videntur, quippe in quo precipue debitor, velut in foro preprimis competente, conveniendus est; tum denique, quia, si leges vel loci in quo contractum est, vel fori in quo de creditorum prelatione ac concursu disputatur, observandas censueris, aut inexplicabilibus et difficultatibus impli- caturus es, aut ad notabiles delapsurus absurditates. Etenim, si contractuum singulorum loca spectari debere contendas, explicari non poterit, quid fieri debeut, si in Hollandia, Frisia, Anglia, Italia, Hispania diversi per eundem debitorem contractus initi sint, quarum regionum unaqueque diversis ex parte, quin et subinde contrariis de protopraxia legibus utitur, dum in Anglia aut Hollandia contrahens ex legibus Anglicanis aut Hollandicis preeferri desidera- bit ei, qui in Frisia contraxit; hic vero ex Frisiz legibus contrariis potior esse velit eo, qui in Hollandia vel Anglia effecit sibi devinctum debitorem. Quod si locum, ubi mobilia proscribuntur, et judicium concursus inter creditores agi- tatur, spectandum existimes quasi distributio pecuniarum inter creditores pars et sequela executionis sit (posito, quod alibi, quam in loco domicilii postremi debitoris oberati mobilia vendi et lis de protopraxia agitari possit, cujus con- trarium.apud nos nunc obtinere, supra x. t. num. 12 dictum est), absurdum illud inde sequeretur, quod tunc non mobilium tantum sed et immobilium intu- itu leges loci, in quo judicium de protopraxia agitur, observande forent; cum non minus distributio pecunie ex immobilibus, quam ex mobilibus, redacte dici deberet, executionis sequela aut pars; atque ita fieret, immobilia non ex lege situs regi, sed incerti juris subesse dispositioni, prout in hoc vel illo loco, diversis juribus utente, contentio fuerit inter creditores instituta de prelatione. Quinimo, posito illo jure, quod judicium universale concursus creditorum in eo loco ventilari debeat, in quo debitor, cum moraretur aut foro cederet, domi- cilium habuit, esse in arbitrio debitoris positum, ut migrando de loco in locum creditores non privilegiatos, efficeret privilegiatos, hypothecam legalem faceret aliis nasci, aliis interire, prout aliud atque contrarium domicilii prioris aut rei site: legibus jus in novissimi domicilii loco viguerit; quod in immobilibus loco certo alligatis, nec arbitrio domini situm mutantibus, ferendum non est; sed potius (cum jam ad immobilia nos deduxerit ratiocinium) in immobilium pre- tio inter creditores secundum cujusque privilegium distribuendo servande erunt leges locorum illorum, in quibus immobilia singula existunt, idque, con- venienter regule in tit. de constit. princip. parte altera de statutis num. 12 firmats, ac dictanti, immobilia regenda esse jure loci, in quo sita sunt.’ CHAP. VIII.] FOREIGN CONTRACTS, 467 feruntur trahunturve ; veluti merces in itinere deprehense, et ut hodie fieri solet, arresto retentz : aliz vero certo loco dispositee quiescunt; veluti instrumentum et supellex, quam paterfamilias, prediorum instruendorum gratia, in provinciam misit: item fere bestiz, et pisces, et reliqua animalia, que in fundis habentur fo- ture et propagationis gratia, Quacunque ejus generis deprehend- untur, ut certo loco prediove affixe non sint, in iis haud dubie superior definitio observanda est. Cum enim maxime in motu sint, ac incertis quasi sedibus vagentur, nihil proprius est, quam ut in disputatione de prerogativa creditorum spectemus domicil- ium debitoris. Quz vero loco affixe, aut certis possessionibus attribute sunt, ew naturam prediorum sequuntur ejusque provin- cia esse censentur, in qua predia sita sunt. Unde dicendum videbatur, in his rebus spectandas esse leges loci, ubi predia sita sunt, non ubi domicilium debitor habet.’! Again referring to ob- jections which might be made, he says: ‘ Illud etiam objici pote- rat definitioni nostra: In contractibus spectandas esse leges ejus loci, ubi contractums est, vel in quem solutio destinata est: his enim legibus contrahentes ultro subjecisse se intelliguntur. Igitur in creditorum quoque contentione, non semper leges domicilii, sed si alibi contractum sit, loci contractus sunt observande. Re- spondeo ; Si ex contractu agatur, spectari quidem leges ejus loci ubi contractum est, non tamen in omnibus controversiis. Etenim, side solemnibus queratur, si de loco, de tempore, et modo obli- gationis, tum quidem locum contractus observamus: sin de ma- teria obligationis, seu de rebus, que in eam deducuntur, ejus loci habenda ratio est, ubi res site sunt. Situm autem cum dicimus, predia denotamus: hee enim proprie sita dicuntur, non etiam res mobiles. In disputatione vero creditorum de prerogativa, quo minus locum contractus spectemus, ipsa quodammodo rerum natura impedimento est. Quid enim si oberatus cum multis con- traxerit, et variis quidem in locis, vario ac diverso jure utentibus : veluti Rome, Lugduni, Antuerpia, Amstelodami, Dantisci, Ge- nue, etc., qui poterit spectari locus contractus, et cujus potissi- mum loci leges spectabis citra manifestam aliorum creditorum in- juriam? At locum domicilii debitoris possis observare citra cu- jusquam injuriam, dum omnes cujuscunque gentis aut nationis cum aliquo debitore contrahentes, domicilium ejus spectasse, ac 1 Mattheus, de Auctionibus, lib. 1. c. 21, n. 35, 36, p. 295. 468 CONFLICT OF LAWS. [s. 325 1-325 n, fortunam judiciorum ibidem experiri voluisse videantur. Pos- tremo, opponi poterat, non tam domicilium debitoris spectandum esse, quam eum locum ubi bona proscribuntur. Executionis enim seu pars, seu appendix, et sequela, videtur esse illa distribu. tio pecuniarum inter creditores. Communi autem calculo docto- rum traditur, in executione facienda spectandum eum locum ubi executio sit. Verum hunce obicem ita facile removebimus, si cogi- taverimus communem illam sententiam de ordine et solemnibus executionis duntaxat loqui, non etiam de ipsa creditorum conten- tione et causa, que inter eos vertitur: hc enim incidit quidem in executionem, ab ordine tameh executionis separata est. In iis autem, que ad cause decisionem pertinent, non illico locum judicii, sed antiquiorem aliquem, puta domicilii, interdum contractus, ali- quando situm rei spectamus. Instari poterat: Si ad decisionem cause pertinet disputatio illa creditorum, jam sententia hee pre- metur alioargumento: Nempe, quod in decisoriis litis observanda sint leges ejus loci, ubi contractum est. Sed respondetur, hoc tum procedere, cum inter creditorem et debitorem lis vertitur: cum vero plures creditores ejusdem debitoris de prerogativa dis- putant, locum domicilii debitoris spectamus; quia locum con- tractus citra injuriam aliorum spectare per rerum naturam non possumus: nullo certe modo, cum idem debitor, qui variis in lo- cis negotiari solet, habuerit variarum gentium atque locorum ereditores: puta Italos, Gallos, Belgas, Germanos, Hispanos, ete. Hic enim constituere non possis, cujus potissimum loci leges sint spectande: ut autem omnium simul locorum leges atque mores spectentur, rerum natura non patitur.’ } 325 m. And then, referring to immovables, he says: ‘ Quan- tum ad res immobiles attinet, videndum, an recte separaverimus hypothecam a privilegio: ita ut in estimandis viribus hypothecw spectemus eum locum, ubi predinum situm est; in privilegio inter hypothecarios exercendo, domicilium debitoris ? Argumentum enim, quo usi sumus, infirmius videtur: Privilegium concernit personam : igitur domicilium debitoris in eo spectandum. Quasi vero non sit duplex privilegiorum ratio: ita ut alia quidem per- sone, alia rei seu cause data sint. Deinde, non videtur illa ne- cessaria consecutio: privilegia personam concernunt; igitur pert- sonam comitantur, quocunque locorum commigraverit. Etenim 1 Mattheus, de Auctionibus, lib. 1. c. 21, n. 37-40, p. 296-298. CHAP. VIII] FOREIGN CONTRACTS. 469 illo duntaxat jura que persone qualitatem aliquam imprimunt, comitari personam solent: veluti si quis minor, fatuus, prodigus, infamis, declaretur: Vitium enim hoc perdurat, et quocunque lo- corum te contuleris, circumferes tecum notam illam et qualitatem in loco domicilii tibi impressam. At privilegium, quod persone conceditur, nullam qualitatem persone imprimit, nullam notam inurit: comitari ergo personam non poterit in eam provinciam, in qua forte privilegium cessat. Sed imprimis illud obstat, quod privilegium detur quidem persone, tamen in bonis debitoris exer- cendum. Ut autem in prediis debitoris in alia provincia sitis ex- erceam privilegium, non possunt mihi tribuere ii, qui in loco dom- icilii debitoris jura condunt: quippe quorum jurisdictioni, ager alterius territorii subjectus non sit. Mobilia duntaxat, quia per- sonam comitantur, jurisdictioni eorum subjecta videntur, quocun- que in loco reperiantur. Itaque si.mulier nupserit in Frisia, ubi dotes sunt, dotiumque privilegia: distrahantur mariti predia in -Gelria, Hollandia, Trajecti, ubi ne dotes quidem vere sunt, ne- dum dotium privilegia : non videtur mulier inter hypothecarios habitura privilegium, quod haberet, si in Frisia sita predia dis- traherentur. Valde enim absurdum sit, velle hypothecariis eam preferri, quam ne numerant quidem Gelri inter hypothecarios. His de causis generalius concludendum, sive de viribus hypothe- cx, sive de privilegio inter hypothecarios exercendo loquamur, in prediis spectandas esse leges ejus loci ubi pradia sita sunt.’? ' 825 n. Meevius adheres to the same rule in cases of movables, that is to say that the law of the domicil of the debtor is to go- vern in all cases of preferences and privileges.?- D’Argentré adopts the same opinion: ‘ Quare statutum de bonis mobilibus vere per- sonale est, et loco domicilii judicium sumit ; et quodcumque ju- dex domicilii de eo statuit, ubique locum obtinet.’? Burgundus may also fairly be presumed to hold the like opinion. ‘De ca- tero mobilia ibi esse dicemus, ubi quis instruxit domicilium ; et ideo quodcumque judex domicilii de iis statuerit, ubique locorum obtinet, sive, quod persona ibi est, aut esse, semper intelligitur, sive quod ibi rerum snarum summam collocavit. Et sic intelli- gendum est, quod dicimus mobilia sequi personam, hoc est, in domicilio ejus existere, et non aliter quam cum domicilio trans- 1 Mattheus, de Auctionibus, lib. 1, c. 21, n. 41, p. 298, 299. 2 Mevius, ad Jus. Lubesense, lib. 3, tit. 1, art. 11, n. 23-35. 8 D’Argentré, de Briton. Leg. art. 218, gloss. 6, n. 80, p- 654. 470 CONFLICT OF LAWS. [s. 325 n-327. ferri. Nec refert, eadem bona in loco domicilii reperiantur, an non.’! Many other jurists assert the same doctrine.? Still how- ever (as has been already intimated) all foreign jurists are not agreed in this doctrine, at least not without many modifications thereof? 325 0. Creditors’ Rights against Immovables. — But whatever may be the differences of opinion among them as to the operation | of the rights of preference or privilege of creditors upon movable property, situate in fact in a foreign country, there seems to bea great preponderance of authority, although certainly not an uni- versal agreement in respect to immovable property in favor of the doctrine that the law of the place rei site ought to prevail, as to the denial or allowance of such preferences and privileges.! Paul Voet expressed the general sense when he said: ‘ Vero im- mobilia reguntur locorum statutis, ubi sita; etiam quoad ea, si de wstimanda hypotheca, aut de privilegiis inter hypothecarios aga tur, non inspiciendus erit locus domicilii, vel debitoris, vel credi- toris, verum locus statuti, ubi jacent.’5 An easy example may illustrate the importance of the distinction. Suppose a contract made in Massachusetts for the sale of lands lying in New York, by whose laws the vendor has a lien for: the unpaid purchase- money, and by the laws of Massachusetts there would in such a case be no lien, if the land were in Massachusetts ; the question would then arise, whether any lien attached on such a contract on the land. According to the opinions of the foreign jurists al- ready referred to, the law rei site and not the law of the place of the contract would attach upon the contract; and consequently a lien for the unpaid purchase-money would exist on the lands in New York, although no such lien would exist in Massachusetts under or in virtue of the contract. (a) 326. Lord Ellenborough. — Supreme Court of Louisiana. — Lord Ellenborough has laid down a doctrine essentially agreeing’ with that of Huberus. ‘We always import,’ says he, ‘ together with their persons, the existing relations of foreigners, as between 2 Burgundus, tract. 2, n. 21, p. 113. 2 1 Boullenois, obs. 30, p. 834, 835, 840. 3 Ante, s 322 b, 322¢. 4 Ante, s. 322-325 m; post s. 362-373. 5 Pp, Voet, de Stat. s. 9, c. 2, n. 8, p. 267, ed. 1715; Id. p. 822, ed. 1661. ® See Gilman v. Brown, 1 Mason, 219-221; 4 Wheat. 255. (a) See note to s. 383, post. CHAP. VIII] FOREIGN CONTRACTS. 471 themselves, according to the laws of their own countries ; except indeed where those laws clash with the rights of our own subjects here, and one or other of the laws must necessarily give way ; in which case our own is entitled to the preference. This having been long settled in principle, and laid up among our acknow- ledged rules of jurisprudence, it is needless to discuss it fur- ther.’ The Supreme Court of Louisiana have adopted a little more modified doctrine coinciding exactly with that of Huberus-. ‘ That, in a conflict of laws, it must oftener be a matter of doubt which should prevail ; and that, whenever that doubt does exist, the court which decides will prefer the law of its own country to that of a stranger.? And if the positive laws of a state prohibit particular contracts.from having effect according to the rules of the country where they are made, the former must prevail.’ 3 327. Kent. — Burge. — Mr. Chancellor Kent has laid down the same rule in his Commentaries, as stated by Huberus and Lord Ellenborough, and has said: ‘ But on this subject of conflicting laws, it may be generally observed that there is a stubborn princi- ple of jurisprudence that will often intervene and act with control- ling efficacy. This principle is, that when the lex loci contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land. In tali conflictu mayis est, ut jus nostrum, quam jus alienum,servemus.’* Mr. Burge has expressed his own exposition of the same doctrine in the following terms: ‘ It may- be stated generally that with respect to contracts of which mova- ble property is the subject, the law of the place in which the con- tract is made will in some respects exclusively prevail, although the contract is to be performed in another; and that in those re- spects in which it does not prevail, the law of the place where the contract is to be performed must be adopted. But this con- clusion is subject to some qualifications and exceptions. If a right which is claimed as resulting from the contract, or if an act or disposition, affect the interest of third parties, as the creditors of the owner, resort must be had to the law of his domicil to de- termine whether that right exists, and whether he was compe- 1 Potter v. Brown, 5 East, 124. 2 Mr. Justice Porter, inthe case of Saul v. His Creditors, 5 Mart. N.S. (La.) 596. 3 Id. p. 586, 587. 4 2 Kent Com. 461. 472 CONFLICT OF LAWS. [s. 327, 327 a. tent to do the act or make the disposition. A preference claimed by a creditor on the estate of his debtor by virtue of the contract, and a disposition made by a debtor which might be void against his creditors, are instances of this exception. The law of a fo- reign country is admitted in order that the contract may receive the effect which the parties to it intended. No state however is bound to admit a foreign law, even for this purpose, when that law would contravene its own positive laws, institutions, or policy, which prohibit such a contract, or when it would preju: dice the rights of its own subjects.’ 7 327 a. Case of Bottomry in Louisiana.— A question involving considerations of this nature came recently before the Supreme Court of Louisiana. It was a suit brought in Louisiana upon a bottomry bond of a peculiar character given by the owner of a steamboat in Cincinnati (Ohio), and pledging the vessel for the repayment of a sum of money and interest, lent to the owner for a year. The steamboat had in the intermediate time been sold in Kentucky to a purchaser with notice of the lien, and she was at New Orleans at the time of the suit brought; and the object thereof was to enforce the hypothecation or lien created by the bond. Various objections were taken in the defence ; and among them was the objection that no lien was created in such a ease by the laws of Louisiana, where the suit was brought. Mr. Justice Porter, in delivering the opinion of the court on this occasion, said: ‘ Buta more formidable objection has been raised against the regularity of the proceedings. The statutes and jurisprudence of Louisiana, it is contended, only confer the privilege of seques- tration to enforce liens given by its laws; and that, in aid of which this remedy was extended here, was not one that had any force or conferred any privilege in our state, though it might have that effect in the country where it was made. The objec- tion now taken raises a distinction in cases so circumstanced, be- tween remedies before and after judgment; and we confess we are unable to see any solid grounds on which it can rest. If it be true, as we apprehend it is, that the court can and should en- force the personal obligation which a party, not a citizen of the state, may have entered into in another country, and that, on the 13 Burge, Col. & For. Law, pt. 2, c. 20, p. 778, 779; Id. p. 770. See also Foelix, Confl. des Lois, Revue Etrang. et Franc. tom. 7, 1840, 8.33, p- 227, 228. CHAP. VIIL] FOREIGN CONTRACTS, 473 judgment so rendered, the foreign creditor could obtain the bene- fit of all writs of execution which an inhabitant of Louisiana might resort to against a domestic debtor, then we can see no good ground for refusing the auxiliary process in the first instance; whether it bean order to arrest the person of the debtor and hold him to bail, or a writ to seize the property brought within the jurisdic- tion of a court, if it be the subject of contest. Both seem to rest on the same principles. And a familiar illustration of the com- monly received opinion on this subject may be given in the case of attachments, which are almost every day resorted to in aid of the foreign creditor against the foreign debtor; and yet there is nothing in our law more expressly giving that remedy to the stranger than there is in the case of sequestration.’ After taking notice that, by the laws of Ohio, it had been found that the bond created a lien on the steamboat, the learned judge proceeded to say: ‘If the steamboat then had remained within the state of Ohio, the evidence satisfies us the plaintiffs could have had a lien on her. But the main difficulty in the cause still remains. She was sold in the state of Kentucky under a decree of one of the courts of that state, and purchased by the defendant at the sale. It is admitted on all hands that this sale was legal and regularly made, and the question is not what was the effect of the lien in the country where the contract was made, nor in that where it is sought to be enforced, but what effect it had in the state where the defendant acquired title to the property.’ He then examined the laws of Kentucky on the subject; and concluded in the following words: ‘ The state of Kentucky we presume gives ef- ‘fect to liens existing on property brought there from another country, on the principle of comity, which we have already no- ticed, and we must also presume, until the contrary be shown, that she admits them with the same limitation which other states do, namely, that they shall not work an injury to her own citi- zens. To ascertain whether they do or not, recurrence must be had to her laws and policy in relation to contracts made within her limits ; for we take the true principle in such cases to be, that the foreign creditor who has a lien should have no greater or no less privilege than the domestic creditor. If, for example, the laws of Kentucky required no record to be made of liens given on personal property within the state, she would not require registry on the part of the stranger who came there to enforce a mortgage 474 CONFLICT OF LAWS. [s. 827 a-328. on property on which he had a lien in another country; for if she did, she would neither carry the contract into effect according to the law of the country where it was made, nor according to her own. If this be true, whatever time is given to the domestic credi- tor to record his lien should be given to him who comes from another state with one, if his lien be recognized as valid when enregistered, and his prayer to enforce it be admitted, as we are told by the testimony it could be.’ The court accordingly en- forced the lien against the steamboat. 327 b. Priorities and Contributions between Underwriters. — An- other case, which may serve to illustrate the difficulty of laying down any universal rule on the subject of contracts, as the inci- dents and rights which may attach to or against third persons, residing in different countries, may readily be stated, as it is one which may not infrequently occur in practice. By the law of England, if two policies are underwritten on the same ship or cargo for the same voyage, to the full amount of the property at risk, it is treated as a double insurance, and each policy is valid, without any reference to the respective dates thereof. And in case of a loss the insured may recover the whole loss from the underwriters on either policy, at his own election; and they are then entitled to contribution pro rata from the under- writers on the other policy.2. Now in France, no such rule of contribution exists; but the policy prior in date is, in case of a double insurance, to be first exhausted, and if that is sufficient to pay the whole loss, there is no right to recover the loss, or to exact contribution from the underwriters on the policy of a later date.2 This also seems to be the general rule among most of the maritime nations of continental Europe. Now let us sup- pose that two policies of different dates are underwritten on the same ship or cargo, the one in France and the other in England, . for an American owner, on the same voyage, each policy being for a sum equal to the full value of the property at risk, and 1 Ohio Ins. Co. v. Edmondson, 5 La. 295-805; ante, s. 244. * Park on Insur. c. 15, p. 280, 281, 5th ed.; 3 Kent Com. 280, 281; a on Insur. c. 4, 8. 4, p. 146, 2d ed.; 2 Phillips on Insur. p. 59, 60, ed. 8 3 Kent Com. 280, 281; Code de Commerce, art. 359, Ordin. of Louis XIV. 1681; 2 Valin, Com. lib. 3, tit. 6, art. 23-95, p. 72, 73. * 1 Emerigon, Assur. c. 1, s. 7, p. 23; 1 Marsh. on Insur. c. 4, s. 4, p. 146, 2d ed. note a. CHAP. VIII] FOREIGN CONTRACTS. 475 there should be a total loss on the voyage; the question might arise whether the English underwriters were liable at all if the French policy was prior in date ; and also whethér, if liable, they could claim contribution from the French underwriters; and conversely, the question might arise whether, if the English policy was prior in date, the French underwriters were liable at all; and if liable, whether they could claim contribution from the English underwriters. No such case seems as yet to have under- gone any judicial decision. But probably it would be held that each contract was to be exclusively construed according to the obligations and rights created by the lex loci contractus between the parties themselves, without any regard to the collateral rights and obligations which might arise between the underwriters, if both contracts were made in the same country. If a different rule were adopted, there might be an entire want of reciprocity in its operation. Thus if the French policy were prior in date, and a recovery were had thereon against the French under- writers, they might have contribution from the English under- writers; and yet, if a recovery were had against the English underwriters, they could not have contribution from the French underwriters. On the other hand, if the English policy were prior in date, the French underwriters might be exempted from all liability for the loss, or, if liable, might recover a contribution from the English underwriters; at the same time that, if a recovery were had against the English underwriters, they would not be entitled to any contribution against the French under- writers. However this case is merely propounded as one on which the author professes to have no fixed opinion, and is de- signed rather to awaken inquiry than to satisfy doubts.! 828. Lord Robertson. — This subject will be resumed here- after under other heads.2 But the remarks of a learned Scottish judge ® may here be properly introduced as exceedingly pertinent to the present discussion. ‘The application of the lex loci to 1 In some of the present American policies there is now what is commonly called a priority clause, similar in effect to the French law. The very ques- tion therefore may arise in the case of a double insurance by different policies in England and in astate using the priority clause, or in the latter state and a state which uses the common English policy, and is governed by its laws. 2 Post, s. 401, 402, 423 a, 524-527. t 8 Lord Robertson, in the case of Mrs. Levett, in Fergusson on Mar. & Div. 385, 397. 476 CONFLICT OF LAWS. [s. 8328-332, contracts, although general, is not universal. It does not take place where the parties at the time of entering into the contract had the law of another kingdom in view ; or where the lex loci is in itself unjust, or contra bonos mores, or contrary to the pub- lic law of the state, as regarding the interests of religion or morality, or the general well-being of society.’ 329. Where Debts are payable. — It may also be stated, although the proposition has been already incidentally considered, that when a debt is contracted in a foreign country, it is not to be deemed exclusively payable there, unless there is in the contract itself some stipulation to that effect.!. On the contrary, a debt con- tracted in a particular country,and not limited toa particular place of payment, is by operation of law payable everywhere, and may be enforced wherever the debtor or his property can be found? 330. Discharge of Contracts. — Having considered the principles applicable to the nature, validity, interpretation, and incidents and effects of contracts we are next led to the consideration of the man- ner in which they may be discharged, and what matters upon the merits will constitute a good defence tothem. I say upon the me- rits; for the objections arising from the law of the state where the suit is brought (lex fori), such as the limitations of remedies, and the form and modes of suit, will constitute a separate head of in- quiry.? 331. General Rule. — Foreign Jurists. — And here the general rule is, that a defence or discharge, good by the law of the place where the contract is made or is to be performed, is to be held of equal validity in every other place where the question may come to be litigated John Voet has laid down this doctrine in the broadest terms. ‘Si adversus contractum aliudve negotium ges- tum factumve restitutio desideretur, dum quis aut metu, aut dolo, aut errore lapsus, damnum sensit contrahendo, transigendo, sol- vendo, fidejubendo, hereditatem adeundo, aliove simili modo; ? Ante, s. 272a, 278 a, 295, 317; Don v. Lippmann, 5 Cl. & F. 1, 12, 13. 2 See Blake v. Williams, 6 Pick. (Mass.) 286, 815; ante, s. 272, s. 317; Don v. Lippmann, 5 Cl. & F. 1, 12, 13. ® Post, s. 524-527, 42 Bell Comm. b. 8,¢. 8, s. 1267, p. 692, 4th ed.; Id. p. 688, 5th ed.; 3 Burge, Col. & For. Law, pt. 2, c. 21, s. 7, p. 874-886; Id. c. 22, p. 924- 929. As to what will constitute a discharge in foreign countries, and espe- cially by novation, by confusion, by set-off or compensation, by payment or consignation, and by relapse, see 8 Burge, Col. & For. Law, pt. 2, ¢. 21, s. 1-6, p. 781-880. See also Bartsch v. Atwater, 1 Conn. 409. CHAP. VIII.] FOREIGN CONTRACTS. 477 recte interpretes statuisse arbitror, leges regionis in qua contrac- tum gestumve est, id, contra quod restitutio petitur, locum sibi debere vindicare in terminanda ipsa restitutionis controversia ; sive res illz, de quibus contractum est, et in quibus lesio conti- git, eodem in loco, sive alibi.site sint. Nec intererit utrum lesio circa res ipsas contigerit, veluti pluris minorisve, quam equum est, errore justo distractas, an vero propter neglecta solennia in loci contractus desiderata. Si tamen contractus implementum non in ipso contractus loco fieri debeat, sed ad locum alium sit destina- tum, non loci contractus, sed implementi, leges spectandas esse ratio suadet; ut ita secundum cujus loci jura implementum acci- pere debuit contractus, juxta ejus etiam leges resolvatur.’! Ca- saregis in substance lays down the same doctrine ;? and Huberus throughout implies it,? as indeed does Dumoulin.* 831 a. Burgundus says: ‘ Idem ergo de solutionibus dicendum ; scilicet, ut in omnibus que ex ea sunt, aut inde oriuntur, aut circa illam consistunt, aut aliquo modo affinia sunt, consuetudinem loci spectemus, ubi eandem implendam convenit. Itaque ex solutione sunt solemnie valor rei debite, pretium monetz ; ex solutione ori- untur prestatio apoche, antigraphi, similiaque. Affinia solutioni sunt, prescriptio, oblatio rei debit, consignatio, novatio, delega- tio, et ejusmodi.® Ea, vero, que ad complementum vel executionem ‘eontractus spectant, vel absoluto eo superveniunt, sola a statuto loci dirigi, in quo peragenda est solutio.’® Many other foreign jurists maintain the same doctrine.” 832. Rule of England and America. —In England and Ame- rica the same rule has been adopted, and acted on with a most liberal justice. Thus infancy, if a valid defence by the lex loci contractus, will be a valid defence everywhere.® A tender and refusal, good by the same law either as a full discharge or as a 1 J. Voet ad Pand. 4, 1, s. 29, p. 240. 2 See Casaregis, Disc. 179, s. 60, 61. ® Huberus, lib. 1, tit..3, s. 8, 7; J. Voet, de Statut. s. 9, c. 2, s. 20, p. 275, ed. 1715; Id. p. 332, 333, ed. 1661. 4 9 Boullenois, obs. 46, p. 462; Molin. Com. ad Cod. 1, 1, 1; Conclus. de Stat. tom. 3, p. 554, ed. 1681. 5 Burgundus, tract. 4, n. 27, 28, p. 114-116 6 Id. n. 29, p. 116. 7 8 Burge, Col. & For. Law, pt. 2,¢. 21, s. 7, p. 874-876. 8 2 Kent Com. 459; Potter v. Brown, 5 East, 124; Dwarris on Stat. pt. 2, p. 650, 651; 2 Bell Com. s. 1267, p. 691, 692, 4th ed.; Id. p. 688, 5th ed. ® Thompson v. Ketcham, 8 Johns. (N. Y.) 189; Male v. Roberts, 3 Esp. 163. 478 CONFLICT OF LAWS. [s. 332-335. present fulfilment of the contract, will be respected everywhere. Payment in paper money bills or in other things, if good by the same law, will be deemed a sufficient payment everywhere.? And, on the other hand, where a payment by negotiable bills or notes is, by the lex loci, held to be conditional payment only, it will be so held, even in states where such payment under the do- mestic law would be held absolute. (a) So if by the law of the place of a contract (even although negotiable), equitable de- fences are allowed in favor of the maker, any subsequent indorse- ment will not change his rights in regard to the holder.t’ The latter must take it cum onere.® 333. Acceptance of a Bill of Exchange. — The case of an accept- ance of a bill of exchange in a foreign country affords another illus- tration, Although by our law it is absolute and binding in every event; yet if by that of the foreign country it is merely a qualified contract, it is governed by that law in all its consequences.§ Acceptances are deemed contracts in the country where they are made ; and the payments are regulated by the law thereof.’ 334, Exceptions. — But although the general rule is clear, as above stated, that a discharge by the law of the place where a con- tract is made is a discharge everywhere, yet there are exceptions to the rule, which every country will enforce or not according to its own discretion and sense of justice.8 Thus where a contract was made in England between two Danish subjects, one of whom was domiciled in England ; and afterwards, during a war between England and Denmark, the Danish government confiscated the debt and required it to be paid by the debtor, who was then in Denmark, and he paid it accordingly; the English Court of 1 Warder v. Arell, 2 Wash. (Va.) 282, 293, &c. 2 Warder v. Arell, 2 Wash. (Va.). 282, 293; 1 Brown, Ch. 376; Searight v. Calbraith, 4 Dall. 325; Bartsch v. Atwater, 1 Conn. 409. 8 Bartsch v. Atwater, 1 Conn. 409. See other cases cited, 3 Burge, Col: & For. Law, pt. 2, c. 21, s. 7, p. 876-878. 4 Ante, s. 317. ® Ory v. Winter, 4 Mart. N.S. (La.) 277. See also Evans ». Gray, 12 Mart. (La.) 475; Chartres v. Cairnes, 4 Mart. N.S. (La.) 1. § Burrows v. Jemino, 2 Str. 733; 2 Eq. Abr. 525. See Van Cleef v. Theras- son, 3 Pick. (Mass.) 12. 7 Lewis v. Owen, 4 B. & A. 654; 5 Pardessus, s. 1492; ante, s. 307, 317; Cooper v. Waldegrave, 2 Beav. 282 8 Post, s. 387. - (a) See Descadillas v. Harris, 8 Green. (Me.) 298. CHAP. VIL] FOREIGN CONTRACTS. 479 King’s Bench, on a suit brought in England, after the peace, by the creditor against the debtor, held that the payment to the Da- nish government was no discharge, although it would have been so by the laws of Denmark, upon the ground that such a confisca- tion was not justified by the law of nations.! 885. Discharge in Bankruptcey.— The most important, or at least most frequent, cases of discharges of contracts occurring in practice, are those of discharges arising from matters ex post facto; such as a discharge from the contract upon the subsequent insolvency of bankruptcy or the contracting party. And here the general rule is that a discharge from the contract according to the law of the place where it is made, or where it is to be performed, is good everywhere and extinguishes the contract.? This doctrine was fully recognized in the English law by Lord Mansfield (and it doubtless had a much earlier existence) in a formulary of language which has been since often quoted as a general axiom of jurisprudence. ‘It is a general principle,’ said he, ‘that where there is a discharge by the law of one country it will be a discharge in another.’ The expression is too broad and should have the qualification annexed which the case before him required, and which has been uniformly understood, viz., that it is a discharge in the country where the contract was made or was to be performed. And so it was interpreted by Lord Ellenbo- rough in a much later case. ‘The rule,’ said he, ‘ was well laid down by Lord Mansfield, in Ballantine v. Golding, that what is a discharge of a debt in the country where it was contracted is a discharge of it everywhere.’* This doctrine is also firmly esta- blished and generally recognized in America.> By some judges 1 Wolff ». Oxholm, 6 M. & 8. 92. See post, s. 848-351. It is wholly unnecessary here to consider whether the confiscation of debts by an enemy is conformable or not to the law of nations. That is a point belonging to the public law of nations, and underwent very grave discussions in England, in the case in6 M. & S. 92, as well as in the American courts during the late war with Great Britain. See The Emulous, 1 Gall. 563; s.c. on appeal, Brown v. United States, 8 Cranch, 110. / 22 Kent Com. 392, 393; 2 Bell Com. s. 1267, p. 691-695, 4th ed.; Id. p. 688, 5th ed.; 1 Chitty on Com. & Manuf. c. 12, p. 654. 8 Ballantine v. Golding, 1 Cooke Bank. Laws, p. 347, 5th ed. p. 515, 4th ed.; p. 487, 8th ed.; Blanchard ». Russell, 18 Mass. 7; 2 Bell Com. s. 1267, p. 691, 692, 4th ed.; Id. p. 688, 5th ed. 4 Potter ». Brown, 5 East, 124, 180. See Hunter v. Potts, 4 T. R. 182; Quin v, Keefe, 2 H. Bl. 553. ; 5 See on this point, Smith x. Smith, 2 Johns. (N. Y.) 235; Hicks v. Brown, 480 CONFLICT OF LAWS. [s. 835-337. the doctrine has been put upon the implied consent of the parties in making the contract, that they would be governed as to all its effects by the lex loci contractus.1 By others it has been put upon the more firm and solid basis of the sovereign operation of the local law upon all contracts made within its sovereignty ; and the indispensable comity which all other nations are ac- customed to exercise towards such laws whenever they are brought into question, either as to contracts, or to rights, or to property. — 336. The doctrine has been stated in a more general form bya late learned American judge, who said: ‘It may be assumed as a rule affecting all personal contracts, that they are subject to all the consequences attached to contracts of a similar nature by the laws of the country where they are made, if the contracting party is a subject of or resident in that country where it is entered into, and no provision is introduced to refer to the laws of another country.’® This is not perhaps, in strictness of language, en- tirely correct. There are many consequences flowing from con- tracts in the place where they are made, which do not accompany them everywhere, and are not of universal obligation.* Remedies are a consequence of contracts when broken; but, as we shall hereafter see, they are governed by different rules from rights. And the rights given by the law of the place of the contract are not always deemed of universal obligation or validity. Marriage for instance is admitted to be a valid contract everywhere when it is valid by the law of the place where it is celebrated.6 But as we have seen, all the consequences attached to marriage in one 12 Johns. (N. Y.) 142; Van Reimsdyk v. Kane, 1 Gall. 371; Blanchard ». Russell, 13 Mass. 1; Baker v. Wheaton, 5 Mass. 511; Watson v. Bourne, 10 Mass. 837; 4 Cowen (N. Y.) note, p. 515; Green v. Sarmiento, Pet. C. C. 74; M’Menomy v. Murray, 3 Johns. Ch. (N. Y.) 485, 440, 441; Walsh v. Nourse, 5 Binn. (Pa.) 381; Sturges v. Crowninshield, 4 Wheat. 122; Ogden v. Saun- ders, 12 Wheat. 213, 358; 2 Kent Com. 392, 3938, 459; Atwater v. Town- send, 4 Conn. 47; Hempstead v. Reed, 6 Conn. 480; Houghton v. Page, 2 N. H. 42; Dyer v. Hunt, 5 N. H. 401; 2 Bell Com. s. 1267, p. 691-698, 4th ed.; Id. p. 688, Sth ed. 1 See ante, s. 261; Blanchard v. Russell, 13 Mass. 1, 4, 5; Prentiss v. Sav- age, 13 Mass. 20, 28. 2 Potter v. Brown, 5 East, 124; ante, s. 261. 8 Mr. Chief Justice Parker, in delivering the opinion of the court in the case of Blanchard v. Russell, 18 Mass. 1, 5. 4 Ante, s. 825-327. 5 Post, s. 556-575. 6 Ante, s. 111, 118, 121-125. CHAP. VIII.] FOREIGN CONTRACTS. 481 country do not follow it into other countries.! In Scotland a subsequent marriage legitimates children antecedently born; but this consequence has not yet been (as we have seen) finally ad- judged in England to the extent of making such antenuptial children legitimate, so as to be entitled to inherit lands of their parents situate in England. ‘ Adhuc sub judice lis est.’2 So, the indissolubility of marriage by the law of one country will not attach to it every where? 337. Qualifications of the Rule.— And even in regard to com- mon contracts of a different nature, the general rule as to the consequences of them must receive many qualifications and limitations resulting from the public policy or the domestic laws of other states where they are sought to be enforced, and the right and duty of self-protection against unjust foreign legisla- tion4 If, for example, a country where a contract was made should, under the pretence of a general bankrupt act, authorize a discharge from all contracts made with foreigners, and should at the same time exclude the latter from all participation with domestic creditors in the assets, it cannot be presumed that such an act would be held a valid discharge in the countries to which such foreigners belonged.6 And certainly the priorities and privi- leges annexed by the laws of particular states to certain classes of debts contracted therein are not generally admitted to have the same pre-eminence over debts contracted in another country which is called upon to enforce them. Nor are the courts of any state under any obligation to give effect to a discharge of a foreign debtor, where, under its own laws, the creditor has pre- viously acquired a right to proceed against his property within its own territory.’ (a) 1 See ante, s. 145-190; Fergusson on Marr. & Div. 359-361, 397-399, 402, 414; Conway v. Beazley, 3 Hagg. Ecc. 639. 2 Birtwhistle v. Vardill, 5 B. & C.438; 9 Bligh, 468; ante, s. 87, 93-93 v.; 1 Hertii Opera, de Collis. Leg. s. 4, 15, p. 129, ed. 1737; Id. p. 183, 184, ed. 1716. 2 Ante, s. 215-230. 4 Ante, s. 325-327, 334. 5 Blanchard v. Russell, 18 Mass. 1, 6; Huberus, de Conflict. Leg. lib. 1. tit. 8,8. 11. ® See ante, s. 322-327; Huberus, de Conflict. Leg. lib. 1, tit. 3, s. 11. 7. Tappan v. Poor, 15 Mass. 419; Le Chevalier v. Lynch, Doug. 170. But see Hunter v. Potts, 4 T. R. 182; s. vp. 2 H. Bl. 402; ante, s. 325-827. (a) Hall v. Winchell, 88 Vt. 590. 31 482 CONFLICT OF LAWS. [s. 338, 339, 338. Distinction between Discharge from the Debt, and Ex- .emptions. — Some of the Remedies. — When we speak of the discharge of a debt in the country where it is contracted being a discharge thereof everywhere, care must be taken to distinguish between cases where by the lex loci contractus there is a virtual or direct extinguishment of the debt itself, and where there is only a partial extinguishment of the remedy thereon. (a) By the bankrupt laws of England, and by the corresponding insol- vent laws of some of the United States, an absolute discharge from all rights and remedies of the creditors is provided for, as part of the system; and therefore the whole obligation of the contract is deemed, ipso facto, extinguished.1(6) But there are insolvent laws, and other special systems, both in Europe and America, which fall short of this extent and operation. In some cases the person only is liberated from future imprisonment and responsibility ; in others, particular portions of property only are exempted ; and in others again a mixed system, embracing some postponed or modified liabilities both of the person and property, prevails.” 339. Exemption from Imprisonment,— Now in all these cases where there is not any positive extinguishment, or any virtual extinguishment, of all rights and remedies of the creditors, the contract is not deemed to be extinguished ; and therefore it may be enforced, as we shall hereafter more fully see, in other coun- tries3(¢) By the Roman law a cessio bonorum of the debtor was not a discharge of the debt, unless the property ceded was to the full sufficient for that purpose. It otherwise operated only as a discharge pro tanto, and exonerated the debtor from im- prisonment. ‘ Qui bonis cesserint,’ says the Code, ‘ nisi solidum ae See 2 Kent Com. 389-402; 8 Burge, Col. & For. Law, pt. 2, c. 22, p. 886- 2 See 1 Domat, Civ. Law, b. 4, tit. 5,s. 1; Morris v. Eves, 11 Mart. (La.) 730. See Mather v. Bush, 16 Johns. (N. Y¥.) 233; 2 Bell Com. c. 5, s. 1162- 1164, p. 563-567, 4th ed.; Id. 580-997, 5th ed.; Phillips v. Allan, 8 B. & C. 477; 2 Kent Com. 389-404; 2 Burge, Col. & For. Law, pt. 2, c. 22, p. 886- 904. 8 Post, s. 840-3852. (a) See Carver v. Adams, 88 Vt. (c) Judd v. Porter, 7 Greenl. (Me.) 501. 337; Boston Type Foundry v. Wal- (6) See Einer v. Beste, 32 Mo. 240; lack, 8 Pick. (Mass.) 186; Coffin » a . Coates, 8 Abb. App. Dec. (N. Y.) Coffin, 16 Pick. (Mass..) 328. CHAP. VIIL] FOREIGN CONTRACTS. 483 creditor reciperit, non sunt liberati. In eo enim tantummodo hoc beneficium eis prodest, ne judicati detrahantur in carcerem.’! Huberus informs us that in Holland a cessio bonorum does not even exempt from imprisonment unless the creditors assent. ‘Secundum jus nostrum cessio bonorum, invitis creditoribus, debitorem a carcere publico non liberat ;? and Heineccius pro- claims the same as the law of some parts of Germany.2 The Scottish law conforms to the Roman Code in its leading out- lines ;* and the modern Code of France adopts the same system.® An insolvent act, or bankrupt act, or cessio bonorum, which only absolves the person of the debtor from imprisonment, but not his future property, or which only suspends remedies against either the one or the other for a limited period, is not to be deemed a discharge from the contract, and its operation is, as we shall pre- sently see, purely intra-territorial.® 1 Cod. 7, 71, 1; 1 Domat, Civ. Law, b. 4, tit. 5,s..1,n.1,2. See Mather v. Bush, 16 Johns. (N. Y.) 283; 2 Bell Com. ¢. 5, s. 1162-1164, p. 563-567, 4th ed.; Id. p. 580-598, 5th ed. 2 Huberus, tom. 8, lib. 42, tit. 3,s. 1, 3, note; Ex parte Burton, 1 Atk. 255; M’Menomy v. Murray, 8 Johns. Ch. (N. Y.) 442; Voet, ad Pand. lib. 42, tit. 3, s. 8; Le Roy v. Crowninshield, 2 Mason, 160. Lord Mansfield is reported to ‘have said, in Ballantyne v. Golding, 1 Cooke, Bankrupt Laws, p. 347, 5th ed., p- 515, 4th ed.: ‘That he remembered a case in chancery, of a cessio bonorum in Holland, which is held a discharge in that country, and it had the same effect here.’ The case alluded to is most probably Ex parte Burton, 1 Atk. 255. The law of Holland is the reverse of what his lordship is here supposed to affirm, as the case in 1 Atk. 255, and the citations from Huberus and Voet, establish. Whether the error is in the reporter, or in Lord Mansfield himself, may well be questioned. Mr. Henry has given a sketch of the present law of France, as to the cessio bonorum in cases of foreign contracts, which certainly has some peculiarities, not conforming to the general principles of interna- tional law adopted in other nations. Henry on Foreign Law, Appx. p. 250. See Pardessus, art. 1324-1328. The cessio bonorum of Scotland is, it seems, a mere discharge of the person. See 2 Bell Com. c. 5, p. 563, &c., 4th ed.; Id. p. 580, &c., 5th ed.; Phillips v. Allan, 8 B. & C. 479. ® Heinecc, Elem. Jur. Civ. ad Pand. 42, 3, s. 252, 254, p. 6; M’Me- nomy v. Murray, 3 Johns. Ch. (N. Y.) 441, 442. 4 Erskine, Inst. b. 4, tit. 8, s. 26, 27; 2 Bell Com.c. 5, s. 1162-1164, p. 563-567, 4th ed.; Id. p. 580, 5th ed. 5 Code Civil of France, art. 1265-1270; Merlin, Répert. Cession de Biens. ® Tappan »v. Poor, 15 Mass. 419; Morris v. Eves, 11 Mart. (La.) 780; Boston Type Foundry v. Wallack, 8 Pick. (Mass.) 186; Judd v. Porter, 7 Green. (Me:) 337; Hinckley v. Marean, 3 Mason, 88; Titus ». Hobart, 5 Mason, 378; 1 Kent Com. 420, 422; 2 Bell Com. s. 1162-1164, p. 562, 567, 694, 4th ed.; Id. p. 580-598, 5th ed.; Mason »v. Haile, 12 Wheat. 370; 2 Kent Com. 394-401; Phillips v. Allan, 8 B. & C. 479; Ex parte Burton, 1 484 CONFLICT OF LAWS. [s. 340. 340. Parties upon whom Discharge is binding. —The general form in which the doctrine is expressed, that a discharge of a contract by the law of the place where it is made is a discharge everywhere, seems to preclude any consideration of the question between what parties it is made; whether between citizens, or between a citizen and a foreigner, or between foreigners. The con- tinental jurists recognize no distinction in the cases. The Eng- lish decisions are understood to maintain the universality of the doctrine, whatever may be the allegiance of the country of the creditor! And a like doctrine would seem generally to be maintained in America.2(a) There are however some cases in which a more limited doctrine would seem to be laid down ; and which appear to confine it to cases of a discharge from contracts between citizens of the same state. Thus in one case it was laid down by the Supreme Court of Massachusetts, that if, when the contract was made, the promisee was not a citizen of the state where it was made, he would not be bound by the laws of such state in any other state ; and therefore that a discharge there would not bind him or his rights.2 In another case, the same learned court said that a discharge of the contract can only ope- rate where the law is made by an authority common to the credi- tor and the debtor in all respects; where both are citizens and subjects. But this qualification of the doctrine (which was only incidentally argued in those cases) was afterwards delibe- rately overruled by the same court; and the general doctrine was established in its universality.6 The qualification seems however again to have been asserted in a more recent decision of the same court; upon grounds not very clearly defined, or perhaps not e Atk. 255; Huberus, lib. 42, tit. 3,s.5; Heinecii Elem. ad Pand. tom. 3, pt 6, lib. 42, tit. 3, s. 253; 8 Burge, Col. & For. Law, pt. 2, c. 22, p. 924-929; White v. Canfield, 7 Johns. (N. Y.) 117; James v. Allen, 1 Dall. 188; Quin v. Keefe, 2 H. Bl. 553; Le Roy v. Crowninshield, 2 Mason, 160; Wright ». Paton, 10 Johns. (N. Y.) 300; Peck v. Hozier, 14 Johns. (N. Y.) 346; Walsh v. Nourse, 5 Binn. (Penn.) 381. 1 See Mason v. Haile, 12 Wheat. 370; Potter v. Brown, 5 East, 124. 2 See Robinson v. Bland, 1 W. BI. 258; Blanchard v. Russel], 13 Mass. 1; Smith v. Smith, 2 Johns. (N. Y.) 235; 2 Kent Com. 392, 393; Ory v. Winter, 4 Mart. N.S. (La.) 277; Sherrill ». Hopkins, 1 Cowen (N. Y.) 103, 107. 8 Baker v. Wheaton, 5 Mass. 511. 4 Watson v. Bourne, 10 Mass. 337, 340- 5 Blanchard v. Russell, 13 Mass. 1, 10-12. (a) See Peck ». Hibbard, 26 Vt. 708, infra, s. 341, note. CHAP. VIII] FOREIGN CONTRACTS, 485 entirely satisfactory, unless the case is to be governed by deci- sions of the Supreme Court of the United states upon the sub- ject of discharges under insolvent laws, with reference to the constitution of the United States! It has been expressly denied 1 Braynard v. Marshall, 8 Pick. (Mass. 194). The case was a negotiable promissory note made by A., in New York, to B., or order; the note was after- wards indorsed to C. in Massachusetts, who sued A., the maker, there, and he pleaded his discharge under the insolvent laws of New York. On that occa- sion, Mr. Chief Justice Parker, in delivering the opinion of -the court, declar- ing the discharge no bar to the suit, said: ‘The questions which arise out of the subject of state insolvent laws, and the effect of discharges under them, have been so long unsettled in this commonwealth, owing to the unsatisfactory character of the decisions of the Supreme Court of the United States, which ought to govern cases of this nature, that we have waited with anxiety for a revision of all the cases by that high court, and a final adjudication upon a subject so universally interesting and hitherto involved in so much perplexity. The case of Ogden v. Saunders seemed in its progress to promise such a result, but un- happily, on some of the points which the case presented, the law is left as uncertain as it was before. One thing however we understand to have been clearly decided by a majority of the justices of that court, and virtually by all (as those who admit no validity at all to such laws may be considered as unit- ing with those who give them only a limited operation), which is, that dis- charges under such laws have no effect without or beyond the territory of the state where they are obtained, or against a party not a citizen of that state, or where the suit shall be brought in a court of the United States, or of any state other than that in which the proceedings took place, notwithstanding the con- tract on which the discharge was intended to operate was entered into and was to be performed in the state in which the discharge was granted. Now this law, thus settled, is binding upon this court as well on account of the nature of the question, which is peculiarly proper for the decision of the highest, court of the nation, as because the case itself, unless restrained by the smallness of the sum in controversy, may be carried to that court by a writ of error, and our judgment be reversed; it being a question of which, by s. 25 of the judi- ciary act of the United States of Sept. 24, 1789, that court has jurisdiction. But even if we were not inclined to repose on the decision in Ogden v. Saunders, but considered ourselves at liberty to resort to general principles, we are dis- posed to think that the defence set up under the certificate in this case could not prevail. It does not come within the case of Blanchard v. Russell, 13 Mass. 1, in which the contract was made in New York by a citizen of that state, and was to be performed there, it not being transferable in its nature, being matter of account. A negotiable instrument made in New York, and indorsed for a valuable consideration to a citizen of Massachusetts before an application for the benefit of the insolvent law, ought not to be discharged under the process provided by that law. It is a debt payable anywhere by the very nature of the contract, and it is a promise to whosoever shall be the holder of the note. At the time of the defendant’s application for a discharge, his creditor upon this note was a Massachusetts man, and according to the case of Baker v. Wheaton, 5 Mass. 509, the certificate would be no bar to the action. The principle of this case was fully recognized and adopted in the case of 486 CONFLICT OF LAWS. [s. 340, 341.. by other learned state courts.!(@) In commenting upon some of the cases in which, upon questions of discharge, considerable im- Watson v. Bourne, 10 Mass. 337. Nor is there anything in the case of Blan- chard v. Russell to controvert these decisions, whatever may have been said, arguendo, by the judge who delivered the opinion. The contract in that case was in its nature to be performed in New York, and so was to be governed en- tirely by the laws of that state. The case before us is that of a negotiable promissory note, given in the first place by a citizen of New York to a person resident there, by whom it was immediately indorsed to a citizen of Massa- chusetts. The promisor became, immediately upon the indorsement, the debtor to the indorsee, who was not amenable to the laws of New York, where the application was made for relief under the insolvent law.’ See Ogden ». Saunders, 12 Wheat. 213, 368; post, s. 341, 343, 344. 1 Sherrill v. Hopkins, 1 Cowen (N. Y.) 103, 107. (a) See Ory v. Winter, 16 Mart. (La.) 277; Peck v. Hibbard, 26 Vt. 702; infra, 8. 841. And the doctrine of these cases is now settled law in Mas- sachusetts also. May v. Breed, 7 Cush. (Mass.) 15; Marsh v. Putnam, 3 Gray (Mass.) 551. In Peck v. Hibbard, supra, Isham, J. said: ‘We are satisfied, upon principle as well as authority, that, at common law, when a note is executed and pay- able in a foreign country, and a regu- lar discharge in bankruptcy has been obtained by the debtor resident there, the discharge will constitute a valid defence to the note, wherever the cre- ditor may be domiciled, or wherever the note may be prosecuted. The cases in this country in which this subject has been considered to any great ex- tent have arisen under the insolvent laws of the different states. Under those laws the question has arisen to what extent such discharges are valid against creditors who were citizens of other states, and who by no act of their own have waived their extra- territorial immunity, and submitted themselves or their claim to the laws of that state. Since the cases of Sturges v. Crowninshield, 4 Wheat. 122; M’- Millan ». M’Niell, 4 Wheat. 209, and Ogden v. Saunders, 12 Wheat. 358, the rule has been generally adopted, that a discharge under the insolvent laws of a state where the contract was made will not be considered a valid discharge of a debt, if the creditor was a resident of another state. Such laws are considered as impairing the obliga- tion of contracts, when they affect contracts made out of the state, or a citizen not a resident of the state where the discharge is granted. Jus- tice Story, Conflict of Laws, s. 341, observes ‘‘ that those cases have arisen under the peculiar structure of the Constitution of the United States, pro- hibiting the states from passing laws impairing the obligation of contracts.” But in relation to the doctrine of all those cases, he says it ‘is wholly in- applicable to contracts and discharges in foreign countries, which must therefore be decided upon general principles of international law.’’ This difference between the two cases is apparent; for the legality of those acts of the provincial parliament, and their universality, are not affected or limi- ted by that or any other provision of our constitution. Their binding and universal obligation rests upon those principles of comity which convenience and commercial relations have intro- duced and established. Upon those principles, we think the discharge granted in the country where the note was executed and payable is a valid defence in this suit. We are satisfied CHAP, VIII.] FOREIGN CONTRACTS. 487 portance has been attached to the circumstance that one or both of the parties were inhabitants of and domiciled in the state or country where the contract was made, the supreme court of New York have said: ‘ All these cases stand upon a principle entirely independent of that circumstance. It is that of the lex loci contractus, that the place where the contract is made must govern the construction of the contract; and that, whether the parties to the contract are inhabitants of that place or not. The rule is not founded upon the allegiance due from citizens or sub- jects to their respective governments, but upon the presumption of law that the parties to a contract are conusant of the laws of the country where the contract is made.’ ! 341. Effect of the Constitution on Discharges under State Laws. — Under the peculiar structure of the constitution of the United States, prohibiting the states from passing laws impairing the obligation of contracts, it has been decided that a discharge under the insolvent laws of the state where the contract was made will not operate as a discharge of the contract, unless it was made between citizens of the same state. Jt cannot there- fore discharge a contract made with a citizen of another state.” (a) 1 Sherrill v. Hopkins, 1 Cowen (N. Y.) 103, 108. 2 Ogden v. Saunders, 12 Wheat. 358-369; Boyle v. Zacharie, 6 Pet. 348; 2 Kent Com. 392, 393; 3 Story Const. s. 1834; 1 Kent Com. 418, 422; Hicks v. Hotchkiss, 7 John. Ch. (N. Y.) 197; Van Hook v. Whitlock, 26 Wend. (N. Y.) 48. also that the result would be the same if we were to apply to this case the rule adopted in this country, in rela- 509, the certificate would be no bar to the action.’’ He further observed, ‘that a note made in New York, and tion to discharges under state insolvent laws. In the case of Braynard v. Mar- shall, 8 Pick. (Mass.) 194, the insolvent’s discharge was held inoperative on the ground that the note was indorsed to the plaintiff, a citizen of Massachu- setts, before the defendant’s applica- tion was made for his discharge under the insolvent law.of New York. The plaintiff’s right as a creditor in that case was perfected before the applica- tion was made for the debtor's dis- charge. , Parker, C.J., observed, ‘‘ that at the time of the defendant’s applica- tion for a discharge his creditor was a Massachusetts man, and according to the case of Baker v. Wheaton, 5 Mass. indorsed to a citizen of Massachusetts, before an application for the benefit of the insolvent law, ought not to be discharged under the process provided by that law.’’ It is apparent from the language of the court that the dis- charge would have been operative, if the indorsement had been made after the debtor’s application for his dis- charge under that law.’ (a) See Poe v. Duck, 5 Md. 1; Don- nelly v. Corbett, 3 Seld. (N. ¥.) 500; Agnew v. Platt, 15 Pick. (Mass.) 417; Savoye v. Marsh, 10 Met. (Mass.) 594; Producers’ ‘Bank ». Farnum, 5 Allen (Mass.) 10; Pierce v. O’Brien, 129 Mass. 314; Guernsey v. Wood, 488 CONFLICT OF LAWS. [s. 341-343. But this doctrine is wholly inapplicable to contracts and dis- charges in foreign countries, which must therefore be decided upon the general principles of international law. (a) 342. Contract not affected by Discharge.—'The converse doc- trine is equally well established, viz., that a discharge of a con- tract by the law of a place where the contract was not made, or to be performed, will not be a discharge of it in any other coun- try. Thus it has been held in England that a discharge of contract, made there, under an insolvent act of the state of Maryland, is no bar to a suit upon the contract in the courts of England.? On that occasion Lord Kenyon said: ‘It is impos- sible to say that a contract made in one country is to be governed by the laws of another. It might as well be contended that if the state of Maryland had enacted that no debts due from its own subjects to the subjects of England should be paid, the plaintiff would have been bound by it. This is the case of a contract lawfully made by a subject in this country, which he 1 See 2 Bell Com. s. 1267, p. 691-695, 4th ed.; Id. p. 688-692, 5th ed.; Phillips v. Allan, 8 B. & C. 479; Lewis v. Owen, 4 B. & A. 654; 3 Burge, Col. & For. Law, pt. 2, c. 22, p. 924-929; Quelin v. Moisson, 1 Knapp, 265, note. 130 Mass. 503; Soule v. Chase, 39 N. Y. 342; Pratt v. Chase, 44 N. Y. 597; Baldwin v. Hale, 1 Wall. 223; Felch v. Bugbee, 48 Me. 9; Dunlap v. Rogers, 47 N. H. 281; Gilman v. Lock- wood, 4 Wall. 409. A distinction in the case of a con- tract made with a citizen of another state, but to be performed in the state of the former, was laid down in Scrib- ner v. Fisher, 2 Gray (Mass.) 43, the court (Metcalf, J., dissenting) holding a discharge in the latter state a bar against the foreign creditor. But this case and others similar have been over- ruled. Baldwin v. Hale, 1 Wall. 223; Stoddard v. Harrington, 100 Mass. 88; Kelley v. Drury, 9 Allen (Mass.) 28; Pratt v. Chase, 44 N. Y. 597; New- market Bank v. Butler, 45 N. H. 236 (overruling previous cases) ; Gilman v. Lockwood, 4 Wall. 409; Felch v. Bug- bee, 48 Me. 9; Chase v. Flagg, Ib. 182. See post, s. 383, note. Rose v. McLeod, 4 S. & D. 311, cited 3 Burge, ubi supra, p. 927, 928. ‘2 Smith v. Buchanan, 1 East, 6, 11, In Stoddard v. Harrington, supra, it was decided that if a contract is made between citizens of the same state within the state, and one of them afterwards removes and becomes a citizen of another state, and the other then obtains a discharge in insolvency in the state of the contract, under a law of the state existing when the con- tract was made, the discharge will bind the non-resident ; following Brig- ham v. Henderson, 1 Cush. (Mass.) 430; Converse v. Bradley, Ib. 434, note. See Brown v. Bridge, 106 Mass. 563, 566; May v. Wannamacher, 111 Mass. 202. Of course if a citizen of another state be made a party by service of process within the state of the former or intervene in the cause, he will be bound by the judgment. Gilman »v. Lockwood, supra. (a) See Peck v. Hibbard, 26 Vt. 703, supra. CHAP. VIII] FOREIGN CONTRACTS, 489 resorts to a court of justice to enforce; and the only answer given is that a law has been made in a foreign country to dis- charge these defendants from their debts on condition of their hav- ing relinquished all their property to their creditors. But how is that an answer to a subject of this country, suing on a lawful contract made here? How canit be pretended that he is bound by a condition to which he has given no assent either express or implied ?’1 In America the same doctrine has obtained the full- est sanction.’ It is also clearly established in Scotland. 348. Operation of Discharge as to Negotiable Securities. —The subject of negotiable paper is generally governed by the same principles. Wherever the contract between the particular par- ties is made, the law of the place will operate, as well in respect to the discharge as to the obligation thereof. A nice question however has recently arisen on this subject, in a case already mentioned.* A negotiable note was made at New York be- tween persons resident there, and was payable generally; and the payee subsequently indorsed the note to a citizen of Massa- chusetts, by whom a suit was brought in the state court of the latter state against the maker. One point of argument was, whether a discharge of the maker, under the insolvent laws of New York, operated as a bar to the suit? The case was decided upon another. ground. But the court expressed a clear opinion that it did not, and said: ‘It is a debt payable anywhere: by the very nature of the contract ; and itis a promise to whoever shall be the holder of the note.’ ‘The promisor became, immediately upon the indorsement, the debtor to the indorsee, who was not amenable to the laws of New York, where the discharge was obtained.’ ® (a) i Smith v, Buchanan, 1 East, 6, 11; Lewis v. Owen, 4 B. & A. 654; Phillips v. Allan, 8 B. & C. 477. 2 Van Raugh v. Van Arsdaln, 3 Caines (N. Y.) 154; Frey v. Kirk, 4 Gill & J. (Md.) 509; Green v. Sarmiento, Pet. C. C. 74; Le Roy v. Ciownin- shield, 2 Mason, 151; Smith v. Smith, 2 Johns. (N. Y.) 235; Ellicott v. Early,. 8 Gill (Md.) 439; Bradford v. Farrand, 13 Mass. 18; 2 Kent Com. 392, 393, 458, 459; 2 Bell Com. s. 1267, p. 692, 698, 4th ed.; Id. p. 688-692, 5th ed.; 3 Burge, Col. & For. Law, pt. 2, c. 22, p. 924-929; Rose v. McLeod, 4 8. & D. 3811, cited in 3 Burge, 928, 929. 3 2 Bell Com. s. 1267, p. 692, 698, 4th ed. ; Id. p. 688-692, 5th ed. * See Aymer v. Sheldon, 12 Wend. (N. Y.) 489. 5 Ante, s. 317, 340. 6 Braynard v. Marshall, 8 Pick. (Mass.) 194. See Ogden v. Saunders, 12 Wheat. 358, 862-364. (a) See Newmarket Bank v. Butler, 45 N. H. 286 (overruling Brown ». 490 CONFLICT OF LAWS. [s. 344-346, 344. It is difficult, as has been already intimated, to perceive the ground upon which this doctrine can be maintained as a doctrine of public law.1 The court admit that a debt contracted in New York, and not negotiable, would be extinguished by such a discharge ; although such a debt is by its very nature payable everywhere, as debts have no locality. As between the original parties (the maker and the payee,) the same result would follow. How then can the indorsement vary it? It does not create a new contract between the maker and the indorsee in the place of the indorsement. The rights of the indorsee spring from and under the original contract, and are a component part of it. The original contract promises to pay the indorsee as much as the payee, and from the first of its existénce. The indorsement is but a substitution of the indorsee for the payee; and it trans- fers over the old liability, and creates no new liability of the maker.2 If the indorsement created a new contract in the place where it was made, between the maker and the indorsee, then the validity, obligation, and interpretation of the contract would be governed by the law of the place of the indorsement, and not by that of the place where the note was originally made. It would not then amount to a transfer of the old contract, but to the creation of anew one, which from a conflict of laws, not unusual in different states, would or might involve obligations and duties wholly different from, and even incompatible with, the original contract. Nay, the maker might, upon the same instrument, incur the most opposite responsibilities to different holders, according to the law of the different places where the indorsement might be made.® 845. Such a doctrine has never been propounded in any com- mon-law authority, nor ever been supported by the opinion of any foreign jurist. The same principle would apply to general negotiable acceptances as to negotiable notes; for the maker stands in the same predicament as the acceptor. Yet no one ever supposed that an indorsement after an acceptance ever varied the rights or obligations of the acceptor. It is as to all 1 Ante, s. 340. Pothier, de Change, art. 22; ante, s. 317. 3 Ante, s. 314, 316, 317. Collins, 41 N. H. 405, and Smith v. Vanzant v. Arnold, 31 Ga. 210; North- Brown, 43 N. H. 44); Felch v. Bugbee, ern Bank v. Squires, 8 La, An. 318 ; 48 Me. 9; Chase v, Flagg, Id. 182; ante, s. 317. CHAP. VIII] FOREIGN CONTRACTS. 491 persons who become holders, in whatever country, treated as a- contract made by the acceptor in the country where such accep- tance is made. Yet the acceptance being general, payment may be required in any place where the holder shall demand it. The other point, that the indorsement was to a citizen of another state, is equally inadmissible. The question is not whether he is bound by the laws of New York generally ; but whether he can, in opposition to them, avail himself of a contract made un- der the sovereignty of that state, and vary its validity, obliga- tion, interpretation, and negotiability, as governed by those laws. If the payee had been a citizen of Massachusetts, and the note had been made by the maker in New York, there could be no doubt that the contract would still be governed by the laws of New York in regard to the payee. What difference then can it make, that the indorsee is a citizen of another state, if he cannot show that his contract has its origin there? In‘short, the doc- trine of this case is wholly repugnant to that maintained by the same court in another case, which was most maturely considered, and in which the argument in its favor was repelled. The court there declared their opinion to be that full effect ought to be given to such discharges, as to all contracts made within the state where they are authorized, although the creditor should be a citizen of another state.? 346. The Suprente Court of Louisiana have adopted the same reasoning, and held that where a negotiable promissory note was made in one state, and was indorsed in another state to a citizen of the latter, the contract was governed by the law of the place where the note was made, and not by that of the place where the indorsement was made. ‘ We see nothing,’ said the court, ‘in the circumstance of the rights of one of the parties being trans- ferred to the citizens of another state, which can take the case out of the general principle. It is a demand made under an agreement, (a note) entered into in a foreign state; and conse- quently the party claiming rights under it must take it with all the limitations to which it was subject in the place where it was made ; and that although he be one of our citizens.’ This is cer- 1 Ante, s. 314, 317. 2 Blanchard v. Russell, 13 Mass. 1, 11,12. See also Prentiss v. Savage, 13 Mass. 20, 23, 24; ante, s. 317, 340. 8 Ory v. Winter, 4 Mart. N.S. (La.) 277; Sherrill v. Hopkins, 1 Cowen (N. Y.) 103; ante, s. 317, 340. 492 CONFLICT OF LAWS. [s. 8346-349, tainly in conformity to what is deemed settled doctrine in Eng- land as well as in some other states in America.! It was taken for granted by the Supreme Court of the United States to be the true doctrine in the case of a negotiable bill of exchange, in which the drawer’s responsibility was supposed to be governed by the law of the place where the bill was drawn, notwithstand- ing an indorsement in another country ;? and also by the Court of King’s Bench in England, in a case in which a right to a Bank of England note was supposed to be governed by the law of England, notwithstanding a transfer of the same had been subsequently made in France.’ (a) 347. Pardessus. — Pardessus has laid down a doctrine equally broad. He says that it is by the law of the place where a bill of exchange is payable that we are to ascertain when it falls due, the days of grace belonging to it, the character of these delays, whether for the benefit of the holder or of the debtor; in one word, everything which relates to the right of requiring payment of a debt, or the performance of any other engagement, when the parties have not made any stipulation to the contrary.‘ (6) And it is of little consequence whether the person who demands payment is the creditor who made the contract, or an assignee of his right, such as the holder of a bill of exchange by indorse- ment. This circumstance makes no change in regard to the debtor. The indorsee cannot require payment in any other man- ner than the original creditor could.6 And he applies this doc- trine to the case of successive indorsements of bills of exchange, made in different countries, stating that the rights of each holder are the same as those of the original payee against the acceptor.® 1 See Blanchard v. Russell, 18 Mass. 12; Ogden v. Saunders, 12 Wheat. 860; Potter v. Brown, 5 East, 123, 130. 2 Slacum v. Pomeroy, 6 Cranch, 221. ® De la Chaumette ». Bank of England, 9 B. & C. 208; 2 B. & Ad. 385; post, s. 853. See also 2 Bell Com. s. 1267, p. 692, 698, 4th ed.; Id. p. 688- 692, 5th ed. ‘Quid si de literis cambii incidat questio,’ says Paul Voet, ‘quis locus spectandus ? Is locus, ad quem sunt destinate et ibidem accep- tate.’ P. Voet, de Stat, s. 9, c. 2, s. 14, p. 271, ed. 1715; Id. p. 327, ed. 1661; ante, s. 317. 4 Pardessus, Droit Com. art. 1495, 1498-1500: ante, s. 316; post, s. 361. 5 Thid. 6 Thid. (a) See ante, s. 314, note. dale, 86 Mo. 563; Todd v. Neal, 49 (0) See Commercial Bank v. Barks- Ala. 266. CHAP. VIII.] FOREIGN CONTRACTS. 493 He adds also that the effects of an acceptance are to be determined by the law of the place where it has been made;? that every indorse- ment subjects the indorser to the law of the place where it has been made ; and that it governs his responsibility accordingly.? (@) 348. Discharges not Operative out of the State. — Notwithstand- ing the principle that a discharge by the lex loci contractus is valid everywhere, and vice versa, is generally admitted as a part of private international law, yet it cannot be denied that.any nation may by its own peculiar jurisprudence refuse to recognize it, and may act within its own tribunals upon an opposite doc- trine.2 But then, under such circumstances, its acts and deci- sions will be deemed of no force or validity beyond its own terri- torial limits. Thus if a state should by its own laws provide that a discharge of an insolvent debtor under its own laws should be a discharge of all the contracts, even of those made in a foreign country, its own courts would be bound by such provisions.‘ (6) But they would or might be held mere nullities in every other country.’ (¢) 349. Laws manifestly Unjust. — And even in relation to a dis- charge according to the laws of the place where the contract is made, there are (as we have seen) some necessary limitations and exceptions ingrafted upon the general doctrine, which every country will enforce, whenever those laws are manifestly unjust, or are injurious to the fair rights of its own citizens.® It has been said by a learned judge with great force: ‘ As the laws of foreign countries are not admitted ex proprio vigore, but merely ex comitate, the judicial power will exercise a discretion with 1 Ibid. See Rothschild v. Currie, 1 Q. B. 48; ante, s. 314, 316; post, s. 361. 2 Pardessus, Droit Com. art. 1499. 3 Ante, s. 834; post, s. 849-351. 4 See Penniman v. Meigs, 9 Johns. (N. Y.) 825; Babcock v. Weston, 1 Gal- lison, 168; Murray ». De Rottenham, 6 Johns. Ch. (N. ¥.) 52; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 471. 5 See Blanchard v. Russell, 13 Mass. 6; post, s. 349; Van Raugh v. Van Arsdaln, 3 Caines (N. Y.) 154; Smith v. Buchanan, 1 East, 6; Smith v. Smith, 2 Johns. (N. Y.) 285; Green v. Sarmiento, Pet. C. C. 74; McMenomy »v. ‘Murray, 3 Johns. Ch. (N. Y.) 435; Wolff v. Oxholm, 6 M. & 8. 92; ante, 8. 338. 6 Ante, s. 339; post, s. 350, 351. (a) See ante, s. 314, note. (c) See Very v. McHenry, 29 Me. (0) See Soule v. Chase, 39 N.Y. 342. 208. A494 CONFLICT OF LAWS. [s. 349-351 a. respect to the laws which they may be called upon to sanction ; for if they should be manifestly unjust, or calculated to injure their own citizens, they ought to be rejected. Thus if any state should enact that its citizens should be discharged from all debts due to creditors living without the state, such a provision would be so contrary to the common principles of justice, that the most liberal spirit of comity would not require its adoption in any other state. Soif a state, under the pretence of establishing a general bankrupt law, should authorize such proceedings as would deprive all creditors living out of the state of an opportunity to share in the distribution of the effects of the debtor, such a law would have no effect beyond the territory of the state in which it was passed.’! 350. The same reasoning was again asserted by the same learned judge in another case, calling for an exposition of the limitations of the doctrine. ‘This rule,’ said he, ‘must however from its very nature, be qualified and restrained ; for it cannot be admitted as a principle of law or justice, that when a valid personal contract is made, which follows the person of the creditor and may be enforced in any foreign jurisdiction, a mode of discharge, manifestly partial or unjust, and tending to deprive a foreign creditor of his debt, while he is excluded from a participation with the domestic creditors in the effects of the debtor, should have force in any country, to the prejudice of their own citizens. The comity of nations does not require it, and the fair principles of a contract would be violated by it.’2 301. ‘ Thus if a citizen ofthis state, being in a foreign coun- try, should, for a valuable consideration, receive a promise to pay money, or to perform any other valuable engagement, from a sub- ject of that country ; and the law should provide for a discharge from all debts upon a surrender of his effects, without any notice which could by possibility reach creditors out of the country where such a law should exist; we apprehend that the contract ought to be enforced here, notwithstanding a discharge obtained under such law. For although the creditor is to be presumed to know the laws of the place where he obtains his contract, yet that presumption is founded upon another, which is, that.those laws are not palpably partial and unjust, and calculated to protect the creditors at home at the expense of those who are abroad, Such 1 Mr. Chief Justice Parker, in Blanchard v. Russell, 13 Mass. 6. ? Mr. Chief Justice Parker, in Blanchard v. Russell, 13 Mass. 6. CHAP. VIII.] FOREIGN CONTRACTS, 495 laws would come within the well-known exception to the rules of comity, viz., that the laws which are to be admitted in the tribu- nals of a country where they are not made, are not to be injuri- ous to the state, or the citizens of the state, where they are so received.’ ! (a) 851 a. Discharges not governed by Lex Loci Contractus. — But although the general rule, that a contract, as to its dissolution and discharge, is to be governed by the law of the place where it is made, is thus, with few exceptions and limitations, admitted to be well established ; yet we are not to understand that it thence follows, as a necessary consequence, that in no cases whatever can a contract be discharged or dissolved, except in the mode, and by the process and formalities, prescribed by the same law: or, in other words, that it must be discharged and dissolved eo ligamine quo ligatur, or rather by reversing the operation which knit it under the local law.2 On the contrary, there are, or may be, circumstances under which an opposite rule may be maintainable; and the law of another country, prescrib- ing different modes of proceeding, or different formalities, or different acts, which shall establish a dissolution thereof, may also well prevail to annul or discharge the contract. A change of domicil of the parties to the latter country, or an act done in that country, which would there operate to dissolve or discharge the contract, may well produce the fullest effect, although the same act might not be recognized by the law of the place of the origin of the contract. Thus, for example, as we well know, the obli- gation of a bond, or other sealed instrument, after a breach of the contract created thereby, cannot in England be discharged, or released, except by a sealed instrument, or a release under seal, according to the known maxim of the common law: Eodem modo, quo quid constituitur, eodem modo dissolvitur. And yet by the law of most, if not of all, of the continental countries whose jurisprudence is founded on the Roman law, a simple receipt or discharge, not under seal, would, if executed in such countries, be held to discharge the bond or other sealed instru- 1 Mr. Chief Justice Parker, in Prentiss v. Savage, 13 Mass. 23, 24. See also Fergusson. on Marr. & Div. 396, 897; Wolff ». Oxholm, 6 M. & S. 92; ante, s. 244. . 2 See Warrender v. Warrender, 9 Bligh, 124, 125; ante, s. 226 ¢, note. (a) See Very v. McHenry, 29 Me. 208. 496 CONFLICT OF LAWS. [s. 351 a-351 ¢. ment. Let us then suppose a bond executed in England for the payment of money, and when it became due there should be a default in payment, and afterwards the creditor should receive payment of the debtor in France, or otherwise should discharge him by a written unsealed instrument in France ; such a dis- charge would in France be held valid and conclusive, if good by the law of France, notwithstanding it might be held invalid in an English court of common law. In short, any act done, after such an obligation was created, in a foreign country, by whose laws the act would operate as a dissolution thereof, would be treated, in that country at least, as a complete extinguishment thereof. 351 b. Principles applicable to such Discharge. —It is not easy therefore upon principle to say why such an extinguishment of a contract, according to the lex loci, ought not everywhere else to have the same operation, even in the country of the origin of the contract. For, if the contract derives its whole original obliga- tory force from the law of the place where it is made, it is but following out the same principle to hold that any act subse- quently done, touching the same contract by the parties, should have the same obligatory force and operation upon it, which the law of the place where it is done attributes to it. And in this respect there certainly is, or at least may be, a clear distinction between acts done by the parties in a foreign country, and which derive their operation from their voluntary consent and intention, and acts in invitum, deriving their whole authority and effect from the operation of the local law, independent of any such consent.? 351 ¢. Lord Brougham’s Remarks on the Subject. — Indeed the reasonable interpretation of the general rule would seem to be, that while contracts made in one country are properly held to be dissoluble and extinguishable according to the laws of that coun- try, as natural incidents to the original concoction of such con- tracts, they are and may at the same time also be equally dissoluble and extinguishable by any other acts done or contracts made subsequently in another country by the parties, which acts or contracts, according to the law of the latter country, are suffi- cient to work such a dissolution or extinguishment. It is to this double posture of a case that Lord Brougham referred in one of 1 Post, s. 411. CHAP. VIII.] FOREIGN CONTRACTS, 497 his judgments. ‘If a contract,’ said he, ‘for sale of a chattel is made, or an obligation of debt is incurred, or a chattel is pledged in one country, the sale may be annulled, the debt released, and the pledge redeemed, by the law and by the forms of another country in which the parties happen to reside, and in whose courts their rights and obligations come in question, unless there was an express stipulation in the contract itself against such avoidance, release, or redemption. But, at any rate, this is cer- tain, that if the laws of one country and its courts recognize and give effect to those of another in respect of the constitution of any contract, they must give the like recognition and effect to those same foreign laws when they declare the same kind of contract dissolved. Suppose a party forbidden to purchase from another by our equity, as administered in the courts of this country (and we have some restraints upon certain parties which come very near prohibition), and suppose a sale of chattels by one to another party standing in this relation towards each other should be effected in Scotland, and that our courts here should (whether right or wrong) recognize such a rule because the Scotch law would affirm it; surely it would follow that our courts must equally recognize a rescission of the contract of sale in Scotland by any act which the Scotch law regards as valid to rescind it, although our own law may not regard it as sufficient. Suppose a question to arise in the courts of England respecting the execution of a contract thus made in this country, and that the objection of its invalidity were waived for some reason ; if the party resisting its execution were to produce either a sentence of a Scotch court declaring it rescinded by a Scotch matter done in pais, or were merely to produce evidence of the thing so done, and proof of its amounting by the Scotch law to a rescission of the contract ; I ap- prehend that the party relying on the contract could never be heard to say: ‘* The contract is English, and the Scotch proceed- ing is impotent to dissolve it.” The reply would be, “ Our Eng- lish courts have (whether right or wrong) recognized the validity of a Scotch proceeding to complete the obligation, and can no longer deny the validity of a similar but reverse proceeding to dissolve it, —unumquodque dissolvitur eodem modo, quo colli- gatur.” Suppose, for another example (which is the case), that the law of this country precluded an infant or a married woman * from borrowing money in any way, or from binding themselves : 382 498 CONFLICT OF LAWS. [s. 351 c-353 a. by deed ; and that in another country those obligations could be validly incurred ; it is probable that our law and our courts would recognize the validity of such foreign obligations. But suppose a feme covert had executed a power, and conveyed an interest under it to another feme covert in England ; could it be endured that where the donee of the power produced a release under seal from the feme covert in the same foreign country, a distinction should be taken, and the court here should hold that party in- capable of releasing the obligation? Would it not be said that our courts, having decided the contract of a feme covert to be binding, when executed abroad, must, by parity of reason, hold the discharge or release of the feme covert to be valid, if it be valid in the same foreign country ?”?! 351 d. Application of the Principle to Immovables. — Nor does there seem to be in this respect any acknowledged distinction between contracts which are purely personal, and contracts which impose or may impose any charge on real estate ; for although in respect to immovable property the law of the situs should be admitted (as certainly is the case at the common law) to regulate all the rights to immovable property, yet it does not thence follow that an act which would operate as a dissolution or extinguish- ment of the contract creating such charge, according to the law of a foreign country where it is subsequently done, may not inci- dentally and indirectly work such a dissolution or extinguishment thereof, although it does not conform to the lex rei site. Lord Brougham on the same occasion, referring to this topic, said: ‘ All personal obligations may in their consequences affect real rights in England. Nor does a Scotch divorce, by depriving a widow of dower or arrears of pin-money charged on English property, more immediately affect real estate here, than a bond or a judg- ment released in Scotland according to Scotch forms discharges real estate of a lien, or than a bond executed, or indeed a simple contract debt incurred, in Scotland, eventually and consequently charges English real estate.’ 2 352. Principles applicable to Negotiable Testis aii — Before we quit this head of contracts, it may be well to bring together some principles applicable to negotiable instruments, which have not been brought as distinctly under review in the preceding dis- 1 Warrender v. Warrender, 9 Bligh, 125-127; ante s. 226 c, note. 2 Warrender v. Warrender, 9 Bligh, 127; ante, s. 226 c, note. CHAP. VIII] FOREIGN CONTRACTS. 499 cussions as they deserve to be, and which afford important illus- trations of the operation of foreign law upon contracts and their incidents. The subject of the assignments of debts and other choses in action not negotiable by the general law merchant or the laws of particular countries, will more properly find a place in our subsequent inquiries.1 858. Questions have arisen whether negotiable notes and bills made in one country are transferable in other countries, so as to found aright of action in the holder against the other parties. Thus a question occurred in England in a case where a negotia- ble note made in Scotland, and there negotiable, was indorsed, and a suit brought in England by the indorsee against the maker, whether the action was maintainable. It was contended that the note, being a foreign note, was not within the statute of Anne (3&4 Anne, c. 9), which made promissory notes payable to order assignable and negotiable ; for that statute applied only to inland promissory notes. But the court overruled the objection, and held the note suable in England by the indorsee, as the sta- tute embraced foreign as well as domestic notes? In another case, @ promissory note made in England and payable to the bearer was transferred in France; and the question was made whether the French holder could maintain an action thereon in England, such notes not being by the law of France negotiable ; and it was held that he might. But in each of these cases the decision was expressly put upon the provisions of the statute of Anne respecting promissory notes, leaving wholly untouched the general doctrine of international law. _ 353 a. In a more recent case, which has been already cited,* a negotiable note was made in France and indorsed in France, and afterwards a suit was brought thereon by the indorsee against the maker in England. One question in the case was, whether a blank indorsement in France was by the law of France sufficient 1 Post, s. 355, 395-400, 566; 8 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 777, 778. 2 Milne v. Graham, 2 B. & C. 192. It does not distinctly appear upon the report, whether the indorsement was made in Scotland or in England. But it was probably in England. But see Carr v. Shaw, Bayley on Bills, p. 16, note, 5th ed.; Id. p. 22, Amer. ed., by Phillips & Sewall, 1836. 8 De la Chaumette v. Bank of England, 2 B. & Ad. 385; 9B. & C. 208; and see Chitty on Bills, p. 551, 552, 8th ed.; ante, s. 346. * Ante, s. 316 a. 500 CONFLICT OF LAWS. [s. 353 a—355. to transfer the property in the note without any other formalities, It was held that it was not sufficient. But it seems to have been taken for granted that if the note was well negotiated by the in- dorsement, a suit might be maintained thereon in England by the indorsee in his own name. On that occasion the court said: ‘ The rule which applies to the case of contracts made in one country, and put in suit in the courts of law of another country, appears to be this: that the interpretation of the contract must be go- verned by the law of the country where the contract was made (lex loci contractus); the mode of suing, and the time within which the action must be brought, must be governed by the law of the country where the action is brought (in ordinandis judi- ciis, loci consuetudo, ubi agitur). This distinction has been clearly laid down and adopted in the late case of De la Vega v. Vianna. See also the case of the British Linen Company ». Drummond, where the different authorities are brought together, The question therefore is, whether the law of France, by which the indorsement in blank does not operate as a transfer of the note, is a rule which governs and regulates the interpretation of the contract, or only relates to the mode of instituting and con- ducting the suit: for in the former case it must be adopted by our courts; in the latter it may be altogether disregarded, and the suit commenced in the name of the present plaintiff. And we think the French law on the point above mentioned is the law by which the contract is governed, and not the law which regulates the mode of suing. If the indorsement has not operated as a transfer, that goes directly to the point that there is no contraet upon which the plaintiff can sue. Indeed, the difference in the consequences that would follow if the plaintiff sues in his own name, or is compelled to use the name of the former indorser, as the plaintiff by procuration, would be very great in many respects, particularly in its bearing on the law of set-off; and with refe- rence to those consequences, we think the law of France falls in with the distinction above laid down, that it is a law which go- verns the contract itself, not merely the mode of suing. We therefore think that our courts of law must take notice that the plaintiff could have no right to sue in his own name upon the contract in the courts of the country where such contract was made; and that such being the case there, we must hold in our courts that he can have no right of suing here.’ } 1 Trimbey v. Vignier, 1 Bing. N. C. 151, 159, 160; post, s. 565, 566. CHAP. VIII] FORKIGN CONTRACTS, 501 354. Several other cases may be put upon this subject. In the first place suppose # note, negotiable by the law of the place where it is made, is there transferred by indorsement; can the indorsee maintain an/action in his own name against the maker in a foreign country, (where both are found) in which there is no positive law on the’ subject of negotiable notes applicable to the case? If he can, it must be upon the ground that the foreign tribunal would yecognize the validity of transfer by the indorse- ment accordin _ to the law of the place where it is made. Ac- cording to the/doctrine maintained in England, as choses in action are by the scutes law (independent of statute) incapable of be- ing transfer: ed over, it might be argued that he could not main- tain an action, notwithstanding the instrument was well negoti- ated, and/transferred by the law of the place of the contract. So far as this principle of non-assignability of choses in action would affect tfansfers in England, it would seem reasonable to follow it. But thie difficulty is in applying it to transfers made in a foreign counfry, by whose laws the instrument is negotiable and capable of feing transferred, so as to vest the property and right in the assignee. In such a case it would seem that the more correct ryle would be, that the lex loci contractus ought to govern; be- ause the holder under the indorsement has an immediate and ab- solute right in the contract vested in him, as much as he would _ have in goods transferred to him. Under such circumstances, to - deny the legal effect of the indorsement is to construe the obliga- tion, force, and effect of a contract, made in one place, by the law of another place. The indorsement in the place where it is made creates a direct contract between the maker and the first indor- see; and, if so. that contract ought to be enforced between them everywhere. It is not a question as to the form of the remedy, but as to the right.? (a) 855. Assignee of Irish Judgment. — The same view of the doc- trine seems to have been taken in another case in England, much stronger in its circumstances than the case of a foreign negotiable a which may be thought to stand in some measure upon the 1 See 2 Black. Com. 442; Jeffrey v. McTaggart, 6 M. & S. 126; Inne ». are 8 T. R. 595; post, s. 565, 566. | 2 See Trimbey v. Vignier, 1 Bing. N. C. 159-161; ante, s. 353 a, where the same reasoning seems to have applied; post, s. 565, 566. (a) See Levy v. Levy, 78 Penn: St. 507. 502 CONFLICT OF LAWS. [s. 855-357, custom of merchants. A suit was brought by the assignee of an Trish judgment against the judgment debtor in England, the judg. ment being made expressly assignable by Ivish statutes ; and the objection was taken that no action could be maintained by the as- signee, because it would contravene the general principle of the English law, that choses in action were not assignable. But the court intimated a strong opinion against this ground of argument ; and the cause finally was disposed of upon anotner point, but in such a manner as left the opinion in full force.! ' It is matter of surprise that in some of the more recent discussions in England upon the negotiations of notes in foreign countries, this doctrine has not been distinctly insisted on. For, even in England, negoti- able notes are not treated as mere choses in action; bet they are deemed to have a closer resemblance to personal chattils on ac. count of their transferability; so that the legal property in them passes upon the transfer, as it does in the case of chattds.? If so, no one could doubt that a title of transfer of personal prseriy, in a foreign country, good by the laws of the country whereit ig made, ought to be held equally good everywhere.® 356. Transfer where Transfer is not allowed. —In the next place let us suppose the case of a negotiable note, made in, country by whose laws it is negotiable, is actually indorsed in an. other by whose laws a transfer of notes by indorsement is not al- lowed. Could an action be maintained by the indorsee against the maker, in the courts of either country? If it could be main- tained in the country whose laws do not allow such a transfer, it must be upon the ground that the original negotiability. by the lex loci contractus is permitted to avail in contradiction to the lex fori. On the other hand, if the suit should be brought in the country where the note was originally made, the same objection might arise, that the transfer was not allowed by the law of the place where the indorsement took place. But at the same time it may be truly said that the transfer is entirely in conformity to the intent of the parties, and to the law of the original contract.‘ 1 O’Callaghan ». Thomond, 8 Taunt. 82; post, s. 565, 566. 2 MeNeilage v. Holloway, 1 B. & A. 218. = Ante, s. 853 a. 4 See Chitty on Bills, c. 6, p, 218, 219, 8th ed. See Kames Eq. b. 8,¢. 8, s. 4; ante, s. 853, 354. In the cases of Milne v. Graham, 1 B. & C. 192; De la Chaumette v. Bank of England, 2 B. & Ad. 385, and Trimbey v. Vignier, 1 Bing. N. C. 151, the promissory notes were negotiable in both countries, a well where the note was made, as where it was transferred. CHAP. VIII.] rohrox CONTRACTS. 503 357. Transfer of Noté not Negotiable by the Lex Loci Contractus. —In the next place jet us suppose the case of a note, not nego- tiable by the law of’ the place where it is made, but negotiable by the law of the place where it is indorsed ; could an action be maintained, in either country, by the indorsee against the maker? It would seem that.in the country where the note was made, it could not; because it would be inconsistent with its own laws. But the same difficulty would not arise in the country where the indorsement was made ; and therefore if the maker used terms of negotiability in his contract, capable of binding him to the indor- see, there would not seem to be any solid objection to giving the contract jts full effect there. And so it has been accordingly adjudged in the case of a note made in Connecticut, payable to A. or ofder, but by the laws of that state not negotiable there, and indorsed in New York, where it was negotiable. In a suit in Néw York by the indorsee against the maker, the exception was/ taken and overruled. The court on that occasion said, ‘hat personal contracts, just in themselves and lawful in the ace where they are made, are to be fully enforced, according o the law of the place and the intent of the parties, is a princi- ple which ought to be universally received and supported. But this admission of the lex loci contractus can have reference only to the nature and construction of the contract, and its legal effect, and not to the mode of enforcing it.’ And the court ulti- mately put. the case expressly upon the ground that the note was payable to the payee or order; and therefore the remedy might well be pursued according to the law of New York against a party who had contracted to pay to the indorsee.! (a) But if the words‘ or order’ had been omitted in the note, so that it had not appeared that the contract between the parties - originally contemplated negotiability as annexed to it, a diffe- rent question might have arisen, which would more properly come under discussion in another place; since it seems to concern the interpretation and obligation of contracts, although it has some- times been treated as belonging to remedies.” Y 1 Lodge v. Phelps, 1 Johns. Cas. (N. Y.) 189; 2 Caines Cas. (N. Y.) 321. See Kames Eq. b. 3, c. 8, 8. 4. ? See Chitty on Bills, c. 6. p. 218, 219, 8th ed.; 3 Kent Com. 77; ante, 8. 253 a. (2) See also Warren v. Copelin, 4 Met. 594; Foss v. Nutting, 14 Gray, 484. 504 CONFLICT OF LAWS, [s. 358-360. 358. Transfer by Foreign Executor.—\Another case may be put, which has actually passed into judgment. A negotiable note was given by a debtor, resident in Maine, to his creditor, resident in Massachusetts. After the death \of the creditor, his executrix, appointed in Massachusetts, indorsed the same note in that state to an indorsee, who brought .a suit, as indorsee, against the maker in the state court of Mainea The question was, whether the note was, under the circumstartces, suable by the indorsee ; and the court held that it was not; .for the court said that the executrix could not herself have sued upon the note without taking out letters of administration in ssines ; and therefore she could not, by her indorsement, transfer‘ \the right to her indorsee,! (a) V 359. It does not appear by the report, (6) whether tthe note was made in Massachusetts or in Maine. It is not perlkaps in the particular case material, as according to the law of\ both states the note was negotiable by indorsement, whether mad\e in the one or in the other state. If it. had been different, it might have given rise toa different inquiry. But in either state, the creditor might certainly in his lifetime, by his indorsement, have transferred the property in the note to the indorsee; and as clearly his executrix could do the same; for it is entirely well settled that an executor or administrator can so transfer any ne- gotiable security by his indorsement thereof.2 If then, by the transfer in Massachusetts, the property passed to the indorsee, it is difficult to perceive why that transfer was not as effectual in Maine as in Massachusetts; and by the law of both states, an indorsee may sue on negotiable instruments in his own name. (¢) In truth, such instruments are treated, not as mere choses in action, but rather as chattels personal. Choses in action are 1 Stearns v. Burnham, 5 Greenl. (Me.) 261; Thompson v. Wilson, 2 N. H. 291. But see Hiithwaite v. Phaire, 1 Man. & Gr. 159, 164; and Rand ». Hubbard, 4 Met. (Mass.) 252, 258, 259; post, s. 516, 517. 2 See Rawlinson v. Stone, 8 Wilson, 1; 2 Str. 1260. 8 McNeilage v. Holloway, 1 B. & A. 218, But see Richards v. Richards, 2 B. & Ad. 447, 452, 453; ante, s. 355. (a) See Levy v. Levy, 78 Penn. St. appears that this note was made and 507; Dixon v. Ramsay, 3 Cranch, 319; indorsed in Massachusetts. Pond v. Makepeace, 2 Met. (Mass.) (c) See Barrett v. Barrett, 8 Greenl. 114; Harper v. Butler, 2 Pet. 239. (Me.) 853; Riddick v. Moore, 65 N. (b) In the second edition of Green- Car. 382; Levy v. Levy, supra. : leaf’s Reports, by Bennett, in 1852, it CHAP. VILL] FOREIGN CONTRACTS. 505 not assignable by law, and actions must be brought thereon in the name of the original parties. But negotiable notes are trans- ferable by indorsement, and when transferred, ‘the indorsee may sue in his own name. Upon the reasoning in the above case, the note would cease to be negotiable after the death of the payee ; which is certainly not an admissible doctrine! The decision in a recent case in the Supreme Court of the United States is founded upon the doctrine that an assignment by an executor of a chose in action in the state where he is appointed, and which is good by its laws, will enable the assignee to sue in his own name in any other state, by whose laws. the instrument would be assignable, so as to pass the note to the assignée, and enable him to sue thereon.? (a) : 360. Presentment, Protest and Notice. — As to bills of exchange it is generally required, in order to fix the responsibility of other parties, that upon their dishonor they should be duly protested by the holder, and due notice thereof given to such parties. And the first question which naturally arises is, whether the protest and notice should be in the manner and according to the forms of the place in which the bill is drawn, or according to the forms of the place in which it is payable. By the common law the protest is to be made at the time, in the manner, and by the persons pre- scribed in the place where the bill is payable.2(6) But as to the necessity of making a demand and protest, and the circumstances under which notice may be required or dispensed with, these are incidents of the original contract, which are governed by the law 1 Rawlinson v. Stone, 3 Wilson, 1; 2 Str. 1260; Bayley on Bills, c. 5, p. 78, Sth ed. The effect of assignments of debts and other personal property will come more fully under review in the succeeding chapter, when we enter upon the subject of the law which regulates the transfer of personal property. Post, s. 895-400. 2 3 Kent Com. 88; Rand v. Hubbard, 4 Met. (Mass.) 252, 258, 259; Har- per v. Butler, 2 Pet. 239. The case of Trimbey v. Vignier, 1 Bing. N. C. 151 (ante, s. 353 a), seems to inculcate the doctrine as general, that a transfer of property, good by the lex loci of the transfer, will, at least in cases of negoti- able instruments, be held good everywhere, so as to enable the indorsee to sue in his own name. : ; 8 Chitty on Bills, p. 193, 490, 506-508, 8th ed. ; post, s. 631. See Rothschild t. Currie, 1 Q. B. 483; Pothier, de Change, n. 155; Pardessus, Droit, Com. tom. 6, art. 1497, 1489, n. 155, states the same point. (a) Trecothick ». Austin, 4 Mason, 16. (6) See ante, s. 314, note. 506 CONFLICT OF LAWS. [s. 360-362. of the place where the bill is drawn.’ They constitute implied conditions, upon which the liability of the drawer is to attach, according to the lex loci contractus ; and if the bill is negotiated, the like responsibility attaches upon each successive indorser, ac- cording to the law of the place of his indorsement ; for each in- dorser is treated as a new drawer.? The same doctrine, according to Pardessus, prevails in France? . 861. Days of Grace. — Upon negotiable instruments it is the custom of most commercial nations to allow some time for pay- ment beyond the period fixed by the terms of the instrument. This period is different in different nations ; in some it is limited to three days, in others it extends as far as eleven days.* The period, of indulgence is commonly call the days of grace; as to which, the rule is, that the usage of the place on which the bill is drawn, and where payment of a bill or note is to be made, governs as to the number of the days of grace to be allowed thereon.’ (a) 1 Ibid. See Aymar v. Sheldon, 12 Wend. (N. Y.) 439; Chitty on Bills, p- 490, 506-508, 8th ed.; 1 Boullenois, obs. 23, p. 531, 532; Pardessus, tom. 5, art. 1489, 1498; Savary, Le Parfait Négotiant, tom. 1, pt. 3, lib. 1, c. 14, . 851. 2 See Rothschild v. Currie, 1 Q. B. 48;. Pothier, de Change, n. 155; Bayley on Bills, c. A, p. 78-86, 5th ed. by Phillips & Sewall; Chitty on Bills, c. 6, p- 266, 267, 870, 8th ed.; Ballingalls v. Gloster, 3 East, 481; ante, s. 314-317. 8 Pardessus, Droit Com. art. 1485, 1495, 1496-1499; Henry on Foreign Law, 53, Appx. p. 289-248. Ante, s. 314-847. Boullenois admits that the protest ought to be according to the law of the place where the bill is payable. But in case of a foreign bill indorsed by several indorsements in different coun- tries, he contends that the time within which notice or recourse is to be had, upon the dishonor, is to be governed by a different rule. Thus, he supposes a bill drawn in England on Paris in favor of a French payee, who indorses it to a Spaniard in Spain, and he toa Portuguese in Portugal, and he to the holder; and then says that the holder is entitled to have recourse against the Portu- ‘guese within the time prescribed by the law of France, because the holder is there to receive payment; the Portuguese is to give notice to the Spaniard within the time prescribed by the law of Portugal, because that is the only law with which he is presumed to be acquainted, &c.; and so in regard to every other indorser, he is to have recourse within the period prescribed by the law of the place where the indorsement was made, and not of the domicil ' hie indorsing. 1 Boullenois, obs. 20, p. 870-372; Id. obs. 28, p. 4 Bayley on Bills, 5th Am. ed. by Phillips & Sewall, p. 234, 235; Chitty on Bills, p. 407, 8th ed.; Id. p. 198. § Tbid.; Bank of Washington v. Triplett, 2 Pet. 80, 34; ante, s. 316-347; (a) See Commercial Bank v. Barksdale, 836 Mo. 558; ante, s. 314, note. CHAP. VIII.] FOREIGN CONTRACTS. 507. 362. Situs of Debts. — This head respecting contracts in gen- eral may be concluded by remarking that contracts respecting personal property and debts are now universally treated as hav- ing no situs or locality ; and they follow the person of the owner in point of right (mobilia inherent ossibus domini) ;! although the remedy on them must be according to the law of the place where they are sought to be enforced. The common language is: ‘Mobilia non habent sequelam ; mobilia ossibus inherent ; actor sequitur forum rei; debita sequuntur personam debitoris.’? (a) That is to say: they are deemed to be in the place, and are dis- posed of by the law, of the domicil of the owner, wherever in point of fact they may be situate. ‘Quin tamen ratione mobi- lium,’ says Paul Voet, a strenuous opposer of the general doctrine of the extra-territorial operation of statutes,‘ ubicunque sitorum, domicilium seu personam domini sequamur.’® Burgundus says: ‘Sed tamen, ut existimem, bona moventia, et mobilia, ita comi- tari personam, ut extra domicilium ejus censeantur existere ; ad- duci sane non possum.’! Rodenburg says the same. ‘ Diximus, mobilia situm habere intelligi, ubi dominus instruxerit domicil- ium, nec aliter mutare eundem, quam una cum domicilio.”® He goes on to assign the reasons, founded upon the perpetually Pardessus, tom. 6; Chitty on Bills, p. 407, 8th ed.; Id. p. 193; 2 Boullenois, obs. 23, p. 531, 532, and Mascard. Conclus. 7, n. 72, there cited. 1 Thorne v. Watkins, 2 Ves. 35; 1 Boullenois, obs. 20, p. 848; Livermore, Dissert. s. 251, p. 162, 163; P. Voet, de Statut. c. 2,8. 4, n. 8, p. 126, ed. 1715; Id. p. 189, ed. 1661; post, s. 377, 378. 2 Kames Eq. b. 8, c. 8, s. 3, 4; Dwarris on Statutes, pt. 2, p. 650; Livermore, Dissert. s. 251, 252, 254, p. 162, 163, 167; Foelix, Confl. des Lois, Revue Etrang. et Franc. tom. 7, 1840, s. 32, p. 221-226; Id. s. 33, p. 227, 228; Christineus, ad Cod. 1, 1, decis. 5, n. 1-8, p. 7; 38 Burge, Col. & For. Law, pt. 2, c. 20, p- 777; post, s. 376-385, 395-400. 8 P, Voet, de Statut. s. 4, c. 2, u. 8, p. 126; Id. p. 189, 140, ed. 1661. 4 Burgundus, tract. 2, n. 20, p. 71. 5 Rodenburg, de Diver. Statut. tit. 2, c. 1, n. 1; 2 Boullenois, Appx. p. 14, 15. In (a) Creditoris ? — Whether ‘‘ debi- toris ” or ‘+ creditoris ’’ would doubt- less depend upon circumstances. In a question of distribution of the estate of the debtor, the law of the debtor’s domicil would ordinarily apply; while in a question of distribution of the creditor’s estate the law of his domicil would probably prevail, at least if domicil and forum were the same. a contest between several creditors the lex situs of the debtor’s property would govern. Again, in a contest between the creditor and the debtor, the place of the contract would govern the validity of the transaction. See note to s. 383, post. 508 CONFLICT OF LAWS. [s. 862-362 d, changeable location of movables. Pothier is equally expressive on the same point.! Indeed, the doctrine is so firmly established that it would be a waste of time to go over the authorities ;? and 1 Post, s. 381. 2 See Bouhier, Coutum. de Bourg. c. 21, 8. 172, p. 408; Id. c. 22, s. 79, p. 429; Td. c. 25, s. 5, 6, p. 490; Pothier, des Choses, tom. 8, pt. 2, s. 8, p. 109, 110; Id. Coutum. d’Orléans, tom. 10, n. 24, p. 7; 2 Bell Com. 684, 685, 4th ed.; Bruce v. Bruce, 2 B. & P. 230; Sill v. Worswick, 1 H. BI. 690, 691; In re Ewing, 1 Tyrw. 91; Thorne v. Watkins, 2 Ves. 35; 4 Cowen (N. Y.) 517, note; Blanchard v. Russell, 13 Mass. 6; Livermore, Dissert. 163-171; Foelix, Confl. des Lois, Revue Etrang. et Franc. tom. 7, 1840, s. 81, p. 220, s. 82, p. 221, s. 36, p. 229. There are some few jurists who seem to dissent from the doc- trine, either in a qualified or absolute manner, who are cited by M. Foelix. He enumerates Tittman, Muhlenbruch, and Eichhorn. Id. p. 223, 224. John Voet has expounded this whole doctrine very fully. ‘ Atque ita,’ says he, ‘ evictum hactenus existimo, in omnibus statutis, realibus, personalibus, mixtis, aut quacunque alia sive denominatione sive divisione concipiendis, verissimam esse regulam, perdere omnino officium suum statuta extra territorium statuentis ; neque judicem alterius regionis, quantum ad res in suo territorio sitas ex neces- sitate quadam juris obstrictum esse, ut sequatur probetve leges non suas. In eo tamen forte scrupulus heserit; si scilicet hec ita sint, qui ergo fiat, quod vulgo reperitur traditum, in successionibus, testandi facultate, contractibus, aliisque, mobilia ubicunque sita regi debere domicilii jure, non vero legibus loci illius in quo naturaliter sunt constituta; videri enim hac saltem ratione jurisdictionem judicis domicilii non raro ultra statuentis fines operari in res dispersas per varia aliorum magistratuum, etiam remotissimis ad orientem occiduumque solem regionibus imperitantium, territoria. Sed considerandum, quadam fictione juris, seu malis, presumptione, hanc de mobilibus determina- tionem conceptam niti: cum enim certo stabilique heec situ careant, nec certo sint alligata loco; sed ad arbitrium domini undiquaque in domicilii locum revocari facile ac reduci possint, et maximum domino plerumque commodum adferre soleant, cum ei sunt presentia; visum fuit, hane inde conjecturam surgere, quod dominus velle censeatur, ut illic. omnia sua sint mobilia, aut saltem esse intelligantur, ubi fortunarum suarum larem summamque constituit, id est, in loco domicilii. Proinde si quid domicilii judex constituerit, id ad mobilia ubicunque sita non alia pertinebit ratione, quam quia illa in ipso domicilii loco esse concipiuntur. Si tamen has juris fictiones quis a ratione naturali, in hisce solum consideranda, alienas putet, quippe desiderantes unum communem legislatorem, lege sua fictiones tales introducentem ac stabilientem; non equi- dem repugnaverim, atque adeo tune hoe ipsum comitati, quam gens genti prestat, magis, quam rigori juris, et summe potestati, quam quisque magis- tratus in mobilia, suo in territorio constituta, habet, adscribendum putem. Presertim cum considero, subinde per magistratus loci, in quo mobilia vere existunt, de illis ea constitui sancirique, que domicilii judici displicere pos- sent. Quid enim, si domicilii judex frumenta importari jubeat, pehuria frugum vexata regione; incola spe lucri majoris frumenta sua in alia regi- one horreis recondita inferre desiderit; regioni vero isti imperans omnem vetuerit frugum exportationem, jure suo in sui territorii frumentis usus ? Quis hic obsecro negare ‘sustineat, mobilia regi lege loci, in quo vere sunt, non in quo ob domicilium domini esse finguntur. Nec minus id in CHAP. VIU.] FOREIGN CONTRACTS. 509 especially as the same subject will occur in a more general form in the succeeding chapter. 862 a. Debts.— Debts in the vocabulary of the civil law are often known by the title of nomina debitorum ;? and they also follow the person of the owner, or as Jason says: ‘ Nomina infixa sunt ejus ossibus.’? Burgundus also says: ‘ Nomina et actiones loco non circumscribuntur, quia sunt incorporales; tamen et ibi per fictionem esse intelliguntur, ubi creditor habet domicilium. Nam, quod quidam ossibus creditoris, esse affixa putant, non magis movet, quam si dicamus, dominium fundi esse in proprietario ; cum alioquin, si quis strictius interpretetur, aliud est fundus, alind dominium; sicuti aliud est obligatio, aliud creditum.’ 4 Dumoulin is equally explicit. ‘ Nomina et jura, et queecumque in- corporalia, non circumscribantur loco; et sic non opus est acce- dere ad certum locum. Tum si hee jura alicubi esse censerentur, non reputarentur esse in re pro illis hypothecata, nec in debitoris persona, sed magis in persona creditoris, in quo active resident, et ejus ossibus inherent.’ 5 3626. The language of Hertius is: ‘ Mobilibus interdum etiam kat’ avadoyiav (nam proprie neque mobiles sunt, nec immobiles) accensentur res incorporales.’® Huberus holds them to fall un- der the class of movables.7 Paul Voet says: ‘ Verum, quid de rerum publicationibus ex delicto apparet, in quantum fisco loci in quo reus condemnatus est, non sunt cessura bona omnia mobilia ubicunque sita, sed ea sola, que in loco condemnantis inveniuntur; nisi aliud ex comitate alicubi servetur. Nec dicam, variare de rebus quibusdam locorum plurimorum statuta, utrum mobilibus ille, an immobilibus accensende sint; nec novum esse, ut que una in regione mobilia habentur, immobilium catalogo alibi adscripta inveniantur; annui, verbi gratia, reditus a Provincia debiti, in Hollandia mobiles, immobiles Trajecti: arbores grandiores solo herentes passim immobiles, mobiles tamen in Flandria habitz, Quo posito, necesse fuerit, ut, que in domicilii loco mobilia habentur, immobilia vero illic ubi sunt, regantur lege loci in quo vere sunt, magistratu ne ex comitate quidem permissuro, ut quasi mobilia domicilii dominici sequerentur jura.’ J. Voet, ad Pand. 1, 4, 2, s. 11, p. 44, 45; post, s. 481, 482. 1 Post, s. 374-401. 2 Eysk. Inst. b. 3, tit. 9, s. 4; Cujaccii Opera, tom. 7, p. 491, ed. 1758; Dig. 10, 2, 2, 6; Vicat. Vocab. Voce, Nomen. 8 1 Boullenois, obs. 20, p. 348. 4 Burgundus, tract. 2, n. 33, p. 73. 5 Dumoulin, de Consuetud. Paris. tom. 1, de Fiefs, tit. 1, gloss. 4, n. 9, p. 56, 57; Livermore Dissert. s. 251, p. 162, 163; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 777; post, s. 892-400. 6 Hertii Opera, de Collis. Leg. s. 4, n. 6, p. 122, 128, ed. 1787; Id. p. 174, ed. 1716. 7 Tbid. 510 CONFLICT OF LAWS. [s. 362 6-364, nominibus et actionibus statuendum erit? Respondeo, quia pro- prie loquendo, nec mobilium nec immobilium veniunt appella- tione; etiam vere non. sunt in loco, quia incorporalia. Ideo non sine distinctione res temperari poterit. Aut igitur realis erit actio, tendens ad immobilia, et spectabitur statutum loci situs immobi- lium. Aut erit actio realis spectans mobilia, et idem servandum erit, quod de mobilibus dictum est. Aut erit actio personalis sive ad mobilia sive ad immobilia pertinens, que cum inhereat ossibus persone statutum loci creditorum estimari debebit.’? 363. Contracts concerning Immovables.— But a question of a very different character may arise as to executory contracts re- specting real estate or immovables. Are they governed by the law of the place where the contract is made, or by the law of the place where the property is situate? Take for instance the case of a contract for the purchase or sale of lands in England or America, arising under the statute of frauds, by which all con- tracts respecting real estate, or any interest therein, are required to be in writing ; and otherwise they are void. If such a contract is made in France by parol or otherwise, in a manner not conforma- ble to the law rei site, for the purchase or sale of lands situate in England orin America, and the contract is conformable to the law ‘of France on the same subject; is the contract valid in both countries? Is it valid in the country where the land lies, so as to be enforced there? If not, is it valid in the country where the contract was made ?? 364. Statute of Frauds. — If this question were to be decided ex- clusively by the law of England, it might be stated that by the law of England such a contract would be utterly void ; and it would be so held in a suit brought to enforce it in that realm, upon the ground that all real contracts must be governed by the lex rei site? (@) Lord Mansfield took occasion ina celebrated case to examine and state the principle. ‘There is a distinction,’ said he, ‘between local and personal statutes. Local ones regard such things as are really upon the spot in England, as the statute of frauds, which respects land situate in this kingdom. So 1 P. Voet, de Statut. s. 9, ¢.1, n. 11, p. 256, ed. 1715, p. 312, 313, ed. 1661. 2 Ante, s. 262; post, s. 435, 436-445. See 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 840-871; 4 Id. pt. 2, ¢. 5, s. 11, p. 217, 8 See 2 Dwarris on Statut. 648; Warrender v. Warrender, 9 Bligh, 127, 128; ante, s. 351 d. (a) See Siegel v. Robinson, 56 Penn. St. 19. CHAP. VIIL] FOREIGN CONTRACTS. 511 stock-jobbing contracts, and the statutes thereupon, have a refe- rence to our local funds. And so the statutes for restraining insurances upon the exportation of wool respect our own ports and shores. Personal statutes respect transitory contracts as common loans and insurances.’!_ And in another report of the same case, after a second argument, he said: ‘In every dispo- sition or contract where the subject-matter relates locally to England, the law of England must govern, and must have been intended to govern. Thus a conveyance or will of land, a mort- gage, a contract concerning stocks, must all be sued upon in Eng- land ; and the local nature of the thing requires them to be carried into execution according to the law here.’ ? 1 Robinson v. Bland, 1 W. Bl. 334, 346; post, s. 883, and note. ° Robinson v. Bland, 2 Burr. 1079; 1 W. Bl. 259. See also Ersk. Inst. b. 3, tit. 9,s.4; Henry on For. Law, p. 12-15; Scott v. Alnutt, 2 Dow & Cl. 404. See also Selkrig v. Davis, 2 Dow, 230, 250; post, s. 383, 435. Mr. Burge, speaking on this subject, says: ‘There is an entire concurrence amongst them (jurists) in considering that the title to movables, or the validity of any disposition of them, is not governed by the law of their actual situs. This, which may be regarded as a general rule, is subject to this qualification, that the Jaw of the country in which the movable may be actually situated has not prescribed some particular mode by which alone the movable can be trans- ferred. Thus property in the public funds or stocks, shares in companies, joint stocks, &c., is a species of personal property, which as it is created, so it is regulated by the law of the country in which it exists. Certain forms are prescribed, by which alone the holder of any share or interest can transfer it. Here the transfer is so far subject to the law of the place where the property is situated, that the legal title to it is not acquired unless those forms are ob- served. But although the contract may, in consequence of a non-compliance with those forms, fail in conferring the legal title on the disponee, yet it will give him a right to compel the disponer, by action or suit, to make a transfer in the manner required by the local law. To this limited extent the lex loci rei site affects and controls the transfer by acts inter vivos of certain movables. But unless the local law gives to them the quality of immovable or real, as it may do, and has done in many instances, they still, as subjects of succession, are governed by the law of the owner’s domicil. The rule is, that the title to movable property is governed by the law of the place of the owner’s domicil; and this rule is uniformly applied in deciding on the title to movable property as a subject of succession. The law of the owner’s domicil is not that which exclusively decides on the title to movable property as a subject of transfer and acquisition by acts inter vivos. When contracts of purchase and sale, mortgage or pledge, are complete in a place which is not the domicil of the owner, the validity of such contracts and the rights and obligations which they confer are governed by the law of the country in which they are completed. ‘Semper in stipulationibus, et in cxteris contractibus id sequimur, quod ac- tum est; aut si non pareat, quid actum est, erit consequens, ut id sequamur, quod in regione in qua actum est frequentatur.”’ ‘‘Generaliter enim in 512 CONFLICT OF LAWS. [s. 365-367. 365. Doctrine of Scotch Courts. —The same doctrine has been laid down in equally emphatic terms in the Scottish courts. Lord Robertson in a highly interesting case said: ‘ Although the rule as to the lex loci contractus is of very general application, particu- larly as to the constitution and validity of personal contracts and obligations, it is not universal. In the first place, it does not apply to contracts or obligations relative to real estates.’1 Lord Bannatyne, on the same occasion, affirmed the like principle. And it has received an unequivocal sanction in America, where it has been broadly declared to be a well-settled rule, that any title or interest in land or in other real estate can only be acquired or lost agreeably to the law of the place where the same is situate.’ (a) 365a. Paul Voet.— Paul Voet has expressed the same opinion. ‘ Quid si itaque contentio de aliquo jure in re, seu ex ipsa se de- scendente? Vel ex contractu, vel actione personali, sed in rem scripta? An spectabitur loci statutum, ubi dominus habet domici- lium, an statutum rei site? Respondeo, statutum rei site. Ut tamen actio etiam intentari possit, ubi reus habet domicilium. Idque obtinet, sive forensis sit ille, de cujus re controversia est, sive incola loci, ubi res est sita.’# omnibus, que ad formam ejusque perfectionem pertinent, spectanda est consue- tudo regionis, ubi sit negotiatio, quia consuetudo influit in contractus, et vide- tur ad eos respicere, et voluntatem suam eis accommodare.”’ 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 751, 752; 21d. pt. 2, c. 9, p. 863-870. See post, s. 434. 1 Fergusson on Marr. & Div. p. 395, 397. See Ersk. Inst. b. 8, tit. 2, s. 40, p. 515; post, s. 436, and note. 2 Fergusson on Marr. & Div. p. 401; 2 Kames on Equity, b. 3, c. 2, s. 2. Erskine, in his Institutes, seems to assert a more modified doctrine. He says: ‘All personal obligations or contracts entered into according to the law of the place where they are signed, or as it is expressed in the Roman law, secundum legem domicilii, vel loci contractus, are deemed effectual when they come to receive execution in Scotland, as if they had been perfected in the Scotch form. And this holds even in such obligations as bind the grantor to convey subjects within Scotland; for where one becomes bound by a lawful obligation he cannot cease to be bound by changing places.’ Yet Erskine afterwards adds that if an actual conveyance of the property had been made, not according to the Scotch forms, the courts of Scotland would not compel the party to convey, nor treat it as an obligation of the grantor to execute a more perfect conveyance. Ersk. Inst. b. 8, tit. 3, s. 40, 41,p. 515. See post, s. 436. 3 Cutter v. Davenport, 1 Pick. (Mass.) 81; Hosford v. Nichols, 1 Paige (N.Y.) 220; Wills v. Cowper, 2 Hamm. 124; post, s. 424, 427, 435. 4 P. Voet, de Statut. s. 9, c. 1, n. 2, p. 250, ed. 1715; Id. p. 305, ed. 1661; post, s. 426, 442. (a) See Doyle v. McGuire, 88 Iowa, 410; Thurston v. Rosenfield, 42 Mo. 474. CHAP. VIII.] FOREIGN: CONTRACTS. 513 366. Scotch Heritable Bonds. — This doctrine may be further illustrated by the case of Scotch heritable bonds. By heritable bonds in that law are meant bonds for the payment of money, which are secured by a conveyance or charge upon real estate. Such bonds usually contain not only a charge upon real estate, but a personal obligation to pay the debt. In general, by the Scotch law, mere personal bonds and other debts, on the decease of the creditor, pass to his personal representative ; but heritable bonds belong to the heir; because the charge on the real estate, being jus nobilius, draws to it the personal right to the debt. According to the Scotch law, no contract or other act, disposing of an heritable bond, will be good unless it is according to the law of Scotland ; and no contract, intended to create such a herita- ble bond, will be valid as such, unless it be made with the solem- nities of the Scotch law.! There are other collateral consequences growing out of the same doctrine. Thus if a Scotch heir should seek to be exonerated from a heritable bond by the application of the personal assets in England, his right would depend. upon the law of Scotland, that is, the law of the place where the real estate was situate ; and would not depend upon the law of the place where the personal estate happened locally to be.? 367. Money to be invested in Land.— The same reasoning seems to have governed in the House of Lords in a recent case, where certain entailed estates in Scotland were sold for the re- demption of the land-tax, and the surplus money of the proceeds of the sale was vested, according to a statute on the subject, in trustees, who were required to pay the interest of it to the heir of entail in possession, until the money should be reinvested in land. The heir of entail next entitled sold his reversionary and contingent right to the interest of this fund by a deed in the English form and executed in England, where the parties were domiciled, but without the solemnities required by the law of 1 Ersk. Inst. b. 2, ¢. 2, s. 9-20, p. 198-204; Id. b. 3, tit. 2, s. 89-41, p. 514, 515; Jerningham v. Herbert, 1 Tamlyn, 103; 2 Bell Com. s. 668, P. 7, 8; 8. 1266, p. 690, 4th ed.; Id. p. 687, 5th ed.; post, s. 485-489. Yet Mr. Erskine in his Institutes, seems to admit that obligations to convey things in Scotland, although not perfected in the Scottish form, yet if perfected ac- eording to the lex domicilii of the parties, are binding in Scotland, not as con- veyances, but as contracts, under some circumstances. Ante, s. 365, note 2. * Elliott v. Lord Minto, 6 Madd. 16; Winchelsea v. Garetty, 2 Keen, 293, 309, 310; ante, s. 266a@. See also 4 Burge, Col. & For. Law, c. 15,’s. 4, p. 722 et seq. 83 514 CONFLICT OF LAWS. [s. 8367-369. Scotland. It was admitted that the fund was to go to the heirs in entail, and that the principal thereof was consequently herita- ble, and could only be passed according to the solemnities of the law of Scotland. But the House of Lords adjudged the inter- mediate interest of the surplus, before the investment in lands, to be movable property, and alienable by the proprietor as such ; and therefore they held the assignment of it according to the English law good. . 368. Views of Foreign Jurists. — From what has been already stated in the preceding discussions, it will be seen that foreign jurists are by no means agreed in admitting the general doctrine? On the contrary some of them maintain that the validity of a contract is, in all cases, to be governed by the law of the place where it is made, whether it regards movables or immovables.® Thus, in respect to the capacity of persons to contract, their doc- trine is, that if they are of age to contract in the place of their domicil, but are not in the place where their immovable property is situate, the contract to sell or alienate the latter will be valid everywhere ; and so, vice versa. Others hold a different opi- nion, and insist that, whatever may be the law of the domicil as to capacity, and although it governs the person universally, yet it does not apply to immovable property in another country.’ 1 Scott v. Alnutt, 2 Dow & Cl. 404, 412. 2 Ante, s, 260-263. See also ante, s. 82, 325-327; post, s. 869-373, 474- 479. See 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 840-871. 8 Ante, s. 52, 53, 60-62; post, s. 435-445. See also Foelix, Confl. des Lois, Revue Etrang. et Franc. tom. 7, 1840, s. 37, p. 807-311; Id. p. 352-360; post, s. 871 f, note. Mr. Burge has made a large collection of the various opinions of foreign jurists on this subject. 2 Burge, Col. & For. Law, pt. 2,¢. 9, p- 840-871. * Ante, s. 51-54, 58-63; post, s. 430-435; Rodenburg, tit. 1, c. 8; Id. tit. 2, c. 8; Livermore, Dissert. s. 44-46, p. 48, 49; Id. s. 55, 56, p. 56; Id. s. 58, 59, p- 58; 1 Boullenois, obs. 2, p. 27; Id. p. 145; Id. obs. 9, p. 152-154; Id. obs. 12, p- 175-177; Id. obs. 28, p. 456-460; 1 Froland, Mém. 156, 160. See on this point Foelix, Confl. des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 27-33, p. 216-228; 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 840-870. 5 Ante, s. 54-62; post, s. 430-432, 435-445; Livermore, Dissert. s. 44, p. 48, 49; Id. s, 46-53, p. 49-53; Id. s. 59, p. 58. See 1 Boullencis, obs. 6, p-. 127- 130, 185; Id. obs. 9, p. 150-156; J. Voet, ad Pand. 1, 4, s. 7, p. 40; 2 Fro- land, Mém. des Stat. 821. There are some nice distinctions put by different au- thors upon this subject, which are stated with great clearness and force by Mr. Livermore (Dissert. s. 58, p. 58-62), and upon which we may have occasion to comment more fully hereafter. At present it is only necessary to say that Boullenois, Bouhier, and others hold that, while the law of the domicil, as to CHAP. VIII] FOREIGN CONTRACTS, 515 369. Nuptial Contracts. —So in respect to express nuptial contracts we have seen that many foreign jurists hold them obli- general capacity, governs as to contracts and property everywhere, the law of the situs of immovable property governs as to the quantity which the party, having full capacity, may sell, convey, or dispose of. See Livermore, Dissert. s. 58-63, p. 58; 1 Boullenois, Prin. Gén. 8, p. 7; Id. obs. 6, p. 127-188; Id. obs. 12, p. 172, 175-178; Id. obs. 13, p. 177, 183, 184, 188,189; Bouhier, Cout. de Bourg. c. 21, 8. 68-70; Id. s. 81-84. See also 1 Boullenois, obs. 5, p. 101, 102, 107, 111,112; 2 Henry, Geuvres, lib. 4, c, 6, quest. 105. Rodenburg seems to admit that a contract respecting real property, which is entered into accord- ing to the forms of the lex loci contractus, may be good to bind the party per- sonally, although it is not according to the forms prescribed by the lex rei site. Rodenburg, tit. 2, c. 3; 1 Boullenois, 414-416; 2 Boullenois, Appx. p. 19. Mr. Foelix has enumerated many of the jurists on each side of this question in his dissertation on the Conflict of Law, Foelix, Confl. des Lois, Revue Etrang. et Franc. 1840, tom. 7, s. 27-82, p. 216-221; 2 Burge, Col. & For. Law, pt. 2, ¢. 9, p. 840-870. Muhlenbruch, who is a very modern author, and is cited by Mr. Foelix, has a single passage on the subject, which, from its generality, may serve to show how difficult it is to obtain any certainty as to the exact opinion of foreign jurists on the various questions which may arise from the conflict of laws as to personal capacity, contrcts, and rights to pro- perty. He lays down the following rules on the subject: ‘1. Jura atque offi- cia ejusmodi, que hominum personis inherent, et quasi sunt infixa, ex hisque apte pendentia, tum etiam ea, que ad universitatem patrimonii pertinent, ex legibus judicanda sunt, que in civitate valent, ubi is, de quo queritur, larem rerumque ac fortunarum suarum summam constituit, scilicet non adversante exterarum civitatum jure publico. Enimvero mutato domicilio jura quoque hujusmodi mutantur, sic tamen, ut ne cui jus ex pristina ratione quesitum, cer- tisque suis terminis jam definitum eripiatur. 2. Jura, que proxime rebus sunt scripta, velut que ad dominii causam spectant, vel ad vectigalium tributorum- que onus, vel ad pignorum in judicati executionem et capiendorum, et distra- hendorum, tum etiam rerum apud judicem petendarum persequendarumve rationem, et que sunt reliqua ex hoc genere, zstimantur ex legibus ejus civi- tatis, ubi sitee sunt res, de quibus agitur, atque collocate, nullo rerum immobili- um atque mobilium habito discrimine. 8. Negotiorum rationem quod attinet, de forma quidem, quatenus non nisi ad fidem auctoritatemque negotio concilian- dam valeat, nec in aliarum legum fraudem actum sit non est quod dubitemus, quin accommodate ad ejus loci instituta, ubi geritur res, dirigenda sit atque estimanda. Nec est, quod non idem statuamus aut de personis, scilicet pos- sintne omnino jure suo et velut arbitrio negotiainstituere? Aut de negotiorum materia, atque vi et potestate que iis cum per se insit, tum vero quoad agendi excipiendique facultatem, hac tamen itidem adscripta exceptione, ut ne quid in aliena civitate fiat contra ejusdem civitatis mores, leges, instituta, ad que im- mutanda prorsus, nihil valet privatorum arbitrium. Quid ? quod omnino sese, qui negotium aliquod instituerunt, tacite accommodasse videri possunt ad ejus Tegionis leges consuetudinesve, in qua ut exitum, habeat res, de qua agitur, aut legum decreto, aut privatorum auctoritate certo constitutum est. 4. Judex igitur, qui rem apud exteros natam judicabit, ea certe, que ad formam modum- que litium instituendarum pertinent, ad jurium normas institutaque, quibus ipse paret, dirigat necesse est. In reliquis vero, quatenus aut idem illud ser- 516 CONFLICT OF LAWS. [s. 369-371. gatory upon all property, whether movable or immovable, be- longing to the parties in other countries, if they are valid. by the law of the place of the nuptial contract! And in respect to im- plied nuptial contracts, all those jurists who maintain that the law of the domicil furnishes, in the absence of any express con- tract, the rule to ascertain the rights and intentions of the parties, by way of tacit contract, necessarily give to the doctrine the same universal operation. 369 a. Dumoulin. — Dumoulin is most emphatic upon this mat- ter. ‘Primo, in sano intellectu,’ says he, ‘ nullum habet dubium, quin societas’ (he is speaking of cases of marriage), ‘ semel con- tracta, complectatur bona ubicunque sita, sine ulla differentia territorii, quam ad modum quilibet contractus, sive tacitus, sive expressus, ligat personam, et res disponentis ubique. Non ob- stat, quod hujusmodi societas non est expressa, sed tacita, nec oritur ex contractu expresso partium sed ex tacito, vel presumpto contractu a consuetudine locali introducto.’ 3 870. Merlin. — Merlin seems to think that, although in gen- eral the French law must govern in all cases of immovables in France, even when the owners are foreigners ; yet that there are exceptions to the rule. As, for instance, if the foreign law, in the country where a contract is made respecting immovables, has been adopted by the contracting parties, and converted by them into an express contract; in such a case, he holds that the con- tract is binding, because the foreign law, as such, does not act vet jus domesticum, aut jus exteris scriptum, tamquam privatorum voluntate constitutum, in judicando sequatur, id ex principiis modo propositis quisque qui facile intelliget. Quibus etiam hac esse consentanea videntur, ut prae- seriptio quidem acquisitiva, quam vocant, ex juribus rei sit, extinctiva vero ex judicii accepti legibus estimanda sit, preeterquam quod nihil hac quoque ratione juris detrahatur actori, si forte ingratiis suis loco haud condicto conve- nire reum cogatur; ut actiones, que vel ad rescindenda negotia, vel ad damna resarcienda comparate sunt, secundum legis loci, ubi res acta est, judicentur, nisi si ut alio loco fiat solutio, inter partes convenerit. Caterum que de negotiorum alibi contractorum in alieno territorio vi diximus atque potestate, eadem sententiis quoque decretisque a judice prolatis aut convenient. Muh- lenbruch, Doctrina Pandectarum, tom. 1, p. 166-170. See also P. Voet, de Statut. 5.4, c. 2, n. 15, p.127; Id. p. 142, ed. 1661. 1 Ante, s. 143-160. 2 Ante, s. 57, 143-171; Boullenois, obs. 5, p. 120, 121; Id. p. 678, 674; Id. obs. 29, p. 757-767. § Dumoulin, Consil. 53, tom. 2, s. 2, p. 964, ed. 1681; 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 864, 865; ante, s. 260. : CHAP. VIII] FOREIGN CONTRACTS. 517 upon the immovables in France, but it acts solely by way of con- tract! And he applies the same principle to cases where there is no express adoption of the foreign law, but where it arises by way of tacit contract from the place of the contract.? 371. Pothier. — On the other hand, Pothier treats as real pro- perty, not only lands and houses and inheritable property, but also all rights in them and growing out of them, such as ground-rents or other rents annexed to land and inheritances, which fall under the denomination of jus in re, and also all rights to inheritances which fall under the denomination of jus ad rem, such as con- tracts or debts (créances), respecting the sale and delivery of im- movable property, which are deemed to have the same situation as the things which are the object of them. ‘ Les choses, qui ont une situation véritable, sont les héritages, c’est-A-dire, les fonds de terre, les maisons, et tout ce qui en fait partie. Les droits réels, que nous avons dans un heritage, qu’on appelle jus in re, tels qu’un droit de rente fonciére, de champart, &e., sont censés avoir la méme situation que cet héritage. Pareillement, les droits que nous avons 4 un héritage, qu’on appelle jus ad rem, c’est-A-dire, les créances, que nous avons contre quelqu’un qui sest obligé & nous donner un certain héritage, sont censés avoir la méme situation que l’héritage qui en est l’objet.’? And he as- serts the general principle that all things which have a real or fic- titious situation are subject to the law of the place where they are situate or are supposed to be situate. ‘Toutes ces choses qui ont une situation réelle, ou feinte, sont sujettes & la loi ou coutume du lien od elles sont situées, ou censées d’étre.* This also is the doctrine maintained by Rodenburg and Boullenois.® 1 Merlin, Répert. Lois, s. 6, n. 2, 3. 2 Tbid. 3 Pothier, Coutum. d’Orléans, c. 1,8. 2, n. 23, 24; Id. c. 8, n. 51; Id. Traité des Choses, s. 3; post, s. 382. 4 Pothier, Coutum. d’Orléans, c. 1, s. 2, n. 24; Id. c. 38, n. 51; Id. Traité des Choses, s. 3. 5 1 Boullenois, Prin: Gén. 34-36, p. 8, 9; Id. obs. 5, p. 121, 129; Id. p. 228-225; Id. obs. 20, p. 874, 381, 488; 2 Boullenois, obs. 46, p. 472; Roden- burg, de Div. Stat. tit. 2, c.,2, n. 2, p. 15; Henry on Foreign Law, 14, note; Id. 15. Cochin lays down the following doctrine: ‘Les formalités, dont un acte doit: tre revétu, se réglent par la loi, qui exerce son empire dans le lieu oh Vacte a été passé; mais quand il s’agit d’appliquer les clauses qu'il ren- ferme, aux biens des parties contractantes, c’est le lieu de la situation de ses biens, qui doit seul étre consulté.’ And he illustrates by reference to a dona- tion in Paris of property situate in places where donations inter vivos are pro- 518 CONFLICT OF LAWS. [s. 371-371 ¢. Merlin, in a general view, assents to it.1 Pothier further states in relation to debts, which are but jus ad rem, that they fol- low the nature of the thing which is the object of the contract, according to the maxim, ‘ Actio mobilis est mobilis ; actio ad im- mobile est immobilis.’ Hence a debt due for money, or for any movable thing, belongs to the class of movable property. So also does a contract to do or not to do any particular thing. He admits that'the same rule applies, even when it is accompanied by an hypothecation of immovable property therefor. So that, when a debt is executed, and an hypothecation is made of im- movable property as collateral security, the debt is still to be deemed a movable debt, although the hypothecation might per se, be an immovable debt ; because the debt is the principal, and the hypothecation the accessory ; and accessorium sequitur na- turam principalis.2 But he insists that contracts which have for their objects any inheritable property, or other immovable, are to be deemed immovable property; such as, for instance, in the case of a contract for the purchase of real estate, the right of the vendee against the vendor for the delivery of the same.® 371 a. D’ Argentré. — D’Argentré says: Whenever the ques- tion respects immovables or inheritances situate in different places, where there are different modes of acquiring, transfer- ring, and asserting ownership, and the question is, by what law they are to be governed, the most certain rule in use is, that the law of the place where the property is situate is for the most part to be observed, and its laws, statutes, and customs to be observed. He adds that this rule prevails in contracts, in testaments, and in commercial matters. ‘Cum de rebus soli, id est immobilibus, agitur (quwils appellent d’héritage), et diversa diversarum posses- sionum loca et situs proponuntur, in acquirendis, transferendis, aut asserendis dominiis, et in controversia est, quo jure regantur, certissima usu observatio est, id jus de pluribus spectari, quod loci hibited, holding that such donations, although clothed with all the proper Parisian formalities, are nullities. He then adds, ‘Ce n’est done pas la loi du lieu ot l’acte a été passé, qui en détermine l'effet.? Cochin, (Euvres, tom. 5, p. 697. See also 1 Boullenois, Prin. Gén. 31, p. 8. 1 Merlin, Répertoire, Meubles, s. 5; Id. Biens, s. 2, n. 2; Id. Loi, s. 6, 0.3. 2 Pothier, Coutum. d’Orléans, c. 1, s. 2, n. 24; Id. n. 50. 5 Pothier, Coutum. d’Orléans, c. 3, art. 2, n. 50, 51; Id. Traité des Choses, 8.2. See Merlin, Répertoire, Biens, s. 1, n. 13, s. 2, n. 1; Id. Meubles, s. 2, 3; Livermore, Dissert. p. 162, 163. CHAP. VIII.] FOREIGN CONTRACTS. 519 est, et suas, cuique loco leges, statuta, et consuetudines servandas, et qui cuique mores de rebus, territorio, et potestatis finibus sint recepti, sic ut de talibus nulla cujusquam potestas sit preter ter- ritorii legem. Sic in contractibus, sic in testamentis, sic in com- merciis omnibus, et locis conveniendi constitutum ; ne contra situs legem in immobilibus, quidquam decerni privato consensu, et par est sic judiciari.’ 4 871 b. Christinceus. — Christinzeus adopts the very language of D’Argentré with seeming approbation ;? although there are other passages in which he seems to admit that a different rule prevails in respect to the acts which are done by a party, which are to be governed by the lex loci actus. At least he cites without disap- probation the doctrine of Baldus (who certainly contradicts him- self in the passages cited) that, in the solemnities of testaments, the law of the place where the testament is made, is to govern, even although the property is situate elsewhere.2 However, he admits that in Belgium, by an express edict, the law of the situs in such cases prevails.! 871 ¢. John Voet. — John Voet has expressed a very different opinion. He holds that it is sufficient in all cases, whether the contract respects movable property or immovable property, to follow the law of the place where the contract is made and the act done, whether it be a contract or a will. * Neque minus de statutis mixtis, actus cujusque solemnia respicientibus, percrebuit, insuper habitis de summo cujusque jure ac potestate ratiociniis, ad validitatem actus cujusque adhibitionem solemnitatum, quas lex loci, in quo actus geritur, prescripserit observandas; sic ut quod ita gestum fuerit, sese porrigat ad bona mobilia et immo- bilia, ubicunque sita aliis in territoriis, quorum leges longe alium, longeque pleniorem requirunt solemnium interventum.’® He assigns as the principal reason, that otherwise, from ignorance or want of skill, it would be almost impossible for a man who possessed real property, to make a valid disposition thereof by an act inter vivos, or by testament. He adds that this rule prevails in Belgium, in Spain, in Germany, and in France.’ 1 D’Argent. ad Boit. Leg. de Donat. art. 218, gloss. 6, n. 3, vol. 1, p. 637; post, s. 438. ' ® Christineeus, tom. 2, decis. 8, n. 1, 2; Id. decis. 4, n. 1, 4-6, p. 4-6. 8 Id. decis. n, 7. 4 Id. decis. 4, n. 1-3, p. 6. 5 J. Voet, ad Pand. 1, 4, 2, s. 13, p. 45. 6 Ibid. " Ibid., citing authorities. His language is: ‘Quod ita placuisse videtur, 520 CONFLICT OF LAWS. [s. 371 d-372. 871 d. Paul Voet.— Paul Voet holds a similar opinion, and puts several cases to illustrate it. If a testator in the place of his domicil makes a will according to the law of. the place rei site, but not according to the law of the place of his domicil, he asks the question, whether such a will is good as to property situ- ate elsewhere; and he answers in the negative. He next puts the case of a testator, who makes his will according to the law of his place of domicil, as for example, before a notary and two witnesses; and asks whether the will has effect upon: property situate in another country where more and other solemnities are required ; and he answers in the affirmative. He then.asks, if a foreigner makes his will according to the law of the place where’ he is merely lodging or commorant, whether the will is valid else- where, where he either has immovable property, or he has his domicil; and he answers in the affirmative. The only exception he makes is, where the testator, in order to evade the law, or in fraud of the law of his own domicil, goes into another country, and there makes his-will.1 tum, ne in infinitum prope multiplicarentur et testamenta et contractus, pro numero regionum diverso jure circa solemnia utentium; atque itasummis im- plicarentur molestiis, ambagibus, ac difficultatibus, quotquot actum, res plures pluribus in locis sitas concernentem, expedire voluerint: tum etiam, ne plurima bona fide gesta nimis facile ac prope sine culpa gerentis conturbarentur. Tum quia ne ipsis quidem in juris praxi versatissimis, multoque minus aliis simpli- citate desidiaque laborantibus, ac juris scientiam haud professis, satis comper- tum est, ac vix per industriam exquisitissimam esse potest, qua in unoquoque loco requisita sint actuum solennia, quid indies in hac vel illa regione novis legibus circa solennium observantiam mutetur: ut proinde, que ratio de mili- tari testamento obtinuit Quiritium jure, milites nempe solennibus paganorum non fuisse adstringendos, dum in castris et expeditione occupati erant, quia et juris imperiti erant, et peritiores consulere in castris non poterant, etiam nunc suadeat, illum, qui actum gerit, ad alterius loci, quam in quo gerit, solennia non esse obligandum; quia et probabiliter aliorum locorum solennia ignorare potest, et in loco, in quo actum gerit, peritiores morum aliene regionis non satis consulere; dum ita fere comparatum est, ut pragmatici, quibus auctoribus contractus celebrantur, aut conduntur testamenta, versati quidem plerumque satis sint in jure patrio, non item locorum omnium et universi orbis jure; atque insuper non raro more ad inquisitionem anxiam adhibendam impatiens est, quod geritur negotium. Quamvis ergo in Frisia septem testes in testa- mento requiri constet, alibi fere tabellionis testiumque duorum presentia ac fides sufficiat, aut saltem in universum longe minor solennitas desideretur; tamen eequitate rei motus Frisiz senatus ratam habuit de bonis Frisicis dispo- sitionem, Sylvaducis coram parocho duobusque testibus declaratum, juxta Sylveducensis regionis usum. Et ita in praxi hee Belgis, Germanis, Hispa- nis, Gallis, aliisque, placuisse, auctores cujusque gentis testantur.’ e a de Statut. s. 9, c. 2, n. 1-4, p. 261, 262, ed. 1715; Id. p. 317-819, CHAP. VIII] FOREIGN CONTRACTS. 521 871 e. Hertius. — Hertius, as we have seen,! lays down the rule, that, as to the forms and solemnities of. acts and contracts, they are to be governed altogether by the law of the place where the acts are done, and contracts made, and not by the law of the domicil of the party, or the law of the situs rei. ‘Si lex actui formam dat, inspiciendum est locus actus, non domicilii, non rei site ; id est, si de solennibus queratur, si de loco, de tempore, de modo actus, ejus loci habenda est ratio, ubi actus vel negotium celebratur.”? He adds: ‘Regula hec apud omnes, quantum quidem sciam, est indubitata;’ and then says:.‘ Valet etiamsi bona in alio territorio sint sita.’ ® 872. Burgundus. — Burgundus apparently admits that gene- rally the law of the place of the contract ought in all cases to prevail, so far as. respects its form, its ceremonies, and its obli- gation. The passage already cited‘ is to this effect. ‘In scrip- tura instrumenti, in solemnitatibus, et ceremoniis, et. generaliter in omnibus, que ad formam ejusque perfectionem pertinent, spec- tanda est consuetudo regionis, ubi fit negotiatio. Igitur, ut paucis absolvam, quoties de vinculo obligationis vel de ejus interpreta- tione vel interpretatione queritur, veluti quos, et in quantum obliget, quid sententiz stipulationem inesse, quid abesse credi oporteat, etc., ut id sequamur, quod in regione, in qua actum est, frequentatur.’5 But he immediately adds. that, if we would know whether the contract was valid or not in respect to the subject-matter thereof, we must look to the law of the situs. ‘Ceterum, ut sciamus, contractus ex parte materi utilis sit vel inutilis, ad leges, que rebus, de quibus tractatur, impresse sunt, hoe est, ad consuetudinem situs, respiciemus.’® He also expresses surprise, that authors, in considering contracts, should have ex- cluded altogether the nature of the thing contracted for, and generally have interpreted contracts according to the law of the place where they are made; for in sales, and also in letting to hire, and in other contracts, it becomes us to look to the usage touch- ing the subject-matter. ‘Quippe non solum in emptione obtinet, 1 Ante, s. 260. 2 Hertii Opera, de Collis. Leg. s. 4, n. 10, p. 126, ed. 1737; Id. p. 179, 180; ante, 8. 238. 3 Tbid. 4 Ante, s. 300a. 5 Burgundus, tract. 4, n. 7, 8, p. 104. 5 Burgundus, tract. 4, n. 8, 9, p. 107, 108; 2 Boullenois, obs. 46, p. 450-454. See J. Voet, ad Pand. 1, 4,2, s. 12, 18, p. 45; post, s. 433. 522 CONFLICT OF LAWS. [s. 372-372 ¢, ut ad consuetudinem rei spectare deceat, sed in locatione pra- terea, in conductione, ceterisque contractibus.’ 1 Jt must be con- fessed that, on this subject, the distinctions and doctrines of Burgundus are open to much question. 372 a. Dumoulin. — Gaill. — Dumoulin says that it is the gene- ral opinion of jurists that, wherever the custom or law of a place prescribes the solemnities or form of an act, it binds foreigners who there do the act; and the act is valid and efficacious even in respect to immovable property, beyond the territory of the custom or law. ‘Et est omnium doctorum sententia, ubicunque consue- tudo, vel statutum locale, disponet de solemnitate, vel forma actus, ligari etiam exteros, ibi actum illum gerentes, et gestum esse validum, et efficacem, ubique etiam super bonis solis extra terti- torium consuetudinis vel statuti.’2 Gaill adopts an equally broad conclusion. ‘ Contractus enim, celebratus cum solemnitate requi- sita in loco contractus, extendit se ad omnia bona, licet in loco bonorum major solemnibus requiretur.’ 8 372 6. Rodenburg.— Rodenburg, as we shall presently see, goes the full length of this doctrine, and applies it even to the cases of wills and testaments, which, he says, if made according to the law of the place where they are executed, are valid even upon property situate elsewhere.t There are many other jurists who maintain the same opinion both as to contracts and other instruments, and to wills and testaments.® 1 Burgundus, tract. 4, n. 9; Id. n. 7; ante, s. 302; post, s. 433-438. 2 Dumoulin, Consil. 53, tom. 2, s. 9, p. 965; post, s. 441. 8 Gaill, Prac. obs. 123, n. 2, p. 548. * Rodenburg, de Div. Statut. tit. 2, c. 8, n. 1; 2 Boullenois, Appx. p. 19; post, s. 475. 5 Many of them are enumerated in 1 Boullenois, obs. 23, p. 491-516; ante, s. 801. M. Foelix has also given us a long list of jurists who hold the doc- trine. Indeed, he thinks the doctrine firmly and generally established. His language is: ‘Un principe aujourd’hui généralement adopté par l’usage des nations, e’est que ‘‘ la forme des actes est réglée par les lois du lieu dans lequel ils sont faits ou passés.”’ C’est-a-dire que, pour la validité de tout acte, il suffit d'observer les formalités prescrites par la loi du lien ow cet acte a été dressé ou rédigé: lacte ainsi passé exerce ses effets sur les biens meubles et immeubles situés dans un autre territoire, dont les lois établissent des formalités différentes et plus étendues (locus regit actum). En d’autres termes, les lois qui réglent la forme des actes étendent leur autorité tant sur les nationaux que sur les étrangers qui contractent ou disposent dans le pays, et elles participent ainsi de la nature des lois réelles. Le droit romain ne conti- ent aucune disposition qui consacrat le principe, locus regit actum. Les lois dans lesquelles on a pretendu trouver cette régle, ne parlent point de la forme, CHAP, VIII] FOREIGN CONTRACTS. 523 372 ¢e. Boullenois. — Boullengis seems to have labored under no small embarrassment as to the question, whether a contract mais de la matiére des contrats. Dés le temps des glossateurs, la question s’est presentée par rapport aux testaments. Bartole a adopté affirmative: Albert de Rosate s’est prononcé pour la négative, sur le motif que la loi n’oblige que les sujets, et que ceux-ci seuls ont le droit d’employer une forme prescrite. Plus tard, Cujas a soutenu, qu il faut suivre la loi du domicile du testateur; Fachinée exigeait Vaccomplissement des formalités prescrites dans le lien de la situation des biens: Burgundus, tout en admettant la régle rela- tivement aux contrats, la rejette quant aux testaments; il regarde comme affectant la chose et comme lois réelles les solennités prescrites pour les testa- ments en invoquant |’édit de 1611 (pour les Pays-Bas), art. 12. Choppin, au contraire, soutient que le testament fait en pays étranger, d’aprés les formes prescrites dans le lieu de la confection, doit sortir ses effets, méme a l’égard des immeubles situés dans un autre lieu, et il rapporte un arrét du parlement de Paris, renduence sens. Dumoulin, Mynsinger et Gail, professent la méme doctrine. Ces deux derniers auteurs attestent la jurisprudence constante de la chambre impériale (Reichskammergericht) en ce sens. Mevius, en admet- tant aussi la régle générale, fait remarquer que la coutume de Lubeck ne la reconnait que sous les trois conditions suivantes: 1°, maladie qui met le testa- teur en danger de mort; 2°, decés réel en pays étranger; 3°, absence de toute intention de préjudicier aux héritiers naturels. Rodenburg et Voet, en adoptant la régle par rapport aux contrats comme aux testaments, la motivent sur les raisons suivantes: 1°, nécessité d’éviter aux individus possédant des biens dans différents pays, ]’embarras et la difficulté de rédiger autant de testaments ou de contrats qu’il y a d’immeubles situés sous l’empire de lois diiférentes, ou de remplir dans un méme testament ou contrat toutes les solemnités pre- scrites dans Jes divers lieux de la situation des biens; 2°, impossibilité dans laquelle l’individu surpris & l’étranger par une maladie mortelle peut se trouver de remplir les solennités prescrites dans le pays de son domicile ou de la situation de ses biens; 3°, nécessité d’empécher que les actes faits de bonne foi soient annullés trop facilement sans la faute de la partie; 4°, impossibilité pour la majeure partie des hommes de connaitre les formes prescrites dans chaqu elocalité; 5°, enfin, Voet ajoute qu’il faut appliquer ici les motifs qui, chez les Romains, ont fait introduire la forme simple du testament militaire. En terminant, cet auteur cite presque tous ses devanciers indiqués ci-dessus, en déclarant que l’opinion professée par lui a été reconnue par la jurisprudence dans les Pays-Bas, en Allemagne, en Espagne, eten France. Tel est aussi le sentiment de Zoesius, Grotius, Christin, Paul Voet, Vinnius, Jean de Sande, Vander Kes- sel, Vasquez, Perez, Cochin, Boullenois, Menochius, Carpzov, Huber, Hert, Hom- mel, Glick, Thibaut, Danz, Weber, Mansord, Muhlenbruch, Mittermaier, Tittman, Merlin, Meier, Pardessus, Story, Rocco, Hattogh, et Burge.’’ Foelix, Conflit des Lois, Revue Etrang. et Franc. 1840, tom. 7, s. 40, 41, p. 346-350. M. Foelix has however subsequently qualified the general doctrine here stated by the following exceptions: ‘ L’acte fait d’aprés les formes prescrites par la loi du lieu de sa rédaction est valable, non seulement par rapport aux biens meubles appartenant & l’individu et qui se trouvent au lieu de son domi- cile, mais encore par rapport aux immeubles, en quelque endroit qu’ils fussent situés. Cette derniére proposition, selon la nature des choses, admet une ex- ception, dans le cas ou la loi du lieu de la situation prescrit, a l’égard des actes 524 CONFLICT OF LAWS. “[s. 372. was obligatory or not, merely by pursuing forms or solemnities prescribed by the law of the place where it is made. He puts translatifs de la propriété des immeubles, ou qui y affectent des charges réelles,. des formes particuligres, qui ne peuvent étre remplies ailleurs que dans ce méme lieu; telles sont le rédaction des actes par un notaire du méme territoire, la transcription ou Vinscription aux registres tenus dans ce territoire des actes d’aliénation, d’hypothéque, etc. L’acte fait dans un pays étranger suivant les formes qui y sont prescrites, ne perd pas sa force, quant & sa forme, par le retour de Vindividu au lieu de son domicile: aucune raison de droit ne milite en faveur de l’opinion coutraire. La régle, locus regit actum, ne doit pas étre étendue au dela des limites que nous lui avons tracées au n° 40; elle ne s’applique qu’a la forme extérieure, et non pas 4 la matiére ou substance des actes, ainsi que nous l’expliquerons encore au s. suivant. Ainsi, dans un testa- ment, la capacité de la personne et la disponibilité des biens ne se réglent point par la loi du lieu de la rédaction. Dans les dispositions entre-vifs, soit 4 titre onéreux, soit a titre gratuit, la loi du lieu de la rédaction peut avoir influé, soit sur |’ensemble de l’acte, soit sur les termes employés par les parties; et, sous ce double titre, cette loi peut étre consultée par les juges comme moyen d’interprétation; mais elle ne forme pas la loi décisive, & moins que les parties ne s’y soient soumises expressément.” He afterwards adds: ‘La régle d’aprés laquelle la loi du lieu de la rédaction régit la forme de l’acte, admet différentes exceptions, dont voici les principales: 1°, Lorsque les con- tractants ou l’individu dont émane une disposition se sont rendus en pays étranger dans Vintention d’éluder une prohibition portée par la loi de leur domicile; car la fraude fait exception & toutes les regles; 2°, Lorsque la loi de la patrie défend expressément de contracter ou de disposer hors du territoire et avec des formes autres que celles prescrites par cette méme loi; car alors Vidée d’un consentement tacite de cette nation se trouve formellement exclue. Cette exception est la méme que celle indiquée par M. Eichhorn, sous le n° 2; 3°, En cas d’opposition expresse du statut réel (voy. supra, n° 43); 4°, Lorsque Ja loi lieu la de la rédaction attache ala forme qu’elle prescrit un effet qui se trouve en opposition avec le droit public du pays ou l’acte et destin a recevoir son exécution; 5°, Par rapport aux ambassadeurs ou ministres publics et a leur suite. Ces personnes ne sont pas soumises aux lois de la nation prés de laquelle elles exercent leur mission diplomatique.’ And he finally sums up thus: ‘ Une autre question est celle de savoir si le contractant ou disposant qui se trouve en pays étranger, peut se borner 4 employer les formes prescrites par la loi du lieu de la situation de ses immeubles, au lieu de suivre celle du lieu de la rédaction. Nous tenons pour l’affirmative, par une raison analogue A celle donnée sur la question précédente. Le statut réel régit les immeubles; e’est un principe résultant de la nature des choses; la permission d’user des formes établies par la loi du lieu de la rédaction de l’acte n’est qu’une exception introduite en faveur du propriétaire, et & laquelle il lui est loisible de renoncer. Tel est aussi le sentiment de Rodenburg, de Jean Voet, et de Vander Kessel ; Cocceji soutient méme que la forme des actes entre-vifs ou testamentaires est régie exclusivement parla loi de la situation des biens. Fachinéeet Burgundus (v. supra, n°41) parta- geaient cet avis, mais par rapport aux testaments seulement. En Belgique, ’édit perpétuel de 1611, art. 13, ordonnait qu’en cas de diversité de coutumes au lieu de la résidence du testateur et au lieu de la situation de ses biens, on suivrait par rapport A la forme, et a la solennité, la coutume de la situation. Paul Voet, Huber, CHAP. VIII.] FOREIGN CONTRACTS. 525 the case of two persons contracting, who are domiciled in one place, and contract in another, and the thing, respecting which Hert, Hommel, et l’auteur de l’ancien Répertoire de jurisprudence, se pronon- cent pour la nullité; ce dernier invoque l’antorité de Paul de Castres, au passage rapporté au n° précédent, et le principe que la loi lie tous les individus qui vivent dans son ressort, ne fit-ce que momentanément. Nous renvoyons a ce sujet aux observations présentées sur la question précédente. . Mevius distingue entre le citoyen faisant partie de la nation dans le territoire de la- quelle les biens sont situés, et ]’étranger; il n’accorde qu’au premier la faculté de tester ou de contracter partout d’aprés les formes prescrites au lieu de la situation. L’auteur ne donne pas de motif de cette distinction, et nous ne pouvons la trouver fondée.’ Foelix, Conflit des Lois, Revue Etrang. et Franc. 1840, tom. 7, s. 43-45, 48, 50, p. 352-360. See also the opinions of foreign jurists on the subject, 2 Burge, Col. & For. Law, pt. 2,c. 9, p. 840-871. In respect to some of these he has certainly been Jed into an error; and some speak so in- determinately that it is difficult to gather what their opinion is. It is certain that M. Foelix has misunderstood the opinion of Mr. Story in his Conflict of Laws (see s. 864); and also the opinion of Mr. Burge. See 1 Burge, Col. & For. Law, pt. 1, ¢.1, p. 21-24. His language is: ‘In examining all contracts, instruments, or dispositions, whether they are made inter vivos, or are testa- mentary, our attention may be directed to four subjects: the first is, the capacity of him who makes it; the second is, the property which is the sub- ject or occasion of the contract or instrument; the third regards the formali- ties or ceremonies with which it is made; and the fourth is the judicial process by which the rights which it confers are to be enforced. The capacity of the party to make the instrument is ascertained by consulting the law of the place of his domicil; because it is that law, and that law alone, which affects the person, and which gives or denies him the capacity or power to make the instrument. With respect to the property, the subject of the contract, dispo- sition, instrument, or testament, recourse is had to the real law, being that which prevails in the place in which the property, if immovable, is actually situ- ated; or in which, if it be movable or personal, it is presumed to be situated; that is, in the place of the possessor’s domici]l. When however it is necessary to ascertain whether the contract be valid, what is its true construction and effect, and whether the instrument in which it is expressed, or whether a testa- ment, be duly and formally made, recourse is had to the law of the place in which the contract is entered into, or the instrument or testament was made; because if it be made according to the forms prescribed by that law, it is valid everywhere. ‘* Aut statutum loquitur de his, que concernunt nudam ordina- tionem vel solemnitatem actus, et semper inspicitur statutum, vel consuetudo loci, ubi actus celebratur, sive in contractibus, sive in judiciis, sive in testa- mentis, sive in instrumentis aut aliis conficiendis, ita quod, testamentum, factum coram duobus testibus in locis, ubi non requiritur major solemnitas, valet ubique.’? A distinction however must be observed between such solemnities as are purely formal, and those which are of the substance and essence of the disposition or instrument. There are some solemnities which intrinsically affect the disposition itself, so as to render their observance essential to its validity, whilst there are others which only extrinsically regard them. An example of the former description of solemnities is given by Stockman, in the case of a law which prohibits the husband and wife from 526 CONFLICT OF LAWS. [s. 372 ¢, 372 d. the contract is made, being situate in another, and asks what ought to be the form and solemnities necessary to make it valid, if in each place they are different. If it is clear that the forms appertain to the solemnities of the act, he thinks that there is no difficulty in affirming that the law of the place of the con- tract ought to govern. If the forms relate to the capacity of the person, then the law of the place of his domicil ought to govern. But if, on the contrary, they appertain either to the substantials of the contract, or its nature, or its accidents, or its fulfilment (sive ad substantialia contractus, sive ad naturalia, sive ad accidentalia, aut complementaria), there is great difficulty ; and if any general rule is established, either to follow the law of the place of the contract, or that of the situs of the thing, or that of the domicil of the contracting parties, a false principle will be introduced ; for sometimes the formalities belong to the quality of the person, sometimes to the contract, and sometimes to other things. He therefore arrives at the conclusion that no universal rule can be laid down applicable to all classes of cases.! In another place Boullenois remarks that: the French authors (nos auteurs) are instituting the one the heir of the other, unless by a will executed before two notaries. If the party made a will in the common form in a place where no such law prevailed, it would be invalid in respect of property situated in the place where it did prevail. Similar examples are afforded by the English statute of frauds, which denies the capacity to devise real property, otherwise than by a will attested by three or more credible witnesses; and by the law of Jamaica, which enables a married woman to convey her real estate, and a tenant in tail to bar the remainder and acquire the fee by a simple convey- ance; but it requires, at the same time, that the married woman should be examined apart from her husband, and that the conveyance should be acknowl- edged and recorded. The following example of that species of solemnity which is extrinsic to the disposition is given by Stockman, in the case which has been cited: ‘* Si quis incola ditionis regie testetur in urbe Leodiensi, ubi testatoris subscriptio in testamentis necessaria non est, sed sufficit communis ritus, qui in aliis publicis instrumentis requiritur.’? There may be said to be three species of solemnities: first, those which are requisite to enable the per- son; as, for instance, the authority from the husband to the wife, essential by the law of some countries to the validity of her act. These are derived from and must be examined with reference to the law of the domicil, or the lex loci rei sites. Secondly, those which form a part of and are essential to the act, such as the delivery of the subject-matter of a gift. The third species of solemni- ties consists of those which are designed to establish the truth or authenticity of the instrument, such as the proof by two or more notaries, or one notary and two witnesses, or the number, age, and quality of witnesses required for the validity of a will.’ ? 1 Boullenois, obs. 23, p. 464-466; 2 Boullenois, obs. 46, p. 445. CHAP, VIII. ] FOREIGN CONTRACTS. 527 generally of opinion that the law of the place of the contract is to govern. Locus contractus regit actum.1. And he then pro- ceeds to lay down certain rules on the subject, which have been already cited as the guiding principles.2 And among them is the very important rule, applicable to the subject before us, that where the law requires certain formalities which are attached to -the things themselves, the law of the situs or situation is to govern.® 872 d. Distinction between Transfers of Immovables and Contracts to transfer. — Burge’s Opinion. — Mr. Burge, after suggesting that there are three species of solemnities, which he enumerates, adds: ‘A further distinction may be made between those solemnities which relate to contracts and instruments for the transfer of real property, and those by which it is actually transferred. With respect to the first, those are to be followed which prevail in the place where those contracts are made, or those instruments executed ; but with regard to the actual transfer of such pro- perty, those are to be observed which are prescribed by the law of the place where it is situated. Thus a contract to sell or mortgage real property will be valid if the solemnities are ob- served which are required by the law of the place where the contract is made, and will be the foundation of a personal action against the party to that contract to compel the trans- port or mortgage of such property; but no transport or mort- gage will be complete, nor will the dominium in the property have been transferred or acquired, unless those solemnities are observed which are required by the law of the place where it is situated.’ Again he adds in another place: ‘ In considering the law by which the transfer of immovable property is governed, a distinction should be made between the contract to transfer and the actual transfer of the dominium. There may be cases in which the law of the domicil or that of the place of the con- tract will prevail, notwithstanding it may be opposed to that of the situs, whilst in other cases the law of the situs will prevent the contract taking effect. Thus instances are cited by jurists where the law of the domicil incapacitates the party from con- tracting, but the law of the situs authorizes the alienation of his 1 2 Boullenois, obs. 46, p. 456. _ 2 Ante, s. 240. 5 2 Boullenois, obs. 46, p. 467; ante, s. 240. 5 * 1 Burge, Col. & For. Law, pt. 1, ¢. 1, p. 24; 2 Id. pt. 2, ¢. 9, p. 844, 845. 528 CONFLICT OF LAWS. [s. 372 d, 372 ¢, immovables. Thus by the law of Ghent, persons were minors until they had attained the age of twenty-five years; but in Hainault a person of the age of twenty might alienate his fief situated in that country. An inhabitant of Ghent contracts to sell a fief in Hainault of which he was the owner. The contract, in the opinion of Burgundus, would create no obligation on him to complete this alienation. ‘ Ut puta, civis Gandensis state. minor, tamen vigesimum egressus annum, Hannonica feuda sine auctoritate tutoris vendidit ; procul dubio in ejusmodi actu nihil agi existimandum est, et inutilem omnino contrahi obligationem ; quia Gandavi, qui aliter emancipati non sunt, ante vigesimum quintum annum rebus suis intervenire prohibentur.” But. if the alienation were actually made, the same jurist considers that it would be valid: ‘*Si tamen ejusmodi feudi mancipationem fecerit venditor, tutum esse emptorem, et quod actum erit valere quotidiana accipimus experientia, quando hee sit etas et compe- tens, que in Hannonicorum feudorum alienatione requiritur. Nec enim consuetudo Gandensis potest tollere libertatem manci- pationis, quia res alienas legibus suis alligare non potest; hoc enim jus dicere extra territorium.” A decision is reported by Stockman in which the same doctrine was held. T., being of the age of twenty and married, was according to the law of his domicil so far emancipated as to be capable of administering but not of alienating his estate. He alienated a property situated in Louvain, where the effect of his marriage gave him the full capacity of majority. An action was brought by his heir to re- cover back the purchase-money, on the ground that T. was incompetent by the law of his domicil to alienate his property, and that this law extended to and prevented the disposition by him of his property in Louvain. But the purchaser insisted, and the court held, that the validity of the alienation must be decided according. to the law of Louvain, and dismissed the ac- tion. It follows from this doctrine that if the person competent by the law of his domicil should contract to make an alienation of property situated in a country where he was incompetent to make it, his contract could not be enforced, although he might be answerable in damages to the person with whom he had con- tracted. On the other hand, if he were incompetent by the law of his domicil to contract, but competent to alienate by the lex loci rei site, and an alienation was actually made by him, it CHAP. VIII] FOREIGN CONTRACTS. 529 would not be rescinded on the ground that he was incompetent by the law of his domicil to contract. In the cases put by Bur- gundus, and reported by Stockman, it will be perceived that the alienation was complete. It does not follow that if the vendor had refused to perform his contract, the forum of the rei site would have enforced it. The doctrine of Rodenburg is, that the ‘contract is a nullity, and that effect cannot be given to it in any court to compel its performance by the delivery of the property. Wesel, who concurs with Rodenburg, treats the delivery or man- cipatio as the simplex implementum of the contract; and as it is required for the validity of a sale that there should have been a preceding contract, he urges: ‘*Cum ergo totus venditionis contractus ob defectum etatis sit irritus, nec sit quod mancipa- tione solemni impleri possit, utique nuda simplexque fundi man- cipatio omnino nihil operatur, cessante causa ad mancipandum idonea.” ? 1 872 e. Same continued.— And again he says: ‘So if those solemnities which the lex loci contractus requires have been observed, and the contract according to that law is valid and obligatory, it will be valid everywhere else. But the latter pro- position is subject to the qualification that it does not affect immovable property subject to a law in the country of its situs which annuls a contract, because it has not been entered into with the solemnities which it requires. If the disposition of the law does not annul the contract on account of its non-observance of the solemnities which are prescribed, but gives to it a degree of authenticity or credit which it will want if they are not observed, or if, in other words, its effect is either to dispense with a more formal proof of the instrument, if it bears on it evi- dence of their observance, or if in consequence of the non-obser- vance it attaches a presumption against the execution of the instrument, and therefore requires from the parties a greater burden of proof, such solemnities are to be classed amongst the proofs in the cause which are governed neither by the lex loci contractus, nor by that of the situs, but by that of the forum. This question, in the opinion of Paul Voet, regards ‘‘ non tam de solemnibus, quam probandi efficacia ; que licet in uno loco suffi- ciens, non tamen ubique locorum; quod judex unius territovii 13 Burge, Col. & For. Law, pt. 2, c. 20, p. 844-846; Id. p. 867-870. 34 530 CONFLICT OF LAWS. [s. 372 e-373. nequeat vires tribuere instrumento, ut alibi quid operetur.’*”! There are other jurists who maintain the same distinction.? 872 f. Rule of the Common Law,— That there may be some ground for such a distinction as is above stated may well be admitted. But that the rule generally prevails in all nations may well be doubted. Thus, it seems very clear that a contract, _ made in a foreign country, for the sale of lands situate in Eng- land, Scotland, or America, would not be held a binding contract 121d. pt. 2, ¢. 9, p. 867, 868. See also 8 Id. pt. 2, c. 20, p. 751, 752. 2 P, Voet, ad Statut. s. 4, c. 2, n. 15, 16, p. 142, ed. 1661; Ersk. Inst. b. 3, tit. 2, s. 40. Mr. Burge-adds on this point: ‘When the question regards the property which the law allows to be alienated, or the persons to whom, or the purposes for which, its alienation may be made, it can be determined only by the law of the situs. The statutes of mortmain, the law of death-bed, the restriction of gifts inter conjuges, are strictly real laws to which the parties to the contract must conform, although no such laws exist in the place of their doinicil, or in that of the contract. In these instances the law of the situs is prohibitory, and impresses on the property a quality excluding it from the alienation. A contract therefore to make such an alienation as would in any of these respects contravene the law of the situs would be wholly ineffectual. But when the contract does not expressly, nor by necessary implication, con- travene it, but, on the contrary, may be carried into effect consistently with or by means of its provisions, although the contract itself may not give a title, yet it will be the foundation of an action by the one to compel the other to complete it in that manner which the law of the situs requires in order to give him that title. The observation of Du Moulin, in commenting on an article of the Coutume of Auvergne, illustrates this distinction. By that article all contracts or conventions respecting the succcssion had the effect of vesting the seisin in the person in whose favor they were made. This great jurist, while he thus limits its operation, de prediis sitis sub hac consuetudine, et non extra ejus territorium, at the same time adds, Valet quidem pactio ubique, sed translatio possessionis, qu sit in vim consuetudinis, non valet nisi intra ejus territorium. The deed by which parties in England convey an estate in British Guiana has no effect as a transport of it, but it operates as a contract of trans- port, and enables the purchaser to compel the vendor to complete the transport in the manner prescribed by the law of that settlement. Erskine has thus stated the doctrine of the law of Scotland on this subject. All personal obli- gations or contracts entered into according to the law of the place where they are signed, or secundum legem domicilii, vel loci contractus, are deemed as effectual, when they come to receive execution in Scotland, as if they had been perfected in the Scottish form. And this holds even in such obligations as bind the grantor to convey subjects within Scotland; for where one becomes bound by a lawful obligation, he cannot cease to be bound by changing places. -Au English deed, if so executed in point of form as validly to carry a Scotch heritage, will be given effect to in regard to such heritage, agreeably to the law of Scotland, notwithstanding the same deed would by the English law, under similar circumstances, be unavailable in respect of a, heritage situate in England.’ 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 845-848; Id. p. 864, 865. CHAP. VIIL.] FOREIGN CONTRACTS. 531 in either of those countries, to be enforced in their courts in per- sonam or in rem, unless the contract was in conformity to the forms prescribed by those countries! At the same time it is quite possible that the same contract might be enforced in the country where it was made, if it should conform to the law of that country touching real property.2 But after all, looking to the great diversity of views of foreign jurists, there is much reason to be satisfied with the general rule of the common law on this whole subject; that is to say, that in respect to movables the law of the place where the contract is made will, with few ex- ceptions, be allowed to govern the forms and solemnities there- of ;8 but as to immovables, no contract is obligatory or binding unless the contract is made with the forms and solemnities re- quired by the local law where they are contracted (lex situs).* 373. Prohibitions of the Lex Situs.— But whatever may be the true rule in cases where the law of the situs does not pro- hibit the contract, as, for instance, a contract for the sale of land, it is very clear that, if prohibited there, it is everywhere invalid to all intents and purposes. So the doctrine is laid down by Rodenburg. After remarking that, if a contract is made that the dotal rights shall be according to the custom of another place than that of the domicil of the husband, it will be good if there is no local law of either place which prohibits it; he adds that the contrary, if the contract is opposed to the local law, is true rei site. ‘Contra, si per leges loci, ubi bona constituta sunt, limitetur illud rerum immobilium doarium, &c.; eo quod nemini liceat privata cautione refragari legi publice negative aut prohibitorie.’® Boullenois also lays down the same rule among his general maxims: ‘ Une convention, toute légitime qu’elle soit en elle-méme, n’a pas son exécution sur les biens, lorsqu’ils sont situés en coutumes prohibitives de la conven- tion.’ ® Mr. Burge also lays down among his general principles the following rule. ‘In a conflict between a personal law of the domicil and a real law, either of the domicil or of any other place, the real law prevails over the personal law. Thus, a per- 1 Ante, s. 8363-365. 2 Ante, s. 76. 8 Ante, s. 362, 864; post, s. 379, 383, 384. 4 Ante, s. 364-367, s. 382, 383. 5 Rodenburg, de Div. Stat. tit. 3, c.4, n. 1, 2; 2 Boullenois, obs. 42, p.401, 402; Id. Appx. p. 79, 80. § 1 Boullenois, Princ. Gén. 41, p.9, 10; ante, s. 262. 532 CONFLICT OF LAWS./ [s. 373-375, son who has attained his majority has, as an incident to that; status, the power of disposing by donation inter vivos of every- thing he possessed, and may, by the real statute of the place in which his property is situated, be restrained from giving the. whole, or from giving it, except to particular persons.’ + 11 Burge, Col. & For. Law, pt. 1, c. 1, p. 28, s. 20; Id. p. 26, s. 8,9. It may be remarked that some of the general principles laid down by Mr. Burge in the chapter’ here cited, which he says ‘may be adopted,’ admit of grave question, and are not supported by the common law. CHAP. IX.]} PERSONAL PROPERTY. 533 CHAPTER IX. PERSONAL PROPERTY. 874. Subjects to be considered. — We next come tothe con- sideration of the operation of foreign law in relation to personal, real, and mixed property, according to the known divisions of the common law, or to movable and immovable property, according to the known divisions of the civil law and continental jurispru- dence. For all the purposes of the present commentaries it will be sufficient to treat the subject under the heads of personal or movable property, and real or immovable property, (@) since the class of mixed property appertains to the latter. 375. Terms of Foreign Law.— We have already had occasion . to state that in the civil law the term ‘ bona’ includes all sorts of property, movable and immovable; as the corresponding word ‘biens,’ in French, also does.2 But there are many cases in which .a broad distinction is taken by foreign jurists between movable property and immovable property, as to the operation of foreign law. We have also had occasion to explain the general distinction between personal and real laws respectively, and mixed laws, in the sense in which the terms are used in conti- nental jurisprudence ; personal being those which have princi- pally persons for their objects, and only treating of property incidentally ; real, being those which have principally property for their object, and speaking of persons only in relation to pro- 1 See on the subject of this chapter, 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 749-780. 2 See Livermore, Dissert. p. 81, 8. 106; 1 Boullenois, obs. 2, p. 28; Id. obs. 6, p. 127; Rodenburg, de Divers. Stat. tit. 1, c.2; 2 Boullenois, Appx. p. 6; Mer- lin, Répert. Biens, s. 1. (a) Leasehold or chattel interests In bonis Gentili, Ir. R. 9 Eq. 541. in land are classed as immovables. But see Despard v. Churchill, 53 N. Y. Freke ». Carbery, L. R. 16 Eq. 461; 192. 534 CONFLICT OF LAWS. [s. 375-378. perty ; and mixed, being those which concern both persons and property.1 376. Doctrine concerning Movables.— According to this distri- bution all laws respecting property, whether it be movable or im- movable, would fall under the denomination of real laws; and of course, upon the principles of the leading foreign jurists, would seem to be limited in their operation to the territory where the property is situate.2 This however is a conclusion which upon a larger examination will be found to be erroneous, the general doctrine held by nearly all foreign jurists being that the right and disposition of movables is to be governed by the law of the domicil of the owner, and not by the law of their local situ- ation.’ 377. Grounds of the Doctrine. — The grounds upon which this doctrine as to movables is supported, are differently stated by different jurists; but the differences are more nominal than real. Some of them are of opinion that all laws which regard movables are real; but at the same time they maintain that, by a fiction of law, all movables are supposed to be in the place of the domicil of the owner, a quo legem situmque accipiunt. Others are of opinion that such laws are personal, because movables have in contemplation of law no situs, and are attached to the person of the owner, wherever he is; and being so adherent to his per- son, they are governed by the same laws which govern his person, that is, by the law of the place of his domicil.t The former 1 Ante, s. 12-16; 1 Boullenois, Princ. Gén. p. 4-9; Id. obs. 2, p. 29; Id. obs. 6, p. 122-127; P. Voet, de Statut. s. 4, c. 2, n. 2, p. 117, ed. 1715; Id. p- 180, 131, ed. 1661. ? Thus Muhlenbruch (Doctrina Pandectarum, vol. 1, lib. 1, s. 72, p. 167) lays down the following rule: Jura, que proxime rebus sunt scripta, velut que ad dominii causam spectant, vel ad vectigalium tributorumque onus, vel ad pignorum in judicati executionem et capiendorum et distrahendorum, tum etiam rerum apud judicem petendarum persequendarumve rationem, et que sunt reliqua ex hoc genere, estimantur ex legibus ejus civitatis, ubi site sunt res, de quibus agitur, atque collocate, nullo rerum immobilium atque mobilium habito discrimine. 5 See ante, s. 362; post, s. 77-880. See Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, p. 216-218, 221-997. See Cockerell v. Dickens, 3 Moore P. C. 98, 1832; Thomson ». Advocate-General, 18 Sim. 153, 160; 12 Cl. & F. 1; In re Bruce, 2.0. & J. 436, * ‘Mobilia,’ says John Voet, ‘ vero ex lege domicilii ipsius defuncti, vel quia semper domino presentia esse finguntur, vel ‘ex comitate passim usu inter gentes recepta.’ J. Voet, ad Pand. 38, 17, 34, p. 596. And in another place CHAP. IX.] PERSONAL PROPERTY. 535 opinion is maintained by Paul Voet, Rodenburg, and Boullenois ; and the latter by D’Argentré, Burgundus, Hertius, and Bouhier.! Paul Voet says: ‘ Verum mobilia ibi censeantur esse, secundum juris intellectum, ubi is, cujus ea sunt, sedem atque larem suarum fortunarum collocavit.’? So Rodenburg: ‘ Mobilia quippe illa non ideo subjacent statuto (reali), quod personale illud sit; sed quod mobilia, certo ac fixo situ carentia, ibi quemque situm velle habere, ac existere intelligimus, ubi larem ac fortunarum fixit summam, etc. In domicilii loco mobilia intelligantur existere.’® Again, in another place he says: ‘Et quidem, de mobilibus si queratur, cum semper ibi esse existimentur, ubi creditor foret domicilium, cujus ossibus vage he res intelliguntur adherere.’ 4 Boullenois affirms the same doctrine, and gives this reason for it, that, as movables have no such fixed and perpetual situs as lands have, it is necessary that their situs should depend upon the pleasure of the owner, and that they have the very situs which he wishes, when they have that of his own domicil.® 878. D’ Argentré. —On the other hand, D’Argentré says: ‘ De mobilibus alia censura est; quoniam per omnia ex conditione personarum legem accipiunt, et situm habere negantur, nisi affixa et coherentia, nec loco contineri dicuntur propter habilitatem motionis et translationis. Quare statutum de bonis mobilibus vere personale est, et loco domicilii judicium sumit; et quod- he adds: ‘ Sed considerandum, quadam fictione juris, seu malis, preesumptione, hanc de mobilibus determinationem conceptam niti; cum enim certo stabilique hec (mobilia) situ careant, nec certo sint alligata loco; sed ad arbitrium do- “mini undiquaque in domicilii locum revocari facile ac reduci possint, et maxi- mum domino plerumque commodum adferre soleant, cum ei sunt prasentia; visum fuit hance inde conjecturam surgere, quod dominus velle censeatur, ut luc omnia sua sint mobilia, aut saltem esse intelligantur, ubi fortunatum suarum larem summamque constituit; id est, in loco domicilii.’ J Voet, ad Pand. 1, 4, 2,8. 11, p. 44. Hertius says: ‘Nam mobiles ex conditione per-, sone legem accipiunt, nec loco continentur.’ 1 Hertii Opera, de Collis. Leg. s. 4, n. 6, p. 122, 123, ed. 1787 ; Id. p. 174, ed. 1716; Foelix, Conflit des Lois, Revue Etrang. et Frang. 1840, tom. 7, p- 221, 222; ante, s. 362. = 1 Livermore, Dissert. p. 128, 129; 1 Boullenois, obs. 19, p. 838-340; 1 Hertii Opera, de Collis. Leg. s. 4, c. 2, n. 6, p. 122, 123, ed. 1787; Id. p. 174, ed. 1716. 2 P, Voet, de Stat. s.4,c. 2, n. 2, p. 118, ed. 1715; Id.s.9,¢.1, 8s. 8, p. 255; Id. p. 182, 809, ed. 1661. . ® Rodenburg, de Divers. Stat. tit. 1, c. 2, sub finem; 2 Boullenois, Appx. p- 6; 1 Boullenois, obs. 2, p. 25, 28; Id. obs. 6, p. 140. . 4 Rodenburg, de Divers. Stat. tit. 2, c. 5, 8s. 16; 2 Boullenois, Appx. 48. 5 Boullenois, obs. 16, p. 223, 224; Id. obs. 19, p. 338; Id. Prin. Gén. 33, p. 8; 8 Burge, Col. & For. Law, pt. 1, ¢. 20, p. 750, 751. 536 CONFLICT OF LAWS. [s. 378-379, cunque judex domicilii de eo statuit, ubique locum obtinet. Ob- servatio indubita est, mobilia personam sequi, nec situ judicari, aut a locis judicium accipere.’!_ Bouhier is quite as explicit. As movables, says he, have no fixed situs, and are easily transported from one place to another, according to the pleasure of the owner, therefore it is supposed, by a sort of fiction, that they adhere to his person; and from hence comes the maxim in our customary law, that movables follow the body or person of the owner; meubles suivent le corps, ou la personne, mobilia sequuntur personam.? 878 a. Burgundus. — Hertius. — Burgundus puts the doctrine in the strongest form. ‘ Puto equidem,’ says he, ‘ mobilia sequi conditionem persone, id est, si persona fuerit servituti obnoxia bona quoque ejus mobilia libera esse desinere, cum apud nos servitus magis sit bonorum, quam persone. Ut puta, si quis natus in simili regione territorii Alostensis, inde postea alio migraverit, atque decesserit, bona ejus mobilia quocunque loco reperta, cedunt natalis solidominio. Quia perinde haberi debent, ac si per eventum nativitatis, alien se potestati, ac dominio defunctus subjecisset. Non aliter quam mobilia clerici, que et conditionem ejus sequuntur. Sed tamen, ut existimem, bona moventia, et mobilia ita comitari personam, ut extra domicilium ejus censeantur existere, adduci sane non possum. Quod neque rationi, neque juri scripto congruat, sicuti nec doctorum opinioni- bus, aut forensi usu firmatur. Credo ego, mobilia comitari perso- nam quamdiu domicilium non habet. Quod utique procedere poterit, si quis domicilio relicto naviget, vel iter faciat, querens quo seconferat, atque ubi domicilium constituat.’? Hertius says: ‘Nam mobiles ex conditione persone legem accipiunt, nec loco continentur.’ ¢ 379. Probable Origin of the Doctrine. — But, whether the one 1 D’Argentré, de Leg. Brit. tom. 1, des Donations, art. 218, gloss. 6, n. 30, p. 654; Livermore, Dissert. s. 213, p. 128-130; 1 Boullenois, obs. 19, p. 339. 2 Bouhier,Cout. de Bourg. c. 25, s. 2, p. 490; 1 Boullenois, obs. 19, p. 338. ‘Les meubles,’ says Cochin, ‘quelque sorte qu’ils soient, suivent le domicile.’ Cochin, Giuvres, tom. 5, p. 85, 4to ed.; 2 Henry, CEuvres, lib. 4, . 6, quest. 105, p. 612; Id. 720; ante, s. 862; 3 Burge, Col. & For. Law, pt. 2, ¢. 20; p. 750, 751; Foelix, Conflit des Lois, Revue Etrang. et Franc. tom. 7, s. 32, p- 221, 222. 8 Burguhdus, tract. 2, n. 20, p. 71, 72. 4 1 Hertii Opera, de Collis. Leg. s. 4, n. 6, p. 122, 128, ed. 1737; Id. p. 174, ed. 1716; ante, s. 362. See J. Voet, Comm. ad Pand. 2, 38, 17, n. 34, p. 596. CHAP. IX.] PERSONAL PROPERTY. 537 opinion or the other is adopted, it has been truly remarked by Boullenois that the same conclusion is equally true, that mova- _bles follow the person.! The probability is, that the doctrine “itself had not its origin in any distinction betwéen real laws or personal laws, or in any fictitious annexation of them to the per- son of the owner, or in their incapacity to have a fixed situs ; but in an enlarged policy, growing out of their transitory nature and the general convenience of nations. If the law rei sitee were generally to prevail in regard to movables, it would be utterly impossible for the owner in many cases to know in what manner to dispose of them during his life, or to distribute them at his death, not only from the uncertainty of their situation in the transit to and from different places, but from the impracticability of knowing, with minute accuracy, the law of transfers inter vivos, or of testamentary dispositions and successions in the diffe- rent countries in which they might happen to be. Any change of place at a future time might defeat the best-considered will ; and any sale or donation might be rendered inoperative from the ignorance of the parties of the law of the actual situs at the time of their acts. These would be serious evils, pervading the whole community, and equally affecting the subjects and the interests of all civilized nations. But in maritime nations, depending upon commerce for their revenues, their power, and their glory, the mis- chief would be incalculable.(a@) A sense of general utility therefore must have first suggested the doctrine ; and as soon as it was promulgated, it could not fail to recommend itself to all nations by its simplicity, its convenience, and’ its enlarged policy. 11 Boullenois, obs. 19, p. 839. See also J. Voet, ad Pand. 38, 17, s. 34, p- 596; Holmes v. Remsen, 4 Johns. Ch. (N.Y.) 487; 1 Burge, Col. & For. Law, pt. 1, ¢. 1, p. 28, 29; Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, p. 204-206. 2 See Harvey v. Richards, 1 Mason, 412; ante, s. 372a. Mr. Justice Bay- ley, in delivering his opinion in the case of In re Ewin, 1C. & J. 156, said: ‘ Now what-is the rule with respect to it? It is clear from the authority of Bruce v. Bruce, — and the case of Somerville v. Somerville, — that the rule is that personal property follows the person, and it is not in any respect to be regulated by the situs; and if in any instance the situs has been adopted as the rule by which the property is to be governed, and the lex loci rei sitz resorted to, it has been improperly done. Wherever the domicil of the proprietor is, (a) See Swearingen v. Morris, 14 Ohio St. 428. [s. 380, 381, 538 CONFLICT OF LAWS. 380. Its General Recognition.— But be the origin of the doc- trine what it may, it has so general a sanction among all civilized nations that it may now be treated as a part of the jus gen- tium. (a) Lord Loughborough has stated it with great clear-’ ness and force in one of his most elaborate judgments. ‘Itis a clear proposition,’ said he, ‘not only of the law of England, but of every country in the world where law has the semblance of science, that personal property (4) has no locality; The mean- ing of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it, either by succession, or by the act of the party, it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is,.but the law there the property is to be considered as situate; and in the case of Somerville v. Somerville, which was a case in which there was stock in the funds of this country, which were at least as far local as any of the stocks mentioned in this case are local, there was a question whether the succession to that property should be regulated by the English or by the Scotch rules of succession. The Master of the Rolls was of opinion that the proper domicil of the party was in Scotland. And having ascertained that, the conclusion which he drew was, that the property in the English funds was to be regulated by the Scotch mode of succession; and if the executor had, as he no doubt would have, the power of reducing the property into his own possession, and putting the amount into his own pocket, it would be distributed by the law of the country in which the party was domiciled. Personal property is always liable to be transferred, wherever it may happen to be, by the act of the party to whom that property belongs; and there are authorities that ascertain this point, which bears by analogy on this case, namely, that if a trader in England becomes bankrupt, having that which is personal property, debts, or other personal property, due to him abroad, the assignment under the commission of bankruptcy operates upon the property and effectually transfers it, at least against all those persons who owe obedience to these bankrupt laws, the subjects of this country.’ (a) Bremer v. Freeman, 10 Moore, P. C. 358. (6) Referring to this passage, Lord Selborne said, in Freke v. Carbery, L. R. 16 Eq. 466, ‘The passage . . . certainly not meant to apply arbitra- rily in a new sense, because Lord Loughborough used the word ‘ perso- nal’? instead of ‘movable.’ The doctrine depends upon a principle from Story, in which the words of Lord Loughborough were cited with approbation, is simply a translation into the phraseology of the English law of the maxim of the general law, mobilia sequuntur personam, and is which is expressed in the Latin words; and that is the only principle of the whole of our law, as to domicil when applicable to the succession of what we call personal estate.” He referred also to s. 447, post. CHAP. 1Xx.] PERSONAL PROPERTY. 539 of the country of which he was a subject, that will regulate the succession.’1(a) The same doctrine was recognized by Lord Chief Justice Abbott on another important occasion. ‘ Personal property,’ said he, ‘has no locality, and even with respect to that, it is not correct to say that the law of England gives way to the law of a foreign country, but that it is part of the law of Eng- land that personal property should be distributed according to the jus domicilii”? The same doctrine has been constantly maintained both in England and America, with unbroken confi- dence and general unanimity.? (0) 381. Foreign Jurists. — Foreign jurists are not less expressive in its favor. ‘Constat inter omnes,’ says Bretonnier, ‘que les meubles suivent les personnes, et se réglent suivant la coutume du domicile. And he speaks but the common language of the continental jurists. Pothier, after remarking that movables have no locality, adds: ‘ All things which have no locality follow the person of the owner, and are consequently governed by the law or the custom which governs his person, that is to say, by that of 1 Sill vu. Worswick, 1 H. Bl. 690; Hoffman v. Carow,-22 Wend. (N.Y.) 285, 323. 2 Birtwhistle v. Vardill, 5 B. & C. 488, 451, 8. c. 6 Bligh, 82-88; 2 Cl. & F. 571. 8 The authorities on this point are very numerous. See Henry on Foreign Law, p. 18-15; 4 Cowen (N. Y.) 517, note; 2 Kent Com. 428, 405; Kames Eq. b. 3, c. 8, s. 8, 4; Ersk. Inst. b. 3, tit. 2, s. 40, p. 515; Dwarris on Statutes, 649, 650; In re Ewing, 1 Tyrw. 91; 1 Rose, 478; 5 B. & C. 451, 452; 2 Bell Com. p. 2-10, 4th & 5th ed.; Pipon v. Pipon, Ambler, 25; Potter v. Brown, 5 East, 180; Holmes ». Remsen, 4 Johns. Ch. (N. Y.) 460; Guier v. O’Daniel, 1 Binn. (Pa.) 349, note; Bruce v. Bruce, 2 B. & P. 229, note; Liver- more, Diss. p. 128-182; De Sobrey v. De Laistre, 2 Harr. & J. (Md.) 191, 224; Hunter v. Potts, 4 T. R. 182, 192; Phillips v. Hunter, 2 H. Bl. 402, 405; Goodwin v. Jones, 3 Mass. 514, 517; Blake v. Williams, 6 Pick. (Mass.) 286, 314; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 749-753; French v. Hall, 9 N. H. 137; Cockerell v. Dickens, 8 Moore P. C. 98, 131, 132. 4 2 Henrys, Guvres, lib. 4, quest. 127, p. 720. > See 1 Boullenois, obs. 18, p. 828; obs. 19, p. 339, 840; Bouhier, c. 22, p. 429, 8.79, c. 25, p. 490, s.2; 5 Cochin, Guvres, 85; Livermore, Dissert. s.212- 216, p. 129, 1830; Huberus, de Confl. Leg. lib. 1, tit. 8, s. 15. See Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 82-85, p. 221-229. (a) See Thomson v. Advocate-Ge- late the transfer, by operation of law,, neral, 12 Clark & F. 1. of property located in another. Re- (b) See note to s. 383, post. But ceiver v. First National Bank, 34 N. J. the laws of one state cannot regu- Eq. 450. 540 CONFLICT OF LAWS. [s. 381, 382. the place of his domicil.’1_ Merlin adopts language equally gene- ral and exact. ‘ Movables,’ says he, ‘are governed by the law of the domicil of the owner, wherever they may be situate ; and this law of course changes with his change of domicil.’? Bynker- shoek asserts the principle to be so well established that no one has dared to question it: ‘ Adeo recepta hodie sententia est, ut nemo ausit contra hiscere.’ 2 Huberus says: ‘ Verum in mobilibus ni- hil esse cause, cur aliud, quam jus domicilii sequamur ; quia res mobiles non habent affectionem versus territorium, sed ad per- sonam patrisfamilias duntaxat, qui aliud, quam quod in loco do- micilii obtinebat, voluisse obtinere non potest.’* So that there seems a general although not an entire harmony on this point between foreign jurists and domestic jurists. ® 1 Pothier, Coutume d’Orléans, c. 1, s. 2, tom. 10, p. 7, 4to ed.; Id. Traité des Choses, 8. 3, tom. 8, p. 109, 4to ed. 2 Merlin, Répert. Biens, s. 1, n. 12; Id. Meubles, s. 1; Id. Loi, s. 6, n. 3. 8 2 Kent Com. 429; Bynkershoek, Quest. Priv. Juris. lib. 1, ¢..16, p. 179, 180, ed. 1744. Bynkershoek, in the passage here referred to, is speaking of the right of succession; but his language has been thought susceptible of a broader interpretation. See post, s. 483. 4 Huberus, ps. 1, lib. 8, tom. 1, de Success. ab Intest. n. 21 (s). 5 See Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 82- 85, p. 221-229. See also Muhlenbruch, Doctr. Pand. 1, 1, s. 72, 73, p. 166- 170, who seems to make the law rei situs govern in many cases, as well with respect to movables as immovables. Jura, que proxime rebus sunt scripta, vel que ad dominii causam spectant, etc., estimantur ex legibus ejus civitatis, ubi sitz res, de quibus agitur, atque collocate, nullo rerum imiobilium atque mobilium habito discrimine. Id.s.72. Mr. Foelix says on this subject: ‘ Par la nature des choses, les meubles, soit corporels, soit incorporels, n’ont pas, 4 V’égal des immeubles, une assiette fixe dans l’endroit ot ils se trouvent de fait: ils dépendent nécessairement de la personne de l’individu 4 qui ils apparticn- nent, et ils subissent la destination qu’il leur donne. Chaque individu étant légalement censé avoir réuni sa fortune au lieu de son domicile, c’est-a-dire au sitge principal deses affaires, on a toujours regardé en droit les meubles comme se trouvant au lieu du domicile de celui & qui ils appartiennent; peu importe si, de fait, ils se trouvent ou non au dit lieu. Par une fiction légale, on les consi- dére comme suivant la personne, et comme étant soumis & la méme loi qui régit l’état et la capacité de cette personne; et nous avons vu (supra, n’. 21) que cette loi est celle du domicile (mobilia sequuntur personam; mobilia ossi- bus inherent). En d’autres termes, le statut personnel gouverne les meubles corporels ou incorporels, Ce statut est & leur égard réel, par suite de la fiction qui les répute se trouver au lieu régi par ce méme statut. Tel a toujours été le sentiment presque unanime des auteurs et des cours de justice. ‘Témoins Du- «moulin, Chopin, Bretonnier, d’Argentré, Brodeau, Lebrun, Poullain du Pare, Burgundus, Rodenburg, Abraham & Wesel, Paul Voet, Jean Voet, Saude, Christin, Gail, Carpzov, Wernher, Mevius, Franzké, Boullenois, Pothier, Struve, Leyser, Huber, Hert, Hommel, Danz, Glick, Thibaut, Merlin, MM. CHAP. 1X.] PERSONAL PROPERTY. 541 382. Movables annexed to Immovables. — When however we speak of movables as following the person of the owner, and as governed by the law of his domicil, we are to limit the doctrine to the cases in which they may be properly said to retain their original and natural character. For.movables may become an- nexed to immovables, either by incorporation or as incidents ; and then they take the character of the latter.1 Thus in the lan- guage of the common law, movables annexed to the freehold are deemed a part of the latter. Such are the common cases of fix-. tures of personal property in houses, in mills, and in other heredi- taments, whether for use or for ornament. In the law of foreign. countries a similar distinction is recognized; and wherever mov- ables become’ thus fixed by operation of law, or by the express determination of the owner, they are deemed a part of the im- movable property.2, John Voet ranks them. among immovables. ‘Idemque statuendum. in mobilibus, per patrisfamilias destina- tionem perpetui usus gratia ad certum locum, domum puta, vel: Mittermaier, Hauss, Meier, Favard, Duranton, Story, Wheaton, Rocéo, et Burge. Trois auteurs seulement ne sont pas entierement d’accord, en cette matiére, avec ceux que nous venons de citer: ce sont Tittman, M. Miihlen- ‘bruch, et M. Eichhorn. Le premier, en soumettant les meubles.&4 la méme loi qui régit les immeubles, ne s’attache qu’a l’un des cas exceptionnels, dont nous parlerons au n° 33 ci-aprés, sans examiner la régle elle-eméme. M. Mihlenbruch repousse toute distinction entre les meubles et les immeubles par rapport & la loi qui les régit, par le seul motif, que l’opinion contraire établi- rait une différence entre la succession dans les immeubles et celle dans les meubles du méme individu; nous démontrerons ci-aprés la nécessité de recon- naitre cette différence. M. Eichhorn, en rejetant l’application de la loi de la situation des meubles, n’admet cependant la régle qu’avec la modification que, selon les circonstances, il faudra appliquer la loi du lieu ot la cause se plaidera:-il cite comme exemple le cas ou le défendeur en revendication in- voque la maxime, qu’en fait de meubles possession vaut titre.’ Foelix, Conflit des Lois, Revue Etrang. et Frang. 1840, tom. 7, s. 82, p. 221-224. (a) 1 Ante, s. 371; post, s. 447. 2 Pothier, Traité des Choses, s. 1; Id. Coutume d’ Orléans, c. 3, art. 46-48; Merlin, Répert. Biens, s. 1, n. 13, s. 2, n. 1; Id. Meubles, s. 2, 3; 1 Bell Com. 8. 660, p. 648-652, 4th ed.; 2 Bell Com. p. 2-4, 4th ed.; 1 Bell Com. p. 752-755, and. 2 Bell Com. p. 1-10; 1 Boullenois, obs. 19, p. 340, 341; 1 Kames on Equity, b. 8, c. 8, s. 3; Ersk. Inst. b. 3, tit. 9, s. 4. (a) In the section following that gives examples of both classes of cases. from which the ahove-quoted extract This section is quoted at length, ante is made, Foelix mentions the cases in 8. 3226, in the author’s note; and is. which the rule mobilia sequuntur per- translated by Westlake in his second sonam is applicable, and those in edition, p. 158. which it has no application, and he 542 CONFLICT OF LAWS. [s. 382-383, fundun, delatis, it aut perpetuo illic istius usus causa mansura sint, etiamsi vel nunquam immobilibus naturaliter jungenda sint, vel ex destinatione jungenda, necdum tamen inceperint immo- bilibus juncta esse, modo ad ipsas edes fundosve, quibus jungenda sunt, delata fuerint.’! Among the class of immovables are also ranked, as we have seen, heritable bonds by the Scottish law, and ground rents, and other rents charged on lands.? 383. Transfer of Movables by the Lex Domicilit. — It follows as a natural consequence of the rule which we have been consider- ing (that personal property has no locality) that the laws of the owner’s domicil should in all cases determine the validity of every transfer, alienation, ordisposition made by the owner, whether it be inter vivos, or be post mortem. And this is regularly true, un- less there is some positive or customary law of the country where they are situate, providing for special cases (as is sometimes done), or, from the nature of the particular property, it has a necessarily implied locality. Lord Mansfield has mentioned, as among the latter class, contracts respecting the public funds or stocks, the local nature of which requires them to be carried into execution according to the local law.6 The same rule may properly apply to all other local stock or funds, although of a personal nature, or so made by the local law, such as bank stock, insurance stock, turnpike, canal, and bridge shares, and other incorporeal property owing its existence to, or regulated by, 1 J. Voet, ad Pand. 1, 8, 14, p. 67. 2 1 Bell Com. s. 660, p. 648-652; 2 Bell Com. p. 2-4, 4th ed.; Ersk. Inst. b. 2, c. 2, s. 9-20; Pothier, Traité des Choses, s. 8; ante, s. 366, 367, and note; post, s. 447. 3 Livermore, Dissert. s. 215-220, p. 180-187; French v. Hall, 9 N. H. 187; Sessions v. Little, 9 N. H. 271. * Mr. Chief Justice Tilghman on one occasion said: ‘ The proposition’ (that personal property has no locality, but is transferred according to the law of the country in which the owner is domiciled) ‘is true in general, but not to its utmost extent, nor without several exceptions. In one sense personal pro- perty has locality, that is to say, if tangible, it has a place in which it is situ- ated, and if invisible (consisting of debts), it may be said to be in the place where the debtor resides; and of these circumstances the most liberal nations have taken advantage, by making such property subject to regulations which suit their own convenience.’ ‘ Every country has a right of regulating the transfer of all personal property within its territory; but when no positive re- gulation exists, the owner transfers it at his pleasure.’ Milne v. Moreton, 6 Binn. (Penn.) 361; 8 Burge, Col. & For. Law, pt. 2, c. 20, p. 751, 752; ante, 8. 364 and note. 5 Robinson v. Bland, 2 Burr. 1079; 1 W. Bl. 247; ante, s. 364. CHAP, IX.] PERSONAL PROPERTY. 543 peculiar local laws.1'| No positive transfer can be made of such property except in the manner prescribed by the local regu- ‘lations.2 But nevertheless contracts to transfer such property would be valid if made according to the lex domicilii of the owner, or the lex loci contractus, unless such contracts were spe- cially prohibited by the lex rei site; and the property would be treated as personal, or as real, in the course of administration, according to the local law.’ (a) 12 Bell Com. p. 4, 5, 4th ed.; Id. p. 1-10, 5th ed.; 1 Id. p. 65, 67, 68, 4th ed. ; Id. p. 105-108, 5th ed. ; 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 750- 752. Mr. Burge says that, although stocks of this nature can only be trans- ferred according to the forms of the lex rei site, so as to confer a legal title on the purchaser, yet it will give the purchaser a right of action to compel the vendor to make a transfer in the manner required by the local law. Ibid; ante, s. 8364, note. Erskine, in his Institutes (b. 38, tit. 9, s. 4), puts the like exceptions. ‘We must except,’ says he, ‘from this general rule, as civilians have done, certain movables, which by the destination of the deceased are con- sidered as immovables. Among these may be reckoned the shares of the trading companies, or of the public stocks of any country, for example, the Banks of Scotland, England, and Holland, the South Sea Company, &c., which are, without doubt; descendible, according to the law of the state where such stocks are fixed. But the bonds or notes of such companies make no ex- ception from the general rule. They are accounted part of the movable estate of the deceased.’ Ante, s. 364, 365; post, s. 398; Robertson on Successions, p. 94,95. See Attorney-General v. Dimond, 1 C. & J. 356, 370, 371; Attorney- General v. Hope, 1 C. M. & R. 538; 8 Bligh, 44; 2 Cl. & F. 84; Attorney- General v. Bouwens, 4 M. & W. 171, 191-193; post, s. 482. 2 Though stock abroad may be, as to its transfer, affected by the local laws, it is not to be treated, as of course, as partaking of the character of real estate, and descendible as such. On the contrary, if it be by the local law per- sonal estate, it may be disposed of by an administration as such; and the title passes, if it be made in the forms prescribed by the foreign law. See Attor- ney-General ». Dimond, 1 Tyrw. 248; In re Ewing, 1 Tyrw. 91; Ersk. Inst. b. 3, tit. 9, 8. 4; 1 Bell Com. p. 65; 2 Bell Com. p. 4, 5, 4th & 5th ed.; ante, 8. 364, 365. 3 Abbott on Shipping, pt. 1, c. 2,8. 10; 1 Chitty on Comm. & Manuf. 556, 558, 569, &c.; 2 Kent Com. 145, 146. (@) Mobilia sequuntur Personam. — The exceptions to the maxim mobilia sequuntur personam have become so numerous that it cannot be safely in- voked for the decision of any but the simplest cases at the present day; if indeed a case can ever be safely de- cided upon a maxim. The exceptions would probably be less frequent if the maxim were lex situs mobilia regit. But no maxim is needed; any would be apt to mislead. The question is, how far will a state permit a non-resi- sident having personalty within its limits, or the creditors resident or non- resident of such a person, or the course of the foreign law under which the non-resident owner is domiciled, to control that property; and this ques- tion should be decided upon its merits, 544 CONFLICT OF LAWS. [s. 384, 384. Transfer by the Lex Situs or Lex Loci Contractus. — Sub- ject to exceptions of this and the like nature (such as the statuta- uninfluenced by maxim. The answer to the question will depend partly on the nature of the property and partly upon the mode of disposing of it or affecting it. The author has in s. 883 referred to certain cases in which, from ‘ the local nature’ of the property, the mode of disposition must be controlled by the law of the situs. These are contracts relating to the public funds or stocks, and to private funds or stocks whose existence arises under or is regulated by peculiar local laws, such as bank, insurance, turnpike, canal, bridge, and the like stocks. The transfer of ships and of goods in the warehouses or in the docks of the government is also mentioned in s. 384. The mode of disposition is a more common factor in the question of the law to be applied; and the answer will be more or less varied according as the disposition is by will, intestacy, gift, sale, mortgage, assignment, or contract, or by proceedings in bank- ruptcy or insolvency. To dispose of personalty within a particular state or country by will, it is only necessary that the execution and terms of the will should conform to the law of the foreign testator’s do- micil at the time of his death. Moul- trie v. Hunt, 23 N. Y.394; Parsons v. Lyman, 20 N. Y. 103; Knox ». Jones, 47 N. Y.389; Lawrence v. Kitteridge, 21 Conn. 577; Swearingen v. Morris, 14 Ohio St. 424; Fellows v. Miner, 119 Mass. 541; Gilman v. Gilman, 52 Me. 165; post, s. 465. The law of the do- micil governs also the capacity of the testator at the time of making the will. Lawrence v. Kitteridge, supra. But with regard to probate jurisdic- tion, it is held that a bond left by a testator has its situs where it was left, and is assets there. Beers v. Shannon, 73 .N. Y. 292. It is held also that in the matter of the execution of a power of appoint- ment of personalty conferred by a tes- tator upon a donee, the law. of the domicil of the donor and owner of the | property, not that of the donee of the power, will govern, especially when the property is held and controlled in the domicil of the donor. Sewall ». Wilmer, 182 Mass. 131; Bingham’s Appeal, 64 Penn. St. 345. The distribution of the estate of. an intestate domiciled in another state at the time of his death will also be con- trolled by the law of the decedent’s domicil. Thorne v. Watkins, 2 Ves. 35; Bempde v. Johnstone, 3 Ves. 198; Moye v. May, 8 Ired. Eq. (N.C.) 131; Noonan v. Kemp, 34 Md. 73; Wilkins v. Ellett, 9 Wall. 740; Parsons v. Ly- man, 20 N. Y.108. And in the case of a married woman’s personalty, in the absence of a matrimonial contract the matrimonial domicil governs. Noonan v. Kemp, supra; Newcomer v. Orem, 2 Md. 297. This however supposes that the interests of creditors in the state of the situs are not involved; when such interests are interposed, the estate will first be distributed among them to the amount of the debts due. ‘After the death of the owner the property has a situs, and then the dis- position of the property among the creditors is to be regulated by the lex rei site.’ Moore v. Bonnell, 2 Vroom (N. J.) 90; Moye v. May, supra. In the case of disposition by gift, sale, mortgage, or assignment of pro perty located in the domicil of the parties, the law of the place of the transaction will govern the validity and force of the same, at least where citizens of the state of the forum are not concerned by having a lien on or right to the property. Some question of this proposition has been made, and domestic creditors have sometimes been CHAP. 1X.] PERSONAL PROPERTY. t 545 ble transfer of ships and of goods in the warehouses or in the docks of a government, which would fall within the same predi- allowed to seize property of the debtor brought within their state, which he had legally conveyed by the law of his domicil, but not by that of the forum. Skiff v. Solace, 23 Vt. 279. But this case was overruled in Jones v. Taylor, 80 Vt. 42. See also Mead #. Dayton, 28 Conn. 33; Bush v. Edgerly, 81 N.Y. 199. In the last cited case it was doubted whether, after a title to pro- perty had been acquired by the law of a vendor’s domicil, and of the situs and forum, such title could be treated as divested, in a contest between citi- zens of that forum, by the surrepti- tious removal of the property into another state and sale of it there under different laws. It was thought that the decisions were opposed to such a result. The following cases were cited as authority: Taylor v. Boardman, 25 Vt. 581; Martin v. Hill, 12 Barb. (N. Y.) 681; French v. Hall, 9 N. H. 187; Langworthy v. Little, 12 Cush. (Mass.).109. ° It is apprehended that the law to be applied in these cases, unless the situ- ation is very peculiar, is that of the situs. It has often been declared in England that if personalty is disposed of in a way binding where it is situ- ated, that disposition is binding every- where. Cammell v. Sewell, 3 Hurl. & N. 617, 688, Pollock, C. B.; 5 Hurl. & N. 728, 744; Castrique v. Imrie, L.R. 4H.L., 414, 429, intimating the exist- ence of limitations to the rule. And see Pond v. Cooke, 45 Conn. 126; Bal- lard v. Winter, 89 Conn. 179; Jones v. Taylor, 830 Vt. 42; Comer v. Cun- ningham, 77 N. Y. 397. So ithas been held in this country that a mortgage of personalty made at its situs, and valid there, will be good on the remo- val of the property to another state. Smith v. McLean, 24 Iowa, 322; Fer- guson v. Clifford, 37 N. H. 86 ; Jones v. Taylor, 80 Vt. 42; Barker v. Stacy, 25 Miss. 471; Blystone v. Burgett, 10 Ind. 28. And this even though the property was but temporarily at the place of the mortgage. Langworthy v. Little, 12 Cush. (Mass.) 109. And if the mortgage is invalid at the situs, it will be invalid on the removal of the property to another jurisdiction. Blystone v. Burgett, supra. Butit has been held that liens given by statute in one state upon movables have no priority over liens afterwards acquired in another state (to which they have been removed) by citizens thereof proceeding in the latter state. Donald v. Hewitt, 33 Ala. 534, 546; Marsh v. Elsworth, 37 Ala. 85; Mer- vick v. Avery, 14 Ark. 370; Wood- ward v. Roane, 23 Ark. 523. How far this view is consistent with sound principle, even if with the fundamen- tal law against impairing the obliga- tion of contracts, deserves to be con- sidered. Cases of this sort carry the consequences of situs to an extreme; the only ground of decision apparently being found in the interests of domes- tic creditors. On the other hand it has been held that the transfer of a judgment debt according to the lex domicilii of the judgment creditor, though not by the lex situs, should be respected every- where. Clark v. Connecticut Peat Co., 35 Conn. 303. So of an assignment of a claim under an insurance policy. Ib.; Vanbuskirk v. Hartford Ins. Co., 14 Conn. 583. And this even against an attaching creditor in the state of the forum. Clark v. Connecticut Peat Co , supra, denying Worden v. Nourse, 36 Vt. 756. See also Martin v. Potter, 34 Vt. 87, to the same effect as Wor- den v. Nourse. And a mortgage of personalty located in another state will be valid between the parties unless it is shown that a delivery was necessary by the lex loci contractus. Rhode Is- 35 546 CONFLICT OF LAWS. [s. 384. cament), the general rule is, that a transfer of personal property, good by the law of the owner’s domicil, is valid wherever else land Bank v. Danforth, 14 Gray (Mass.) 123. So also an assignment of a vessel at sea in favor of creditors, made in a state in which all the par- ties reside, will prevail on the arrival of the vessel in another state, if the assignment was valid where made. Southern Bank v. Wood, 14 La. An. 554; Thuret v. Jenkins, 7 Mart. (La.) 353; Crapo v. Kelly, 16 Wall. 610, re- versing 45 N. Y. 86; post, s. 891. See Fell v. Darden, 17 La. An. 236. A different question arises where the interests of creditors are involved; though some dispute has arisen among the authorities with regard to the effect of voluntary assignments and dispositions made abroad as opposed to transfers by virtue of bankruptcy and insolvency laws. The distinction taken in the text has often been re- peated, and in some cases the law of the place of the sale or contract has been applied to voluntary dispositions. Caskie v. Webster, 2 Wall. jr. 131; Dundas v. Bowler, 3 McLean, 397 (these two cases are overruled by Green v. Van Buskirk, infra); Hanford »v. Paine, 32 Vt. 442; Law v. Mills, 18 Penn. St. 185. But while there may be a distinc- tion for some purposes between volun- tary and involuntary assignments, the better opinion is that the distinction should not apply to the cases under consideration, but that the lex situs should govern both. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Hervey v. Rhode Island Loc. Works, 93 U. 8S. 664; Moore v. Bonnell, 2 Vroom (N.J.) 90, 94; Varmum v. Camp, 1 Green (N. J.) 826; Bentley v. Whittemore, 19 N. J. Eq. 462; Ingra- ham v. Geyer, 13 Mass. 146; Fall River Tron Works v. Croade, 15 Pick. (Mass. ) 11; Zipcey v. Thompson, 1 Gray (Mass.) 248; Pierce v. O’Brien, 129 Mass. 314; Fox v. Adams, 5 Greenl, (Me.) 245; Richmondville Manuf. Co, v. Prall, 9 Conn. 489; Maberry », Shisler, 1 Har. (Del.) 349; Edgerly ». Bush, 81 N. Y. 199, 208; Guillander v. Howell, 35 N.Y. 657. Of course if the assignment is good both by the lex situs and by the lex domicilii, it will be enforced everywhere. Ocker- man v. Cross, 54 N. Y. 29. The doctrine that the lex situs must govern in a question of the rights of creditors was, at the first stage of progress from the application of the lex domicilii, applied only in favor of domestic creditors. See Bentley »v. Whittemore, 19 N.J. Eq. 462, re- versing 18 N. J. Eq. 866. And in this connection may be noticed the discri- mination against foreign creditors in cases of contract merely, irrespective of the existence of property; a discri- mination which went so far as to de- clare that a discharge in insolvency of a debtor in the state of the forum upon a contract payable there barred the claims of foreign creditors, whether parties or not to the proceedings. | Scribner v. Fisher, 2 Gray (Mass.) 43; — ante, s. 341, note. But this doctrine was overruled by the Supreme Court of the United States in Baldwin v. Hale, 1 Wall. 223, and the overruling authority has been accepted as final. Stoddard ». Harrington, 100 Mass. 88; Kelley ». Drury, 9 Allen (Mass.) 28; Pratt »v. Chase, 44 N. Y. 597; Newmarket Bank v. Butler, 45 N. H. 236 (overruling other cases of that state); Felch v. Bugbee, 48 Me. 9; Gilman «. Lock-’ wood, 4 Wall. 409. Indeed the progress has been firm in the Supreme Court of the United States; and the just principle has there been reached and applied that no dis- crimination should be made against foreign creditors; they as well as the domestic creditors being entitled to . CHAP. 1x.] PERSONAL PROPERTY, 547 the property may be situate! But it. does not follow that a transfer made by the owner according to the law of the place of its actual situs would not as completely divest his title, nor even that transfer by him in any other foreign country, which would be good according to the law of that country, would not be equally effectual, although he might not have his domicil there. For purposes of this sort, his personal property may in many cases be deemed subject to his disposal, wherever he may happen to be at 1 1 Kames Eq. b. 3, c. 8, s. 8. In the case of a movable subject lying in Scotland, says Erskine, the deed of transmission, if perfected according to the lex domicilii, is effectual to carry the property; for movables have no permanent situation. Ersk, Inst. b. 3, tit. 2, s. 40, p. 515; 8 Burge, Col. & For. Law, pt. 2, c. 20, p. 750-752; ante, s. 364, note. the benefit of the lex situs in questions of movables. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139. See also Paine v. Lester, 44 Conn. 196. But the courts have not all reached this high position, and the law is still in a state of transition (see Bentley v. Whittemore, 19 N. J. Eq. 462, revers- ing 18 N. J. Eq. 366; ante, s. 825 9), unless the authority of the Supreme Court of the United States is final. It is agreed however that the law of the situs will govern in favor of creditors domiciled in the state in which the property lies, especially when that is also the state of the forum. Rice v. Courtis, 832 Vt. 460; Clark v. Tarbell, 58 N. H. 88; Osgood v. Ma- guire, 61 N. Y. 524. The last case cited decides that the claim of a domes- tie receiver over property of the debtor located within the State will prevail over a subsequent attachment made in another state; casting some doubt upon Taylor v. Columbian Ins. Co., 14 Allen (Mass.) 858. That the lex situs applies to cases arising under foreign insolvency laws see Baldwin v. Hale, 1 Wall. 223; Dun- lap v. Rogers, 47 N. H. 281, 287 (over- ruling Hall rv. Boardman, 14 N. H. 38; Hoag v. Hunt, 21 N. H. 106; Brown v. Collins, 41 N. H. 405; Whitney v. Whiting, 85 N. H. 471); Felch v. Bug- bee, 48 Me. 9; Johnson v. Parker, 4 Bush (Ky.) 149; Einer v. Beste, 32 Mo. 240, 251. See Paine v. Lester, 44 Conn. 196. But a legal discharge in insol- vency between citizens of the state in which it is granted will be valid every- where as between them. Felchv. Bug- bee, 48 Me. 9, 11; Stevens v. Norris, 10 Fost. (N. H.) 466; Brigham v. Hen- derson, 1 Cush. (Mass.) 430. Comp. Rhode Island Bank v. Danforth, 14 Gray (Mass.) 128. And this even of contracts made and to be performed in another state. Marsh v. Putnam, 3 Gray (Mass.) 551. But concerning the effect in the United States of a dis- charge granted in a foreign country, see Very v. McHenry, 29 Me. 214; Peck v. Hibbard, 26 Vt. 704; ante, s. 341. Of course for the purpose of taxation the lex situs will prevail. Graham v. First National Bank, 84 N. Y. 393, 401. : Upon this whole subject of the maxim mobilia sequuntur personam the reader is also referred to Mr. West- lake’s chapter 6 in his work on Private ‘International Law (ed. 1880), where the foundation of that maxim is ex- amined and its insufficiency pointed out. Andsee Wharton, Confl. of Laws, s. 297 et seq., 334 et seq. (2d ed.) ; Di- cey on Domicil, 262; Bar, Interna- tional Law, s. 59, 60 (trans. by Gil- lespie); Savigny, s. 366 (Guthrie) ; ante, s. 322, note, quoting Foelix. 548 CONFLICT OF LAWS. [s. 384-387, the time of the alienation. Thus a merchant domiciled in Ame- rica may doubtless transfer his personal property according to the law of his domicil, wherever the property may be. But if he should direct a sale of it or make a sale of it in a foreign coun- try, where it is situate at the time, according to the laws thereof, either in person or by an agent, the validity of such a sale would scarcely be doubted. If a merchant is temporarily abroad, he is understood to possess a general authority to transfer such per- sonal property as accompanies his person, wherever he may be; so always that he does not violate the law of the country where the act is done.1 The general convenience and freedom of com- merce require this enlargement of the rule; for otherwise the sale of personal property actually situate in a foreign country, made according to the forms prescribed by its laws, might be de- clared null and void in the country of the domicil of the owner. In the ordinary course of trade with forcign countries, no one thinks of transferring personal property according to the forms of his own domicil; but it is transferred according to the forms pre- scribed by the law of the place where the sale takes place. 385. Conflict between Lex Situs and Lex Domicilit. — A ques- tion involving other considerations may be presented ; and that is, whether a transfer of personal property is good, which is madé according to the law of the owner’s domicil, but not in confor- mity to the law of the place where it is situate? And whether there is any difference in such a case between the transfer being made by the owner in his place of domicil, or its being made in the place rei site? For instance, let us suppose that, by the law of the domicil of the owner, a sale of goods is complete and per- fect to pass the title without any delivery; and that, by the law of the place of their situs, the sale is not complete until delivery. In such a case, if the transfer of the goods is made in the domicil of the owner, would it be valid without any delivery thereof, so as to pass the title against third persons? If it would, in such a case, what would be the effect if the transfer was made in the place where the goods were situate, without any such delivery ? 386. Doctrine in Lowisiana. — The former question has been much discussed in the courts of Louisiana, from a supposed diffe- rence between the rule of the common law, and that of the civil law on this subject. By the common law a sale of goods is, or 1 See 1 Kames Eq. b. 3, c. 8, s, 3. -CHAP. IX.] PERSONAL PROPERTY. 549 may be, complete without delivery.1 But by the law of Louisi- ana delivery is necessary to complete the transfer, according to the well-known rule of the civil law: ‘ Traditionibus et usucapi- onibus dominia rerum, non nudis pactis, transferuntur.’? Upon the fullest examination, and after repeated arguments, the Su- preme Court of Louisiana have held the doctrine that the trans- fer of personal property in that state is not complete, so as to pass the title against creditors, unless a delivery is made in con- formity to the laws of that state, although the transfer is made by the owner in his foreign domicil, and would be good without delivery by the laws of that domicil.? 387. Olivier v. Townes. — The reasoning by which this doc- trine is maintained is most fully developed in a case in which a transfer of a part of a ship was made in Virginia, the ship at the time of the sale being locally at New Orleans; and, before any delivery thereof, she was attached by the creditors of the vendor.‘ It was therefore a case of conflict of rights between the creditor and the purchaser. The learned judge,® who delivered the opi- nion of the court on that occasion, said: * The position assumed in the present case is, that, by the laws of all civilized countries, the alienation of ‘movable property must be determined according to the laws, rules, and regulations in force where the owner’s domi- cil is situated. Hence it is insisted that, as by the law existing 1 The common law deems a sale, as between the parties, complete without delivery, but not as to third persons. If therefore a sale is made, the purcha- ser, in order to complete his title against creditors and other purchasers, must take possession within a reasonable time. Where the property is at sea at the time, and is incapable of delivery, there the title is complete without delivery. But it may be lost by an omission to take possession within a reasonable time after its arrival in port. See Meeker v. Wilson, 1 Gall. 419; 1 Black. Com. 446, 448: 2 Kent Com. 492, 493, 498, 515-522; Bholen v. Cleveland, 5 Ma- son, 174; 8 Chitty on Comm. & Manuf. c. 5, 8.2, p. 272, &e.; Lanfear v. Sum- ner, 17 Mass. 110; Bigelow’s Digest, Sale, A. B.; post, s. 889. See also Long on Sales, by Rand, ed. 1839, c. 7, p. 259-307. 2 Cod. 2, 8, 20; Olivier ». Townes, 2 Mart. N.S. (La.) 93, 102; Norris v. Mumford, 4 Mart. (La.) 20; Durnford v. Brooks, 8 Mart. (La.) 222, 225. ® The point appears to have been first decided in Norris v. Mumford, 4 Mart, (La.) 20; and it has been repeatedly since adjudged in other cases, and particularly in Ramsey v. Stevenson, 5 Mart. (La.) 23; Fisk v. Chandler, 7 Mart. (La.) 24; and Olivier v. Townes, 2 Mart. N.S. (La.) 93. Mr. Liver- more has contested the doctrine asserted in these decisions with great earnest- ness and ability. Livermore, Dissert. s. 220-228, p. 137-140. * Olivier v. Townes, 2 Mart. N.S. (La.) 93, 102. 5 Mr. Justice Porter. 550 CONFLICT OF.LAWS. [s. 387-389, in the state where the vendor lived no delivery was necessary to ‘complete the sale, it must be considered as complete here ; and, that it is a violation of the principle just referred to, to apply to the contract rules which are peculiar to our jurisprudence, and different from those contemplated by the parties to the contract.’ 388. Same continued. —‘ We readily yield an assent to the general doctrine for which the appellee contends. He has sup- ported it by a variety of authorities drawn from different systems of jurisprudence. But some of those very books furnish also the exception on which we think this case must be decided, namely, that “‘ when those laws clash with and interfere with the rights of the citizens of the countries where the parties to the contract seek to enforce it, as one or other of them must give way, those prevailing where the relief is sought must have the preference.” Such is the language of the English books to which we have been referred ; and Huberus, whose authority is more frequently re- sorted to on this subject than that of any other writer, because he has treated it more extensively and with greater ability, in his treatise De Conflictu Legum (n. 11), tells us, * Effecta contractuum, © certo loco initorum, pro jure loci illius alibi quoque observantur, si nullum inde civibus alienis creetur prejudicium, in jure sibi quesito.” The effects of a contract entered into at any place will be allowed, according to the law of that place, in other coun- tries, if no inconvenience will result therefrom to the citizens of that other country, with respect to the right which they demand. This distinction appears to us founded on the soundest reasons. The municipal laws of a country have no force beyond its terri- torial limits; and when another government permits these to be carried into effect within her jurisdiction, she does so upon a principle of comity. In doing so, care must be taken that no in- jury is inflicted on her own citizens ; otherwise justice would be sacrificed to courtesy. Nor can the foreigner or stranger com- plain of this. If he sends his property within a jurisdiction dif- ferent from that where he resides, he impliedly submits it to the rules and regulations in force in the country where he places it. What the law protects, it has a right to regulate. A strong evi- dence of this is furnished by the doctrine in regard to successions. The general principle is, that the personal property must be distri- buted according to the law of the state where the testator dies; but, so far as it concerns creditors, it is governed by the law of CHAP. Ix] PERSONAL PROPERTY. 561 the country where the property is situated. If an Englishman or a Frenchman dies abroad and leaves effects here, we regulate the order in which his debts are paid by our jurisprudence, not by that of his domicil,’ 1 389. Same continued. —‘ We proceed to examine whether giving effect to the law of Virginia, on the contract now set up, would be working an injury to this state or its citizens. In doing this we must look to the general doctrine and the effect it would have on our ordinary transactions, as well as its operation in this particular ease. Ifweheld here that this sale can defeat the attachment, we should, on the same principle, be obliged to decide that the claimant would hold the object sold in preference to a second purchaser, to whom it was delivered ; the rule being that, when the debtor can sell and give to the buyer a good title, the creditor can seize ; or, in other words, where the first sale is not complete as to third persons, the creditor may attach and acquire a lien.? In relation to movable property, our law has provided that delivery is essen- tial to complete the contract of sale as to third parties. This valuable provision, by which all our citizens are bound in their dealings, protects them from the frauds to which they would be daily subjects, were they liable to be affected by previous con- tracts not followed by the giving of possession. The exemption contended for here, in behalf of the residents of another state, would deprive them of that protection, wherever their rights, as purchasers, came in contact with strangers ; a protection which, it may be remarked, it is of the utmost importance, owing to our peculiar position, that we should carefully maintain. This city is becoming a vast storehouse for merchandise sent from abroad, owned by non-residents and deposited here for sale; and our most important commercial transactions are in relation to pro- perty so situated. If the purchasers of it should be affected by all the previous contracts made at the owner’s domicil, although un- accompanied by delivery, it is easy to see to what impositions such a doctrine would lead ; to what inconvenience it would ex- pose us; and how severely it would check and embarrass our dealings. However anxious we may be to extend courtesy and afford protection to the people of other countries, who come themselves or send their property within our jurisdiction, we can- 1 Post, s. 524. 2 M’Neill v. Glass, 1 Mart. N.S. (La.) 261. 552 CONFLICT OF LAWS, [s. 389-391. not indulge our feelings so far as to give a decision that would let in such consequences as we have just spoken of. It would be giving to the foreign purchaser an advantage which the resident has not; and that, frequently, at the expense of the latter. This, in the language of the law, we think, would be a great in- convenience to the citizens of this state; and therefore we can- not sanction it.’ 4 390. Remarks upon this Reasoning. — There is certainly great force in this reasoning upon general principles. And no one can seriously doubt that it is competent for any state to adopt such a rule in its own legislation, since it has perfect jurisdiction over all property, personal as well as real, within its own territorial limits.2. Nor can such a rule, made for.the benefit of innocent purchasers and creditors, be deemed justly open to the reproach of being founded in a narrow or a selfish policy. But how far any court of justice ought, upon its own general authority, to interpose such a limitation, independently of positive legislation, has been thought to admit of more serious question; since the doctrine which it unfolds aims a direct blow at the soundness of 1 Olivier v. Townes, 2 Mart. N.S. (La.) 97-103. But see 1 Kames Eq. b. 3, c. 8,8. 8. The doctrine of this case seems supported by that of Lanfear v. Sumner, 17 Mass. 110, although in the latter case the court do not found their judgment upon any supposed conflict between foreign and domestic laws. There can be little doubt that the sale and assignment in Philadelphia in that case was a complete transfer by the lex loci contractus; and there was certainly legal diligence in endeavoring to obtain possession after the sale. The court however thought that delivery was essential to perfect the transfer by the law of Massachusetts; and as there had been no delivery until the property was attached by the attaching creditor in Massachusetts, they decided in favor of the title of the latter against the vendee. The court also said that where each of the parties claimed the same goods by a legal title, he who first obtained possession would hold against the other; and for this principle they relied on Lamb v. Durant, 12 Mass. 54, and Caldwell v. Ball, 1 T. R. 205. The former case is certainly in point. But in the latter the decision was in favor of the party who first had acquired a legal title by the prior indorsement of the bills of lading to him. ‘ Whoever,’ said Ashhburst, J., ‘ was first in possession, not of the goods, but of either of these bills of lading, had the legal title vested in him.’ Buller, J., said: ‘ Both parties claim under T.; but F. & Co. have the first legal right, for two bills of lading were first indorsed to them.’ But see Conard v. Atlantic Insurance Co., 1 Pet. 386, 445; Nathan v. Giles, 5 Taunt. 558; Bholen v. Cleveland, 5 Mason, 174. 2 See Livermore, Dissert. s. 221, p. 187, 188; Id.s. 249, p- 159-162; Camp- bell v. Hall, Cowp. 208; Hunter v. Potts, 4 T. R. 182, 199; Phillips v. Hunter, 2 H. Bl. 402, 405; Sill v. Worswick, 1 H. B). 673, 690, 691; Davis v. Jacquin, 5 Harr. & J. (Md.) 100. CHAP. IX,] PERSONAL PROPERTY. 553 the policy on which the general rule, that personal property has no locality, is itself founded. It is not indeed very easy to reconcile it with the doctrine maintained by Lord Loughbo- rough (which has been already cited”), or with other cases to the same effect. Nor is it easy to say to what extent it may be pressed in subversion of the general rule; since every country has so many minute regulations in regard to the transfers of personal property incorporated into its municipal code, each of which may be properly deemed beneficial to its own government, or to the interests of its citizens.? 391. Case illustrating the Doctrine. — Another case illustrative of the doctrine may be stated. A ship belonging to New York, and owned there, was transferred, while at sea, according to the law of the owner’s domicil; and the ship subsequently arrived at New Orleans, and was attached by creditors, before any delivery thereof to the vendee. The question was whether the attach- ment overreached the title by the transfer. The Supreme Court of Louisiana held that it did not; and that the transfer was valid to all intents and purposes. The court took the distinction that the transfer was complete before the Louisiana laws could locally attach upon it. ‘In the present case’ said the court, ‘the ship, the subject of the sale, was a New York ship, and the vendor and vendee resident in New York. If therefore, accord- ing to the lex loci contractus, that of the domicil of both parties, the sale transfers the property without a delivery, it did eo instanti, or not at all. In transferring it, it did not work any injury to the rights of the people of another country ; it did not transfer the property of a thing within the jurisdiction of another government. If two persons in any country choose to bargain as to the property which one of them has in a chattel not within the jurisdiction of the place, they cannot expect that the rights of persons in the country in which the chattel is will be per- mitted to be affected by their contract. But, if the chattel be at sea, or in any other place, if any there be, in which the law of no 1 See, Livermore Dissert. s. 221-223, p. 187-140. 2 Ante, s. 380; Sill v. Worswick, 1H. Bl. 690. See also 1 Kames Eq. b. 3, ¢. 8, s. 8; Ersk. Inst. b. 3, tit. 2, 8.40; Bruce v. Bruce, 2 B. & P. 229, note 231; Hunter v. Potts, 4 T. R. 182, 192; Phillips v. Hunter, 2 H. Bl. 402, 405. 8 Mr. Burge manifestly deems the decision untenable. 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 768, 764. 554 CONFLICT OF LAWS. [s. 391-395, particular country: prevails, the bargain will have its full effect, eo instanti, as to the whole world. And the circumstance of the chattel being afterwards brought into a country, according to the laws of which the sale would be invalid, would not affect it"! (a) But if the ship had been, at the time of the sale, in New Orleans, and she had been attached before an actual delivery to the vendee, the title of the attaching creditor would have prevailed.? 392. Decisions in Massachusetts. — But let us suppose two per- sons, each claiming as purchaser under different transfers of the same personal property, one by a transfer from a partner in the place where the property is locally situate, and another by a trans- fer made by the other partner in the domicil of the firm; and by the law of the latter place, delivery is not essential to complete the transfer, but by the law of the former it is ; which title is to pre- vail? According to the doctrine held in Louisiana, the title of the purchaser in the place rei site ought to prevail. And that doctrine seems confirmed by the reasoning in certain decisions of the Supreme Court of Massachusetts, although the precise point as to the conflict of laws was not litigated, and the law of Mas- sachusetts was supposed to require a delivery to complete the title.* 393. Remarks upon a Supposed Case. — A case somewhat dif- ferent has been put by the Supreme Court of Louisiana. ‘If, say the court, ‘A. and B. be partners in New Orleans, and C. purchases from A. a quantity of cotton in the warehouse of the firm ; will his right thereto, if he take instant possession of it, be affected by a sale made a few days before by B. in Natchez or Mobile? Will not C. be listened to in his own state, when he shows that by the lex fori, by the lex loci contractus, by that of the domicil of his vendors and of his own, the sale and delivery vested the property?’ The case is certainly very strongly put. 1 Thuret v. Jenkins, 7 Mart. (La.) 818, 353, 354. 2 Price v. Morgan, 7 Mart. (La.) 707; ante, s. $25, 386-389. ® Ramsey v. Stevenson, 5 Mart. (La.) 23, 77, 78; Thuret v. Jenkins, 7 Mart. (La.) 353. * See Lamb v. Durant, 12 Mass. 54; Lanfear v. Sumner, 17 Mass. 110; ante, 8. 886, 389, note. 5 Thuret v. Jenkins, 7 Mart. (La.) 353. (a) See ante, s. 384, note. CHAP. IX.] PERSONAL PROPERTY. 555 But after all it must entirely depend upon the point whether the prior transfer at Natchez or Mobile conveyed a perfect title by the law of those places without delivery; and if so, whether the lex rei sitee ought to prevail against it? If no delivery were required by the law of Louisiana to perfect the title, the Natchez or Mobile purchaser would prevail even in the courts of Louisi- ana, against the purchaser in New Orleans, whatever might be the apparent hardship of the case under all the circumstances. 394. On the other hand, let us take the case of a shipment of goods from England to New Orleans, on account and risk of a merchant domiciled in England, why owes debts in New Orleans ; and a subsequent transfer of the bill of lading in England to a purchaser after their arrival at New Orleans, but before the unlading thereof. Could a creditor of the shipper at New Or- leans in such a case, by an attachment, oust the title of the pur- chaser because there had been no delivery to the purchaser under the bill of lading? By tbe law of England,! and indeed by that of many other commercial states, the legal title of the goods passes by the mere indorsement and delivery of the bill of la- ding, without any actual possession of the goods by the pur- chaser.2 Would such a title so acquired be devested by the want of a delivery according to the laws of Louisiana? If so, it would most materially impair the confidence which the commer- cial world have hitherto reposed in the universal validity of the title acquired under a bill of lading. No opinion is intended to be here expressed on the point by the author; but it is pre- sented in order to show that the doctrine is not without its em- barrassments. 395. Transfer of Choses in Action.—If however the doctrine of the law rei site is to prevail over that of the law of the place of the transfer in some cases, even in respect to movables, what is to be said in relation to assignments of choses in action or debts due by debtors resident in a foreign country ? Would an at- tachment before notice defeat such assignments in favor of the 1 Lickbarrow v. Mason, 2 T. R. 63; Abbott on Shipping, pt. 3, c. 9, s. 16. 2 By the old French law, bills of lading were not negotiable, so as to pass a title in the property to the assignee, but only gave him a right of action subor- dinate to the rights of third persons. 1 Emérig. Assur. c. 11,8. 3. By the Code of Commerce (art. 281), bills of lading are now negotiable so as to pass the property to the indorsee. See 3 Pardessus, pt. 3, tit. 4, c. 3, art. 727. 556 CONFLICT OF LAWS. [s. 395, 396. attaching creditor, although notice of the assignment should be afterwards given to him within a reasonable time 21 By the law of some countries an assignment of a debt is good without any notice to the debtor, and takes effect instanter; by the law of other countries notice is necessary to perfect the title? Would an assignment of a debt in the creditor’s domicil, where it would be good without any such notice, be ineffectual, if the debtor re- sided in a country where such notice would be necessary ? (a) Suppose an attachment made by a creditor in the intervening pe- riod between the time of the assignment and the notice; would the assignment or the attachment be entitled toa preference ?4 By the Scottish law a creditor may assign his debt to another person ; but the transfer is not complete, so as to vest the title absolutely in the assignee, until notice of the assignment, or, as the Scotch phrase is, until an intimation of the assignment is given to the debtor.t If therefore an assignment is made, a 1 See Sill v. Worswick, 1 H. Bl. 691, 692; Bholen v. Cleveland, 5 Mason, 174. See Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460; Lewis v. Wallis, Sir T. Jones, 223; 1 Kames Eq. b. 3, c. 8, s. 8, p. 844. 2 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 777, 778. 8 See In re Wilson, cited 1 H. Bl. 691, 692; post, s. 399 a. 4 See Ibid.; Selkrigv. Davis, 2 Rose, 315; Stein’s Case, 1 Rose, 481; 2 Bell Com. p. 21-23, 4th ed.; Id. p. 16-23, 5th ed.; 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 777,778. But see In re Wilson, cited 1 H. Bl. 691, 692. I have stated the law of Scotland as I understand it to be stated in the opinion of Lord Eldon, in Selkrig v. Davis (2 Rose, 315; 2 Dow, 230, 250), though it would seem to be exactly like the Massachusetts law stated in the next section (s-896). And so it was understood by Lord Hardwicke and Lord Loughborough. The following passage from the judgment of the latter in Sill v. Worswick, 1 H. Bl. 691, 692, gives a very exact view of their opinions. ‘A question of this nature came before Lord Hardwicke very largely in the bankruptey of Captain Wilson. With the little explanation I am enabled to give of that case, in which the Court of Sessions entirely concurred with Lord Hardwicke, the distinctions will be appavent. There were three different sets of creditors, who claimed, subject to the determination of the court, on the ground that Wilson had con- siderable debts due to him in Scotland. By the law of Scotland debts are assignable, and an assignment of a debt notified to the debtor, which is tech- nically called an intimation, makes a specific lien quoad that debt. An as- signment of a debt not intimated to the debtor gives a right to the assignee to demand that debt; but it is a right inferior to that of the creditor who has obtained his assignment and intimated it. By the law of Scotland also there is a process for the recovery of debts which is called an arrestment. Some of Wilson’s creditors had assignments of specific debts intimated to the debtors, and completed by that intimation, prior to the act of bankruptcy. Others (a) See Clark v. Connecticut Peat Co., 85 Conn. 303. CHAP. Ix.] PERSONAL PROPERTY. 557 creditor of the original creditor may, before such intimation, ar- rest or attach the debt in the hands of the debtor, and will thereby acquire a preference over the assignee. That doctrine, it would seem, has been actually applied in Scotland to debts due by Scottish debtors to foreign creditors, and assigned in the dom- icil of the latter. 396. Lffect of Assignment of Debt without Notice. — According to our law a different doctrine would prevail; for an assignment operates, per se, as an equitable transfer of the debt.2 ‘Notice is indeed indispensable to charge the debtor with the duty of pay- ment to the assignee ; so that, if without notice he pays the debt to the assignor, or it is recovered by process against him, he will be discharged from the debt. But an arrest or attachment of had assignments of debts not intimated before the bankruptcy. Others had arrested the debts due to him subsequent to the bankruptcy, and were proceed- ing under those arrestments to recover payment of those debts. The deter- mination of Lord Hardwicke and that of the Court of Sessions entirely concurred. The first class I have mentioned, namely, the creditors who had specific assignments of specific debts, intimated to the debtors prior to the bankruptcy, were holden by Lord Hardwicke to stand in the same situation as creditors claiming by mortgage antecedent to the bankruptcy. All, therefore, he would do with respect to them was that, if they recovered under that decree, they could not come in under the commission without accounting to the other creditors for what they had taken under their specific security. With respect to the next class of creditors, Lord Hardwicke was of opinion, and the Court of Sessions were of the same opinion, that their title, being a title by assign- ment, was preferable to the title by arrestment; and they likewise held that the arrestments being subsequent to the bankruptcy were of no avail, the property being by assignment vested in the assignees under the commission. It is in this sense that an expression has been used by Lord Mansfield, in one or two cases, in which his language rather than his decision has been quoted with respect to the law of Scotland, namely, that the effect of. the assignment under a commission of bankruptcy was the same as a voluntary assignment. For so the law of Scotland treats it, in contradistinction to the assigument per- fected by intimation, and to an assignment which the party might be com- pelled to make. But it does not follow that it is an assignment without consideration. On the contrary, it is for a just consideration; not indeed for money actually paid, nor for a consideration immediately preceding the assignment. In that respect therefore it is a voluntary assignment. But taking it to be so, it excludes and is preferable to all others attaching; it is preferable to all the arresters; it is preferable to all creditors who stand under the same class, and to all who have not taken the steps to acquire a specific lien till after the act of bankruptcy committed.’ 1 Sill v. Worswick, 1 H. BI. 691, 692. 2 See ante, s. 395 and note; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 777, 778. 5 Foster v. Sinkler, 4 Mass. 450; Blake v. Williams, 6 Pick. (Mass. .) 286, 558 CONFLICT OF LAWS. [s. 896-399. the debt in his hands by any creditor of the assignor will not en- title such creditor to a priority of right, if the debtor receives notice of the assignment pendente lite, and in time to avail him. self of it in discharge of the suit against him." 397. Principle applicable in Case of Conflict.—In such case of conflict of laws, the difficulty of applying any other than the general principle, that movables are transferable according to the law of the domicil of the owner, is apparent. Let us take the case of a Massachusetts creditor, assigning in that state a debt contracted there, and due to him by a person then-domiciled in Scotland. The transfer is in equity complete in the place where it is made without notice ; but in the place where the debt is due it is not complete without notice. To give effect in such a case to the law of Scotland, in opposition to that of Massachusetts, would be to give a locality to the debt, and to subject it to the exclusive ope- ration of the law of the debtor’s domicil. And it might involve this most serious difficulty, that if the debtor were afterwards found in Massachusetts, or in any other country than Scotland, he might be compelled to pay the debt to the assignee, although it might have been recovered from him in Scotland by a creditor in a proceeding by attachment of the debt in his hands, he hav- ing had notice of the assignment pendente lite. 398. Language of Lord Kenyon. — The reasoning of Lord Ken- yon, in a celebrated case,? would certainly lead to the conclusion that an assignment of personal property, whether it were of goods or debts, according to the law of the owner’s domicil, would pass the title in whatever country it might be, unless there were some prohibitory law in that country. His language is: ‘ Every per- son having property in a foreign country may dispose of it in this; though indeed if there be a law in that country directing a particular mode of conveyance, that ought to be adopted. But in this case no law of that kind is stated; and we cannot con- jecture that it is not competent to the bankrupt himself, prior to his bankruptcy, to have disposed of his property as he pleased.’ 807, 308, 314; Wood v. Partridge, 11 Mass. 488; Dix v. Cobb, 4 Mass. 508; Bholen v, Cleveland, 5 Mason, 174; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 486. See 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 777, 778; Muir » caer 3 Hill (N. Y.) 228. But see Story Eq. Jur. s. 421 a, s. 1035 a. id. 2 Hunter v. Potts, 4 T. R. 182,192. See Livermore, Dissert. p. 140-159; Id. p. 159, s. 249. See ante, s. 383. CHAP. 1X.] PERSONAL PROPERTY. 559 The same doctrine is maintained by Lord Hardwicke and Lord Loughborough. And all these learned judges apply it equally to the cases of assignments of goods and debts, to voluntary assign- ments by the party, and also, as we shall more fully see hereafter, to assignments by operation of law, as in cases of bankruptcy. The question of prior notice or intimation does not seem to have been thought by them material, for they treat the transfer as com- plete from the time of the assignment; and if that has priority in point of time, over an arrest or attachment of the property, it is to prevail. The law of England would certainly give effect to such an assignment of any goods or debts in England which were assigned by the owner in a foreign country.} 899. Situs of Debts. — Lord Kames, in commenting on the sub- ject says: ‘ That considering a debt as a subject belonging to the creditor, the natural fiction would be, if any were admissible, to place it with the creditor, as in his possession, upon the maxim mobilia non habent sequelam. Others are more disposed to place it with the debtor.’? But in fact a debt is not a corpus capable of local position, but purely a jus incorporale.? And therefore where the debtor and creditor live in different countries, and are subjected to different laws, Lord Kames thinks the law of the domicil of the creditor ought to prevail. He then adds: ‘ When 1 See Solomons v. Ross, and other cases cited, 1 H. Bl. 181, 132, note; Sill ». Worswick, 1 H. Bl. 665, 690, 691; In re Wilson, cited id. p. 691-693; Lewis v. Wallis, T. Jones, 223. See also Selkrig v. Davis, 2 Rose, 97, 291, 315-317; Kames Eq. b. 3, c. 8, s. 4; Scott v. Allnutt, 2 Dow. & Cl. 404, 412; Livermore, Dissert.-p. 159; Ogden v. Saunders, 12 Wheat. 364, 365. See also Merlin, Répert. Faillité, p. 412, 414, 415. 2 Kames Eq. b. 8, c. 8,8. 4. See Morrison’s Case, 4 T. R. 185; 1 H. Bl. 677; ante, s. 362; Rodenburg, de Divers. Stat. tit. 2, c. 5, s. 16; 2 Boullenois, Appx. p. 47-49; ante, s. 377. 5 See ante, s. 362, 376, 884; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 777-779. * On this point-I cannot do better than insert a passage from Mr. Liver- more’s Dissertations, p. 162, s. 251, illustrative of the same principles. ‘It was formerly doubted by some whether personal actions should be consid- ered as movables, and whether they should not be considered to have a loca- tion in the domicil of the debtor. But the common opinion seems to be well settled that, considered actively, and with respect to the interest of the credi- tor and his representatives, they must be considered as attached to the per- son of the creditor; and this, although the payment of the debt is secured -by an hypothecation upon an immovable property. Such is the doctrine of Dumoulin. Nomina et jura, et quecumque incorporalia, non circumscri- bantur loco, et sic non opus est accedere ad certum locum. Tum si hee jura alicubi esse cengerentur, non reputarentur esse in re pro illis hypothecata, 560 CONFLICT OF LAWS. [s. 399-400. the creditor makes a voluntary conveyance, it is to be expected that he should speak in the style and form of his own country ; and consequently that the rule of his own country should be the rule here. Ina word, the will of a proprietor, or of a creditor, is good title jure gentium, that ought to be effectual everywhere. Thus an assignment made by a creditor in Scotland, according to our forms, of a debt due to him by a person in a foreign country, ought to be sustained in that country as a good title for demand- ing payment; and a foreign assignment of a debt due here, regu- lar according to the law of the country, ought to be sustained by our judges.’! In another place he adds: ‘ An equitable title, in opposition to one that is legal, can never found a real action, actio in rem. It cannot have a stronger effect than to found an action against the proprietor to grant a more formal right, or in his de- fault, that the court shall grant it. But in the case of a debt, where the question is not about property, but payment, an equi- table title coincides, in a good measure, with a legal title. An assignment made by a foreign creditor according to the formali- ties of his country will be sustained here as a good title for de- manding payment from the debtor; and it will be sustained, though informal, provided it be good jure gentium ; that is, pro- vided that the creditor really granted the assignment. Such effect hath an equitable title; and a legal title can have no stronger effect.’? This is in perfect coincidence with the law of England and America.® nec in debitoris persona, sed magis in persona creditoris, in quo active resi- dent, et ejus ossibus inherent. Molin. Oper. Comm. ad Consuet. Paris, tit. 1, de Fiefs, s. 1, n. 9, p. 56, 57. So also Casaregis, after saying that movables are attached to the person of the owner, and at his death will be distributed according to the laws of his domicil, proceeds to consider what will be the rule with respect to debts, and determines that they follow the person of the credi- tor. An ita dicendum de nominibus debitorum, actionibus, ac juribus, que bona neque dicuntur mobilia neque immobilia, sed tertiam speciem bonorum componunt, et dicuntur incorporalia? Et respondeo affirmative; nam statutum bene comprehendit nomina debitorum, licet forensium, quia eorum obligationes non circumscribuntur locis, ideoque attenditur statutum, cui subjectus est tes- tator. Et hac verior est sententia; nam debitorum nomina, tanquam persone coherentia, debent regulari secundum statuta loci cui creditor est subjectus.’ oe In Rubr. Stat. Civ. Genus de Success. ab Intest. n. 64, 65, tom. 4, . 42, 48, 7 1 Kames Eq. b. 3, c. 8, s. 4. 2 Kames Kq. b. 3, c. 8,8. 4, sub finem. See also Huberus, de Confl. Leg. lib. 1, tit. 3, s. 9. 8 See Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 486; 20 Johns. (N. Y.) CHAP. 1X] PERSONAL PROPERTY. 561 399 a. Priority between Assignment or Attachment. — Questions may arise upon the conflict of laws, where an assignment is va- lidly made of personal property in one country by the owner thereof, and the property is at the time of the assignment locally in another country, by whose laws it is liable to be attached by a trustee process or garnishment; and an attachment is actually made by a creditor of the ae before notice of the assignment. In such a case, as we have seen, if notice thereof is given before judgment in the suit, the assignee will be entitled to maintain his priority of title. But suppose the lex fori enforces a different rule, and will in no such case entitle the creditor to a priority of right and a judgment against the property ; will that judg- ment conclude the assignee, if the property is afterwards found in the country where the assignment is made, by whose laws the maxim prevails, qui prior est in tempore, potior est in jure? Suppose the property to be found in a different foreign country, and the assignee should sue for the same in the courts thereof; what law ought to be regarded in ascertaining the title; the law of the place of the assignment, or that of the judgment? Will it make any difference whether the assignee might or might not have intervened for his right in the first suit before judgment? or, that he happened to be in the country where the judgment was rendered at the time of the rendition thereof? These are questions more easily put than answered; and will well deserve the attention of courts of justice, when they are called upon to enforce the rights of creditors in the local tribnnals, against the prior claims of title of assignees under assignments of debts or other personal property, made in a foreign country.? 400. But where an attachment or garnishment has been made by a creditor according to the local law rei sitz, before any assign- ment by the party, or by operation of law in invitum, there is room fora distinction; and it may well be held that in sucha 229, 267; Milne v. Moreton, 6 Binn. (Pa.) 353, 361, 869; Blake v. Williams, 6 Pick. (Mass. ) 286, 307, 314. Itis avery different question when an assignment of a debt is lawfully made, whether the assignee can sue the debtor in his own name, or must sue in the name of the assignor. That point has been some- times thought to belong to the mode of remedy rather than the right, and of course is to be governed by the lex fori. See 3 Burge, Col. & For. Law, pt. 2,c. 20, p. 777, 778. And see also Wolff v. Oxholm, 6 M. & S. 92,98. But see Alivon v, Furnival, 1 C. M. & R. 277, 296; post, s. 420, 566. 1 Ante, s. 396. 2 Ante, s. 395, 396. 36 562 CONFLICT OF LAWS. [s. 400-402, case, the attaching creditor is entitled to a priority over the as- signee. For in such case the rule may justly prevail, * qui prior est in tempore potior est in jure ;’ and the creditor is equi- tably entitled to the benefits of his diligence. A case to this effect is reported by Casaregis, and reasoned out with great force upon general principles. The doctrine does not indeed seem in its nature susceptible of any well-founded doubt; and it is in en- tire conformity to the principles on the same subject recognized _ both in England and in America.’ (a) 401. Stoppage in Transitu.— Revendication. — Liens. — There are some other matters connected with this subject which de- serve attention. Upon the sale of goods on credit, by the law of some commercial countries, a right is reserved to the vendor to retake them, or he has a lien upon them for the price, if unpaid; and in other countries he possesses a right of stoppage in transitu only in cases of insolvency of the vendee.2. The Roman law did 1 Mr. Livermore, in his Dissertations (p. 159-162), has given the case and the reasoning of Casaregis at large. See Selkrig v. Davis, 2 Rose, 291, 310; Casaregis, I1 Cambista Instruito, c. 7, tom. 3, p. 64. 2 Abbott on Shipp. pt. 1, c. 1, s. 6; Id. pt. 38, c. 9,s. 2; 1 Domat, Civil Law, b. 1, tit. 2, s. 8, n. 1, 2; Id. s. 12, n. 13; Id. b. 3, tit. 1, s. 5, n. 3, 4, note; Merlin, Répert. Revendication, s. 1, n. 8; Code Civil, art. 2102; 4 Par- dessus, Droit Com. art. 939, 940, 1204; 2 Kent Com. 540; ante, s. 322-328; 3 Burge, Col. & For. Law, pt. 2,¢. 20, p. 770. (a) See ante, s. 183. note. If by the law of the place of the domicil of the payee of a chose in action, where the same is payable, the chose is not subject to attachment by pro- cess of foreign attachment; or if by such law the same has been duly assigned, and such assignment per- fected by notice, in conformity to the law of the place of the domicil of the payor, such chose in action cannot be held upon the debt of the payee under process of foreign attachment. Bay- lies v. Houghton, 15 Vt. 626. But an assignment of such chose in action, good by the law of the place of the domicil of the payee, but not perfected according to the law of the place of the domicil of the payor by notice to him of such assignment, will not de- feat a valid attachment of the same by such process. Emerson v. Part- ridge, 27 Vt. 8; Ward v. Morrison, 25 Vt. 5938. And the same is true when a chose in action is made pay- able in the state of the domicil of the debtor, although not subject to ai- tachment by the law of the state where the payee resides. Ib. And in re gard to the transfer of negotiable se- curities in payment of or as collateral security for an existing debt of the assignor, where the law of the place of the domicil of the assignor saves all equities to the real owner of such se- curities, but the law of the place of the assignment gives the assignee per- fect title under such assignment, it is held that the effect of the assignment, and the title acquired under it, must be determined by the law of the place where the same was made. Culver»: Benedict, 13 Gray (Mass.) 7. CHAP. 1X.] PERSONAL PROPERTY. 563 not generally consider the transfer of property to be complete by sale and delivery alone, without payment or security given for the price, unless the vendor agreed to give a general credit to the purchaser; but it allowed the vendor to reclaim the goods out of the possession of the purchaser, as being still his own property. ‘Quod vendidi,’ say the Pandects, ‘non aliter fit accipientis, quam si aut pretium nobis solutum sit, aut satis eo nomine datum, vel etiam fidem habuerimus emptori sine ulla - satisfactione.’1_ The present code of France gives a privilege or right of revendication against the purchaser for the price of goods sold, so long as they remain in the possession of the debtor.2 In respect to ships, a privilege is given by the same code to certain classes of creditors (such as vendors, builders, repairers, mariners, &c.) upon the ship, which takes effect even against subsequent purchasers until the ship has made a voyage after the purchase.? And by the general maritime law, acknowledged in most, if not in all commercial countries, hypothecations and liens are re- cognized to exist for seamen’s wages, and for repairs of foreign ships, and for salvage.‘ 402. Recognition of these Rights in Foreign Countries, — The question then naturally arises, whether if such privileges, hypo- thecations, or liens are recognized in the country where the con- tracts, or acts which give rise to them are made, they are to be deemed obligatory in every other place where the property may be found, even against innocent purchasers, or against creditors: who would otherwise, by the law rei site, have a preference of tight? Would an attachment, for instance, of foreign creditors prevail against them in the tribunals of the domicil of such credi- tors? Upon the general principles already stated as to the opera- tion of contracts, and the rule that movables have no locality, it would seem that these privileges, hypothecations, and liens ought to prevail over the rights of subsequent purchasers and creditors in every other country. That having once attached rightfully in rem, they ought not to be displaced by the mere 1 Digest, 18, 1, 19; Id. 14, 4,5, 18. As to liens for unpaid purchase- money on lands, see ante, s. 322 b, and Gilman v. Brown, 1 Mason, 219-221. ? Code Civil, art. 2102, n. 4. 8 Code of Commerce, art. 192, 193; 3 Pardessus, Droit. Com. art. 942, 950. See also 1 Valin Com. 340; Abbott on Shipp. pt. 1, c. 1, s. 6. 4 See ante, s. 322 a, 323: Conflit des Lois, Revue Etrang. et Franc. tom. 6, 1840, s. 83, p. 227, 228. ‘ 564 CONFLICT OF LAWS. [s. 402-403. change of local situation of the property.1 (a) This doctrine was in some measure recognized in an important case in England, where the right of stoppage in transitu was supposed to depend upon doctrines of foreign law, materially different from the law of England. The right conferred by the foreign law was upheld against the claims of English creditors, under the circumstances of that case, which were somewhat peculiar, the lien having been given by the foreign law, and enforced in the foreign country, so far as to compel the master, who was in possession of the goods, to recognize it, and to agree to hold the property subject to it? 402 a. Nevertheless, as we have already seen, there is no in- considerable conflict. of opinion among foreign jurists, and even among domestic jurists, as to the extent to which the right of 1 See Livermore, Dissert. p. 159, s. 249; ante, s. 322. 2 Inglis v. Usherwood, 1 East, 515; Abbott on Shipp. pt. 3, ¢.9,s.3. On that occasion Lord Kenyon said: ‘The decision in this case will not at all trench upon the general rule of law respecting the right of stopping goods in transitu ; but, giving the plaintiffs the full benefit of the argument that the delivery of the goods on board a chartered ship was a delivery to the bank- rupt, still the circumstance of the Russian ordinance set forth in the case varies it very importantly, and takes it out of the generalrule. By that law, the consignors, under the circumstances stated, had a right to repossess themselves of their goods, and they did so in effect; not indeed by actually taking them out of the ship on board of which they were laden, or by instituting legal pro- cess for the recovery of them; but having a right so to do, which it became unnecessary to exert, because it was in the first instance acknowledged and submitted to by the captain, in whose possession the property was, they im- posed terms upon him that he should sign bills of lading to their order, upon his complianee with which, they suffered the cargo to proceed to the place of its destination, disposable there as events might turn out. The goods are therefore sent with the condition attached to them. The law of Russia in this respect is a very equitable law; and I have often lamented that our own code was defective in the same particular. For every man contracting to supply another with goods acts on the presumption that that other is in a condition to pay for them; and therefore, when the condition of the consignee is altered at the time of the delivery, and he is insolvent, and no longer capable of performing his part of the contract, honesty and good faith require that the contract should be rescinded. However the contrary has been settled to be law, unless the consignor stop the goods in transitu before they get into the consignee’s possession. But this being a transaction into a foreign country, where @ more equitable law in this respect prevails, I am far from being desirous of limiting its operation; and, for the reasons before given, I think that the consignors have substantially availed themselves of it; and that the defendant, by delivering the goods to their order, has done no more than he was bound to do.’ (a) See Harmer v. Bell, 7 Moore, P. C. 267; Marsh v. Elsworth, 87 Ala. 85. CHAP. 1X.] PERSONAL PROPERTY. 565 privilege or priority ought to. be allowed in cases where such privilege or priority has arisen under foreign laws against subse- quent purchasers, (@) or against creditors in the country where the property is subsequently found. Whether an exception would be allowed generally in favor of maritime liens and privileges and priorities, founded upon the public policy of giving them full effect as matters of public convenience and interest, founded upon the necessities and exigencies of commerce and naval inter- course, may admit of question. It is highly probable however that most, if not all, commercial nations will adopt such an ex- ception upon the principle of comity sub mutue vicissitudinis obtentu. Indeed upon any other system, bottomry bonds, re- spondentia bonds, and other maritime hypothecations, would constitute so unsafe a security that no merchant abroad would venture to lend his money upon so fragile a title, which might be undermined or destroyed by a local law, wholly unknown and , unsuspected by him. , 403. Operation of Assignment in Bankruptcy. — Hitherto we have been considering cases of voluntary transfers inter vivos, and we are now naturally led to the consideration of involuntary transfers by operation of law in the domicil of the owner, such as are statutable transfers under the bankrupt or insolvent laws of the country of his domicil. The great question here is, whether an assignment under such laws has a universal operation, so as to transfer the movable property of the bankrupt or insolvent in all other countries to the same extent as a voluntary transfer made by him would, and thus to withdraw it from the process of the local foreign laws by way of arrest, attachment, or otherwise, issued in favor of the foreign creditors in the country where the movable property is situate. This question has been very gravely discussed both at home and abroad; and the courts of England and the courts of America have arrived at opposite conclusions respecting it. The courts of the former country uniformly main- tain the doctrine of: the universal operation of such an assign- ment upon all movable property wherever it may be locally situ- ate at the time of the assignment. Many (but not all) of the courts of the latter country confine the operation of such an as- signment to the territory where the party is declared bankrupt (a) Ante, s. 322-828; post, s. 424-528. 566 CONFLICT OF LAWS. [s. 403-405. or insolvent. The question is worthy of a very full examination, and a summary of the reasoning on each side of the question will therefore be here brought under review. 404. Those who maintain that assignments under bankrupt or insolvent laws are, and ought to be, of universal operation to transfer movable property, in whatever country it may be locally situate, adopt reasoning to this effect.1(a@) The general princi- ple certainly is, that personal property has no locality, but that, as to its disposition, it is subject to the law which governs the person: of the owner, that is to say, it is subject to the law of his domicil.2 There can be no doubt that the owner may, by a vol- untary assignment or sale, made according to the law of his domi- cil, transfer the title to any person, wherever the property may be locally situate. Now an assignment under the bankrupt laws of his domicil is, by operation of law, a valid transfer of all the bankrupt’s property, as valid as if made personally by him. The ? Mr. Bell has examined this subject with his usual ability and accuracy, and vindicated at large the propriety of the rule giving universal effect to assignments in bankruptcy. See 2 Bell Com. b. 8, c. 2, s. 1266, p. 684-690, 4th ed.; Id. p. 680-691, 5th ed. ‘ 2 Sill ». Worswick, 1 H. Bl. 690, 691; Hunter »v. Potts, 4 T. R. 182. 8 In re Wilson, cited 1 H. Bl. 691, 692. 4 Sill v. Worswick, 1 H. Bl. 691, 692; Hunter v. Potts, 4 T. R. 182, 192; Phillips v. Hunter, 2-H. Bl. 402, 405; Goodwin v. Jones, 3 Mass. 517. ‘It is a proposition,’ said the court, in Phillips ». Hunter, 2 H. Bl. 402, 403, ‘not to be disputed, that previous to the bankruptcy the bankrupts themselves might have transferred or assigned this property, though abroad, as absolutely as if it had been in their own tangible possession in this country; and it seems that the assignees under their commission were entitled by operation of law to do with it, after the bankruptcy, what the bankrupts themselves might have done.’ In Potts v. Hunter, 4 T. R. 182, 192, the court said: ‘ The only ques- tion here is whether or not the property in that island (Rhode Island) passed by the assignment in the same manner as if the owner (the bankrupt) had assigned it by his voluntary act. And that it does so pass cannot be doubted, unless there were some positive law of that country to prevent it.’ ‘On the general reason of the thing, if there be no positive decision to the contrary, no doubt could be entertained but that by the laws of this country, un- contradicted by the laws of any other country where personal property may happen to be, the commissioners of a bankrupt may dispose of the personal property of a bankrupt here, though such property ‘be in a foreign country.’ In Goodwin v. Jones, 3 Mass. 517, Mr. Chief Justice Parsons said: ‘The (a) It has been held that a general laws the assignment was ineffectual assignment ig not invalid because to pass land. Watkins v. Wallace, some of the assigned property is land 19 Mich. 57. situated in another state, by whose CHAP. Ix] PERSONAL PROPERTY. 567 law upon his bankruptcy transfers his whole property to the as- signees, who thus become lege loci the lawful owners of it, and entitled to administer it for the benefit of all his creditors. The mode of transfer is wholly immaterial. The only proper question is, whether it is good according to the law of his domicil.1_ This rule is admitted and applied in all cases of the succession to mo- vable property in cases of intestacy, where the property passes by mere operation of law, in the same manner, and to the same extent, as where it passes by the voluntary act or transfer in- ter vivos of the owner, or where it passes by his last will or testament.” 405. The same principle applies with equal force and general convenience to the disposition of the effects of bankrupts ; for the just and equal distribution of all the funds of that class of debtors becomes the common concern of the whole commercial world. In cases of intestacy, it is presumed to be the intent of the intestate that his movables, which by fiction of law have no locality inde- pendent of his person, should be brought home, and distributed according to the law of his domicil. It is equally to be pre- sumed, as the understanding of the commercial world, that the bankrupt’s effects should follow his person, and be distributed in the place of his domicil, where the credit was bestowed, or the payment expected according to the laws thereof.2 An assign- ment under the bankrupt laws ought to be deemed in all respects of equal force and validity with a voluntary assignment of the party; for by implication of law he consents to all transfers made of his property according to the law of his domicil. Great inconveniences would follow from a different proceeding. Diffe- rent commissions might issue in different countries, and have concurrent operation simul et semel in different countries. And thus it would be in the power of the bankrupt to throw his pro- assignment of a bankrupt’s effects may be considered as his own act, as it is in the execution of laws by which he is bound, he himself being ‘competent to make such an assignment, and voluntarily committing the act which authorized the making of it.? See also Livermore’s Dissert. p. 159, s. 249, 250. The same doctrine was affirmed by Lord Mansfield in Wadham v. Marlow, cited 1H. Bl. 487-439, note; s. s. and s. p. 8 East, 314, 316, note z. 1 Ante, s. 8399; post, s. 420, 566. 2 Sill v. Worswick, 1 H. Bl. 690, 691. 8 Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 470; Hunter v. Potts, 4 T. R. 182, 192. 568 CONFLICT OF LAWS. [s. 405-407, perty under either commission at pleasure, and to give local pre- ferences to different creditors, according to his own partialities or prejudices. Such a state of things, and such conflicting systems, would lead to great public inconvenience and confusion, and. be the source of much fraud and injustice, and disturb the equality and equity of any bankrupt system in any country.’ 406. There is great wisdom therefore in adopting the rule that an assignment in bankruptcy shall operate as a complete and valid transfer of all his movable property abroad, as well as at home ; and it has accordingly received.a very general sanction. It is true that any nation may adopt, if it pleases, a different sys- tem, and prefer an attaching domestic creditor to a foreign as- signee or to foreign creditors. But such a course of legislation can hardly be deemed consistent with the general comity of na- tions, and could scarcely fail to bring on a retaliatory system of preferences in every other nation injured thereby. But until such a legislation is positively made and interposes a direct ob- struction, the true rule is to follow out the lead of the general principle, that makes the law of the owner’s domicil conclusive upon the disposition of his personal property.? This reasoning 1 Holmes v. Remsen, 4 Johns. Ch. (N. Y¥.) 471; Phillips v. Hunter, 2 H. Bl. 402. In Phillips v. Hunter; 2 H. Bl. 402, 408, the court said: ‘ The great principle of the bankrupt laws is justice founded on equality. This being the principle of those laws, it seems to follow that the whole property of the bank- rupt must be under their (the assignees’) control, without regard to the locality of that property, except in cases which directly militate against the particular laws of the country in which it happens to be situated.’ ‘If the bankrupt laws were circumscribed by the local situation of the property, a door would be open to all the partiality and undue preferences which they were framed to prevent; it being easy to foresee how frequently property would be sent abroad with that unjust view, immediately previous to and in contem- plation of bankruptcy.’ 2 Holmes v. Remsen, 4 Johns. (N. Y.) 471, 472; Hunter v. Potts, 4 T. R. 182, 192; Sill ». Worswick, 1 H. Bl. 691, 693. In Phillips v. Hunter, 2 H. Bl. 402, 405, the court said: ‘It is true that the laws of the country where the property is situated have the immediate control over it, in respect to its locality and the immediate protection afforded to it, yet the country where the pro- prietor resides, in respect to another species of protection afforded to him and his property, has a right to regulate his contract relating to that property.’ And in Hunter v. Potts, 4 T. R. 182, the court said: « Every person having property in a foreign country may dispose of it in this; though indeed if there be a law in that country directing a particular mode of conveyance, that must be adopted.’ ‘If,’ said Lord Loughborough, ‘the bankrupt happens to have property which lies out of the jurisdiction of the law of England, if the country in which it lies proceeds according to the principles of well-regulated CHAP. IX.] PERSONAL: PROPERTY. 569 applies in an especial manner to contracts made in the very coun- try where the party is declared bankrupt. 407. There are many authorities in favor of this doctrine. As early as 1723, Lord Talbot, then at the bar, gave an opinion that the statutes of bankruptcy of England did not extend to the plan- tations; yet that the personal property of an English bankrupt in the plantations passed to the assignees.? Lord Hardwicke, in a case in judgment before him, adopted and acted upon the doc- trine that an assignment in bankruptcy in England conveyed the personal property of the bankrupt in foreign countries; and that their title would overreach that of an attaching creditor after the assignment, although at that time it was not made known to the debtor. In another case in the Court of Chancery, in England, in 1704, where the property of the owner, who was domiciled in Holland, was taken under a commission of bankruptcy, and, ac- cording to the laws of Holland, the administration thereof given to and vested in persons who are called curators of desolate estates, it was decided that the curators had, immediately upon their appointment, a title to recover the debts due to the bankrupt in England, in preference to the diligence of particular creditors seeking to attach those debts.* In another case, in 1769, the same point was decided. These are cases in which the rule was asserted in favor of foreign assignees.® A like decision in favor of English assignees was made in the Court of Chancery in Ireland in 1763. Lord Thurlow gave it the sanction of his own great name in a case decided by him in 1787.8 justice, there is no doubt that it will give effect to the title of the assignees.’ ‘But if the law of that country preferred him (a creditor) to the assignees, though I must suppose that determination wrong, yet I do not think that my holding a contrary opinion would revoke the determination of that country, however I might disapprove of the principle on which that law so decided.’ Sill ». Worswick, 1 H. Bl. 691, 693. 1 Sill v. Worswick, 1 H. Bl. 691, 698, 694; Phillips v. Hunter, 2 H. Bl. 404, 405; Hunter v. Potts, 4 T. R. 182. 2 Livermore, Dissert. 140; Beames, Lex Mercatoria, p. 5, 6, 6th ed. 2 In Wilson’s Case, cited in 1 H. Bl. 691, 692, and probably decided be- tween 1752 and 1756. See also s. c. cited in Hunter ». Potts, 4 T. R. 186, 187. 4 Solomons v. Ross, 1 H. Bl. 131, note; Id. 691; s. c. Cooke’s Bank. Laws, 806, 4th ed. 5 Jollett v. Deponthieu, 1 H. Bl. 132, note, Id. 691. 8 Ibid. 7 Neale v. Cottingham, 1 H. Bl. 132, note; 8. ©. cited in Hunter v. Potts, 4 T. R. 194, and Cooke's Bank. Laws, p. 303, 4th ed. 1799. See also Quelin v. Moisson, 1 Knapp, 265, note. ® Ex parte Blakes, 1 Cox, Cases in Equity, 398. 570 CONFLICT OF LAWS. [s. 408, 409. 408. The question was most elaborately considered in England in two cases decided in 1791, in which it was solemnly held that the operation of the bankrupt laws is to vest in the assignees all the personal property of the bankrupt, wherever it may be situ- ate; and that whenever that property shall be brought into Eng- land by any person who has obtained it, the assignees will have aright to recover it of him, for the benefit of all the creditors; and consequently that an attachment and recovery of such pro- perty, made by a creditor in a foreign country after such assign- ment, will be held inoperative ; upon the principle that the title which is prior in point of time ought to obtain preference in point of right and law.! Upon a writ of error, the general doctrine maintained in these cases was affirmed; but in its actual appli- cation it was restricted to attachments made by British creditors against British debtors. In this state the doctrine remained until a very recent period, when, in the case of the bankruptcy of an English partner in a Scotch partnership, it was discussed anew. Dumoulin asserted the same doctrine, upon his favorite theory that in all cases the law of the matrimonial 1 Livermore, Dissert. s. 86, p. 71; 1 Domat, b. 1, tit. 9, s. 1; Code Civil of France, art. 1540-1573; 2 Boullenocis, 89, 90. 2 1 Boullenois, obs. 29, p. 782-818. 8 Livermore, Dissert. 8. 85-91, p. 71-75; 2 Boullenois, 89-92; ante, s. 176- 180, 184, 188; P. Voet, de Stat. s. 4, c. 3,8. 9, p. 184, 185, ed. 1715; 1 Fro- land, Mém. 62-64. 4 Even Paul Voet, who is a strong advocate for the realty of statutes, admits that cases of express contract may govern, as to property locally situ- ate in a foreign country. ‘Si statuto in uno territorio contractus accesserit, seu partium conventio, etiam si in rem sit conceptum, sese extendit ad bona extra jurisdictionem statuentium sita; non ut afficiat immediate ipsa bona, quam ipsam personam, quoad illa.’ P. Voet, de Stat. s. 4, c. 2, s. 15, p. 127, ed. 1715. 5 Livermore, Dissert. s. 87, p. 71, 72; 1 Froland, Mém. 62. 632 CONFLICT OF LAWS. [s. 450-453. domicil constituted a tacit contract between the parties.1_ There are many jurists who maintain the same opinion.? 451. Same. — Boullenois, as we have seen,® does not admit the existence of any such tacit contracts as Dumoulin contends for ; but he deems all laws real which respect property, making how- ever a distinction in cases of laws which respect the rights of married persons in each other’s property, which he treats as laws respecting the state or condition of the person.* But he contends that, even if there be such a tacit contract, it does not render the laws of the place in regard to dowry personal; for if that were so, he adds, then the dowry of persons contracting at Paris would be the same in all other provinces in the realm as it is in Paris, which no one has ever yet contended for.’ Rodenburg seems to hold that where there is no matrimonial contract to govern the case, the law of the situs is to govern in respect to dowry, ap- proving the doctrine of D’Argentré and Burgundus on this point.® D’Argentré says: ‘Cum cautum est virum, uxore premortua, dotem, dotisve partem lucrari; cujus loci statutum spectamus, Viri, an uxoris, quod olim fuit,an quod nunc est? Nos rerum lucran- darum situm spectandum dicimus; et quid ea de re statuta singu- laria permittant, quid abnuant respiciendum.’? Burgundus boldly asserts the opinion that the law rei site must govern in all such cases as to immovable property.’ ‘ Nam si dotalitium rei immobilis 1 Livermore, Dissert. s.-87, p. 73, 74; 1 Froland, Mém. 61-63. Dumoulin, in treating of the question, what law ought to prevail in fixing the rights of the husband, in regard to the dotal effects of his wife, in case of a change of domicil before the dissolution of the marriage, ultimately decides in favor of the law of the matrimonial domicil. His language is: ‘ Hinc infertur ad questionem quotidianam de contractu dotis et matrimonii, qui censetur fieri, non in loco, in quo contrahitur, sed in loco domicilii viri; et intelligitur, non de domicilio originis, sed de domicilio habitationis ipsius viri, de quo nemo dubitat, sed omnes consentiunt.’ Molin. Oper. tom. 8, ed. 1681, Com. ad Cod. lib. 1, tit. 1, 1. 1, Conclus. de Statut. p. 555; 1 Froland, Mém. 61, 62; ante, s. 147. 2 Ante, s. 145-156. 8 Ante, s. 155; 1 Boullenois, obs. 29, p. 737-741. 4 Ante, s. 155; 1 Boullenois, obs. 5, p. 121; Id. obs. 29, p. 787, 788. 5 1 Boullenois, obs. 5, p. 121; 2 Boullenois, p. 88-92. See ante, s. 155. * Rodenburg, de Divers. Statut. pt. 2, tit. 2, ¢. 4, s. 5; 2 Boullencis, Appx. p. 67. 7 D’ Argent. ad Briton. Leg. des Donations, art. 218, gloss, 6, n. 46, tom. 1, p. 664; Livermore, Dissert. s. 92-99, p. 75-78. 8 1 Boullenois, obs. 5, p. 121. CHAP, X.] REAL PROPERTY. 633 in controversiam veniat, ea antiquitus obtinuerit sententia, ut ad locum situs respicere oporteat; qua cum usque ad nostra tem- pora, apud omnes, qui moribus reguntur, inviolabilis duret, non est committendum, ut illam dubiam faciam defensionis golicitu- dine. } Many jurists concur with them in opinion? 452. Community and Donations between Husband and Wife. — Similar questions have arisen in relation to the rights of com- munity and of mutual donations between husband and wife, whether they extended to immovable property situate elsewhere than in the matrimonial domicil or not ; and the general result of the reasoning among foreign jurists turns very much upon the same considerations which have been mentioned in relation to dowry. But this subject has been already discussed in another place, and it need not be here again examined.’ 453. Similar questions have also arisen in considering the effect of mutual donations by married couples, when they are admitted by the law of the matrimonial domicil, but are unknown to, or prohibited by, the law of the place rei site. But they pro- ceed upon the same general principles. Cochin says that it is not the law of the place where an aet is done which determines its effect. If, says he, property is situate in a place whose laws prohibit donations inter vivos, or reduce them to a particular por- tion, no one supposes the donation to be less a nullity, or less 1 Burgundas, tract. 2, n. 10, p. 68, 64; Livermore, Dissert. s. 104-114, p. 80-87. 2 Ante, s. 142, 148, 152, 153, 167, 168; 1 Froland, Mém. 66, 67, 156; Id. 816-323, 828, 341; 2 Froland, Mém. 816. Froland expresses himself in the following terms: ‘ La premitre (régle), que le statut réel ne sort point de son territoire. Et dela vient que dans le cas ot il s’agit de successions, de la maniére de les partager, de la quotité des biens dont il peut disposer entre vifs ou par testament, d’aliénation d’immeubles, de douaire de femme ou d’enfans, de légitime, retrait lignager, féodal ou conventionnel, de droit de puissance paternelle, de droit de viduité, et autres choses semblables, il faut s’attacher “aux coutumes des lieux ot les fonds sont situez.’ 1 Froland, Mém. 156; Id. 49, 60-81. 8 See ante, s. 143-158, s. 160-170, 174-177; 1 Froland, Mém. 66-69; Id. 177, pt. 2, ¢. 1, per tot.; Cochin, Ciuvres, tom. 5, p. 80, 4to ed.; Merlin, Répertoire, Testament, s. 1, n. 5, art. 1, p. 309, 310. We have already seen Boullencis’s view of this subject, ante, s. 155. See also ante, s. 451. 4 Ante, s. 143-159. ‘ : 5 Livermore, Dissert. s. 181, 182, p. 114, 115; 1 Voet, ad Pand. lib. 1, tit. 4, n, 8, p. 89; 2 Froland, Mém. c. 18, p. 840, &c., c. 19, p. 904; Rodenburg, de Div. Stat. tit. 2, ¢. 5; 2 Boullenois, Appx. p. 33, 84; 1 Boullenois, 660, 661, 663; Id. obs. 29, p. 767; 2 Boullencis, obs. 44, p. 430-432; ante, s 143-159. 634 CONFLICT OF LAWS. [s. 453-458, subject to a reduction, because the act is done in a place where no such prohibition exists.1 454, Rule of the Common Law, — The doctrine of the common law seems uniformly to be, that in all cases of this sort, touching rights in immovable property, the law of the place rei site is to govern” Hence, if persons who are married in Louisiana, where the law of community exists, own immovable property in Massa- chusetts, where such community is unknown; upon the death of the husband, the wife would take her dower only -in the im- movable property of her husband, and the husband, upon the death of the wife, would take as tenant by the curtesy only, in the immovable property of his wife. 455. Another class of cases illustrating this subject may be derived from the known rights of fathers over the property of their children, according to the provisions of the Roman law, and the customary law of countries deriving their jurisprudence from the Roman law.? By the ancient Roman law all the sons were in subjection to the authority of the father until they were emanci- pated by the father, or by some other mode known to that law. During such subjection they were incapable of acquiring any property for themselves by succession, or donation, or purchase, or otherwise ; and whatever they thus acquired belonged of right to their father, saving only what was called the son’s peculium, which consisted of property acquired by his service in the army, or by his skill at the bar, or in the exercise of some public em- ployment. This sort of property was therefore known by the name of peculium castrense when it was acquired in war, and of peculium quasi castrense when it was acquired in any other man- ner5 In the time of Justinian the law was altered, and the father was no longer entitled to the property acquired by his un- emancipated son; but he was entitled to the usufruct or profits thereof during his life. The rule, thus modified, has found its way, Sometimes with and sometimes without modifications, into 1 Cochin, Euvres, tom. 5, p. 797, 4to ed. 2 Ante, s. 157-159, 174-179, 186, 187. 8 Ante, s. 139. * 1 Domat, Civ. Law, Prelim. b. 2, tit. 2, s. 2, p. 24, note; Id. b. 2, tit. 2, s. 2, p. 667-670, n. 1, 2, 8; Bouhier, Cout. de Bourg. c. 16, s. 8-12, p. 295; 1 Brown, Civ. Law, p. 122, 123; 2 Froland, Mém. 806-813; 2 Henrys, Ciuvres, par Bretonnier, lib. 4, quest. 127, p. 772, &c., 717; Merlin, Répert. Puissance Paternelle, s. 7, p. 142. 5 1 Domat, b. 2, s. 2, p. 668. , CHAP. X.] REAL PROPERTY, 635 the jurisprudence of many provinces and states of continental Europe.} 456. Paternal Power.— Under this aspect of the law with regard to the paternal difficulty, the question has often been dis- cussed among foreign jurists, whether the laws respecting the paternal power are personal or real ; or, in other words, whether the rights of the father, allowed and secured by the law of the place of his domicil, extend to the immovable property of his sons, situate in other countries whose jurisprudence confers no such paternal rights.? 457. Foreign Jurists. — Bretonnier holds the doctrine that all laws respecting the paternal power are personal, and consequently have effect upon all real property of the children, wherever it is situate, and especially as to the profits and usufruct of it; be- cause the latter partake of the nature of movables. After stating the question whether fathers domiciled in a country using the Roman law (dans le pays de droit écrit), whose sons have real property in another country having a different customary law, are entitled to the profits of the latter, that is to say, whether the paternal power extends everywhere, he proceeds to say: ‘ Cette question ne me semble pas susceptible d’une grande difficulté; parceque la puissance paternelle est un droit personnel, et par conséquence il ne peut étre borné par aucun territoire; car c’est une maxime certaine méme dans les pays de coutume, que les statuts personnels sont universels, et produisent leur effet par- tout. D’ailleurs, les fruits sont des choses mobiliaires. Or, con- stat inter omnes, que les meubles suivent les personnes, et se réglent suivant la coutume du domicile.’? 458. Hertius seems to hold a like doctrine as to the personality of such laws, and puts a question, whether a daughter, who is emancipated by marriage, may afterwards make a testament of property situate elsewhere ; and whether the father would have a right to the usufruct of her property, situate in a place where she would be deemed unemancipated. He answers: ‘ Questio 11 Domat, b. 2, s. 2, p. 668; Civil Code of France, art. 384-387; 1 Fro- land, Mém. 69; 2 Froland, Mém. e. 17, p. 789; Bouhier, Cout. de Bourg. ¢. 16, p. 294, 2 2 Froland, Mém. 808, 813-829. 8 Henrys, Quvres, par Bretonnier, tom. 2, p. 720. See 2 Boullenois, obs. 82, p. 46, 47. 636 CONFLICT OF LAWS. [s. 458-462. hee duplex est; verum ex eodem principio decidenda. Jus nempe datum est persone, quod etiam per consequentiam in bona alterius civitatis, licet immobilia operatur.’1 Yet Hertius, in another place, holds that an unemancipated son filius-familias), who by the law of his domicil may make a testament, cannot make a testament of property situate in a foreign country. ‘Nam statutum est in rem conceptum, et conditio filii-familiz non est in dispositione Hine juxta regulam Puduensis filius- familias de bonis alibi sitis testari non poterit.’® The ground of this opinion probably is, that the general incapacity is admitted to exist by the law of the domicil, and the special exception is local and real.t In this opinion Hertius admits that he differs from Huberus, whom he asserts to hold the opinion that, if a Batavian who is an unemancipated son, but has authority to make a testament in Holland, makes a testament in Holland of immovable property situate in Friesland, that testament will be valid in Friesland, although in Friesland the son, however rich and of whatever age, cannot make any testament of his property.® 459. Bouhier maintains, with earnestness and ability, that the paternal power is altogether personal, and that it extends to the immovable property of the unemancipated child, situate in a foreign country where the like law as to the paternal authority does not exist. And he is supported by the opinion of Le Brun, D’Argentré, and others.” 460. On the other hand, Froland maintains that the paternal power in regard to the immovable property of a child is purely real. ‘Ce statut est constamment réel; il ne s’étend point sur les biens situez dans une coutume, qui n’a pas disposition pa- reille.’® Boullenois, while he admits that the laws which give 1 1 Hertii Opera, de Collis. Leg. s. 4, n. 17, p. 180, ed. 1737; Id. p. 185, ed. 1716. 2 1 Hertii Opera, de Collis. Leg. s. 4, n. 22, p. 183, ed. 1787; Id. p. 188, ed. 1716. 8 Ibid. * Merlin, Répert. Testament, s. 1, n. 5, art. 1, p.-310. 5 Hertii Opera, de Collis. Leg. s. 4, n. 22, p. 183, ed. 1787; Id. p. 188, ed. 1716. ; 6 Bouhier, Cout. de Bourg. ¢. 24, s. 87-87, p. 468-475. 7 Bouhier, Cout. de. Bourg. c. 24, s. 41, p. 468; Le Brun, de la Com- munauté, lib. 1, c. 5; n. 8; D’Argent. de Briton. Leg. des Donations, art. 218, gloss. 6, n. 7, tom. 1, p. 648, § 1 Froland, Mém. 69; Id. 39, 60, 156; 2 Froland, Mém. c. 17, p. 789-819. CHAP. X.] REAL PROPERTY. 637 the paternal power are personal so far as they respect the state or condition of the parties, contends, at the same time, that, so far as those laws give rights over immovable property, they are real, and are to be governed by the law of the place where the property is situate! And he proceeds to vindicate his opinion in a most elaborate manner? 461. D’Aguesseau says: ‘That which characterizes a real statute, and distinguishes it essentially from a personal statute, is not that it relates to certain personal qualities, or to certain per- sonal circumstances, or to certain personal events; otherwise we should be compelled to say that all laws which concern the pa- ternal power, the right of guardianship, the right of widowhood (le droit de viduité), and the prohibition of donations between married persons, are all personal laws. And accordingly it is beyond doubt that in our jurisprudence all these laws are real, which are to be governed, not according to the law of the do- micil, but according to that of the place where the property is situate.’ 3 462. Merlin has examined the same subject in a formal discus- sion; and he endeavors to hold a middle course between the opinions of Bouhier and Boullenois, agreeing with the latter that the usufruct arising under the paternal power is a real right, and governed by the lex rei site, and at the same time holding with Bouhier that the father cannot possess the right unless, by the . law of the place of his domicil, the paternal power is recognized. He then lays down three principles, which he supposes will re- move all the difficulties upon this thorny subject. (1.) The law which subjects the son to the power of his father has no need of the aid (ministére) of man for its execution ; and it is therefore personal from the very nature of its object. (2.) The law which declares an unemancipated son (un fils de famille) incapable of alienating his immovable property without the autherity of his father is personal, although its object is real; because it deter- mines the state of the person in regard to what he can and can- not do. (3.) The law which gives to a father the usufruct of the property of his son ought to be real; because its object is real, and it makes no regulation concerning the capacity or inca- 1 1 Boullenois, obs. 4, p. 68; 2 Boullenois, obs. 32, p. 30-83; Id. p. 39-47; Boullenois, Quest. Mixtes, quest. 20, p. 406. 2 Ibid. 8 D’ Aguesseau, CEuvres, tom. 4, p. 660, 4to ed. 638 CONFLICT OF LAWS: [s. 462-463 a, pacity of the unemancipated son to do anything.!. In another place he holds that a law which prohibits an unemancipated son 1 Merlin, Répert. Puissance Paternelle, s. 7, p. 142, 144, ed. 1827. The reasoning of Merlin on this subject is marked with uncommon clearness and force of statement; and I have therefore thought that an extract from it might not be unacceptable to the reader. ‘ Or, que trouvons nous dans la puissance paternelle? ‘Trois choses. Premitrement, elle détermine 1’état des enfans; et a cet égard, elle forme un statut personnel, qui suit les enfans partout. Ainsi, une mére, domiciliée en Hainaut, conserve sous sa puissance les enfans qu’elle a eu dans cette province, lors méme que le hasard ou certaines circonstances les ont fait passer dans une autre coutume, qui n’accorde pas les mémes droits aux femmes qu’aux hommes sur la personne de leurs enfans. En second lieu, la puissance paternelle imprime dans les enfans, qui y sont assujetis, une inca- pacité de faire certains actes: comme cette incapacité est la suite de leur état, elle les suit également partout et influe sur tous leurs biens, quelle qu’en soit Ja situation. Ainsi, un fils de famille, né dans une coutume ot il ne peut pas con- tracter sans l’autorité de son pére, ne peut vendre de lui-méme les biens qu'il posséde dans une autre coutume qui n’admet pas la puissance paternelle; et reciproquement un fils de famille domicilié dans une coutume qui n’admet pas la puissance paternelle, peut, sans l’autorisation de son pere, aliéner les biens qu’il possede dans les pays de droit écrit. Par la méme raison, un fils né & Senlis, ou la coutume proscrit formellement toute puissance paternelle, quoique nourri et entretenu par son pére, peut acquérir pour Ini-méme en Hainaut et dans les pays de droit écrit. Et réciproquement, un fils de famille né en Hainaut, ou dans un pays de droit écrit, ne peut s’approprier les biens qu'il acquiert dans la coutume de Senlis, lorsque ses acquisitions ne réunissent pas toutes les circonstances requises pour qu’elles tombent dans le pécule castrense, et quasi- castrense, ou adventice. Troisitmement, la puissance paternelle donne au pere dans les pays de droit écrit et dans quelques coutumes, la jouissance des biens de ses enfans. Cette jouissance est, a la vérité, un accessoire de la puis- sance paternelle; mais elle ne forme dans les enfans ni capacité ni incapaciteé: le statut, qui la défére, n’a pas besoin, pour son exécution, du ministére de Vhomme; il agit seul; Vhomme n’a rien ’ faire. On ne peut done pas appli- quer ici les raisons, qui ont déterminé l’espéce de concordat tacite, dont nous avons parlé. Quel inconvénience y a-t-il & restreindre cette jouissance au terri- toire des lois ou coutumes, qui l’accordent? Quoi! parcequ’un pére jouira des biens, que ses enfans ont dans une province, et qu’il ne jouira pas de ceux qu’ils ont dans une autre, l’ordre public serait troublé, le commerce serait dérangé. Non. Jl n’y a pas en cela plus de trouble ni plus de confusion, qu’& succéder 4 un défunt dans une coutume, et de ne pas lui succéder dans une autre. Ii est donc constant que le systeme du président Bouhier ne peut pas se soutenir, et que le statut, qui donne a un pére ]’usufruit des biens des enfans, qu’il a sous sa puis- sance, n’est pas personnel. Mais est-il purement réel, comme le prétend Boulle- nois, ou bien est-il personnel réel, c’est-a-dire, faut-il, pour qu’il produiseson effet, que le pére soit domicilié dans une coutume, qui admet la puissance paternelle? C’est la difficulté, qui nous reste A résoudre. Le principal peut subsister sans les accessoires: mais les accessoires ne peuvent jamais subsister sans le prin- cipal. Ce principe est aussi clair, qu’indubitable, et i] nous conduit droit la décision de notre question. Ainsi, la puissance paternelle peut avoir lieu sans l’usufruit dont nous parlons ici. La coutume de Douai nous en fournit CHAP. x] REAL PROPERTY. | 639 to make a testament is personal; but he at the same time asserts that this will not prevent him from making a testament of mova- ble property in other countries where it is permitted; because this case is a mere exception from his general incapacity, and also falls within the rule that, in a conflict of real and personal laws, the latter must yield.! 463. Rule of the Common Law. — Without going further into an examination of the opinions of foreign jurists upon this sub- ject, it is sufficiently obvious what difficulties they are compelled to encounter at almost every step, in order to carry into effect their favorite system of the division of laws into real and per- sonal. The common law has avoided all these difficulties by a simple and uniform test. It declares that the law of the situs shall exclusively govern in regard to all rights, interests, and titles, in and to immovable property. Of course it cuts down all attempts to introduce all foreign laws, whether they respect per- sons or things, or give or withhold the capacity to acquire or to dispose of immovable property.? 463 a. This subject of the nature and extent of the paternal power and rights came recently under consideration in England, in @ case somewhat complicated in its circumstances, and touch- ing personal estate only. It may be briefly stated as follows. A marriage took place in Holland between the parties. At the time of the marriage, a marriage contract was there executed in the Dutch form, making certain provisions, and, among other things, provision for the distribution of the wife’s property in the un exemple, puisqu’elle adrhet lune, chap. 7, art. 2, et qu’elle exclut l’autre par son silence, comme l|’a décidé le parlement de Flandre par un arrét du 27 Janvier 1739, rendu au rapport de M. de Casteele de la Briarde, en faveur du Marquis de Sin, contre les Sieurs et Demoiselles d’Aoust. Mais lusufruit ne peut avoir lieu sans la puissance paternelle, dont il n’est l’accessoire. Un pére ne peut donc en jouir, s’il n’a ses enfans sous sa puissance, et par conséquence s'il n’est domicilié dans une coutume, qui admet la puissance paternelle. Un pere, qui émanciperait son fils au moment méme de sa naissance, n’aurait cer- tainement aucun droit 4 ’usufruit des biens, que cet enfant acquerrait ensuite, soit dans la coutume du domicile qu’il avait alors, soit dans tout autre province. Or, ce que ce pére est supposé faire, la loi le fait elle-méme dans les coutumes qui n’admettent pas la puissance paternelle ; elle émancipe cet enfant dés qu’il voit le jour, et conséquement elle soustrait les biens, qu’il aura dans la suite, 4l’usufruit que son pere en aurait eu sans cette émancipation.’ Merlin, Répert. Puissance Paternelle, s. 7, p. 145, 146, ed. 1827. 1 Merlin, Répert. Testament, s. 1, n. 5, art. 1, p. 310. * See Brodie v. Barry, 2 V. & B. 127. 640 CONFLICT OF LAWS. [s. 463 a—465. event of her husband surviving her. They afterwards removed to and became domiciled in England, and had children born there. The wife died; and by her death the children became entitled, under a compromise in Holland, to one fourth of certain property of the wife in the public funds. By the French Code, which is the law of Holland also, when children are under the age of eighteen years, their surviving parent has the enjoyment of their property until they attain that age; and the father in- sisted that as the children were under that age, and the marriage contract and compromise under which they took one fourth were both made in Holland, the children must take it subject to his paternal rights by the law of Holland. The vice-chancellor held that the father was not so entitled. On that occasion the learned judge said: *‘ By the Code Napoléon, which is the law of Holland as well as of France, when children are under the age of eighteen, their surviving parent has the enjoyment of their pro- perty until they attain that age. But that is nothing more than a mere local right, given to the surviving parent by the law of a particular country, so long as the children remain subject to that law; and as soon as the children are in a country where that law is not in force, their rights must be determined by the law of the country where they happen to be. These children were never subject to the law of Holland ; they were both born in this coun- try, and have resided here ever since. The consequence is, that this judicial decree has adjudged certain property to belong to two British-born subjects domiciled in this country; and so long as they are domiciled in this country, their personal property must be administered according to the law of this country. The claim of their father does not arise by virtue of the contract, but solely by the local law of the country where he was residing at the time of his marriage; and therefore this property must be con- sidered just as if it had been an English legacy given to the children ; and all that the father is entitled to is the usual refer- ence to the master, to inquire what allowance ought to be made to him for the past and future maintenance of his children.’! 1 Gambier v. Gambier, 7 Sim. 263, 270. CHAP. XI] WILLS AND TESTAMENTS. 641 CHAPTER XI. WILLS AND TESTAMENTS. 464. Preliminary Remarks. — Having taken these general views of the operation of foreign law in regard to movable pro- perty and immovable property, and ascertained that the general principle, at least in the common law, adopted in relation to the former is, that it is governed by the law of the domicil of the owner, and in relation to the latter, that it is governed by the law of the place where it is locally situate; we now come to make a more immediate application of these principles to two of the most important classes of cases arising, constantly and uni- formly, in all civilized human societies. One is the right of a person, by an act or instrument, to dispose of his property after his death; the other is the right of succession to the same pro- perty, in case no such post-mortuary disposition is made of it by the owner. The former involves the right to make last wills and testaments; and the latter the title of descent and the dis- tribution of property ab intestato. We shall accordingly in this and the succeeding chapter exclusively discuss the subject of foreign law in relation to testaments, and to successions and distributions of movable and immovable property. 465. Testaments of Movables.— And first in relation ‘to testa- ments of movable property.! So far as respects the capacity or incapacity of a testator to make a will of personal or movable property, we have already had occasion to consider the subject in another place. The result of that examination was, that the law of the actual domicil of the party, at the time of the making of his will or testament, was to govern as to that capacity or in- capacity.2(@) We may therefore proceed to the consideration of 1 See 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 579-581; post, s. 466, 467. 2 Ante, s. 52-62, 64-78, 101-106, 368, 430-484. See also 2 Boullenois, Appx. p. 88; 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 577-579. (a) See Lawrence v. Kitteridge, 21 Conn. 582, 41 642 CONFLICT OF LAWS. [s. 465-467. the forms and solemnities by which wills of personal estates are to be governed. And here it may be stated now to be a well settled principle in the English law, that a will of personal or movable property, regularly made according to the forms and solemnities required by the law of the testator’s domicil, is suffi- cient to pass his personal or movable property in every other country in which it is situated. But this doctrine, although now very firmly established, was for a great length of time much agitated and discussed in Westminster Hall.!| On one occasion, Lord Loughborough laid down the doctrine that, with respect to the disposition of movable property, and with respect to the transmission of it, either by succession or by the act of the party, it follows the law of the person.? The owner in any country may dispose of his personal property. On another occasion Lord Thurlow asserted the same doctrine as to succession to per- sonal property, and by implication as to wills? Lord Ellenbo- rough put it as clear inhis day. He observed: ‘It is every day’s experience to recognize the law of foreign countries as binding on personal property; as in the sale of ships condemned as prize by the sentences of foreign courts, the succession to personal property by will or intestacy of the subjects of foreign coun- tries.’ But antecedently to this period many learned doubts and discussions had existed on the subject. In the Duchess of Kingston’s Case, a will of personal property executed in France, but not in conformity to the laws of that country, was admitted to probate in the ecclesiastical courts of England in 1791, it being duly executed according to the English forms, although she was domiciled in France at the time of making the will, and also at the time of her death.® 1 See Brodie v. Barry, 2 V. & B. 127, 181; Bempde v. Johnstone, 3 Ves. 198, 200; Price v. Dewhurst, 8 Sim. 279, 299, 300; Moore v. Budd, 4 Hagg. Eee. 846, 352; Robertson on Successions, p. 99, 191, 214, 215, 285, 290, 297; The Case of the Goods of Marshall Bennett, before Sir H. Jenner Fust, July, 1840, London Monthly Law Magazine, Sept. 1840, p. 264. 2 Sill v. Worswick, 1 H. Bl. 690. See also Ommaney v. Bingham, cited 5 Ves. 757; 3 Hagg. Ecc. 414, note; Stanley v. Bernes, 3 Hagg. Ecc. 373; Hogg v. Lashley, 3 Hagg. Ecc. 415, note. 8 Bruce v. Bruce, 2 B. & P. 229, note. * Potter v. Brown, 5 East, 130; Ferraris v. Hertford, 3 Curteis, 468, 7 Jur. 262. 5 See Bempde v. Johnstone, 3 Ves. 198, 200; Somerville v. Somerville, 5 Ves. 750; Balfour v. Scott, 6 Bro. P. C. 550, Tomlin’s ed.; 2 Add. Ecc. 15, note. ° See Curling ». Thornton, 2 Add. Ecc. 21, See 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 588-590. CHAP. XI.] WILLS AND TESTAMENTS. 643 . 466. Sir John Nicholl’s Opinion. — Even at so late a period as 1828, Sir John Nicholl doubted whether a will of personal pro- perty, made abroad by an English subject domiciled abroad, ought to be held valid, unless it was executed in conformity to the forms prescribed by the English law. The ground of his doubt was, whether an English subject was entitled to throw off his country (exuere patriam) so far as to select a foreign domicil in complete derogation of his native domicil, and thus to render his property in England distributable by succession or testament according to the foreign law. He took a distinction between testacy and intestacy (assuming, for the sake of argument, that in the latter case the foreign law might prevail), thinking that cases of testacy might be governed by very different considera- tions from those of intestacy. Even if a will, executed according to the law of the place of the testator’s domicil, would in such a case be valid, he contended that it by no means followed univer- sally, and upon principle, that a will, to be valid, must strictly conform to that law which would have regulated the succession to the testator’s property if he had died intestate. And therefore he held that a will of personal :property, made by a British sub- ject in France, according to the forms of the English law, was good as to such property situate in England. He admitted that, as to British subjects domiciled in any part of the United King- dom, the law of their domicil must govern in regard to suc- cessions and wills ; and so the like law must govern in regard to successions and wills of foreigners resident abroad. The restric- tion which he sought to establish was, that a British subject could . not, by a foreign domicil, defeat the operation of the law of his own country as to personal property situate in the latter. 467. Reversal of his Decision.—To this opinion the same learned judge firmly adhered in a still later case. But upon an appeal, the decision was overturned by the High Court of Dele- gates, and the doctrine fully established, that the law of the ac- tual foreign domicil of a British subject is exclusively to govern in relation. to his testament of personal property,as it would in the case of a mere foreigner.2(a) This case is the stronger, be- 1 Curling v. Thornton, 2 Add. Ecce. 6, 10-25; 8 Sim. 310, 311. ? Stanley v. Bernes, 3 Hagg. Ecc. 8783-465; Moore v. Darell, 4 Hagg. Ecc. (a) See Bremer v. Freeman, 10 Moore, P. C. 358. 644. CONFLICT OF LAWS. [s. 467-470. cause it was the case of a will and several codicils made accord- ing to the law of Portugal, and also of several codicils made not according to the law of Portugal, where the testator was domiciled. The will and codicils executed according to the Portuguese law were held valid; the others were held invalid. And this doctrine necessarily goes to the extent of establishing, not only whether there be an instrument called a will, but whether it constitutes a will in the sense of the lex loci. The doctrine also applies, whether the personal property be locally situate in the domicil of the testator or in a foreign country.} 468. The Rule in America.— The same doctrine is now as firmly established in America. The earliest case in which it was directly in judgment was argued in the Supreme Court of Pennsyl- vania in 1808; ? and this case may be truly said to have led the way to the positive adjudication of this important and difficult doc- trine. There a foreign testator domiciled abroad had made a will of his personal estate, invalid according to the law of his domicil, but valid according to the law of Pennsylvania ; and the question was, whether it was competent and valid to pass personal property situate in Pennsylvania. The court decided that it was not, and asserted the general doctrine, that a will of personal estate must, in order to pass the property, be executed according to the law of the place of the testator’s domicil at the time of his death. If void by that law, it is a nullity everywhere, although it is exe- cuted with the formalities required by the law of the place where the personal property is locally situate. The court asserted that in this respect there was no difference between cases of succes- sion by testament, and by intestacy.2 The same doctrine has been since repeatedly recognized by other American courts, and may now be deemed as of universal authority here.t (a) 346, 352; Price v. Dewhurst, 4 My. & Cr. 76, 80, 82; Ferraris v. Hertford, 7 Jur. 262; 3 Curteis, 468. 1 Ibid.; Ferraris v. Hertford, 7 Jur. 262; 3 Curteis, 468. 2 Desesbats v. Berquier, 1 Binn. (Pa.) 336. 8 Ibid.; Moore v. Budd, 4 Hage. Ecc. 346, 352; Grattan v. Appleton, 3 Story, 755. * See Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 469; Harvey v. Richards, 1 Mason, 881, and cases cited, p. 408, note; Dixon v. Ramsay, 8 Cranch, 319; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, 224; Arm- strong v. Lear, 12 Wheat. 169; Harrison v. Nixon, 9 Pet. 483, 504, 505. (2) See Rue High, App. 2 Doug. 226; Irwin’s Appeal, 33 Conn. 128. Jn (Mich.) 522; Norris v. Harris, 15 Cal. re Lewis, 32 La. An. 885; Succession CHAP. xt] WILLS AND TESTAMENTS. 645 469. Scotch Law.—In Scotland the doctrine was formerly in- volved in many doubts. By the law of Scotland, illegitimate per- sons are not deemed capable of making a will; and hence a will of movables in Scotland, made by such a person domiciled in England, was formerly held in Scotland to be invalid. In like manner a nuncupative will, being in Scotland invalid, was for- merly held invalid to pass movables in Scotland, although the will was made in England (where such a will is valid) by a person domiciled there.?, But the general doctrine is now the same in Scotland as in England. The law of the domicil univer- sally prevails as to successions and wills of movables in other countries. 470. Foreign Jurists. — Foreign jurists are generally agreed as to the doctrine in regard to movables, upon the ground, main- tained by all of them, that mobilia sequuntur personam.* John Voet lays down the rule in the following terms: ‘ In succession- ibus, testandi facultate, contractibus, aliisque, mobilia, ubicunque sita, regi debere domicilii jure, non vero legibus loci illius, in quo naturaliter sunt constituta.’® He adds: ‘Ibique DD. (Doc- tores) mobilium tamen ratione in dispositionibus testamentariis, dum queritur, an ille in universum permittende sint, nec ne, 1 Ersk. Inst. b. 3, tit. 2, s. 41, p. 515; 3 Kames, Eq. b. 3, ¢. 8, 8. 3. 22 Kames, Eq. b. 3, c. 8, 8. 8, p. 845. 8 See Bempde v. Johnstone, 3 Ves. 198, 201; Somerville v. Somerville, 5 Ves. 757; Brodie v. Barry, 2. V. & B. 127, 181, and the cases cited ante, s. 495; Ersk. Inst. b. 3, tit. 2, 5. 40,41; 2 Kames, Eq. ec. 8, s. 6. 4 See 1 Boullenois, obs. 28, p. 696-721; Cochin, Giuvres, tom. 5, p. 85, 4to ed.; ante, s. 362, 362 a, 399; 4.Burge, Col. & For. Law, pt. 2, c. 12, p. 579, 580; Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 40-50, p. 846-360; post, s. 481. 8 J, Voet, ad Pand. 1, 4, ps. 2, s. 11, p. 44. of Elliot, 27 La. An. 42; Holman v. the test, see Caulfield v. Sullivan, 85 Hopkins, 27 Tex. 38; In re Blithman, N.Y. 153; Manuel v. Manuel, 18 Obio L. R. 2 Eq. 23; In re Hellmann’s Will, St. 458; Morris v. Morris, 27 Miss. Id. 363; Richards v. Miller, 62 Ill. 847; Sturdivant v. Neill, Id. 157; Wal- 417; Townes v. Durbin, 3 Met. (Ky.) lace v. Wallace, 2 Green, Ch. 616. 352; Jones v. Gerock, 6 Jones, Eq. (N. But where the law of the forum actu- C.) 190; Fellows v. Miner, 119 Mass. ally prohibits the particular kind of 541; Fay v. Haven, 3 Met. (Mass.) disposition in question made in the 109; Phelps ». Pond, 23 N. Y. 69; country of the domicil, the former law Bascom v, Albertson, 34 N.Y. 584; will prevail. Harper v. Stanbrough, Chamberlain ». Chamberlain, 43 N.Y. 2 La. An. 377; Harper v. Lee, Id. 424, That domicil, not residence, is 3882. 646 CONFLICT OF LAWS. [s. 470-472. uti et ab intestato successionibus, donationibus inter conjuges vetitis permissisve, et aliis similibus, de juris rigore communi quasi gentium omnium consensu laxatum est; sic ut ex comitate profecta.regula praxi universali invaluerit, mobilia in dubio regi lege loci, in quo eorum dominus domicilium fovet, ubicunque illa vere exstiterint.’ ! 471. Vattel. — Vattel has spoken in terms admitting of more question as to the extent of their meaning. After observing that a foreigner in a foreign country has by natural right the liberty of making a will, he remarks: ‘ As to the forms or solemnities ap- pointed to settle the validity of a will, it appears that the testator ought to observe those which are established in the country where he makes it, unless it be otherwise ordained by the laws of the State of which he is a member, in which case he will be obliged to observe the forms which they prescribe, if he would validly dispose of the property which he possesses in his own country. The foreign testator cannot dispose of his property, movable or immovable, which he possesses in his own country, otherwise than in a manner conformable to the laws of that country. But as to movable property, specie, and other effects, which he possesses elsewhere, which he has with him, or which follow his person, we ought to distinguish between the local laws, whose effect cannot extend beyond the territory, and those laws which peculiarly af- fect the character of citizens. The foreigner remaining a citizen of his own country is still bound by those last-mentioned laws wherever he happens to be, and is obliged to conform to them in the disposal of his personal property, and all his movables what- soever. The laws of this kind, made in the country where he resides at the time, but of which he is not a citizen, are not obli- gatory with respect to him. Thus a man who makes his will and dies in a foreign country cannot deprive his widow of the part of his movable effects assigned to that widow by the laws of his own country. A Genevan, obliged by the laws of his country to 1 J. Voet, ad Pand, 1, 4, ps. 2, s. 12, p. 45. See also J. Voet, ad Pand. 28, 1, n. 18, 15, 44; 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 579, 580, 590; P. Voet, de Statut. s. 9, c. 1, n. 8, p- 255, ed. 1715; Id. p. 309, ed. 1661; Burgundus, tract. 1, n. 86; Id. tract. 6, n. 1-3; Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 24-97, p. 204-216; Id. s. 32, 33, p. 221-227; ante, s. 881, note, s. 444 a; 4 Burge, Col. & For. Law, pt. 2, ¢. 5, p. 217, 218; Id. c. 12, p. 576-580; post, s. 479; Sand. Decis. Frisic. lib. 4, tit. 1, defin. 14, p. 142, 143. CHAP. XI] WILLS AND TESTAMENTS. 647 leave a portion of his personal property to his brothers or cou- sins, if they are his next heirs, cannot deprive them of it by mak- ing his will in a foreign country while he continues a citizen of Geneva. Buta foreigner, dying at Geneva, is not obliged in this respect to conform to the laws of the republic. The case is quite otherwise in respect to local laws. They regulate what may be done in the territory, and do not extend beyond it. The testator is no longer subject to them when he is out of the territory, and they do not affect that part of his property which is also out of it. The foreigner is obliged to observe those laws in the country where he makes his will, with respect to the goods he possesses there.’ 4 472. Vattel is in this passage principally considering the ef- fect of the law of a foreign country upon a foreigner who is resi- dent there. And there can be no doubt that every country may by its laws prescribe whatever rules it may please as to the dis- position of the movable property of its citizens, either inter vivos, or testamentary. But it is equally clear that such rules are of no obligation as to movable property in any other country, and can be in force there only by the comity of nations. So that a will of such movable property, made in a foreign country where the testator is domiciled, and according to its laws, will be held va- lid, whatever may be the validity of such a will in the country to which he owes his allegiance by birth. (a) But the discussion in which we are engaged does not respect the effect of any local prohibitory laws over movable property within the particular ter- ritory, but the general principles which regulate the disposition of it when no such prohibitory laws exist. And here, by the general consent of foreign jurists, the law of the domicil of the testator governs as to transfers inter vivos and testamentary.” 1 Vattel, b. 2, c. 8,8. 111. See post, s. 479. 2 See ante, s. 465; Hertii Opera, de Collis. Leg. s. 4, n. 6, p. 112, ed. 1787; Id. p. 174, ed. 1710; Pothier, Cout. d’Orléans, c. 1, s. 2, n. 24. J. Voet, ad Pand. 2, 88, 17, s. 84; ante, s. 470. Very difficult questions however may still arise as to what is to be deemed the real domicil of a party who isa native of one country and who has yet been long resident in another. The quo animo with which such residence has beef originally taken, or subsequently upheld, often becomes a very important element in the decision. See ante, 8. 44,49; Atty.-Gen. v. Dunn, 6 M. & W. 511; De Bonneval v. De Bonneval, : Curteis Ecc. 856; post, s. 481, note; Munro v. Munro, 7 Cl. & F. 842; 1 Rob. 93. (a) See Mahorner v. Hooe, 9 Smedes & M. 247. 648 CONFLICT OF LAWS. [s. 473, 473 a, 473. Effect of Change of Domicil. — But it may be asked, What will be the effect of a change of domicil after a will or testament is made of personal or movable property, if it is valid by the law of the place where the party was domiciled when it was made, and not valid by the law of his domicil at the time of his death? The terms in which the general rule is laid down would seem sufficiently to establish the principle that in such a case the will or testament is void ; for it is the law of his actual domicil at the time of his death, and not the law of his domicil at the time of making his will or testament of personal property, which is to govern.1(a) This doctrine is very fully recognized and laid down by John Voet. ‘Tamen, si quis habitans in loco in quo minor an- norum numerus in testatore requiritur, veluti in Hollandia, ibidem anno decimo quinto testamentum fecerit, deinde vero domicilium alio transtulerit, ubi necdum per etatem testari licet, veluti Ul- trajectum, ubi plena pubertas in masculo testatore exigitur, tes- tamentum ejus quantum ad mobilia per talem migrationem irritum efficitur. Idemque eveniet, si Hollandus uxorem heredem in- ° stituerit (quod ibi licitum), deinde vero ad aliam migret regionem, ibique domicilium figat, ubi gratificatio inter conjuges ne su- premo quidem elogio permissa est; nam et hoc .in casu mobi- lium intuitu in irritum deducitur voluntas ejus; cum mobilia in successione testata vel intestata regantur ex lege domicilii defuncti, adeoque res devenerit in hisce ad eum casum, a quo propter qualitatem testatoris, vel honorati, initium habere nequit. Neque enim sufficit in honorato, quod tempore facti testamenti capax sit, sed et tempore mortis testatoris eum capacem esse, ne- cesse est.’2 Again he adds: ‘Quod si is, cujus testamentum migratione ex Hollandia ad regionem Ultrajectinam irritum fac- tum fuerat, ibidem etatem expleverit in testatore requisitam, de novo quidem repetere solenniter potest priorem voluntatem, at- que ita de novo testari; sed si id non fecerit, testamentum, an- tea anno xtatis decimo quinto in Hollandia conditum, ipso jure 1 See Desesbats v. Berquier, 1 Binn. (Penn.) 336; Potinger v. Wightman, 8 Meriv. 68; Henry on Foreign Law, Appx. p. 196; 2 Boullenois, c. 1, p. 2, &c.; Id. p. 7, 54, 57; ante, s. 55-74; 4 Burge, Col. & For. Law, pt. 2, ¢. 12, p. 580, 581. 2 J. Voet, ad Pand. 28, 3, 2, s. 12, p. 292. (a) See Moultrie v. Hunt, 23 N.Y. 394; Dupuy v. Wurtz, 53 N. Y. 556; Irwin’s Appeal, 383 Conn. 128. CHAP. XI.] WILLS AND TESTAMENTS. 649 quantum ad mobilia vel immobilia Ultrajectina nequaquam con- valescit ; non magis, quam jure civili aut pretorio testamentum ab impubere conditum, si is pubes factus in fata concedat.’! If however he should afterwards return and resume his domicil, where his first will or testament was made, its original validity. will revive also. ‘ Diversum esset, si testator talis iterum postea mutata mente in Hollandia rerum ac fortunarum suarum sedem reponat ; tune enim voluntas illa, que migratione in irritum de- ducta fuerat, quasi recuperata pristina ad testandum habilitate redintegratur ex zquitate ; eo modo, quo sustinetur jure preetorio testamentum, a patrefamilias conditum, quod per arrogationem irritum factum fuerat, si is iterum postea sui juris’ factus in eadem perstiterit voluntate.’? (a) 473 a. Power of Appointment. — Another question may arise under this head. Suppose a power of appointment to be given * toa party enabling him to dispose by will of personal estate situ- ate in one country, and he has his domicil in another country, and he executes the power and complies with all the requisites of the power, making a will according to the law of the country where the power was created, and the personal estate is situated ; but the will is not made according to the requisites prescribed by the law of the place of his domicil; the question would then arise, whether the power of appointment was well executed, and 1 J. Voet, ad Pand. 28, 3, 2, s. 13, p. 293. 2 J. Voet, ad Pand. 28, 3, 2,"s. 13, p. 293; 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 580, 591; Robinson on Succession, p. 95. made a will and afterwards married (a) The principle laid down in this in Scotland, but subsequently moved section, viz., that a change of domicil after a will is made may revoke a prior willif the same be invalid according to the law of the new domicil, was modi- fied in England by St. 24 & 25 Vict. ce. 114, s. 8, —commonly called Lord Kingsdown’s act,— which enacts that ‘no will shall be held to be revoked, -or to have become invalid, nor shall the construction thereof be altered by teason of any subsequent change of domicil of the person making the same.’ Accordingly it was held ina recent case under that act, that when aman whose domicil was in Scotland to England and there acquired a new domicil and died there, his will was good in England, and was not revoked by his subsequent marriage in Scot- land; though Sir J. P. Wilde observed that, ‘but for Lord Kingsdown’s act, the will would without doubt be in- valid;’ and he added that if the de- ceased, instead of marrying in Scot- land, married in England after obtain- ing an English domicil, a question of some nicety would have arisen whether the act applied. Goods of Reid, L. R. 1P.& D. 74. “650 CONFLICT OF LAWS. [s. 473 a, 474. the will entitled to probate as a will in the country where the personal property is situate. It has been held that it is.’ (a) 1 Tatnall v. Hankey, 2 Moore, P. C. 342. (a) Intention to appoint. — The question whether a will is intended as an execution of a power of appoint- ment may depend upon whether the will is interpreted according to the law of one place or that of another. By the statute law of England (1 Vict. c. 26, s. 27) a general devise or bequest without any referdnce to the power is construed to include property which the testator has power to appoint as he may think proper. In Massachusetts the same rule has been in part adopted by judicial decision. In Pennsylvania and Maryland, an intention to exercise the power is not inferred unless the will contains a reference to the power, or expressly disposes of the property subject to it, or would be inoperative except as an execution of the power. In Bingham’s Appeal, 64 Pa. St. 845, a testator domiciled in England made a general devise and bequest of all his property; he had power under the will of his father, who was domiciled in Pennsylvania, to appoint by will, as he should think proper, a fund of personal estate which had been bequeathed by his father to trustees. The Pennsyl- vania court, applying its own rules of construction, held that the will showed no intention to execute the power, and therefore did not operate as an execu- tion of it. In Sewall v. Wilmer, 132 Mass. 131, a married woman domiciled in Maryland likewise made a general devise and bequest of all her property; she had by the will of her father, who was domiciled in Massachusetts, a ge- neral power to appoint by deed or will certain real estate in Massachusetts which he had devised to trustees. A majority of the Massachusetts court, also applying its own rules of construc- tion, held that an intention to execute the power was to be inferred, and that the real estate passed by the will. In both of these cases the testators had other property upon which their wills operated. The Pennsylvania court in Bing- ham’s Appeal (supra) says with regard to the effect of the English statute, ‘It is doubtless in the power of the parlia- ment to say that a bequest of a testa- tor’s own estate shall be deemed to extend to the estate of another over which the testator has a power, unless he expresses the contrary intention. But this effect is produced by opera- ... tion of law, not by the words of the will. Itis manifest that no possible judicial interpretation of the words my personal estate can make them mean the estate of another. It is simply a legal effect or operation of law by sta- tutory construction which can do so.’ The English statute referred to pro- vides that a general devise or bequest of the real or personal estate of the testator ‘ shall be construed to include’ any real or personal estate respectively which he may have power to appoint as he may think proper. It seems clear that since that statute the words my personal estafe in au English will do in- clude in their meaning the property of another which the testator has a gene- ral power to appoint by will. The statute gives the words, when used in wills executed after it took effect, a meaning which they did not have be- fore. It is obvious that it is not im- possible for the words to have in some places a different meaning from that which they have in Pennsylvania. In Chandler v. Pocock, 15 Ch. D. p. 498, Jessel, M. R., speaking of this provi- sion of the statute, said, ‘ Consequent- ly, a bequest of « my personal estate i is, in my opinion, not only a bequest of the actual personal estate of the CHAP, XI.] WILLS AND TESTAMENTS, 651. 474. Wills of Immovables. — We next pass to the consideration of wills made of immovable property.1_ And here the doctrine 1 See 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 586, 596; Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. testator, but also a bequest of all the personal estate over which at the time of his death he shall have a general power of appointment by will. Ac- cordingly such bequest should be read as if it included these words, ‘‘] ap- point all the personal estate over which I shall have at my decease a general power of appointment by will.’?’ The testator in Bingham’s Appeal there- fore clearly expressed in the language of the country to which he belonged by domicil an intention to dispose of all the personal estate which he had a general power to appoint by will. But except upon the question of the possibilities of judicial interpretation, the courts of Pennsylvania and Massa- chusetts substantially agree in the grounds of their decisions in these two cases. Both seem to admit that, as to personal property at least, the inter- pretation of a will is governed by the . law of the testator’s domicil; but both say that the testator whose property was in question was the testator who gave the power of appointment, and not the one to whom the power was given, and therefore the will of the latter was to be interpreted by the law of the domicil of the former. ~ The rule that a will is to be inter- preted according to the law of the testator’s domicil, is not limited to dispositions of his personal estate, but seems to apply in all cases, except where it appears that he expressed his meaning with reference to the law of some other place. Trotter v. Trotter, 4 Bligh, N.S. 502; 8 Wils. & S. 407; Wallis v. Brightwell, 2 P.W. 88; Max- well v. Maxwell, L. R. 4 H. L. 506; Caulfield v. Sullivan, 85 N.Y. 153; post, s.479a, 479h, 479m. For ex- ample, in cases where a will is inope- 7, 1840;s. 40-51, p. 846-360. rative as to real estate in a foreign country, and the question is whether the testator has expressed an intention to dispose of it which will put the heir to his election, the interpretation is governed, not by the law of the foreign country where the real estate is, but by the law of the testator’s domicil. Trotter v. Trotter, 4 Bligh, N.S. 502; 8 Wils. & S. 407; Maxwell v. Max- well, 2 D. M. & G. 705; Orrell v. Or- rell, L. R. 6 Ch. 802.. A disposition of property in the technical forms of a foreign law will in some cases show an intention that it. is to be construed according to that law. Chamberlain v. Napier, 15 Ch. D. 614; Mitchell v° Davies, Scotch Ct. Sess. Cas. 4th se- ries, vol. 3, p. 208. Perhaps a specific disposition of real estate in a foreign country separately from other property may be presumed to have been made with reference to the law of that coun- try, and may therefore be interpreted according ‘to that law. See Yates v. Thomson, 3 Cl. & F. at p.588. But no such presumption can arise where a testator makes a general disposition of all his property or all his real estate. In such a case the question being sim- ply one of the intention expressed in the will, and not of the validity of the disposition, it is evident that the words express the same intention as to all the property or rea] estate wherever it may be. They ought not therefore to be interpreted even in the case of real es- tate so as to have different meanings in the different countries where the lands may be. Crusoe v. Butler, 36 Miss. 150; Wilson v. Cox, 49 Miss. 588, 545; Studd v. Studd, Scotch Ct. Sess. Cas. 4th series, vol. 8, p. 249. This has sometimes been done, how- ever, but, as it is submitted, by a mis- -652 CONFLICT OF LAWS. [s. 474, 475. is clearly established at the common law, that the law of. the place where the property is locally situate is to govern as to the capacity or incapacity of the testator, to the extent of his power to dispose of the property, and the forms and solemnities to give the will or testament its due attestation and effect. (a) 1 Coppin v. Coppin, 2 P. Wms. 291, 298; Curtis v. Hutton, 14 Ves. 587, 541; Birtwhistle v. Vardill, 1 Fonbl. Eq. p. 444, 445, note; United States v. Crosby, 7 Cranch, 115; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460; 20 Johns. (N.Y.) 229; McCormick v. Sullivant, 10 Wheat. 192, 202; Wills v. Cowper, 2 Hamm, (Ohio) 124; Henry on Foreign Law, p. 18, 15; ante, s. 428, 434; 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 576-580; Id. pt. 2, c. 4, s. 5, p. 169, 170; Id. pt. 2, c. 5, p. 217. Mr. Burge, speaking on this point (p. 217, 218), says: ‘ The power of making the alienation by testament is no less qualitas rebus impressa, than that of making the alienation by contract. When therefore the application of the rule that the validity and forms of transfers of real estate are governed by the lex situs. Applegate v. Smith, 81 Mo. 166; Jennings v. Jennings, 21 Ohio St. 56. When the question is whether a general gift shows an intention to dispose of pro- perty over which the testator has a power of appointment, and which is subject to the law of aforeign country, it cannot be said that the gift should be interpreted according to the foreign law because it takes effect under that law, for the object of the interpreta- tion is to ascertain whether it takes effect or not. It cannot be said that it should be interpreted according to the law of any place where there may be property which the testator has power to dispose of, for then the same words would in Massachusetts show that he intended to exercise all his powers of appointment, and in Maryland would not show that he intended to exercise any. Resort must be had in such cases to the law of the place in the language of which the testator would probably have expressed his meaning. The au- thorities seem to establish that that law is the law of the country in which he was domiciled. It is submitted therefore, with deference, that in each of these two cases (Bingham’s Appeal, 64 Pa. St. 345; Sewall v. Wilmer, 182 Mass. 131) the will should have been interpreted according to the law of the domicil of the testator who made the will in question, and not of the testa- tor who made the will containing the power. If this had been done, the will in Bingham’s Appeal would have dis- closed an intention to dispose of all : property which the testator had a ge- neral power to appoint by will, and would have been effectual as an execu- tion of the power. No intention to execute any power of appointment would have been found in the will in Sewall v. Wilmer, and accordingly the will would have had no effect as an execution of the power. (a) See Ross v. Ross, 129 Mass. 243; Knox v. Jones, 47 N. Y. 389; White v. Howard, 46 N. Y. 144; Monroe ». Douglass, 5 N. Y. 447; Applegate v. Smith, 31 Mo. 166; Jennings v. Jen- nings, 21 Ohio St. 56 (as to these two cases see the last note, supra); Irwin’s Appeal, 33 Conn. 128; Key ». Harlan, 52 Ga. 476; Kingsbury »v. Burnside, 58 Ill. 310; Lynch v. Miller, 54 Iowa, 516; In re Lewis, 32 La. An. 885; Succession of Elliot, 27 La. An. 42; Holman v. Hopkins, 27 Tex. 38; Coohran v. Martin, 47 Ala. 525; Ap- person v. Bolton, 29 Ark. 418; Rich- ards v. Miller, 62 Ill. 417; Jones » Gerock, 6 Jones, Eq. 190. ee CHAP. x1] WILLS AND TESTAMENTS. 653. 475. Doctrine of Foreign Jurists. —The doctrine of foreign jurists does not, as we have seen, entirely accord with that of the question arises, whether the immovable property may be disposed of by testa- ment, recourse must be had to the lex loci rei site. That law must also de- cide, whether the full and unlimited power of disposition is enjoyed, or whether it is given under restriction. The validity of the testamentary disposition de- pends in the latter case on its conformity to that restriction, whether the re- striction consists in limiting the extent or description of property over which the power of disposition may be exercised, or the persons in whose favor the disposition is made, or in requiring that the testator should have survived a certain number of days after the execution of the act by which the disposi- tion was made. The total or partial defect of the will on the ground that it did not institute heirs, or that it omitted to name the heirs, the disherison of the heirs, the grounds on which the disherison may be justified, are essentially connected with the power of disposing of immovable property by testament, and are therefore dependent on the law of its situs.’ Again, Mr. Burge says: ‘By the jurisprudence of England and the United States, a will devising lands in England or the states, if the solemnities prescribed by the statute of frauds have not been observed, would be ineffectual to pass those lands. This doc- trine is fully warranted by the qualification which has been given by jurists to the rule, lex loci regit actum. The statute of frauds, as regards real property situated in England and in the states of America, ‘‘ est lex, quae expresse tes-* tatores jubet jus loci sequi, in quo bona sita sunt.” It may be said that the ‘jurisprudence which allows a testament executed according to the solemnities prescribed by the lex loci actus to affect real property situate in the country where that jurisprudence prevails, does not depart from the general principle that the lex loci rei site must determine whether the instrument is sufficient to dispose of real property. The difference between that jurisprudence and the doctrine of England and the United States is, that the effect of the latter is to require a particular form for the execution, whether it be made in England or in any other country, that is, it makes no provision for a will made in a foreign country, but the terms of its enactment are so comprehensive as to inelnde all wills, in whatever country they are made, if they affect real pro- perty in England. In the other systems of jurisprudence, it'is a part of the lex loci rei site that its immovable property should pass by a testament exe- cuted with certain formalities, if it be made in the country where the property is situated, but that if it be made in another country, it may be executed with other solemnities; that is, with the solemnities required by the law of that country. The jurists whose opinions have been cited in support of the rule, that the testament is valid if the testator has complied with the forms and solemnities prescribed by the law of the place in which it was made, apply it to a testament of movable, as well as immovable, property. The decisions of the courts of England on the validity of testaments of personal estate made abroad are few. The two most important are on the testaments of the Duch- ess of Kingston and of Bernes. The former was resident in Paris; she ob- tained letter-patent from the King of France, which gave her the same power of devising as she would have had in England. Although she died in France, she had not relinquished her English domicil. She made her testament ‘in Paris. It was clearly nul under the Coutume. But she had observed the forms required by the statute of frauds, and the will was valid according to 654 CONFLICT OF LAWS. [s. 475. common law but even among them there is great weight of au- thority in favor of the general principle! We have already had occasion to consider the opinions of foreign jurists as to the capa- the law of England. It was the opinion of M. Turgot, an advocate of France, and his opinion was confirmed by the Court of Probate, that the testament, although made in Paris, was valid. This opinion proceeds on a principle which is admitted by jurists, that although a will made with the solemnities of the lex loci actus may be valid, yet if it were made with the solemnities of the locus rei site in respect of immovables, and the locus domicilii in respect of movable property, it would also be valid. In Bernes’s will it appeared that although an Irishman by birth, he had acquired a domicil in Madeira. He made a will and several codicils in that island, some of which were not exe- cuted with the solemnities required by the law of Portugal, but with those formalities which would satisfy the law of England. The decision given by Sir John Nicholl, that the latter codicils were valid, and that it was competent to have executed them in the manner which would be consonant to the law of England, was reversed by the delegates, and they were deemed invalid. Bernes in this case, had no longer a domicil in Ireland. His domicil was in Portugal. It was necessary to establish that fact to distinguish the case from that’of the Duchess of Kingston. If he had still retained his domicil in Ire- sland, the codicils would, upon the principles referred to, and which will be presently more fully stated, have been valid. In neither of these cases did the question arise on a testament made with the solemnities required by the lex loci actus, although deficient in those required by the law of the domicil. In another case the testator was an Englishman by birth, and although he had been for many years residing in France, it did not appear that he had aban- doned his English domicil. He came to England, and during his residence there made his will, which was a valid testamentary disposition in respect of forms and solemnities according to the law of England. It was contended that it ought not to be admitted to probate, because it was not made in the manner required by the law of France. Here the court adopted the lex loci actus, but, from the report of the case, the learned judge dwells so much on circumstances founded on the testator’s domicil of origin, that it would be per- haps not correct to describe the decision as warranting the conclusion that if the testator had not been an Englishman, his will made in England would have been valid. In Nasmyth’s Case, the testator was domiciled in Scotland, and his will was made and found there. He died in England in transitu. The Court of Probate in England held itself bourid to defer to the law of Scotland. In giving effect to a testament made with the solemnities prescribed by the lex loci actus, jurists do not deny it to a testament made according to the forms required by the lex loci rei site, if it be immovable, or the lex loci domicilii, if it be personal property, which is the subject of the disposition: ‘* Proinde, si quis eo, quod ad testandum expeditius sua causa comparatum est, noluerit uti, quod ei forte promptius sit componere suprema ad loci leges, cui bona subjaceant, quo minus testamentum ejus valiturum sit, non video.” Paul Voet and John Voet adopt this opinion.’ 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 586-590; Robertson on Succession, p. 95. See also Harrison v. Nix- on, 9 Pet. 505; post, s. 479g. 1 See ante, s. 52-62, 480-435. . CHAP. xI.] WILLS AND TESTAMENTS. 655 city and incapacity of the testator to make a testament of im- movable property, whether it is to be governed by the law of his domicil, or by the law rei site. We have also had occasion to consider their opinions as to the law which ought to govern in respect to the forms and solemnities of testaments of immovable property, whether it is the law rei site, or that of the domicil of the testator, or that of the place where the will was made.? Putting out of view these questions as to the forms and solemni- ties of acts, and the capacity and incapacity of the testator (upon which we have sufficiently commented), there seems to be a general coincidence of opinion among foreign jurists that the lex rei sitze must in other respects govern as to wills and testa- ments of immovable property. Thus, John Voet says: ‘ Bona defuncti immobilia, et que juris interpretatione pro talibus haben- tur, deferri secundum leges loci, in quo sita sunt.?2 Dumoulin’s opinion is to the same effect. His language is: ‘ Aut statutum agit in rem, et quacunque verborum formula utatur, semper in- spicitur locus, ubi res sita est.” And again: ‘ Quoties ergo sta- tutum principaliter agit in personam et in ejus consequentiam, agit in res immobiles, non extenditur ad res sitas in locis, ubi jus commune vel statutum loci diversum est.’* Hertius is even more direct. ‘Silex directo rei imponitur, ea locum habet, ubicunque etiam locorum et a quocunque actus celebretur.’® He adds in another place: ‘ Rebus fertur lex, cum certam iisdem qualitatem imprimit, vel in alienando, v. g. ut ne bona avita possint alienari, vel in acquirendo, e. g. ut dominium rei immobilis vendite non aliter acquiritur, nisi facta fuerit judicialis resignatio.’® D’Agues- seau deems it a mere waste of time to do more than to state the general rule.” Paul Voet has stated the doctrine in an expressive 1 Ibid. 2 See ante, s. 368-373, 435-446; 1 Burge, Col. & For. Law, pt. 1, ¢. 1, p. 21-23; 41d. pt. 2, c. 12, p. 576-586; Id. c. 5, p. 217-221. See also Foelix, Conflit des Lois, Revue Etrang. et Franc. tom. 7, 1840, s. 40-50, p. 346-360; Sand. Decis. Frisic. lib. 4, tit. 1, defin. 14, p. 142, 148. 8 J. Voet, ad Pand. 38, 17, s. 34, p. 596; ante, s. 424. 4 Molin. Oper. Com. ad Cod. 1, 1,1, de Conclus. Statut. tom. 3, p. 586, ed. 1681; ante, s. 443; 1 Froland. Mém. 65; Id. vol. 2, p. 779. al Hertii Opera, de Collis. Leg. 8.4, n. 9, p. 125, ed. 1787; Id. p. 177, ed. 1716. ° 1 Hertii Opera, de Collis. Leg. s. 4, n. 6, p. 122, ed. 1787; Id. p. 174, ed. 1716; 2 Burge, Col. & For. Law, p. 848; 4 Id. p. 217. 7 D’ Aguesseau, CEuvres, tom. 4, p. 636, 637. See Cochin, uvres, tom. 4, p. 555, 4to ed. 656 CONFLICT OF LAWS. [s. 475-476, manner : ‘Non tamen statutum personale sese regulariter extendit ad bona immobilia alibi sita.’!_ In another place he says: ‘ Immo- bilia statutis loci, ubi sita, mobilia loci statutis, ubi_ testator habuit domicilium,’2 In another place he says: ‘ Quid, si itaque contentio de aliquo jure in re, seu ex ipsa re descendente ; vel ex contractu, vel actione personali, sed ad rem scripta ; an spectabitur loci statutum ubi dominus habet domicilium, an statutum rei site ? Respondeo; statutum rei site.’® Boullenois cites another jurist as holding similar language: ‘Sive in rem, sive in perso- nam, loquatur statutum, ad bona extra territorium non extendi- tur. Consideratur namque bonorum dominus, ut duplex homo; quoad bona nempe sita in uno territorio est unus homo ; et quoad alterius territorii bona est alius homo.’* Again: ‘Idem quod inferendum, quoad successionem testamentariam; finge enim testamentum hic fieri permissum esse, in Geldria non ita? Hine si quispiam hic fecerit testamentum, non capiet vires, ratione bonorum, in Geldria jacentium. Tale quippe statutum spectat ipsa bona, adeoque erit reale, non exserens vires ultra statuentis territorium.’® Again he adds: ‘ Quid, si testamento bona immo- bilia relicta, diversis subjacent statutis? Idem dicendum; nihil enim interest, testatus quis, an intestatus decedat, ut locus sit regule. Extra territorium jus dicenti impune non paretur.’® This is certainly the doctrine of the common law; for a man may have-the capacity to take real estate in one country, when he is totally disabled to take it in another. Boullenois (as we have seen) lays it down among his general principles, that, when the personal laws of the domicil are in conflict with the real Jaws of the same country, or of a foreign country, the personal laws 1 P. Voet, de Stat. s. 4, c. 2, n. 6, p. 123, ed. 1715; Id. p. 138, ed. 1661. ° Id. c. 3, n. 10, p. 185, ed. 1715; Id. p. 153, ed. 1661; ante, s. 442. 8 Id. s. 9,¢. 1, n. 2, p. 252, ed. 1715; Id. p. 805, ed. 1661. We are not to confound the opinion of Paul Voet, as here expressed, with what he has said in another place (ante, s, 442) that testaments are to be executed according to the forms and solemnities of the place where they are made, and not by those of the situs of the immovable property. He takes a distinction between the forms and solemnities of testaments and their operation on this point. Whether there be any solid foundation for such a distinction it is for the learned reader to decide. Ante, s. 442. 4 Tbid.; 1 Boullenois, obs. 10, p. 154. 5 P. Voet, de Stat. s. 4, c. 8, n. 11, p. 185, ed. 1715; Id. p. 153, ed. 1661. ca P. Voet, de Stat. s. 6, c. 1, n. 4, p. 258, ed. 1715; Id. p. 806, 307, ed. CHAP, XI.] WILLS AND TESTAMENTS. 657 are to yield ; and that, when the real laws of the domicil are in conflict with the real laws of another country, both have effect within their own respective territories, according to the laws thereof.! 475 a. Rodenburg admits that, where the law rei site prohibits married persons to devise their immovable estate by will or testament to each other, or where the law rei site prohibits cer- tain kinds of immovable property from being devised by will or testament, in such cases the law rei site is to govern, notwith- standing the parties are domiciled, or make their will or testa- ment in a place where no such prohibition prevails; because these are real laws.? ‘ Unde certissima usu ac observatione regula est, cum de rebus soli agitur, et diversa sunt diversarum posses- sionum loca et situs, spectari semper cujusque loci leges ac jura, ubi bona sita esse preeponuntur, sic ut de talibus nulla cujusquam potestas preter territorii leges.’? 476. Huberus has expounded the subject at large. We have already had occasion to cite his remarks on the subject, so far as respects the forms and solemnities of testaments, which he insists are valid if made according to the forms and solemnities of the place where the testament is made, although not made according to the forms and solemnities required by the law of the situs of the property. But he takes a distinction between the forms and solemnities of testaments, and the right to dispose of immovable property by testament. * The foundation,’ says he, ‘ of the whole of this doctrine which we have been speaking of, and hold, is the subjection of all persons to the laws of any territory as long as they act there, which settles it, that an act valid or invalid from the beginning will be accordingly valid or invalid everywhere else. But this reasoning does not apply to immovable property, when this is considered, not as depending upon the free disposi- tion of the head of the family (paterfamilias), but as having cer- tain marks impressed upon it by the laws of every commonwealth in which it is situate, which marks remain indelible therein, 1 1 Boullenois, Pr. Gén. 30, 81, p. 8. ‘ : Rodenburg, de Div. Stat. tit. 2, c. 5, s. 1-5; 2 Boullenois, Appx. p. 35-38, § Rodenburg, de Div. Stat. tit. 2, ¢. 5, 8.1; 2 Boullenois, Appx. p. 35; 4 Burge, Col. & For. Law, pt. 2, c. 5, p. 218; Id. c. 12, p. 582, 583. See also Burgundus, tract. 1, n. 40, 41, p. 41, 42. * Ante, 8. 443, 443 a. 42 658 CONFLICT OF LAWS. [s. 476-478, whatever the laws of other governments, or whatever the disposi- tions of private persons, may establish to the contrary. For it would cause great confusion and prejudice to the commonwealth where immovable property is situate, that the laws promulgated concerning it should be changed by any other acts. Hence, a Frisian, having lands and houses in the province of Gréningen, cannot make a will thereof, because the laws there prohibit any will to be made of such real estate ; and the Frisian laws cannot affect real estate which constitutes an integral part of a foreign territory.! ‘Fundamentum universe hujus doctrine diximus esse, et tenemus, subjectionem hominum infra leges cujusque ter- ritorli, quamdiu illic agunt, que facit, ut actus ab initio validus aut nullus, alibi quoque valere aut non valere non nequeat. Sed hec ratio non convenit rebus immobilibus, quando ille spectan- tur, non ut dependentes a libera dispositione cujusque patrisfa- milias, verum quatenus certe note lege cujusque reip. ubi sita sunt, illis impressee reperiuntur ; he note manent indelebiles in ista republ., quicquid aliarum civitatum leges aut privatorum dis- positiones secus aut contra statuant; nec enim sine magna con- fusione prejudicioque reip. ubi site sunt res soli, leges de illis late, dispositionibus istis mutari possent. Hinc Frisius habens agros et domos in provincia Groningensi, non potest de illis tes- tari, quia lege prohibitum est ibi de bonis immobilibus testari, non valente jure Frisico adficere bona, que partes alieni territorii integrantes constituunt.” And yet, with this clear principle in view, he proceeds to declare that this does not contradict the rule which he had already laid down, that, if a will is valid by the law of the place where it is made, it ought to have effect even in regard to real property situate in foreign countries, by whose laws such property may be passed by a will; because, says he, the diversity of laws in that respect does not affect the soil, neither speaks of it, but simply directs the manner of making the will, which being rightly done, the law of the commonwealth does not prohibit the instrument to have validity in regard to im- movables, inasmuch as no characteristic or incident, impressed by the laws of the country, is injured or diminished.2 477. Burgundus lays down the doctrine in general terms, that, in everything which regards land and other real inheritances, it is 1 Huberus, lib. 1, tit. 8, s. 15. ? Huberus, lib. 1, tit. 8, s. 15. The original is cited ante, s. 443 a. CHAP. XI] WILLS AND TESTAMENTS. 659 the law of the situation which is to decide.1 He takes the dis- tinction between movable and immovable property, and between real and personal statutes. ‘ Proinde, in quantum (statutum) est reale, et immobilia dirigit, finis territorii non egreditur.’? And, again: ‘ Quando hoc unum generaliter obtineat ut in immobilibus situs semper spectandus veniat; in mobilibus autem locus domi- cilii”3 And, as we have seen, he applies the rule specially to wills. ‘Si quidem solemnitates testamenti ad jura personalia non pertinent ; quia sunt quedam qualitas bonis ipsis impressa, ad quam tenetur respicere, quisquis in bonis aliquid alterat.4 Quare etiam mihi videtur consequens, juris civilis rationem exigere in testamentis exarandis adhibitionem solemnitatis, quam preescrip- serit consuetudo cujusque possessionis. Nam si ex solemni tes- tamento nascitur jus in ipsa re, quomodo id potest prestare alterius regionis consuetudo, que alienis fundis alterationis neces- sitatem imponere non potest? Hoc enim esset jus dicere extra territorium cui impune non paretur.’> There is a great deal of solid sense in these remarks; and they form a satisfactory an- swer to the distinction propounded by Huberus.® 478. Scotch Law. — The Scottish law is in perfect coincidence with the common law on this subject. Erskine, in the passage already cited, has stated that in the conveyance of an immova- ble subject, or of any right affecting heritage, the owner must follow the solemnities established by the law, not of the country where he signs the instrument, but of the state in which the heri- tage lies.7 And even if all due solemnities are observed, still no estate will pass, unless in conformity with the local law. Hence, he adds, a foreign testament bequeathing heritable sub- jects situate in Scotland is not sustained in Scotland, although by the law of the country where the testament was made a heri- tage might have been actually settled ; because by the Scottish law no heritable subject can be disposed of in that form.’ 1 Ante, s. 433. 2 Burgundus, tract. 1, n. 26, p. 38, 39. 8 Burgundus, tract. 1, n. 41, p. 43. 4 Burgundus, tract. 6, n. 8, p. 128; ante, s. 372, 488. 5 Burgundus, tract. 6, n. Ae p. 129; Id. tract. 1, n. 36, p. 38, 39; ante, 8. 872, 483, 488; 1 Boullenois, obs. 9, p. 151. See also Henry on Foreign Law, p. 97, 98. ® Ante, 8.476. See also 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 582-586. 7 Ante, s. 436. ® Ersk. Inst. b. 3, tit. 2,8. 41, p. 515, 516; 2 Kames, Eq. b. 3, ¢. 8,5. 3. 660 CONFLICT OF LAWS. [s. 479, 479 a, 479. Vattel. — Grotius. — Vattel, as we have seen, adopts the same rule, as a general one of the jus gentium.1 As to bequests, he asserts in the most positive terms that, when they respect im- movables, they must be conformable to the law of the country where they are situated.2, He adds: In the same manner the va- lidity of a testament, as to its form, can only be decided by the judge of the domicil, whose sentence, delivered in form, ought to be everywhere acknowledged. But without affecting the validity of the testament itself, the bequest contained in it may be disputed before the judge of ‘the place where the effects are situated; be- cause those effects can only be disposed of conformably to the laws of the country. Grotius makes a distinction between the personal capacity of making wills and testaments and the forms and solemnities thereof, and the right and power to dispose of property, whether movable or immovable, holding that the forms and solemnities are governed by the law of the place where the will or testament is made; (a) the capacity of the person is go- verned by the law of his domicil; and the right to dispose of property is governed in the case of movables by the law of the domicil, and in the case of immovables. by the law of the situs rei. ‘Ubi de forma sive solemnitate testamenti agitur, respici locum conditi testamenti; ubi de persona antestari jus domicilii; ubi de rebus, que testamento relinqui possunt, vel non, respici locum domicilii, in mobilibus, in rebus soli situm loci.’* If it were ne- cessary, the opinions of many other foreign jurists might be cited to the same effect; but it would incumber these pages to give them a more extended review.® 1 Ante, s. 471, 472. ? Vattel, b. 2, ¢. 7, s. 85, c. 8, s. 103, 110, 111. ® Vattel, b. 2,¢. 7,8. 85. So also Id: c. 8, s. 110, 111; ante, s. 471. * Grotius, Epiat. 467, cited 4 Burge, Col. & For. Law, pt. 2, ¢. 5, p. 220. 5 See 4 Burge, Col. & For. Law, pt. 2, ¢. 5, p. 217, 218; Id.c. 12, p- 576-585. Mr. Burge (vol..4, p. 218-220, 581-585) states the opinions of many foreign jurists; and among others he says (p. 218-220): ‘ Ferrieve has stated this doc- trine: ‘Si je legue un héritage propre situé en coutume qui en défende la dis- position, tel legs est nul, et ne pent étre parfourni sur Jes biens situez en cette coutume, quoi qu’acquest, parce qu’d l'égard des choses dont on peut disposer par derniére volonté, on considére la coutume ou elles sont situées. Celui qui a son domicile en cette coutume peut instituer sa femme dans les biens qu'il a dans le pays de droit écrit, comme il a été jugé par arrét du 14 aoust, 1754, rapporté par Marion au de ses plaidoyez ce qui doit étre sans difficulté.” A (2) See Dannelli v, Dannelli, 4 Bush, (Ky.) 51. CHAP. XL] WILLS AND TESTAMENTS. 661 479 a. Interpretation. — Passing from these considerations as to the law by which the forms and solemnities of wills and testa- testament made in a foreign country, bequeathing heritable subjects, situated in Scotland, is not sustained in that kingdom, though by the law of the country where the testament was made, heritage might have been settled by testament; because by the law of Scotland no heritable subject can be disposed of in that form. On this principle a Scot’s personal bond taken to heirs and assignees, but ‘‘secluding executors,’? cannot be bequeathed by a foreign testament. But in all questions touching heritable subjects situate abroad, the foreign testament will be given effect to according to the lex loci. Dumoulin lays down the same doctrine respecting the restriction on the testamentary power over biens propres. ‘‘ Unde statutum loci inspicietur, sive persona sit subdita, sive non; item si dicat, hzeredia proventa ab una linea, redeant ad heredes etiam remotiores lines, vel heredes linez succedant in herediis ab illa linea proventis. Vel quod illi de linea non possunt testari de illis in totum, vel nisiad certam partem. Hec enim 6mnia et similia spectant ad caput statuti, agentis in rem, et praecedentem conclusionem.’”? Again :- the statute which prohibits a disposition to particular persons, or (which involves the same conse- quence) requires the disposition to be made in favor of certain persons, and therefore excludes all others, isa real law. ‘‘ Directe enim in rerum alienatio- nem scripta hc lex realis omnino dicenda est: nec enim statutum reale sit, an personale metiri oportet a ratione que a conjugali forsan qualitate fuerit ducta, sed ab ipsa re, que in prohibitione statuti ceciderit.”? So also it has been held that the law which requires that the testator should have survived the execution of his testament will control the disposition of property situated in the country where that law prevails, although the testament is made, or the testator domiciled, in a place where no such law exists. If a testator whose domicil and real estate were both in Normandy made a will in some other place, in which he had occasion to be present, but where the law did not require that the testator should survive forty days, it was held that the survivorship was essential to the validity,of the testament, so far as it related to the real property in Normandy. If these questions arise on the power to dispose of movable property by testament, the law by which they are decided is that of the domicil: ‘‘ Pour les meubles, ils suivent la loi du domicile, et il ne sauroit jamais y avoir de choc entre différentes coutumes, en sorte qu’il est assez inutile quant aux meubles, d’agiter si le statut, qui permet de tester, ou qui le défend, est personnel, ou, s’il est réel.’’ See also Foelix, Conflit des Lois, Revue trang. et F rang. tom. 7, 1840, s. 37, p. 307-312. The latter author says in this place: ‘Le second cas, ou le statut personnel semble devoir prédominer sur le statut réel, est celui de la succession 4 toute-la fortune d’un indi- vidu, soit ab intestat, soit par testament. Voici les arguments invoqués par les auteurs qui, dans ces deux hypothéses, prétendent faire régir la succession par la loi personnelle du défunt. Lorsque, par la mort dun individu, il s’agit de succéder A tous ses droits actifs et passifs, 4 toute sa fortune (universum patrimonium), on regarde en droit cette fortune comme un ensemble (universitas juris), sans égard aux objets particu- liers qui la composent; et cette universalité représente de droit le défunt, méme avant l’appréhension faite par V’héritier. L’héritier succéde ensuite dans cette universalité, et c’est alors seulement qu’il représente la personne du défunt. L’universalité des biens du défunt forment ainsi la continuation de 662 CONFLICT OF LAWS. [s. 479 a. ments of movable property and of immovable property are to be re- gulated, in order to give them validity, let us proceed in the next la personne de ce dernier, on doit, pour tout ce qui concerne la succession 4 cette universalité, suivre la loi de son domicile, c’est-a-dire son statut person- nel; tous les objets compris dans la succession sont soumis 4 ce statut per- sonnel. Ainsi la succession d’un Francais est régie par le code civil, méme & Végard des immeubles appartenant au défunt et situés en Autriche; et on ne suit pas l’ordre des successions établi par le code autrichien- Cette doctrinea été professée par un grand nombre d’auteurs distingués; elle l’a été d’abord par Cujas, relativement & la succession testamentaire; ensuite la méme opi- nion a été adoptée, quant a la succession ab intestat, par Puffendorf, Bachov, J. H. Boehmer, G. L. Boehmer, Helfeld, Gliick, Hamm, Meier, par MM. Mittermaier, Eichhorn, Mihlenbruch, et Griindler. Toutefois, quatre des auteurs cités, Puffendorff, Hert, Gliick, es Hamm, n’admettent le principe qu’avec deux restrictions; il ne sera pas applicable lorsqu’il existe une loi prohibitive au lieu de la situation des immeubles, ou lorsqu’une qualité spé- ciale se trouve imprimée aux biens; par exemple, s’ils sont féodaux, stemma- tiques ou frappés d’un fidéicommis. En faveur de cette opinion on invoque, outre le principe que la succession représente le défunt, plusieurs considéra- tions accessoires. D’aprés l’opinion commune des auteurs, la succession ab intestat repose sur la volonté présumée du défunt; le défunt n’ayant connn, en régle générale, d’autre loi que celle du lieu de son domicile, on doit admet- tre qu’il a entendu faire passer ses immeubles aux parents appelés par cette loi: si telle n’avait pas été son intention, il en aurait disposé par testament. On fait remarquer que toutes les nations admettent chez elles l’exécution des testaments consentis par un étranger dans sa patrie et dans les formes qui y sont prescrites; ces testaments ne sont autre chose que l’expression formelle : de la volonté du défunt, sanctionée par la loi civile de sa patrie: a plus forte raison devra-t-on accorder un effet semblable & cette loi civile lorsque, sans un acte du défunt, elle prononce seule. On cite encore les inconvénients résultant de la division des patrimoines en différentes successions particuliéres, au préju- dice des héritiers et des créanciers; enfin on fait observer que la chose pub- lique est sans intéret dans la question, parce que les prohibitions, les charges et impositions pesant sur l’immeuble peuvent néanmoins produire leur effet, et que, dureste, peu importe & l'état quelle est la personne qui hérite de tel immeuble. D’autres auteurs non moins respectables n’admettent l’applica- tion du statut personnel en matiere de succession qu’en ce qui concerne les meubles, et ils la rejettent par rapport aux immeubles; ils appliquent a ceux- ci la loi de la situation, sans distinguer s’il s’agit de succéder % un immeuble particulier ou & Vuniversalité de la fortune d'un individu; ils admettent autant de successions particuliéres qu’il a de territoires ot sont situés les im- meubles provenant du défunt (Quot sunt bona diversis territoriis obnoxia, totidem patrimonia intelliguntur). Nous citerons Burgundus, Rodenburg, Paul Voet, Jean Voet, Abraham & Wesel, Christin, Sande, Gail, Carpzov, Wernher, Mevius, Struve, Leyser, Huber, Hommel, Berger, Lauterbach, Vat- tel, Tittmann, Danz, Hauss, MM. Thibaut, Story, et Burge. Aucune législa- tion positive ne s’est expliquée sur la question de savoir si c’est la loi réelle ou la loi personnelle qui doit régir la succession ab intestat. Nous pensons qu’il faut appliquer le statut de la situation des immeubles. Le premier principe, en matiére de conflit des lois, c’est que les lois de chaque état régissent les ee ee CHAP. XI] WILLS AND TESTAMENTS. 663 place to the consideration of the rules by which such wills and testaments are to be interpreted. And in the first place in re- gard to wills and testaments of personal property. In such cases where the will or testament is made in the place of the domicil of the testator, the general rule of the common law is, that it is to be construed according to the law of the place of his domicil, in which it is made(a) A will therefore, made of personal es- tate in England, is to be construed according to the meaning of the terms used by the law of England; and this rule equally ap- plies, whether the judicial inquiry as to its meaning and interpre- tation arises in England, or in any other country.2. Thus, for biens situés dans le territoire (v. supra, n” 9 et 10); il n’est nullement établi qu’une convention tacite s’est formée entre les nations pour l’application de la loi personnelle au cas de succession dans l’universalité des meubles et im- meubles d’un individu: témoin la divergence des sentiments des auteurs. Les arguments invoqués en faveur de cette application sont fondés en partie dans le droit civil, en partie dans l’avantage commun des nations; mais on ne voit pas que l’usage des nations ait consacré cette opinion.” ’ See also Foelix, id. s. 27, p. 216-218; ante, s. 429-444. + 1 Yates v. Thomson, 3 Cl. & F. 544, 570; Robertson on Successions, p. 99, 100, 191-197, 214, 255; post, s. 490, 491. 2 Trotter v. Trotter, 4 Bligh, N.S. 502; 3 Wils. & Shaw, 407. In this case the testator, a Scotchman, domiciled in the dominions of England in India, made his will there, he being possessed of Scotch heritable bonds as well as of personal property there. The will was ineffectual to carry a Scotch heritage according to the law of Scotland; and the question arose whether his heir in Scotland, who claimed the heritable bonds as heir, was also entitled to share in the movables, as a legatee under the will, without bringing in the heritable bonds or being put to his election. It was held that the will as to its terms must be interpreted according to the law of England; and that by the law of England the terms used were not such as to import an intention to convey real estate by the testator; and therefore that the heir was entitled to the whole heritable bonds, and also to his share of the movable property under the will. On that occasion the lord chancellor (Lord Lyndhurst) said: ‘It was stated at the bar, and I see by the papers it was also argued below, that in cases of this description it is not unreasonable that when any technical points arise in the construction of a will of this description, the Court of Sessions should resort to the opinion of lawyers of the country where the will or instrument was executed, but that this applies only to technical expressions; that where « will is expressed in ordinary language, the judges of the court of Scotland are as competent to put a proper construction upon it as judges or lawyers of the country where the will was executed. But.the judges below were not of that opinion; and it is impossible, as it appears to me, that such an opinion can be (a) See Laneuville v. Anderson, 2 H. L. C. 1; Boyes v. Bedale, 1 Hem. Sw. & Tr. 26; Dannelli v. Dannelli, & M. 803. 4 Bush (Ky.) 51; Enohin v. Wylie, 10 664 CONFLICT OF LAWS. [s. 479 a, 479 8, example, if the question should arise, whether the terms of a will include a bequest of real estate, or show on the part of the testa- reasonably entertained. A will must be interpreted according to the law of the country where it is made, and where the party making the will has his domicil. There are certain rules of construction adopted in the courts, and the expressions which are made use of in a will, and the language of a will, have frequently reference to those rules of construction; and it would be productive therefore of the most mischievous consequences, and in many instances defeat the intention of the testator, if those rules were to be altogether disregarded, and the judges of’ a foreign court (which it may be considered in relation to the will) without reference to that knowledge which it is desirable to obtain of the law of the country in which the will was made, were to interpret the will according to their own rules of construction. That would also be pro- ductive of another inconvenience; namely, that the will might have a construc- tion put upon it in the English courts different from that which might be put upon it in the foreign country. It appears to me that there is no solid ground for the objection; but that where a will is executed in a foreign country by a person having his domicil in that country, with respect to that person’s prop- erty, the will must be interpreted according to the law of the country where it is made. It must, if it comes into question in any proceeding, have the same interpretation put upon it as would be put upon it in any tribunal of the country where it was made. It appears to me therefore that the judges were perfectly right in directing the opinion to be taken of English lawyers of eminence, with respect to the import and construction of this will according to the lawof England. The main question that was ultimately put to the learned persons to whom I have referred is this: ‘‘ Whether, on the supposition of the question having arisen for trial in England, the heir would have been put to his election if he had claimed money secured by heritable bond in Scotland, as well as his share of the personal estate under the will?’? The answer is in these terms: ‘‘ Considering heritable bonds in Scotland as real estates to which the heir at law is entitled, unless they are conveyed away with due solemnity by his ancestor, we think the heir at law would be entitled in this case to claim them without being put to his election, if the question had arisen in a court of justice in England.” When that opinion was communicated to the court in Scotland, the court, immediately affirming that opinion, decided in favor of the heir at law. The heir at law was undoubtedly entitled to take the real estate, — that is, the heritable bond; and the sole question was, whether, when he came in to claim under the will his proportion of the personal estate, it was required by law that he should be put to his election, that is, whether he should take the one or the other; whether he should allow the real estate to be connected with the personal, so as to form one mass of the property, and the whole divided, or should take the real estate, and give up the personal estate? Whether he was obliged or not to do this, depended entirely on this consideration, whether upon the face of the will there was sufficient to manifest a clear intention that the testator designed by his will to dispose of his real estate; because if he intended to dispose of his real estate, although he had not carried that intention effectually into execution, the party taking under that will would not be entitled to have the benefit of the will, and at the same time to defeat the intention of the testator. The question was therefore simply a question of construction. Does it appear upon the face of the will that it was CHAP. XL] WILLS AND TESTAMENTS, 665 tor an intention to bequeath real estate, as well as personal es- tate, the question must be decided according to the law of the place of his domicil and where the will was made; and the same interpretation must be put upon those terms in every other coun- try, which would be put upon them by the law of that domicil.! (a) So what is to be deemed ‘real estate’ in the sense of a will, de- vising real estate to certain persons, must be decided. by the law of the domicil of the testator. Thus, where a testator was domi- ciled in Jamaica, in which place he made his willyand the devise was in these words: ‘I give, devise, and bequeath one moiety of the rents, issues, and profits of my estate named Islington and Cove’s Penn, in the parish of St. Mary, to be divided equally amongst my grandchildren. The other moiety of the rents, is- sues, and profits of my said estate and Penn I give, devise, and bequeath to my son,’ &c. According to the import of the words ‘my estate,’ as they are understood and used in Jamaica, not only the land, but the works, buildings, utensils, slaves, cattle, and stock on the plantation would be included. The court put this construction on the devise.” 479 6. In like manner, whether the words of a will give a le- gacy, or create a trust, in favor of a party, where the expressions used import a wish or desire, or other language of a similar sort the intention of the testator to dispose of his real estate, that is, of those heri- table bonds? Now the rule of law in England with respect to subjects of this kind is well ascertained and well defined, and it is this, — that you are not to proceed by probability or by conjecture, but that there must be a clear and manifest expression of the intention on the face of the will to include that pro- perty which is not properly devised, before the heir can be put to his election.’ Ibid. See also Price v. Dewhurst, 8 Sim. 279, 299, 300; post, s. 489; Robert- son on Successions, p. 189-197. 1 Trotter v. Trotter, 4 Bligh, (N. S.) 502; 3 Wils. & Shaw, 407. 2 Stewart v. Garnett, 3 Sim. 398; 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 591. (a) See Enohin v.Wylie, 10 H.L. C. 1; 1 Sw. & T.118; 1 De G. F. & J. 410. In this case it appeared that a natural-born British subject died in Russia, leaving large real and personal estate there, and also a considerable. sum in English funds, and made a will in the Russian language and form, disposing of ‘all his movable and im- movable property,’ but without any other language excluding or including his English property. It was held that the executors appointed under the Rus- sian law were entitled to probate of the will in England, and that the rule of construction adopted in Russia, as to the extent and meaning of the words ‘all his movable and immovable pro- perty,’ ought to govern. 666 CONFLICT OF LAWS. [s. 479 6-479 d. is used, must be decided by the law of the place where the will is made, and the testator has his domicil. So where a legacy is given in terms expressive of a currency in use in different coun- tries, but of different values therein, the same rule will apply. Thus, for example, a will made in Ireland by a testator domiciled there, giving a legacy of £1,000, will be interpreted to be a le- gacy of £1,000, Irish currency, and payable accordingly, and not a £1,000 English sterling currency.? So legacies are deemed payable according to the law of the country, and in the cur- rency of the country, where the will is made and the testator is domiciled .3 479 ¢. In like manner the question whether a legatee by the terms of a foreign will or testament takes an estate for life or in fee, is to be decided by the law of the place where the will is made and the testator is domiciled, and not by the law of the place where the controversy arises, or the testator was born.? So if the question arises whether it is competent to make a par- ticular bequest of property, the validity of it must be decided by the law of the place where the will or testament is made and the testator is domiciled.6(a) So if a legacy is given by a will or testament to a party who dies in the lifetime of the testator, the question whether it is an ademption of the legacy, or whether the legacy goes to his personal representatives, is to be decided by the law where the will or testament is made, and he is domi- ciled.® (0) 419d. Validity of Devise to Charity.— Another illustration may arise under a will which purports to direct the testator’s real estate to be sold, and the proceeds to be applied to foreign 1 Pierson v. Garnet, 2 Bro. C. C. 88; 2 Story Eq. Jur. s. 1068-1074. 2 Id. p. 47. 8 Ibid.; Saunders v. Drake, 2 Atk. 465; Pierson v. Garnet, 2 Bro. C. C. 89, 47; Malcolm ». Martin, 3 Bro. C. C. 50; Wallis v. Brightwell, 2 P. Wms. 88; Lanadoanie v. Lansdowne, 2 Bligh, 60, '88, 89, 95; 4 Burge, Col. & For. Law, pt. 2,-c. 12, p. 595, 596; ante, s. 259, 310-313. 4 Brown v. Brown, 4 Wils. & Shaw, 28, 37; post, s. 490. a 5 Price v. Dewhurst, 8 Sim. 279, 299-301; 2 Boullenois, obs. 46, p. 505- 508. 8 Anstruther v. Chalmer, 2 Sim. 1; Thornton v. i 8 Sim. 310; 2 Add. Ecc. 6, 10-25; post, s. 491. (a) See Bible Society v. Pendleton, (>) See Boyes v. Bedale, 1 Hem. & 7 W. Va. 79. M. 805. CHAP. XI] WILLS AND TESTAMENTS, 667 charities, which devise is good by the law of the foreign country, but is prohibited by the law of the testator’s domicil. In such a ease the devise will be void, because it is against the law of his domicil. (a) This was held in a case where a testator in Eng- land by his will directed his real estate to be sold, and the pro- duce to be laid out in lands or in the funds, for the maintenance of a charity in Scotland. On that occasion the Master of the Rolls (Sir William Grant) said: ‘The statute (9 George II. c. _ 86) contains no express words prohibiting a bequest of money to be produced by the sale of land to charitable purposes ; but it is settled by construction that such a bequest is within the spirit and meaning of the law; and it is clear that no charity in Eng- land, not within the exception of the statute, could have derived any benefit from the produce of the real estate. The question then is whether such produce may be given to what, in contem- plation of the English law} is for a charitable purpose, when that purpose is to be carried into execution in another country. The validity of every disposition of real estate must depend upon the law of the country in which that estate is situated. The subject of this statute is real estate in England. The owners of such property are disabled from disposing of it to any charitable use, except by deed executed twelve months before the death of the owner, &c., to take effect from the execution. The words are perfectly general, “‘ any charitable use whatsoever ;”” and the object could not be to treat English charities less favorably than charities to take effect for the benefit of other countries. It would be somewhat incongruous to refuse to permit such a dis- position for the most laudable and meritorious charitable institu- tion in England; but if the party chose to carry his benevolent intention beyond England, to permit him to do so, to the effect of disinheriting his heir in his lass moments. The disinheriting of the lawful heirs by languishing or dying persons, which is treated by the statute as a mischief, cannot be less so when the effect is to carry the property out of England. Therefore neither the words of this statute, nor the presumable intention, warrant me in declaring that it is to be confined to charitable purposes to be carried into execution in England. The statute not contain- ing an exception in favor of the universities of Scotland, as it (a) See Bible Society v. Pendleton, 7 W. Va. 79. 668 CONFLICT OF LAWS. ‘[s. 479 d, 479 ¢. does with regard to the universities of England, I must consider this as a charitable disposition, by which nothing that is the produce of the testator’s real estate can pass.’ } 479. Description of Persons intended to take.—The same rule will apply to the ascertainment of the persons who are to take under a will or testament, when it is made by words desig- nating a particular class or description of persons. Who are the proper persons entitled to take under the designatio personarum isa point to be ascertained by the law of the place where the will is made and the testator is domiciled.(a) Thus, for exam- ple, if a testator should bequeath his personal estate to his ‘ heir at law,’ who is the person entitled to take under that description will depend upon the law of his domicil. If domiciled in Eng- land it will be the eldest son; if domiciled in most of the States of America, it will be all his children.? So if a person domiciled 1 Curtis v. Hutton, 14 Ves. 537, 541. See also 3 Pet. Appx. p. 501-503. 2 Harrison v. Nixon, 9 Pet. 483, 504. On this occasion the court said: ‘ No one can doubt, if a testator born and domiciled in England during his whole life should by his will give his personal estate to his heir at law, that the de- scriptio personze would have reference to and be governed by the import of the terms in the sense of the laws of England. The import of them might be very different, if the testator were born and domiciled in France, in Louisiana, in Pennsylvania, or in Massachusetts. In short, a will of personalty speaks ac- cording to the laws of the testator’s domicil, where there are no other circum- stances to control their application; and to raise the question what the testator means, we must first ascertain what was his domicil, and whether he had re- ference to the laws of that place, or to the laws of any foreign country. Now the very gist of the present controversy turns upon the point, who were the person or persons intended to be designated by the testator, under the appella- tion of ‘heir at law.”? If at the time of making his will, and at his death, he was domiciled in England, and had a reference to its laws, the designation might indicate a very different person or persons from what might be the case (we do not say what is the case), if at the time of making his will, and of his death, he was domiciled in Pennsylvania. In order to raise the question of the true interpretation and designation, it seems to us indispensable that the coun- try by whose laws his will is to be interpreted should be first ascertained; and then the inquiry is naturally presented, what the provisions of those laws are.’ Mr. Burge has put a number of cases from the foreign law on the same subject. He says: ‘ The legal effect of the expression, “lawful heirs,’”’ will not be con- trolled by words which import an equality of distribution amongst the heirs; but those words will be understood as referring to the equality which is con- sistent with and recognized by that law which the testator is presumed to have invoked. The institution of heirs was thus expressed: ‘ Fratrum et sororum filios ac nepotes haredes legitimos ex equis partibus.’? (Voet, lib. 28, tit. 5, (a) See Dannelli v. Dannelli, 4 Bush (Ky.) 51. CHAP. x1] WILLS AND TESTAMENTS. 669 in Holland should bequeath his property to the ‘male children’ of certain persons, and the question should arise, as well it might, n. 17.) If the whole inheritance were to be divided amongst those heirs in equal parts, the qualification of legitimus hzres would be disregarded, because, according to the order of succession established by law, the grandsons of one brother succeeding with the sons of another do not take per capita, but per stirpes. The equality therefore to be observed in the distribution, and which must be presumed to have been that contemplated by the testator, is that which the law admits, namely, an equality between the stirpes, and not be- tween the individuals. (Neostad, decis. 33.) A case arose, in the court at Brabant, of a father domiciled in Brabant, who had, in the institution of his son, desired him to allow that which he had left him to go to his lawful chil- dren. It was decided that the grandfather’s estate would devolve on those children only who would take according to the law of Brabant in the case of intestacy, namely, the children of the first, to the exclusion of those of a second marriage. (Stockmans, Curie Brab. decis. 27.) Under an institution by the description of ‘‘ brothers,’’ brothers of the whole blood only will take, if ac- cording to the law in the place of the lex loci domicilii, the children of the father’s or mother’s side only are excluded from the succession. (Christin. ad Leg. Mech. tit. 16, art. 7, n. 5, 6; Voet, lib. 28, tit. 5, n. 18; Rodenb. de Jure, Quod Ori. de Stat. Divers. tit. 3, c. 2, n. 6, p. 185; Someren, de Reprees. c. 5, n.4.) Ifa testator institute as his heirs those whom he calls proximi, without using any expression pointing to those who would by law succeed to him in case of intestacy, and he leaves no children, it is doubtful who are entitled to the succession; whether those who would take according to the law of the place of his domicil, or those who were really and naturally the nearest to the testator in blood, although according to that law they could not be his heirs. Thus if the testator were domiciled in a country where the relations of the de- ceased mother succeed in preference to the surviving father, the latter is the nearest in blood to the deceased, although he is not nearest in the order of suc- cession. It seems that the term proximus would receive its natural significa-' tion, and consequently the father as the nearest in blood would succeed, and not the descendant in the maternal line. (Voet. lib. 28, tit. 5, n. 19, and lib. 36, tit. 1,n. 25; Someren, de Repres. c. 6.) But it is said that this construc- tion is made to depend on the degree in which the law of succession deviates from the natural sense of the word proximus. And where in cases of iutes- tacy some of the nearest are admitted to the succession with some more remote in blood, the construction would be according to the legal sense. If therefore a testator, instituting his wife as his heir, should direct that the inheritance ‘ after his death should revert to the nearest, then according to the jus Scabini- cum (Sen-Cons-Trebellianicum), the father would be entitled to one half, and all the brothers to the other half. (Ibid.; Sand. Decis. Fris. lib. 4, tit. 5, def. 6.) If the testator has called to the succession those who are nearest to him in case of intestacy, recourse must be had, not to the laws of the different countries in which his immovable property is situated, to decide who are the persons entitled to succeed, but to the lex loci domicilii. And then it may happen that those would succeed who will not be the nearest in blood. (Sand. Decis. Fris. lib. 4, tit. 5, def. 6, 8; Voet, lib. 36, tit. 1, m. 25, lib. 28, tit. 5, n. 20; Mantica, de Conj. ult. Volunt. lib. 8, tit. 14, n. 10; Van Leeuwen, Cens. For. pt. 1, lib. 3, c. 7, n. 19; Neostad, decis. 35; Jul. Clarus.s. Testam. 670 CONFLICT OF LAWS. [s. 479 ¢-479 h. whether by ‘male children’ be meant male descendants, that is, descendants claiming through males only, the question would be decided by the interpretation put upon those words by the law of Holland. AT9 f. Will made at a Place other than that of Domicil.— But the question may be asked in these and the like cases, what is to be the rule of construction if the will or testament is made by the party in the place of his domicil, but he is in fact a native of another country ; or if the will or testament is made in a country of which the party is a native, and according to the forms of law in that country, and yet at the time his actual domicil is in an- other country, by whose laws the will or testament so made is equally good. The answer to both questions is the same. The law of the place of his actual domicil. Thus for example where a native of Scotland domiciled in England, having personal pro- perty only, executed during a visit to Scotland, and deposited a will there, prepared in the Scotch form, and died in England; it was held that the will was to be construed according to the Eng- lish law. 1 quest. 76, n. 13; Someren, de Repres. c. 5, n. 16; ante, vol. 2, p. 856.) Ina bequest of a pecuniary legacy, where the will affords no direct evidence of the currency in which the testator intended it to be paid, his greater familiarity with the currency of the country in which he is domiciled, than with that of any other place, justifies the presumption that he has in view that currency, when he expresses no other currency in which his bequest is to be paid. The father of a family who was domiciled in a village in Peyrouse, in Italy, was on a visit to Ancona on business. He made his will in the latter place, and gave a legacy to one of bis daughters of five hundred florins. Florins were of less value at Ancona than at Peyrouse, and the question raised was, whether the legacy should be paid according to the value of the florins at Ancona, or at Peyrouse; and it was determined it ought to be paid according to the value at Peyrouse, the place of the testator’s domicil. Where a legacy consists of a certain number of modii of corn, Hertius says that the modii ought to be according to the measure of the place of the testator’s domicil, and not accord- ing to that of the place where the testament was made. So if a testator, having lands in different places, devise a thousand acres without any other expression, such a devise must be understood according to the measurement prevailing in the place of his domicil.’ 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 591-594. See also 2 Id. pt. 2, c. 9, p. 855-860; ante, s. 271, 2714, note; post, s. 484; Sand. Decis. Frisic. lib. 4, tit. 8, def. 7, p. 194. 1 Anstruther v. Chalmer, 2 Sim. 1; Harrison v. Nixon, 9 Pet. 483, 504,505, note, Mr. Burge on this subject says: ‘ The law of the place of domicil in many cases affords the rule of construction, when the testator has used ex- pressions which are either ambiguous or of different significations in different. countries. Thus if a testator does not institute his heirs by name, but by the CHAP. XI] WILLS AND TESTAMENTS. 671 479 g. Change of Domicil. — Another question may also be propounded. Suppose, at the time of the making of a will or testament, the testator is domiciled in the place where it is made, and he afterwards removes to another place, where he is domi- ciled at his death ; does such removal change the rule of con- struction, so that if there is a difference between the law of the original domicil and that of the new domicil, as to the interpreta- tion of the terms, the law of the new domicil is to prevail? or, does the interpretation remain as it was by the law of the original domicil? This question does not seem to have undergone any absolute and positive decision in the courts acting under the common law. (a) 479 h. Wills of Immovables. — The same rules of construction will generally apply to wills and testaments of immovable pro- description of those who would succeed to his estate in case he had died intes- tate, and the rules of succession where his real or immovable property is situated are different from those which prevail in the place of his domicil, or in that in which he made his will, or in that where the judicial tribunal is, which adjudi- cates on the will, the laws of succession which prevail in the place of his domi- cil are those which would be adopted. And the more general opinion is that, even with respect to the succession to real or immovable property, the laws of succession in the place of domicil, and not those in loco rei site, prevail. The ground on which this rule rests is that, as it becomes necessary to ascertain the sense in which the testator has used the expression, and what laws of succes- sion he contemplated, it is presumed that they were those of the country in which he was domiciled, because it must be supposed he was familiar with those laws. There are grounds for presuming he was acquainted with.them; ‘ but there exist no grounds for presuming him to be acquainted with any other laws of succession. In affixing the sense in which he has used certain words, terms, or phrases, he is presumed to have adopted that which prevailed in the place of his domicil. It has been sometimes said that they ought to be under- stood in the sense in which they are accustomed to be used in the place where the will or contract was made. But it would be impossible to consider this as a general rule; for the residence of the party in the place may have been for so short a time as to negative the presumption that he was even acquainted with that sense.’ 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 590, 591. See also 2 Id. pt. 2, ¢. 9, p. 855-857. 1 Tt was alluded to, and reserved for consideration, in Harrison v. Nixon, 9 Pet. 488, 502. See ante, s. 473; 4 Burge, Col. & For. Law, pt. 2, ¢. 4, s. 5, p. 169; Yates v. Thomson, 3 Cl. & F. 544, 583-589. (a) See Laneuville v. Anderson, 2 person’s last domicil, and the place of Sw. & T. 24; Boyes v. Bedale, 1 Hem. his death, it would not be valid, & M. 805. It has been held however although made according to the laws in such case, that unless the will was of the testator’s donficil at the time it executed according to the law of the was made. Nat v. Coons, 10 Mo. 548. 672 CONFLICT OF LAWS. [s. 479 h, 479 4. perty, unless indeed it can be clearly gathered from the terms used in the will, that the testator had in view the law of the place of the situs, or used other language, which necessarily referred to the usages and customs, or language appropriate only to that situs.1(a) ‘Thus’ (to borrow an illustration from Mr. Burge), ‘in case the limitation of a deed or will were made in England | ,, . in favor of the heir of A., a person who had no children, and the settler or testator has property in England, Jamaica, and British Guiana, if the construction of the term heir was to be in con- formity with the law of England, the father of A. would take, if according to the law of Jamaica the elder brother, and if ac- cording to the law of British Guiana his father, brothers, and sisters, would take his immovable property. It is not to be pre- sumed that he used the expression in three different senses, or that he adopted the legal import given to it by the law of the one place, rather than that given to it by the law of either of the other two places. But if his domicil were in England, there is the presumption that he was acquainted with the sense attached to it by the law of England, and that he used it in this sense.’? So if a testator should devise his real property to his next of kin, who would be entitled would depend upon the construction given to the words by the law of his domicil.? (6) 479 ti. Boullenois. — Foreign jurists have discussed this subject on various occasions.* Boullenois says: ‘ When the question is respecting the interpretation of clauses expressed in a contract or a testament, it is ordinarily the circumstances of the case which are to decide it.’ In effect we sometimes find clauses or disposi- tions in contracts or testaments, which, from not being suffi- ciently developed, leave some uncertainty of knowing whether they are to be understood according to the law of the place where the acts are executed, or according to the law of the place where the goods are situated, or according to the law of the domi- 1 Trotter v. Trotter, 3 Wils. & Shaw, 407; 4 Bligh, 502, 505; 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 857, 858. 2 2 Burge, Col. & For. Law, pt. 2, ¢. 9, p. 858. 8 Thid. * See Sand. Decis. Frisic. lib. 4, tit. 8, defin. 7, p. 194. fs (@) a oe v. cae 10H. L. (6) Enohin ». Wylie, 10 H. L. Cas. as. 1; Chamberlin ». Napier, 15 Ch. 1; Dannelliv. D lli, 4 Bush (Ky. D. 614; Bible Sbciety v. Pendleton, 51. cee een 7 W. Va. 79. CHAP. XI] WILLS AND TESTAMENTS. 673 cil of one or other of the contracting parties, or finally according to some other law. After citing the opinions of other jurists, he declares his own opinion to be, that the law of the place where the act is executed does not always furnish the proper rule of interpretation in all cases;! but that the only rule which can be prescribed is that of determining according to the different cir- cumstances belonging to each case. These circumstances will sometimes compel us to follow the law of the place of the con- tract or testament, sometimes that of the situs rei, sometimes that of the domicil of the party, and sometimes the place where the payment or performance is to be. He adds that he finds no doctrine more reasonable than that which Dumoulin has laid down upon this subject.? 1 2 Boullenois, obs. 46, p. 489, 490. ? 2 Boullenois, obs. 46, p. 494, 503-518; Id. p. 537, 588. Mr. Burge has cited from 2 Boullenois, obs. 46, p. 584 et seq., a passage illustrating Boulle- nois’s opinion. ‘The terms,’ says Mr. Burge, ‘in which the contract is ex- pressed may receive a construction, according to the law or usage of the place where the contract is made, different from that which is given to them by the law of the situs. If, by adopting the one sense, the contract would be brought within the prohibition of the law of the situs, that construction ought to be rejected. But if this would not be the consequence, and the adoption of either meaning would not afford a ground to prevent the contract from being com- pleted by the law of the situs, it has been a question whether the construction given by the law or usage of the situs, or that given by the law of the place where the contract was made, ought to prevail. Thus in some countries, the limitation by gift or devise to a person, and ‘si sine liberis discesserit ’’ to another, operates as a substitution. The children, ‘‘ positi in conditione,’’ are also considered as ‘‘ positi in dispositione,’’ and are entitled to take. Such was the law of Toulouse. But under the coutume of Paris, the expression, “ si sine liberis,’’ imported only a condition, and consequently, if there were no failure of children, there was no substitution. The following case occurred, on which M. Boullenois gave his opinion: The Comte de R., domiciled in Languedoc, made a settlement on the marriage of his son, who had resided in Paris many years, and the lady with whom he married was a native of and domiciled in Paris. The comte executed a general power of attorney to the Bishop of —— to arrange the marriage settlement. By this settlement he gave to his son a moiety of all his estate, movable and immovable, then belonging to him, or which should belong to him on the day of his death. ‘‘ Sous la condition que, si le futur époux décéde sans enfans males, nés de ce mariage, la moitié des biens & lui présentement donnés, retournera & l’ainé de ses fréres, ou 4 l’ainé des enfans males du dit ainé; aprés toutes fois que les conventions de la dite demoiselle future épouse auront été payées et acquittées, et que déduction aura &té faite de la légitime des filles.”” There were issue of the marriage, a son and daughter. The real property was situated in Toulouse. The son claimed it, insisting that his father had created a substitution, and that he took as a substitute. The daughter contended that no substitution was created, that the 43 674 CONFLICT OF LAWS. [s. 479 k, 479 1. 479 k. Foreign Jurists. — We have already had occasion, in part, to refer to the opinions of Dumoulin on this subject... He reproves the doctrine, maintained by many jurists, that the law and custom of the place where a contract is made are to govern the contract in all cases. ‘Et advertendum, quod doc- tores pessime intelligunt, L. si fundus de evicti; quia putant ruditer et indistincte, quod debeat ibi inspici locus et consue- tudo, ubi fit contractus, et sic jus in loco contractus. Quod est falsum; quinimo jus est in tacita et verisimiliter mente contrahentium.’ And he explains himself thus. ‘ Aut statu- condition had failed, and that consequently, the father having died without making any disposition, she was entitled with her brother as one of the heirs ab intestato. The opinion given by M. Boullenois was, that the import of the expression, given by the law of Paris, where the contract was made, and where two of the parties to it were domiciled, and the donor was present by his at- torney, must prevail. This opinion was confirmed by sentence des Requétes du Palais of the 21st of August, 1734, in favor of the daughter. But this sentence was reversed on appeal, and the decision was given in favor of the son. There is great force in the arguments by which this learned jurist maintains his opinion. The principal ground on which the decision proceeded was, that the domicil of the father, the donor, was in Toulouse, and that it must be presumed he contemplated the law with which he was acquainted, rather than that of Paris, with which he might be unacquainted; and that in donations the inten- tion of the donor is principally to be considered, since the part of the donee is confined to the acceptance of the donation. But in the present case this con- sideration loses much of the weight to which it might otherwise be entitled, because the donor had granted a general power of attorney to a person resident in Paris to arrange the settlement, and had not prescribed the terms or condi- tions it should contain. It was not in this case insisted, nor is it the doctrine of jurists, that the situs of the property requires the application of its law to determine the legal import of any expression in the contract. The text of the civil law is, that ‘In stipulationibus, et in ceteris contractibus, id sequimur, quod actum est; et si non pateat quod actum est, erit consequens, ut id sequa- mur, quod in regione in qua actum est, frequentatur.’’ It has been justly con- sidered that this rule is too general; for that, if it were universally followed, the intentions of the contracting parties must be frequently defeated. It has been seen, in the passage already cited, that it was condemned by Dumoulin. In his opinion, and he is followed by Boullenois, the interpretation of expres- sions in a contract must depend, not on the place where it is made, but on those other circumstances from which the will or intention of the parties may be in- ferred. Generally the interpretation which it would receive in the place of their domicil is that which it is most probable will be conformable to their intention.’ 2 Burge, Col & For. Law, pt. 2, c. 9, p. 855-857; 2 Boullenois, obs. 46, p. 518-533; ante, s. 275. Boullenois gives other illustrations of his doctrine. 2 Boullenois, obs. 46, p. 495-518. Bouhier seems to hold a similar opinion. Bouhier, Cout. de Bourg. c. 21, n. 220-222. 1 Ante, s. 274, 441. CHAP. XI.] WILLS AND TESTAMENTS. 675 tum loquitur de his, que concernunt nudam ordinationem vel solemnitatem actus, et semper inspicitur statutum vel consue- tudo, ubi actus celebratur, sive in contractibus, sive in judiciis, sive in testamentis, sive in instrumentis, aut aliis conficiendis, Aut statutum loquitur de his, que meritum scilicet cause vel decisionem concernunt ; et tunc aut in his, que pendent a volun- tate partium, vel per eas immutari possunt, et tunc inspiciuntur, circumstantiz voluntatis quarum, una est statutum loci, in quo contrahitur, et domicilii contrahentium antiqui vel recentis, et similes circumstantiz.’ ? 479 1. Hertius lays down the rule that the words of a testator are to be especially interpreted according to the custom of the place where the testator had his origin or domicil. ‘Hine juris- consulti verba testatoris precipue interpretantur secundum loci consuetudinem, ubi testator originem vel domicilium habeat.’3 And he illustrates it by the case of a bequest of so many mea- sures of wheat, or so many acres of land, where the question arises as to the quantity of the measures or of the acres, whether to be understood according to the lex loci of the testament, or the lex domicilii of the testator. The like doctrine is adopted by John Voet, by Stockmans, by Christineus, by Rodenburg, and by Sandius.6 Stockmans uses the following language : ‘Non exigua vis est communis regula, que dictat, testatorem in dubio censeri dispositionem suam aptare jure illius loci, ubi agit et testamentum condit, et consuetudinem ac leges municipales loci tacite influere, ac temperare generales testantium locutiones et dispositiones.’® Paul Voet says: ‘In specie autem consuetudo legis verba ambigua interpretatur: et si non appareat, quid actum sit inter contrahentes, ad eam, tanquam rerum ac verborum dominam, recurritur. Quam etiam in perscrutanda testatoris voluntate.’ 7 1 Molin. Opera, tom. 8, Comm. in Cod. 1, 1, p. 554, ed. 1681; ante, 8. 260, 274, 441; 2 Boullenois, obs. 46, p. 495. 2 Thid. 5 Hertii Op. de Collis. Leg. s. 6, n. 3, p. 222, ed. 1716; Id. p. 158, ed. 1787; 2 Burge, Col. & For. Law, pt. 2, c. 9, p. 859, 860. 4 Tbid.; Molin. Opera, tom. 1, de Fiefs, s. 83, n. 86, p. 410, ed. 1661. 5 See ante, s. 479 e, note; 4 Burge, Col. & For. Law, pt. 2, ¢. 12, p. 591- 594, where the opinions of these jurisis are cited. ® Stockm. Decis. 27, n. 1, p. 27. 7 P. Voet, de Statut. s. 3, c. 1, n, 2, p. 100, ed.1715; Id. p. 111, ed. 1661. 676 CONFLICT OF LAWS. [s. 479 m—481. 479 m. General Rule. — Indeed it may be laid down as a gene- ral rule, that wherever words of an ambiguous signification or different significations in different countries are used in a will, they are to be interpreted in the sense in which they are used in the law of the testator’s domicil, which he may be presumed either to be most familiar with or to have adopted. Sandius says: ‘In ambigua hac testatoris voluntate spectandum esse con- suetudinem regionis, in qua testator versatus est.’1 The same rule has been recognized in England, or rather it has been gene- ralized ; for it has in effect been held that, in the construction of ambiguous instruments or contracts, the place of executing them, the domicil of the parties, the place appointed for their execu- tion, and other circumstances, are to be taken into consideration 2 479 n. Necessity of Probate. —In respect to another point, whether’a court of equity can enforce a foreign will, of which there has been no probate obtained from our own courts, the principle seems clear that it cannot. A court of equity can know nothing of a will of personalty in England, unless it has first been adjudged a will in the proper probate or ecclesiastical court. A fortiori the rule must apply to a foreign will. 1 Sand. Decis. Frisic. lib. 4, tit. 8, defin. 7, p. 195. ? Lansdowne v. Lansdowne, 2 Bligh, 60, 87; 4 Burge, Col. & For. Law, pt. 2, c. 12, p. 590, 591. See Bunbury v. Bunbury (before Lord Cottenham) 3 Jur. p. 644; 1 Beav. 318. CHAP, XII] SUCCESSION AND DISTRIBUTION, 677 CHAPTER XII. SUCCESSION AND DISTRIBUTION. 480. Subject of the Chapter. — Having considered the operation of foreign law in regard to testaments of movable property and of immovable property, we next proceed to the right of succes- sion in cases of intestacy, or, as the phrase is, of succession ab intestato. And here, the preceding discussions have left little more to be done, than to state the general principles applicable to each species of property. 481. Movables.— First in relation to movable property. The universal doctrine, now recognized by the common law, although formerly much contested, is that the succession to personal pro- perty is governed exclusively by the law of the actual domicil of the intestate at the time of his death.1(a) It is of no conse- 1 Many of the authorities to sustain this point have been already cited, ante, s. 380-385, 465-474. But some others may be here referred to. Pipon v. Pipon, Ambler, 25; Thorne v. Watkins, 2 Ves. 85; 1 Chitty on Com. & Manuf. 661; Sill v. Worswick, 1 H. Bl. 690, 691; Bruce v. Bruce, 2 B. & P. 229, note; Hunter v. Potts, 4 T. R. 182; Potter v. Brown, 5 East, 1380; Birt- whistle v. Vardill, 5 B. & C. 488, 450-455; 9 Bligh, 82-88; 2 Cl. & F. 571; Yates v. Thomson, 8 Cl. & F. 554; Robertson on Succession, c. 6, p. 104-117; Id. ¢. 8, p. 118-201; Thornton v. Curling, 8 Sim. 310; Price v. Dewhurst, 8 Sim. 279, 299; Moore v. Budd, 4 Hagg. Ecc. 346, 352; 4 Burge, Col. & For. Law, pt. 2, c. 4, 8. 5, p. 156-170; ante, s. 362, 367, 378. For a long time the law of Scotland was unsettled on this point ; but it now coincides with that of England. Robertson on Succession, ubi supra; 4 Burge, ubi supra; Stairs, Instit. b. 8, tit. 8, s. 35; Ersk. Instit. b. 8, tit. 9, s. 4; Livermore, Dissert. 162, 163; Olivier v. Townes, 2 Mart. N.S. (La.) 99; Shultz v. Pulver, 3 Paige (N. Y.) 182; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 198, 224, 228; Holmes ». Remsen, 4 Johns. Ch. (N. Y.) 460; 20 Johns. (N. Y.) 229; De Couche v. Savetier, 3 Johns. Ch. (N. Y.) 190; Erskine, Inst. b. 3, tit. 2, s. 40, (a) See Suarez v. New York, 2 Paraguay, L. R. 2 P. & M. 268; Rus- Sandf, Ch. (N. Y.) 173; Ennis ». sell v. Madden, 95 Ill. 485; Noonan Smith, 14 How. 400; Lawrence v. v. Kemp, 34 Md. 73; Slaughter v. Kitteridge, 21 Conn. 577; Holcomb Garland, 40 Miss. 172; Wilkins v. t. Phelps, 16 Conn. 127; Lynch v. Ellett, 9 Wall. 740. 678 CONFLICT OF LAWS. [s. 481-481 8. quence what is the country of the birth of the intestate, or of his former domicil, or what is the actual situs of the personal pro- perty at the time of his death; it devolves upon those who are entitled to take it, as heirs or distributees, according to the law of his actual domicil at the time of his death.1 Hence if a Frenchman dies intestate in America, all his personal property, whether it be in America or in France, is distributable according to the statute of distribution of the state where he then resided, notwithstanding it may differ essentially from the distribution prescribed by the law of France. (a) 481 a. Persons entitled. —So the like rule prevails in the as- certainment of the person who is entitled to take as heir or dis- tributee. The law of the domicil therefore is to decide whether primogeniture gives a right of preference, or an exclusive right to the succession, and whether a person is legitimate or not to take the succession. So whether persons are to take per capita or per stirpes; and the nature and extent of the right of represen- tation. Thus, for example, in England and in some of the American states there is no right of representation beyond that of brothers’ and sisters’ children, as to the right of distribution, in cases of intestacy, of movable property. If therefore a man should die, leaving a brother and sister and the grandchildren of a deceased brother, the latter would not take anything in virtue of a representation of the deceased brother.? 41; Id. b. 3, tit. 9,s.4; 2 Kames, Eq. b. 3, c. 8, s. 8, 4, p. 833, 845; 1 Boul- lenois, obs. 20, p. 858; 2 Boullenois, 54, 57; Fergusson on Marr. & Div. 346, 361; Vattel, b. 2, s. 85, 103, 110, 111; 1 Hertii Opera, de Collis. Leg. s. 4, n. 26, p. 1385, ed. 17387; Id. p. 192, ed. 1716; Huberus, de Confl. Leg. lib. 1, tit. 8, s. 15; Henry on Foreign Law, p. 13-15, 46, 196; J. Voet, ad Pand. 38, 17, s. 84, p. 596; Harvey v. Richards, 1 Mason, 418; 2 Froland, Mém. 1294; 2 Dwarris on Statut. 649; Price v. Dewhurst, 3 My. & Cr. 76, 82; Pres- ton v. Melville, 8 Cl. & F. 1,12. 1 Tbid. 2 Burge, Col. & For. Law, pt. 2, c. 4,8. 5, p. 156-160. As in cases of movable property, the law of the domicil is thus held to regulate the succes- sion and distribution thereof, the question may often become important, what (a) So if a person dies abroad in the country of his domicil, and by the law of that country his natural son is entitled to inherit his father’s pro- perty as heir at law, and the courts of that country have adjudicated upon such right, an English court is bound by that decision, and is bound to ad- mit such natural son to dispute a will offered in the English court, disposing of his personal property in England to other parties. Doglioni v. Crispin, Law Rep. 1 H. L. 801. See Goods of Weaver, 36 Law J. Prob. & Mat. 41. CHAP. XII.] SUCCESSION AND DISTRIBUTION. 679 481 6. Foreign Jurists.— This same doctrine is maintained with equal broadness by foreign jurists. It is founded in a great measure upon the doctrine that movables have no situs, and ac- company the person of the owner; so that in fictione juris, they are always deemed to be in the place of his domicil. ‘ Mobilia sequuntur personam, et ejus ossibus adherent.’ Thus Roden- burg, referring to the effect of a change of domicil on succession, takes the very distinction between movable property and immo- yable property, founded upon its nature and character. ‘Jus rebus succedendi immobilibus, semper a loco rei sites metiendum, huc non pertinet ; succedendi mobilibus pertinet; quod ea certo loco non circumscripta, comitentur personam a domicilio ejus accipientia leges.’? Boullenois fully concurs in this opinion.® Burgundus holds the some opinion. Perhaps it might, with quite as much accuracy, be said that the doctrine is founded in a great public policy, observed, ex comitate, by all nations, from a sense of its general convenience and utility, and its tendency to avoid endless embarrassments and conflicts, where personal pro- is the actual domicil. As to this see ante, s. 44-50. Upon this subject many difficult questions may arise. See for example De Bonneval v. De Bonneval, 1 Curteis, 856; Attorney-General v. Dunn, 6 M. & W. 511. But the rule itself may require some modification, where the law of the domicil of the intes- tate is intended to take away the rights of persons who might otherwise suc- ceed to movable property in another country by a sort of hostile perversity. Thus it has been said that under the Berlin and Milan decrees passed by Na- poleon, Englishmen were rendered incapable of succeeding to the personal estates of intesfates dying in Italy. Such a law might require England to disallow the operation of the general rule as to personal property of the same intestate situate in England. See Koster v. Sapte, 1 Curteis, Ecc. 691; ante, s. 472, note. Suppose a person should die in transitu from his acquired domi- cil, the question might then arise, whether the law of his native domicil, or of his acquired domicil, or of his intended domicil, was to govern. It seems clear that a domicil, whether native or acquired, is not lost by a mere aban- donment. It is not defeated animo merely, but animo et facto, and necessarily remains until a subsequent domicil is acquired, at least unless the party dies in transitu to his intended domicil. This last qualification of the doctrine, though stated by a learned judge, may be exactly the point of a doubt. whether it varies the rule. Munroe v. Douglas, 5 Madd. 379. ~ See also 2 Boullenois, Appx. p. 59, 60; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 99. 1 See ante, s. 862, 377, 378; 4 Burge, Col. & For. Law, pt. 2,c. 4,8. 5, p. 157; Foelix, Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 32, p. 221, 229. 2 Rodenburg, de Div. Stat. tit. 2, pt. 2,¢. 2, s. 1; 2 Boullenois, Appx. p. 59; 2 Boullenois, c. 2, p. 54. 3 2 Boullenois, obs. 33, p. 57, 63, 64. 4 Burgundus, tract. 2, n. 20, 21; Id. tract. 1, n. 26. 680 CONFLICT OF LAWS. [s. 481 5-483 a. perty has often changed places; which is the view entertained by John Voet.! 482. Paul Voet has put the principle in a compendious man- ner. ‘Idem ne inferendum de statutis, que spectant successiones ab intestato? Respondeo, quod ita; rem enim afficiunt, non per- sonam, ut legibus loci, ubi bona sita sunt, vel esse intelliguntur, regi debeant. Immobilia statutis loci, ubi sita ; mobilia loci statu- tis, ubi testator habuit domicilium.’ ? And again: ‘ Verum an, quod de immobilibus dictum, idem de mobilibus statuendum erit ? Respondeo, quod non. Quia illoram bonorum nomine nemo cen- setur semet loci legibus subjecisse. Ut que res-certum locum non habent, quia facile de loco in locum transferuntur ; adeoque secundum loci statuta regulantur, ubi domicilium habuit de- functus.’ 3 482 a. Sandius, in speaking of successions, takes the like dis- tinction between movables and immovables. ‘Aliud judicium est de mobilibus que ex conditione personarum legem accipiunt, nec loco continuere dicuntur, sed personam sequuntur, et ab ea dependent; et ideo omnia ubicunque mobilia legibus domicilii subjiciuntur.’# Strykius affirms the same doctrine; as do Gaill and Christinzus and John Voet.6 The latter says: ‘ Caeterum occasione variantium in successionem intestatam statutorum, gen- eraliter observandum est, bona defuncti immobilia, et que juris interpretatione pro talibus habentur, deferri secundum leges loci, in quo sita sunt; adeo, ut tot censeri debeant diversa patrimonia, ac tot hereditates, quot-locis, diverso jure utentibus, immobilia existunt. Mobilia vero ex lege domicilii ipsius defuncti, vel quia semper domino presentia esse finguntur, aut (ut exposul) ex co- mitate, passim usu.’ Bynkershoek is equally positive. ‘Omnino 1 J. Voet, ad Pand. 88, 17, n. 34, tom. 2, p. 596; post, s. 482 a, note. 2 P Voet, de Stat. s. 4, c. 8, n. 10, p. 185, ed 1716; Id. p. 158, ed. 1661; ante, s. 475. , 8 P. Voet, de Stat. s.9,c.1,n. 8, p. 255, ed. 1715; Id. p. 309, ed. 1661. See also to the same point, J. Voet, ad Pand. 1, 1, 4, pt. 2,n. 11, p. 44; ante, s. 362, n. 3. 4 Sand. Decis. Frisic. lib. 4, tit. 8, defin. 7, p. 194. 6 Strykius, de Success. Diss. 1, ¢. 4, n. 3; Gaill. Pract. Obs. lib. 2, obs. 124, n, 18, p. 552; Christin. Decis. Cur. Belg. vol. 2, decis. 3. n. 2, 3, p.4; J. Voet, ad Pand. 38, 17, de Success. ab Intestato, n. 34, tom. 2, p. 596; Foelix, Con- flit des Lois, Revue Etrang. et Franc. tom. 7, 1840, s.87, p. 307-811; 4 Burge, Col. & For. Law, pt. 2, c. 4, 8.5, p. 156-158. 8 J. Voet, Com. ad Pand. 38, 17, n. 34, tom. 2, p. 596. CHAP. XII] SUCCESSION AND DISTRIBUTION, 681 igitur interest scire non tam ubi quis decessit, quam ubi decedens domicilium habuit ; nam si hoc sciamus, secundum leges domicilii hereditas intestati defertur, sive major, sive minor decesserit quod ad mobilia nempe, et que pro mobilibus habentur.’ 1 483. Immovables. — Secondly, in relation to immovable pro- perty. And here a very different principle prevails at the com- mon law. The descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situate. No person can take, except those who are recognized as legitimate heirs by the laws of that country; and they take in the proportions and the order which those laws prescribe. This is the indisputable doctrine of the common law.? 483 a. Foreign Jurists. — Foreign jurists are not indeed uni- versally agreed even as to this point, although certainly they differ less than in most other cases. It may truly be said that the generality of them (having a great weight of authority) un- equivocally admit that the descent and distribution of real estate are, and ought to be governed by the lex rei site.3 On this head it might seem almost sufficient to adopt the language of John Voet in his classification of real and personal statutes. He reduces to the class of real statutes whatever regards inheri- tances. ‘ Quo pertinet jura successionum ab intestato; quonam 1 Bynkers. Quest. Privat. Jur. lib. 1, c. 16, p. 179, 180. 2 4 Burge, Col. & For. Law, pt. 2,¢. 4,8. 5, p. 151, 152; Birtwhistle »v. Vardill, 5 B. & C. p. 451, 452; 6 Bligh, 479, note; 9 Bligh, 32-88; 1 Rob. App. 627; ante, s. 364-366, 426-429; post, s. 483 a, note; Bunbury ». Bun- bury, 3 Jur. 644; 1 Beav. 318. ® Theauthorities to this point also have been already cited, ante, s. 424-448. See Birtwhistle v. Vardill, 5 B. & C. 488; United States v. Crosby, 7 Cranch, 115; Kerr v. Moon, 9 Wheat. 556, 570; McCormick v. Sullivant, 10 Wheat. 192; Darby v. Mayer, 10 Wheat. 469; Hosford v. Nichols, 1 Paige (N. Y.) 220; Cutter v. Davenport, 1 Pick. (Mass.) 81; Wills v. Cowper, 2 Hamm. 124; 1 Hertii Opera, de Collis. Leg. s. 4, n. 26, p. 185; 1 Boullenois, 25, 223, &c. 1 Froland, Mém. 60, 61, 65; P. Voet, de Stat. s. 4, c. 2, n.6, p. 128; J. Voet. ad Pand. 1. 4, pt. 2,8. 8, p. 89; Ersk. Inst. b. 3, tit. 2,8. 40, 41, p. 515; D’Aguesseau, CEuvres, tom. 4, p.637; Huberus, lib. 1, tit. 3, s. 15; 2 Dwar- tis on Statut. p. 649; Rodenburg, pt. 2, tit. 2, c.2; 2 Boullenois, Appx. p. 59, 63; 2 Boullenois, 54, 57,383; 2 Froland, Mém. c. 7, p. 1288; Foelix. Conflit des Lois, Revue Etrang. et Frang. tom. 7, 1840, s. 87, p. 807-312; 4 Burge, ol. & For. Law, pt. 2,¢. 4,8. 5, p. 151-156. Since the preceding sheets were worked off I have ascertained that the case of Birtwhistle v. Vardill, above cited, has been, affirmed in the House of Lords. 1 Rob. App. 627. The ground was that by the law of England no person could inherit lands . 43 heir who was not born after the marriage of his parents. 682 CONFLICT OF LAWS. [s. 483 a-483 d, ordine ad bona queeque ab intestato, quisque in capita, vel stirpes, vel lineas, vel jura primogeniture admittendus sit; qua ratione legitimi aut illegitimi, agnati, cognati vocentur; queque his sunt similia plura.’! Rodenburg is equally decisive. ‘ Jus rebus suc- cedendi immobilibus semper a loco rei site metiendum.’? Fro- land gives the rule in the most concise but energetic terms, attributing the language to Dumoulin : ‘ Mobilia sequuntur perso- nam; immobilia situm.’? Dumoulin says: ‘ Aut statutum datur in rem; puta, bona decedentis veniant ad primogenitum ; et tune attenditur statutum loci, in quo sita sunt bona.’* Bynkershoek in his bold and uncompromising manner asserts that the rule is so well established that no one dares to open his mouth against it. ‘Immobilia enim deferri ex jure, quod obtinet in loco rei site, adeo recepta hodie sententia est, ut nemo ausit contra hiscere.’® 483 6. Paul Voet says: ‘Quid si circa successionem ab intes- tato, statutorum sit difformitas? Spectabitur loci statutum, ubi immobilia sita, non ubi testator moritur.’® Rodenburg, speaking of laws which are purely real (que quidem jure precipui mere realia sunt), says: ‘Cujusmodi appellamus ea, que de modo di- videndarum ab intestato hereditatum tractant, territorium non egredientia; conspirant enim eo vota fere omnium, bona ut diju- dicentur sua lege loci, in quo sita sunt vel esse intelliguntur.’’ Burgundus, after remarking that there is a diversity of opinion upon this subject among jurists, some holding that the law of the 1 J. Voet, ad Pand.1, 4, 2, s. 3, tom, 1, p. 89; Id. 38, 17, n. 34, tom. 2, p. 596. 2 Rodenburg, de Div. Stat. pt. 2, tit. 2, ¢ 2, p. 59; 2 Boullenois, Appx. p- 54, 57. See also Henrys, CEuvres, tom. 2, lib. 4, c. 6, quest. 105, Obs. Bretonnier, p. 618, 614, ed. 1771. ® 2 Froland, Mém. 1289. I cannot find any such expressive language used by Dumoulin in the passage cited by Froland, and therefore conclude that it is his own concise statement of Dumoulin’s opinion, in which he is certainly correct. The passages cited Molin. Opera, tom. 2, p. 701, ed. 1681, Cou- tumes de Senlis, art. 140, 747, Coutumes d’ Auvergne, art. 4; Id. Consil. 53, p. 964; Id. tom. 3, p. 554, Conclus. de Statut. * Molin. Oper. Com. in Cod. 1, 1, 1, Conclus. de Statut. p. 556, ed. 1681. 5 Bynkers. Quest. Privat. Jur. lib. 1, c. 16, p. 180; ante, s. 381. ° P. Voet, de Statut. s. 9, c. 1,n. 3, 4, p. 252, 253, ed. 1715; Id. p. 305 307, ed. 1661; ante, s. 483, 475. Paul Voet gives a long list of authorities, supporting the doctrine ut immobilia statutis loci regantur, ubi sita. P. Voet, s. 9,c. 1, n. 4, ubi supra. 7 2 Rodenburg, de Divers. Statut. tit. 2, ¢.2, 5. ols i sg ik ho re , 0.2, 8.1, n. 1; 2 Boullenois, App CHAP. XII.] SUCCESSION AND DISTRIBUTION. 683 situs of the property is to govern, some that the law of the domi- cil of the intestate, and some few that the law of the place where the intestate happened to die, then asserts his own opinion. ‘Bonorum due sunt species; alia enim mobilia sunt, alia immo- bilia; illa a persona, hee a situ cujusque provincie legem acci- piunt; videlicet, ut nulla habita ratione originis, aut mortis, aut domicilii, tam heredum, quam ipsius defuncti, dividantur secun- dum consuetudines locorum, ubi bona vel sunt, vel sita esse intelliguntur.’ 483 ¢. Boullenois treats the subject as so entirely free from doubt as to require no comment or explanation.2 D’Argentré, as we have seen, resolutely maintains the same opinion.2 San- dius says: ‘ Contra tamen vulgo a doctoribus receptum est, statuta de bonis et successione intestati disponentia esse realia, nec egredi fines territorii. Atque ita fieri, ut secundum diversitatem statu- torum diversimode succedatur, non aliter, quam si per fictionem unius hominis diversa sunt patrimonia. Et immobilia sunt sub jurisdictione loci in quo jacent. Statutum igitur Hollandiz non extendit se ad res immobiles in Frisia sitas; sed iste subjacent dispositione juris communis quod in Frisia obtinet.’ 4 483d. And not to dwell upon a point which, although not without controversy among foreign jurists, is generally esta- blished, we may quote the opinion of Huberus. His language is : ‘Non potest heic omitti questio frequens in foris hodiernis, a juris Romani tamen aliena terminis: Quia sepe sit, ut diversum jus succedendi ab intestato in locis, ubi defunctus habuit domicilium, atque in iis locis, ubi bona sita sunt obtineat, dubitatur, secundum utrius loci leges successio regenda sit. Communis et recta sen- tentia est, in rebus immobilibus servandum esse jus loci in quo bona sunt sita; quia cum partem ejusdem territorii faciant, diverse jurisdictionis legibus adfici non possunt. Verum in mobilibus nihil esse cause, cur aliud quam jus domicilii sequa- mur; quia res mobiles non habent affectionem versus territorium, _ sed ad personam patrisfamilias duntaxat; qui aliud quam, quod in loco domicilii obtinebat, voluisse videri non potest.’ ® 1 Burgundus, tract. 1, n. 86, p. 38. 2 1 Boullenois, obs. 20, p. 858; 2 Boullenois, obs. 41, p. 383. 8 Ante, s. 488. 4 Sand. Decis. lib. 4, tit. 8, defin. 7, p. 194. 5 Huberus, vol. 1. ib. 3, de Success. n. (s), p- 278. See also 4 Burge, Col. & For. Law, pt. 2, c. 4,8. 5,-p. 150-152, 154, 155, 684 CONFLICT OF LAWS. [s. 484-486, 484. Persons entitled. — We have already had occasion to state that, in the interpretation of wills of immovable property and of movable property, if the description of persons who are to take be by some general designation, such as * heirs,’ or ‘next of kin, ‘issue,’ or ‘children,’ the rule of the common law is that they are to be ascertained by the lex domicilii, both in regard to immovable property and to movable property, unless the context furnishes some clear guide for a different interpretation.1 The same rule will apply in cases of the descent and distribution of movable property ab intestato, for the reason already suggested, that it is deemed by fiction of law to be in the place of his domicil, and therefore to be distributable according to the lex domicilii ; and consequently, who are the ‘ issue,’ or * children,’ or ‘heirs,’ or ‘next of kin,’ is a matter to be ascertained by that law But in regard to immovable property a different rule prevails, founded upon the actual situs ; and as the succession is to be, according to the lex loci situs, the persons who are to take by succession can be ascertained only by reference to the same law.? 484 a. Foreign Jurists. — Foreign jurists generally, although not universally, maintain the same doctrine, and accordingly hold that in cases of succession ab intestato we are to ascertain the persons who are to take the inheritance, by the lex loci rei site, whether the question respects legitimacy, or primogeniture, or right of representation, or proximity of blood, or next of kin. (2) John Voet is very full and explicit on this subject. He says: ‘Posita ergo varietate, si quras, cujus loci leges in repreesentatione observande sint ? respondendum videtur eodem modo, quo supra in principali questione de successione ; puta, mobilium intuitu spectandas esse leges domicilii defuncti, immo- 1 Ante, s. 479a, 479m, 479n; 2 Burge, Col. & For. Law, pt. 2, ¢. 9, p 855-858. 2 See Thorne». Watkins, 2 Ves. 35; Brown v. Brown, or Gordon v. Brown, 3 Hagg. Ecc. 455, note; 4 Wils. & Shaw, 28; P. Voet, de Statut. s. 3, ce. 1, n. 2,p. 100, ed. 1715; Id. p. 111, ed. 1661; Elliott v. Minto, 6 Madd. 16; Winchelsea v. Garetty, 2 Keen, 293, 309, 310; ante, s. 479 e; post, s. 490, 529. 8 Birtwhistle v. Vardill, 5 B. & C. 438; 9 Bligh, 82; ante, s. 364-366, 426- 499, 483; 4 Burge, Col. & For. Law, c. 4. s. 5, p. 150-156; Id. ce. 15, 8. 4, p- 722-734; Elliott v. Minto, 6 Madd: 16; Winchelsea v. Garetty, 2 Keen, 293, 309, 310; post, s. 529. ; (a) See also Abston v. Abston, 15 Louis. Ann. 138. CHAP. xIL] SUCCESSION AND DISTRIBUTION, 685 bilium respectu leges cujusque loci, in quo illa sita sunt: eo quod jus repreesentationis omnino ad jus successionis intestate pertinet, imo successorem facit eum tanquam ex fictione legis proximum, qui vere atque naturaliter defuncto proximus non est,’ } 485. Remarks of Sir W. Grant.— But these general princi- ples still leave behind them, even in the common law, some very embarrassing difficulties ; and in the complex systems of foreign law, the difficulties are greatly multiplied. Sir William Grant adverted to this subject in an important case, and said: ‘ Where land and personal property are situated in different countries, and governed by different laws, and a question arises upon the com- bined effect of those laws, it is often very difficult to determine what portion.of each law is to enter into the decision of the question. It is not easy to say how much is to be considered as depending on the law of real property, which must be taken from the country where the land lies, and how much upon the law of personal property, which must be taken from the law of the do- micil, and to blend both together so as to form a rule applicable to the mixed question which neither law separately furnishes sufficient materials to decide.’ ? 486. Balfour v. Scott. — Two cases of a curious nature were on the same occasion mentioned by Sir William Grant as illustrative of his remarks, which cannot be better stated than in his own language. ‘I have argued (said he) in the House of Lords, cases in which difficulties of that kind occurred. Two of the most remarkable were those of Balfour v. Scott,? and Drummond »v. Drummond.‘ In the former a person domiciled in England died intestate, leaving real estate in Scotland. The heir was one of the next of kin, and claimed a share of the personal estate. To this claim it was objected that by the law of Scotland, the heir cannot share in the personal property with the other next of kin, 1J. Voet, ad Pand. tom. 2, 38, 17, n. 35, p. 597. See Id. 38, 18, n. 84, p. 639, where he adds: Denique pretermittendum non est, in eo, an jus pri- mogeniture admittendum sit, necne; immobilium quidem intuitu spectan- dam esse legem loci, in quo sita sunt; mobilium vero respectu consuetudinem domicilii defuncti. * Brodie v. Barry, 2 V. & B. 180, 181. 8 See Robertson on Successions, p. 202-207; 4 Burge, Col. & For. Law, pt. 2, ¢. 15, 8. 4, p. 731; 6 Bro. P. C. 601, by Tomlins. 4 6 Bro. P. C. (Tomlins’s ed.) 601; 4 Burge, Col. & For. Law, pt. 2, ¢. 15, 8. 4, Pp. 729. : 686 CONFLICT OF LAWS. [s. 486-489 a. except on condition of collating the real estate, that is, bringing it into a mass with the personal estate, to form one common sub- ject of division. It was determined however that he was enti- tled to take his share without complying with that obligation. There the English law decided the question.’ * 487. Drummond v. Drummond. — He then added: ‘In Drum- mond v. Drummond, a person domiciled in England had real estate in Scotland, upon which he granted a heritable bond to secure a debt contracted in England. He died intestate ; and the question was, by which of the estates this debt was to be borne. It was clear that by the English law the personal estate was the primary fund for the payment of debts. It was equally clear that by the law of Scotland the real estate was the primary fund for the payment of the heritable bond. Here was a direct conflictus legum. It was said for the heir that the personal — estate must be distributed according to the law of England, and must bear all the burdens to which it is by that law subject. On the other hand it was said that the real estate must go accord- ing to the law of Scotland, and bear all the burdens to which it is by that law subject. It was determined that the law of Scot- land should prevail; and that the real estate must bear the bur- den.’ 2 488. In conclusion he said: ‘In the first case, the disability of the heir did not follow him to England ; and the personal estate was distributed as if both the domicil and the real estate had been in England. In the second, the disability to claim exonera- tion out of the personalty did follow him into England; and the personal estate was distributed as if both the domicil and the real estate had been in Scotland.’ 3 489. Election. — Another illustration is furnished by the very case then in judgment before Sir William Grant, which turned upon the question whether an heir at law of heritable property in Scotland, being a legatee of personal property which was in England, under a will of the testator, which intended to dispose of all his real property in England and Scotland, but which will, 1 Brodie v. Barry, 2 V. & B. 130, 181. 2 Brodie v. Barry, 2 V. & B. 130, 181. See alsoDrummond v. Drummond, 6 Bro. P. C. (Tomlins’s ed.) p. 601; post, s. 529; Robertson on Successions, p. 209, 214; 4 Burge, Col. & For. Law, pt. 2, c. 15,8. 4, p. 722-784. ® Brodie v. Barry, 2 V. & B. p. 182; ante, 8.266; post, s. 529. CHAP. XII] SUCCESSION AND DISTRIBUTION. 687 not being conformable to the law of Scotland, was not capable of passing real estate there, should be put to his election to take the legacy under the will, or to surrender to the purposes of the will the Scotch heritable property. Sir William Grant decided in the affirmative; and said: ‘Now what law is to determine whether an instrument of any given nature or form is to be read against an heir at law for the purpose of putting him to an elec- tion by which the real estate may be affected ? According to Lord Hardwicke and the judges who have followed him, that is a question belonging to the law of real property; for they have decided it by a statute which regulates devises of land. Upon that principle, if the domicil were in Scotland and the real estate in England, an English will imperfectly executed ought not to be read in Scotland for the purpose of putting the heir to an elec- tion; and upon the same principle, if by the law of Scotland no will could be read against the heir, it would follow that a will of land situated in Scotland ought not to be read in England to put the Scotch heir to an election. Doubting much the soundness of that principle, I am glad that thé case of Cunningham »v. Gay- ner! relieves me from the necessity of deciding the question; as, whichever law is applied to the decision of the present case, the result will be the same, &c. If the law of Scotland is resorted to, the case alluded to determines that the English will may be read against the Scotch heir for the purpose of putting him to an election.’ ? 489 a. Liability for Debts. — Other questions of a very difficult and embarrassing nature may arise, as to the nature and extent of the liability of the heirs to the payment of debts and other charges of the intestate, chargeable on his real estate, situate in different countries, where different rules prevail as to the nature and extent of the liability of the heirs in respect to such real estate, and the real estate descends to different persons and in a different manner in the respective countries. The question may respect the exclusive or primary applicability of one or more of the real estates to the discharge of such debts or other charges ; or the liability of the heirs in solido, or pro portione hereditaria ; or the right of the heirs or devisees of the real estates in one 11 Bligh, 27, note; Robertson on Successions, p. 219, 220. ? Brodie v. Barry, 2 V. & B. 127, 183; ante, s. 479a, note; Robertson on Successions, p. 217, 218. 688 CONFLICT OF LAWS. [s. 489 a-489 country to contribution or indemnity from the heirs or devisees of the real estate in another country; or the right of the credi- tors to proceed against them all in solido, or pro portione heredi- taria.! 489 b.. Rights of Creditors. — Many cases of this sort have been discussed by foreign jurists, and decided by foreign tribunals, Thus for example, where one part of the succession has been situ- ate in a country by whose laws the creditors are permitted to proceed against each heir in solido, and another part in the country of the domicil of the intestate, by whose laws the credi- tors are entitled to proceed against each heir pro portione heredi- taria; there has been no small diversity of judgment as to the rule which ought to be applied in favor of the creditors ; whether the rule of the law rei site, or of the law of the domicil, as to the nature and extent of the liability of the heirs.2_ Perhaps in such a case the right of the creditors against the heirs respectively may most properly be deemed to be governed by the lex rei site ; and the mode of proceeding against them be regulated by the law of the place where he seeks his‘temedy. If he seeks to enforce his rights in the place of the domicil of the intestate, he must recover against each heir pro portione hereditaria. If he seeks to en- force them in the other country, then the heirs are there liable to him in solido. But this opinion is far from having the assent of several distinguished jurists. They hold that the creditors are entitled to proceed against the heirs in either country, according to the law of the domicil of the intestate ; because it is there that they suppose the heirs to have contracted the debt to the credi- tors. Of this opinion are Paul de Castro, Christinzus, and Bou- hier, as well as the judges of several foreign tribunals.2 On the other hand, other jurists hold that in each country respectively the heirs contract with the creditors according to the law of the place where the succession is devolved upon and is assumed by 1 See 1 Boullenois, obs. 17, p. 277-288, where the subject is much discussed. Bouhier, Cout. de Bourg. c. 21, s. 218, 214, p. 416. 2 4 Burge, Col. & For. Law, pt. 2, c. 15, s. 4, p. 729-724, who cites seve- ral authorities upon the subject. Among them are Christin. tom. 1, Decis. 283, n. 15,16: J. Voet, 29, 2, n. 31; Merlin, Répert. tit. Dette, s. 4; 1 Boul- lenois, obs. 17, p. 278; Bouhier, Cout. de Bourg. c. 21, n. 213. 3 1 Boullenois, obs. 17, p. 277, 278; Bouhier, Cout. de Bourg. c. 31, n. 213, p. 416; Christin. tom. 1, Decis. 283, n. 15, 16, p. 353. See also J. Voet, ad Pand. 29, n. 31, 32, tom. 2, p. 376; Merlin, Répert. Dette, s. 4. CHAP, XII] SUCCESSION AND DISTRIBUTION. 689 the heir, that is, the lex rei site. Of this latter opinion are many distinguished jurists! Merlin inclines strongly to this latter opinion.? Boullenois leaves the question without any expression of his own views, saying that it is a point full of difficulty.® 489 c. Contribution between Heirs and Devisees. — A question of another sort may arise between the heirs or devisees of the deceased party, who as between themselves, in cases of succes- sions or wills of immovable property in different countries, go- verned by different laws, is ultimately to bear the debts of credi- tors or other charges for which such property is liable, and which some of the heirs have been compelled to pay. In such cases the question must first arise, which fund is primarily liable for the payment or discharge thereof inter sese; for it should seem that, as between themselves, the fund primarily liable should ulti- mately be held chargeable therewith in exoneration of all the other funds. If there is no such priority of liability, but all the funds are equally liable pari passu, then it should seem reasonable that each fund, wherever it is actually situate, should contribute pro rata, according to its value in the hands of each heir respec- tively, to the discharge of the common burden. If part of the funds are exempted from contribution, they should still possess that privilege, and the residue contribute. It will however be found difficult to affirm that foreign jurists and tribunals have given any uniform support to these doctrines.* 1 Bouhier, Cout. de Bourg. c. 21, n. 218, 214, p. 416. ° Merlin, Répert. Dette, s. 4. 3 1 Boullenois, obs. 17, p. 279. 4 Pothier appears to hold this doctrine. Pothier, des Successions, c. 5, s. 1, p. 2283, 4toed. He there cites a case of which Mr. Burge has given the sub- stance, as follows: ‘An inhabitant of Blois, where the coutume burdened the heir to the movable estate with all the movable debts, left in his succes- sion biens propres situated in Blois, and others situated in Orleans. The cou- tume of the latter place makes all the different heirs subject to all the debts. He left an heir to his movable estate, and another heir to his biens propres, situated in Orleans and Blois. In this case Pothier says that the heir to the biens propres must, conformably to the coutume of Orleans, where he had succeeded to that part of the succession, bear his part of all the debts of the Succession, even those which are movable, regard being had to the value which the real estate at. Orleans would bear to the whole succession. By this ap- portionment effect is given to the coutume of Orleans as well as to that of Blois, for the heir to the real estate contributes only to the debts in respect to that part of the estate which is situated in Orleans, and he does not contri- bute in respect of that part which is situated in Blois.’ 4 Burge, Col. & For. 44 690 CONFLICT OF LAWS. [s. 490, 491. 490. Interpretation of Wills. — Other illustrations of the diffi- culties attendant upon the administration of this branch of law are to be found in the application of local rules to the interpreta- tion of wills, whether arising from the lex domicilii or the lex rei site, as the case may regard movable property or immovable property. We have already had occasion to discuss this subject in another place. But it may not be without use to state one or two cases a little more fully than has been already done. A question of this sort was recently discussed in the House of Lords upon a will made in Virginia, by which the testator bequeathed to his sister, Mary Brown, ‘ the remaining one fourth share of the balance of his estate, at her death to be equally divided among her children, if she should have any.’ The question was, what estate Mary Brown took under the will, whether a life estate or an absolute property. And it appearing that the courts of Virginia had construed the bequest to give her an absolute estate, upon the footing of that decree, the House of Lords, Law, pt. 2, c. 15, s. 4, p. 724, 725. The same subject is discussed at’ large in 2 Froland, Mém. des Statut. c. 92, p. 1547-1573, and he cites several adjudi- cations, and among others one stated by Basnage, Coutume de Normand. tom. 2, art. 408, p. 141. See also 1 Boullenois, obs. 17, p. 284, who cites Mornae, Com. on Dig. 5, 1,50, 1, de Judiciis. Mr. Burge has expressed his own opi- nion in the following words: ‘ It may perhaps be stated as the correct rule that where an obligation or an exemption is annexed to the personal estate, but no similar obligation or exemption is annexed to the real estate, the lex loci do- micilii will prevail in whatever country the rights or liabilities of the heir become the subject of adjudication. But if similar obligations or exemptions are annexed to the personal and real estate by the respective laws to which the succession to these two species of property is subject, and the effect of adopt- ing the one law rather than ihe other would be to throw on the one estate a burden, or confer on it an exemption not annexed to it by the law of the country which governed the succession to it, it would be the more just and correct rule to adopt the lex loci rei site, rather than the lex loci domicilii. The case of Drummond and Drummond would seem to warrant the adoption of such a rule, nor is the decision in the Bishop of Metz’s succession at vari- ance with it. The lex domicilii had alone annexed to the personal estate an exclusive liability to pay the debts, and no such liability was annexed to the real estate by the lex loci rei sit. The only liability which was annexed to the real estate by that law was an obligation to contribute with the personal estate; but such a contribution could not take place, because the personal es- tate was subject to a law which made it exclusively applicable, and therefore the liability to contribute could only exist when the personal estate was subject to the same law as the real estate.’ 4 Burge, Col. & For. Law, pt. 1, ¢. 15, p. 782, 733. 1 Ante, s. 479 a-479 n. teeee CHAP. x11] SUCCESSION AND DISTRIBUTION. 691 deeming it a question of American law, established the same construction.} ; 491. In another case, the same principle was adopted; and the court laid down the rule that, in the construction of a will, the lex domicilii must govern, unless there is sufficient on its face to show a different intention in the testator. The facts were these. A lady, a native of Scotland, was domiciled in England. On a visit to Edinburgh, she made a will entirely in the Scotch form, and it was deposited with the writer at Edinburgh. She' had personalty in England only, and died in England. Scotland, then, was the domicilium originis et forum contractus; but on the other hand England was the forum domicilii and the locus rei site. The question was, whether by the legatee’s death in the lifetime of the testatrix the legacy lapsed according to the law of England, or survived to the legatee’s representatives ac- cording to the law of Scotland. The court decided that, being domiciled in England, it was to be presumed that she intended the law of England to be applied, and that there was not enough in the will to repel that presumption.” (a) 1 Gordon v. Brown, or Brown v. Brown, 8 Hagg. Ecc. 455, note; 4 Wils. & Shaw, 28; ante, s. 479c. 2 Anstruther v. Chalmer, 2 Sim. 1; 3 Hagg. Ecc. 455; Yates v. Thom- son, 8 Cl. & F. 544, 570; ante, s. 479c. (a) It has lately been decided in the English Court of Probate and Matrimonial Causes (Crispin v. Dogli- oni, 9 Jur. N.S. 653), affirmed in the House of Lords (L. R.1 H. L. 304; and see Partington v. Att’y-Gen., L. R. 4H. L. 104, 107; Enohin v. Wylie, 10 H. L. C. 1) that the right of succes- | sion to personal estate, and who is the person entitled, must be determined by the law of the place of domicil of the intestate; and that the decisions of the courts of that place are decisive upon these questions. Thus where one domiciled through life in Portu- gal, who died without ever having been married, leaving one natural son, left personal estate in England, it was held that, this son having in- stituted a suit in Portugal and ob- tained a decree by the Supreme Court of Lisbon, by which he was declared entitled to the whole movable and immovable property of the deceased father, the English courts would regard that decision, being made upon full hearing of all the parties interested, as conclusive of the right of succession to such personal estate in England. So where one deceased in Connecti- cut domiciled there, leaving a will duly executed according to the law of that state, where his principal property was, also left personal estate in New York, which rendered it necessary to take administration there; after the funds within the latter state had been collected, some of the legatees, who had come to reside in that state after the testator’s death, claimed that such funds should be there distributed, there being a difference of opinion be- 692 CONFLICT tween the surrogate there and the courts in Connecticut as to the con- struction of the will, —it was held by the Court of Appeals in New York that the surrogate should have remitted the funds in that state to the courts of Connecticut for distribution. Parsons v. Lyman, 20N. Y. 108. And in another case in the same que (Moultrie v. Hunt, 23 N. Y. 394) “it was held that whether a deceased person died intestate or not must be Wicteunined by the law of the place where he was domiciled at the time OF LAWS. [s. 491-494, of his death. That is the law which prescribes the requisites to the valid execution of a will of personal estate. Accordingly, where a citizen of South Carolina executed his will in such a manner as to create a valid bequest of personal estate by the law of that state, but not according to the law of New York, into which state he subse- quently removed and died, having his domicil in that state, it was held that he died intestate as to personal estate within that jurisdiction. CHAP. XIU.] FOREIGN GUARDIANSHIPS. 693 CHAPTER XIII. FOREIGN GUARDIANSHIPS AND ADMINISTRATIONS. 492. Subject of the Chapter.—The order of our subject next leads us to the consideration of the operation of foreign laws in relation to persons acting in autre droit, such as guardians, tutors, and curators, inter vivos, and executors and administra- tors, post mortem. 493. Guardians. — And first in relation to guardians. By the Roman law, guardianship was of two sorts (1) Tutela, (2) Cura. The first lasted in males until they arrived at fourteen years of age, and in females until they arrived at twelve years of age, which was called the age of puberty of the sexes respec- tively. From the time of puberty until they were twenty-five years of age, which was their full majority, they were deemed minors and subject to curatorship. During the first period of ‘tutelage their guardian was called tutor, and they were called pupils; during the second period their guardian was called cura- tor, and they were called minors.2, In England the guardian performs the offices both of a tutor and a curator under the Roman law.? In France the tutorship lasts until the full age of majority.‘ 494. Questions arising.—In treating of guardianship, two questions naturally arise: (1) Whether the authority of a guar- dian over the person of his ward is local, and confined to the - place of his domicil, or extends everywhere? (2) Whether the authority of the guardian over the property of his ward is local, or extends everywhere? 1 See 8 Burge, Col. & For. Law, pt. 2, ¢. 23, s. 5, p. 1001-1014. Be 2 1 Domat, Civil Law, b. 2, tit. 1, p. 260; Halifax, Analysis of Civil Law, ¢. 9, p. 15, 17, 18; 1 Brown, Civil Law, b. 1, c. 5, p. 129, 130. See also Exsk. Tast. b. 1, tit. 6, 8. 1, p. 128. eg 3 Halifax, Analysis of Civil Law, c. 9, p. 15, 17, 18; 1 Brown, Civil Law, b. 1, c. 5, p. 129, 180. 4 1Domat, Civil Law, b. 2, tit. 1, p. 261. 694 CONFLICT OF LAWS. [s. 495-498, 495. Authority over the Person.— Boullenois. —In regard to the first point (the authority of the guardian over the person of his ward), Boullenois mantains that the laws which regulate it are strictly personal; and therefore that the authority extends to the ward in foreign countries, as well as at home, and is of equal validity and right, according to the law of the domicil, in every other place. ‘Je mets,’ says he, ‘au nombre des statuts person- nels, ceux quimettent les enfants sous la puissance de leur pére, ot de leur tuteur.’! From this it would seem to follow that the tutor is to be recognized as fully entitled to assert any claims over the movable property of his ward, and to sue for the debts due to his ward in foreign countries, without having any confir- mation of the guardianship by the local authorities.? 496. Other Jurists. — Merlin expressly holds the same doctrine, asserting that the foreign guardian in such a case is competent to maintain any suit for the debts due to his ward in France and in the Netherlands, without any interposition of the local authori- ties to confirm the guardianship.’ ‘Il est,’ says he, ‘de prin- cipe, que les procurations revétues de la forme requise par la loi du lieu ot elles se passent, ont leur effet partout. Aussi ne s’est-on jamais avisé de prétendre que le tuteur nommé 4 un mineur, ou 4 un interdit, par le juge de son domicile, ne pat agir dans un pays étranger contre les débiteurs d’un ou de l'autre, qu’aprés avoir fait déclarer le jugement de sa nomination exécu- toire dans ce pays.’ 4 497. Vattel lays down a similar doctrine in more comprehen- sive terms. ‘It belongs,’ says he, ‘to the domestic judge to nominate tutors and guardians for minors and idiots. The law of nations, which has an eye to the common advantage and the good harmony of nations, requires therefore that such nomina- tion of a tutor or guardian be valid and acknowledged in all countries where the pupil may have any concerns.’® This is also the opinion of Huberus, as we have already, seen; ® and it is stoutly maintained by Hertius. After having stated the rule, 1 1 Boullenois, obs. 4, p. 51; Id. p. 68; ante, s. 57; 2 Boullenois, obs. 39, p. 820, 830. ? 3 Burge, Col. & For. Law, pt. 2, c. 23, s. 5, p. 1002, 1003. * Merlin, Répert. Absens, c. 3, art. 3, p. 87; Id. Faillité, 5. 2, n. 2, art. 9, 10, s. 2, p. 412, See also Id. ‘Autorisation Maritale, s. 10, art. 2; ante, s. 58, 54. 4 Merlin, pee Faillité, s. 2, n. 2, art. 10, p. 414; ante, s. 53, 54. 5 Vattel, b. 2, c¢. 9, s. 85. § Ante, s. 60. CHAP. XIII] FOREIGN GUARDIANSHIPS. 695 - he adds: ‘Ratio hujus regule est evidens. Persona enim subditi qua talis nemini alii est subjecta, quam summo imperanti, cui se submisit. Unde fit, ut leges, que persone qualitatem sive cha- racterem impuniunt comitari personam soleant, ubicunque etiam locorum versetur, tametsi in aliam civitatem migraverit, veluti si quis, magis infamis, vel prodigus declaretur.1 Hine tutor,’ says he,‘ datus in loco domicilii, etiam bona alibi sita administrat.’ He applies this rule however solely to personal rights and per- sonal incapacities, rights of property and power over movables. For in respect to immovables, he adds this important qualifica- tion: ‘ Quoniam ipsi patemur, si externa civitas circa bona im- mobilia aliquid directe disposuit, eam legem servari oportere.’? Stockmans holds a broader opinion. ‘ Tutor etiam pupilli a pre- tore auctoritatem et administrationem suam extra territoriam pre- toris, et in bona ubicunque locorum sita exercet.’? Indeed this same doctrine is commonly asserted by all those foreign jurists who give to personal laws an ubiquity of operation.+* 498. On the other hand there are jurists who maintain a differ- ent opinion. Paul Voet denies that laws respecting either per- 1 1 Hertii Opera, de Collis. Leg. s. 4, n. 8, p. 123, 124, ed. 1737; Id. p. 175; ed. 1716; ante, s. 51. 2 Thid. 8 Stockman. Decis. 125, n. 6, p. 262. Dumoulin is thought to hold the same opinion; but it may well be doubted if it admits of that interpretation. Post, s. 502 a; Molin. Opera, tom. 3, Com. ad Cod. 1, 1, 1, Conclus. de Stat. p. 556, ed. 1681. Matthzus, who has also been cited on the same side, cer- tainly does not hold the opinion. His language is: Sed etsi silentio suo quo- dammodo approbare videatur curatorem a judice domicilii datum, vix tamen est, ut curator illa preedia alibi sita proscribere ac vendere possit, sine speciali permissu ejus judicis, in cujus territoria sita sunt. Sic enim et tutor hodie a judice domicilii datur; nec tamen universorum negotiorum et bonorum admi- nistrationem consequitur, nisi cesset judex ejus territorii, in quo predia sita sunt. Mattheus, de Auctionibus, lib. 1, c. 7, n. 10, p. 39. See also 3 Burge, Col. & For. Law, pt. 2, c. 23, s. 5, p. 1002, 1008. He says: ‘ The appoint- ment of tutor or guardian, committees or curators, so far as it confers the care and custody of the person of the minor or lunatic, could not consistently with the principles of international jurisprudence be made by any other judi- cial tribunal but that of the country to which the minor or lunatic was by bis residence subject. According to the opinion of foreign jurists every judicial tribunal is bound to recognize this appointment. They consider that the law which places the minor or lunatic sub tutela or sub cura is a personal law, af- fecting the status of the person, and that the relation of tutor and ward which it has constituted continues to exist notwithstanding the persons may have resorted to any other country.’ 4 8 Burge, Col. & For. Law, pt. 2, c. 23, s. 5, p. 1004, 1005. ~ 696 CONFLICT OF LAWS. [s. 498-500. sons or property have, in the sense of the civil jurisprudence, any extra-territorial authority, and lays down, among others, the following rules: (1) That a personal statute does not affect the person beyond the territory of his domicil, so that he is not to be reputed such without the territory as he was within; (2) That a personal statute accompanies the person everywhere, in regard to property within the territory of the government where the person has his domicil, and to which he is subjected.1 He adds that he makes no distinction, in this respect, whether the statute be in rem or in personam ; or whether it purports to extend to property situate in a foreign territory or not, directly or indirectly ; for the same rule applies in each case. ‘ Quia nul- lum statutum, sive in rem, sive in personam, si de ratione juris civilis sermo instituatur sese extendit ultra statuentis territo- rium.’? He qualifies his doctrine however by admitting that mo- vables are always deemed to be in the place of the domicil of the party, and are therefore governed by the laws thereof? John Voet, as we have seen, maintainsa similar opinion in the broadest and most unqualified terms.* 499, English and American Opinions. —It would seem from Morrison’s Case® that the House of Lords deemed the authority _ of an English guardian sufficient to institute a suit for the per- sonal property of his ward in Scotland, upon the ground that the administration of his personal estate, granted by the usual au- thority where he resided, must be taken to be everywhere of equal force with a voluntary assignment by himself. The courts of Scotland had unequivocally decided the other way. Whether this decision has since been acted upon in England does not dis- tinctly appear.® It has certainly not received any sanction in America, in the states acting under the jurisprudence of the common law. The rights and powers of guardians are con- sidered as strictly local, and not as entitling them to exer- cise any authority over the person or personal property of their wards in other states, upon the same general reasoning and 1 P. Voet, de Stat. s. 4, c. 2, n. 6, p. 128, ed. 1716; Id. p. 187, ed. 1661. ? Id. n.7, p. 124, ed. 1716; Id. p. 188, ed. 1661; ante, 5. 51 6, 52. 8 Ante, s. 52, 877. 4 Ante,s. 54a. 5 Cited in4 T. R. 140, and 1 H. BI. 677, 682. ® See Beattie v. Johnstone, 1 Ph. 17; 10 Cl. & F. 42, where the point is ruled the other way. CHAP. XIIL] FOREIGN GUARDIANSHIPS, 697 policy which have circumscribed the rights and :thorities of executors and administrators.! (a) 500. Authority over Property. —In regard to the other point, whether guardians appointed in foreign countries have any au- thority over the property of their wards situate in other coun- tries, foreign jurists are generally, although not universally, of opinion ? in respect to movable property, that, since it is deemed to be in the domicil of the owner, the law of the domicil is to go- vern, and the rights and powers of the guardian, tutor, or curator over it ought to be admitted to prevail everywhere to the same extent as they are acknowledged by the law of the domicil.2 But in respect to immovable property, foreign jurists as generally, al- though not universally, maintain the doctrine (whatever may be 1 Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153; Kraft ». Wickey, 4 Gill & J. (Md.) 332. 2 See Muhlenbruch, Doctr. Pand. lib. 1, pt. 1, s. 72, p. 167, 168. 8 Ante, s. 495-498; 3 Burge, Col. & For. Law, pt. 2, c. 23,s. 5, p. 1010, 1611. (a) See Hoyt v. Sprague, 103 U.S. 631; Woodworth v. Spring, 4 Allen (Mass.) 324. But though a foreign guardian has no absolute rights as such in a foreign jurisdiction, the fact that he is such is entitled to great weight in the courts of another state, when called upon to determine, in their discretion, to whose custody a minor child shall be committed; and if it appears for the best interests of the child that he should be under the care and custody of a guardian ap- pointed in a foreign state, the court may so decree, even though another guardian has been appointed in the state where the minor subsequently is found. Woodworth v. Spring, 4 Allen (Mass.) 324. And see John- stone v. Beattie, 10 Cl. & F. 42, 113, 145; Stuart v. Moore, 4 Law Times, N.S. 882; 9 H. L. C. 463; 4 Mac- queen, 1. And the same principle was recently acted upon in England. Nugent ». Vetzera, L. R. 2 Eq. 704. _ Although in a prior case, where an in- fant was taken from America to Eng- land, where her property was situated, \ by a paternal aunt with whom she re- sided, both parents being dead, the Lord Chancellor refused to order her to be delivered to a maternal aunt, who had also been appointed her guar- dian in America: being of opinion that as the minor was also a British subject, though born in America, he had no authority to send her out of the realm. Dawson v. Jay, 3 D. M. &G. 764. See this case explained in Stu- art v. Bute,9 H. L. C. 440. Johns- tone v. Beattie, 10 Cl. & F. 42, was much criticised in the important case of the Bute Guardianship. Stuart v. Moore, 4 Macqueen, 1. And it was there declared that all that it decided was, that the status of guardian not being a status recognized by the law of England, unless constituted in that country, it was not a matter of course to appoint a foreign guardian to be the English guardian, but only a matter to be taken into consideration in that country. Upon the jurisdiction to appoint a guardian see In re Hub- bard, 82 N. Y. 90; Johnstone v. Beat- tie, 10 Cl. & F. 42. 698 CONFLICT OF LAWS. {s. 500-501. the rule as to movable property), that the rights and authority of guardians are circumscribed by the laws of the territory of their appointment, and do not extend to other countries where the immovable property is situated. In other words, the laws rei site are to govern; and a guardian in one country can claim nothing in another, except in the form and manner, and under the regulations, prescribed by the local law. Burgundus states the doctrine with great clearness. Speaking of the capacity and incapacity of minors, he says: ‘ Proinde confitendum est, si aliquid circa rem alterare minor velit, ut puta, alienandi vel hypothecandi facultatem exigere, ibi sane veniam impetrari debere, ubi bona sunt sita.! Nam et Constitutio Diocletiani in alienatione mani- feste requirit decretum presidis ejus provincie, in quo predium minoris est situm.’ He then adds: ‘Nec immerito Felinus scrip- sit, si facienda est dispensatio respectu rei, non ejus episcopi esse erit, cui persona subjecta est, sed ad eum spectare cui res sup- ponitur.’ He says that a different reason is given by others. ‘Cu- jus rei rationem alii tradunt quia per ejusmodi dispensationem alteratur, et reinstatur natura ipsius beneficia et non persona.’? He then states a qualification of the doctrine in cases where the venia etatis is obtained, saying: ‘ Ergo, e contra, si venia etatis in hoc duntaxat impetretur, ut actus personales minor celebrare et peragere possit, veluti bonorum suorum administrationem con- sequi, contractus et obligationes inire, sane hoc casu postulare debebit a judice domicilii, cui in personas plenum jus est attribu- tum.’® But whether it exists or not is immaterial, as Burgundus in another passage speaks directly on the present point. ‘ Unde fere obtinuit, ut judex domicilii, ubi et mobilia, rationesque et instrumenta reperiuntur, tutelam solus deferat. Sed non aliter universorum bonorum administrationem consequitur, quam si su- persedente judice situs, solus ille constituatur.’4 This however is a qualification by no means generally conceded or admissible. 500 a. Foreign Jurists. — We have already seen that Hertius and Matthzus and Paul Voet and John Voet hold the opinion that the guardian has not, by virtue of his appointment in the place of the domicil of his ward, any rights or authorities over the immovable property of his ward in a foreign country.’ Paul 1 Burgundus, tract. 1, n. 12, p. 23, 2 Thid. n. 13. 8 Ibid. n. 14, p. 24; 1 Boullenois, obs. 9,p. 150; Id. obs. 6, p. 129. 4 Burgundus, tract. 2, n. 18, p. 69. 5 Ante, s. 497, 498. ‘ CHAP. XIII] FOREIGN GUARDIANSHIPS. 699 Voet in another place adds: ‘ Verum a contractibus proprie sic dictis, me conferam ad quasi contractus, et quidem tutele vel curatele. Ubi sequentia examinanda. Quid si pupillo dandus sit tutor, illene dabit, ubi pupillus domicilium habet, an ubi bona pu- pilli immobilia sita sunt? Respondeo; Quamvis regulariter ab illo magistratu detur tutor, ubi pupillus domicilium habet, ubi pa- rentes habitarunt; etiam qui dat tutorem, eum primario persone, non rei dedisse, censeatur ; adeoque is, qui simpliciter datus est, ad res omnes etiam in diversis provinciis sitas, datus intelliga- tur; Id quod plerumque jure Romano obtinebat, quo diversarum provinciarum magistratus, uni suberant imperatori. Ne tamen videatur judex domicilii quid extra territorium fecisse, non praeju- dicabit judici loci, ubi nonnulla pupillaria bona sita, quin et tuto- rem pupillo ratione illorum bonorum, scilicet immobilium, ibidem recte dederit. Unde etiam si de prediis minorum alienandis con- tentio ; si quidem in alia sita sint Provincia, tutius egerit tutor, quidatus est in loco domicilii, si decretum ab utroque judice curet interponi, et domicilii, pupilli, et rei sitew.’! Even those jurists who contend that permission ought to be given by the local judge to such a guardian to administer such foreign immovable pro- perty, at the same time concede that, without such permission, the guardian cannot exercise any rights or authorities over it. John Voet says: ‘Non autem in loco originis vel situs rerum pu- pillarium, sed tantum in loco domicilii pupillaris tutores a loci illius camera pupillari aut magistratu creari, moris est; qui hoc ipso dati intelliguntur universo pupilli patrimonio, ubicunque ex- istenti. Quod tamen ex comitate magis, quam juris rigore sus- tinetur; cum in casu, quo pupillus immobilia habet sita in eo loco, qui non subest eidem magistratui supremo, cui pupillus sub- est ratione domicilii, magistratus loci, in quo sita immobilia, re- bus in suo territorio existentibus peculiarem posset tutorem dare.’ 8 501. Boullenois, after stating that in France the principal ob- ject of guardianship is not so much the custody of the person, as 1 P, Voet, de Statut. s. 9,c. 2, n. 17; Id. n. 19, p. 270, 271, ed. 1715; Id. p- 829-881, ed. 1661. 2 3 Burge, Col. & For. Law, pt. 2, c. 23, p. 1004-1007. 8 J. Voet, ad Pand. 26, 5, s. 5, tom. 2, p. 188; Id. 1,4, pt. 2,8. 8, 7, tom. 1, p. 89, 40. See also other foreign jurists cited, 3 Burge, Col. & For. Law, c. 28, p. 1005-1007. 700 CONFLICT OF LAWS. [s. 501-504, of property, adds that it has in view the administration and di- rection of property (biens), and that the rights which it grants are all real rights. ‘La garde consiste, ou en droits de propriété, ou en droits d’usufruit ; et il n’y a rien ‘de plus réel, que ces sor- tes de droits. Par conséquent elle ne peut étre régie, que par la loi de la situation. C’est cette loi, qui donne, ou ne donne pas; qui appelle certaines personnes, ou qui ne les appelle pas. De 14 il semble qu’il, faudroit nécessairement en conclure que chaque coutume qui admet la garde, et ot il y a des biens, a seule le droit de déférer la garde, & qui bon lui semble ; et qu'il n’y a que ceux, 4 qui elle la défére, qui puissent étre gardiens, quelque dom- icile d’ailleurs, qu’aient ceux qui tombent en garde et ceux qui sont appelés 4 la garde.’1_ He admits that there are jurists who assert the contrary.” 502. Hertius, as we have seen, asserts the same doctrine as to immovable property.? Froland arrays himself on the side of those who assert the reality of the laws which respect guardian- ship, distinguishing however as to the quality of persons enti- tled, the right of possessing the property, and the formalities ac- companying it.4 502 a. Dumoulin holds the opinion that the lex rei site is to govern in all such cases, and explains himself with unusual ful- ness on the point. ‘Aut statutum agit in personam, et tunc non includit exteros, sive habiliter, sive inhabiliter personam, unde si statuto hujus urbis cavetur, quod contractus facti per minorem 25 annis non valeant sine consensu suorum propinquorum, et au- thoritate judicis, non intelligitur, nisi de subditis sue jurisdictioni per text. 1. 1, in fin. ff. de curat. et tutor. dat ab his. Unde minor dicti loci non poterit etiam extra locum preedia, in eo territorio sita, locare sine dicta solemnitate: Sed bene extra locum predia alibi sita. Quia in quantum agit in personam, restringitur ad suos subditos ; et in quantum agit in res, restringitur ad sitas in- tra suum territorium. Exterus autem minor annis poterit etiam de sitis intra locum dicti statuti etiam inter locum illum disponere: 1 2 Boullenois, obs. 29, p. 320-822, 339, 340; 3 Burge, Col. & For. Law, pt. 2, c. 23; p. 1001, 1002. 2 Ibid. ® Ante, s. 497; 1 Hertii Opera, de Collis. Leg. 4, n. 8, p. 123, 124, ed. 1737; Id. p. 175, ed. 1716. 41 Froland, Mém. c. 16, p. 717, 749, 750, 752. CHAP. XIII] FOREIGN GUARDIANSHIPS. 701 Quamvis is, qui datus est tutor vel curator a suo competenti ju- dice, sit inhabilitatus propter tutelam, et curam ubique locorum pro bonis ubicumque sitis. Quia non est in vim statuti solius, sed in vim juris communis, et per passivam interpretationem le- gis, que locum habet ubique.’! Everhardus holds the same opin- ion. ‘Ubi ratione diversarum jurisdictionum et territoriorum diversi judices dant tutores, et unus non intromittat se de terri- torio alterius; semper enim inspicienda est consuetudo loci, ubi res sunt site, maxime quoad immobilia.’ 2 508. Scotch Law. — Lord Kames lays down the Scottish déc- trine to be, that it is of no importance in what place curators of minors are chosen ; and accordingly a choice made in England of curators, whether English or Scotch, will be held effectual in Scotland. He admits that the powers of a guardian of a lunatic in England are limited, extending only to his person, and not to his estate ; or rather, that different guardians are, or may be, appointed by the Court of Chancery foreach. But the authority of any guardian or curator, however appointed, in a foreign country, is not understood by him to extend to any real estate in Scotland.’ 504. Common Law.— Immovables.— There is no question whatsoever, that according to the doctrine of common law, the rights of foreign guardians are not admitted over immovable property situate in other countries. Those rights are deemed to be strictly territorial, and are not recognized as having any influence upon such property in other countries, whose systems of jurisprudence embrace. different regulations, and require dif- ferent duties and arrangements. No one has ever supposed that a guardian, appointed in any one state of this Union, had any right to receive the profits, or to assume the possession, of the real estate, of his ward in any other state, without having received a due appointment from the proper tribu- nals of the state where it is situate. The case falls within the well-known principle that rights to real property can 1 Molin. Opera, tom. 3, ad Cod. 1, 1,1, Conclus. de Statut. p. 556, ed. 1681; ante, 8. 497, note. See also Rodenburg, de Divers, Statut. tit. 2, c. 5, n. 16; 2 Boullenois, Appx. p. 47-51. * Everhard. Consil. 185, n. 3, p. 406. 3 2 Kames, Eq. b. 3, c. 8, 8. 1, p. $25; Id. s. 4, p. 348. 4 See 3 Burge, Col. & For. Law, pt. 2, c. 28, s. 5, p. 1009-1011. 702 CONFLICT OF LAWS. [s. 504-5065. be acquired, changed, and lost only according to the law rei site. (a) 504 a. Movables.— The same rule is applied by the common law to movable property, and has been fully recognized both in England and in America. No foreign guardian can virtute offi- cii exercise any rights or powers or functions over the movable property of his ward which is situated in a different state or country from that in which he has obtained his letters of guar- dianship. (6) But he must obtain new letters of guardianship from the local tribunals, authorized to grant the same, before he can exercise any rights, powers, or functions over the same. Few decisions upon the point are to be found in the English or American authorities, probably because the principle has always been taken to be unquestionable, founded upon the close analogy of the case of foreign executors and administrators.? (¢) 505. Change of the Ward’s Domicil.— Whether a guardian has authority to change the domicil of his ward from one country to another, seeing that it may have a most important operation as to the succession to his movable property in case of his death, is a matter which has been much discussed. In favor of the affirmative there are some distinguished foreign jurists, among whom we may enumerate Bynkershoek, Bretonnier, Rodenburg, and John Voet. Bynkershoek says: ‘Posse tutorem pupilli sui domicilium mutare, perinde ut potest parens superstes, nescio quisquam serio dubitaverit, si successionis legitime causa non versetur; nam si hee versetur, multa disputatio est. Sed an hec quoque valebunt, si superstes parens vel tutor domicilium 1 Ante, s. 424; 3 Burge, Col. & For. Law, pt. 2, c. 23, s. 5, p. 1005, 1006, 1009, 1010. ? 8 Burge, Col. & For. Law, pt. 2,c¢. 23, s. 5, p. 1011; Id. p- 1010; ante, 8. 499; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153; Kraft v. Wickey, 4 Gill & J. (Md.) 382, 340, 841; 4 Cowen, 529, note; post, s. 512, 513. But Mr. Chancellor Walworth seems to have thought otherwise in McNamara v. Dwyer, 7 Paige (N. Y.) 239, 241. (a) But see McClelland v. McClel- land, 7 Baxter (Tenn.) 210; Hick- man v. Dudley, 2 Lea (Tenn.) 875. (6) But see Ross v. Southwestern R. Co., 53 Ga. 514. (c) Under what circumstances a foreign guardian may be preferred over one of the forum, see the suggestion in In re Rice, 42 Mich. 528, where a habeas corpus was applied for by the foreign guardian and_ refused. See also Townsend v. Kendall, 4 Minn. 412; Douglas ». Caldwell, 6 Jones Eq. (N. C.) 20; Nugent v. Vetzera, L. R. 2 Eq. 704. CHAP. XL] FOREIGN GUARDIANSHIPS. 703 minoris transferat, ut ejus intestati mortui alia sit successio quam ante fuit?’ He proceeds then to discuss the question, and comes to the conclusion that he may. ‘Sic puto. Scio impu- berem, vel minorem proprio marte non recte domicilium suum mutare ; sed quid ni non posset, qui eum representat, et quid ni non posset cum omni effectu, nisi qua lex sit, que impediat?’! Rodenburg says ; ‘ Queramus et illud quod frequentioris est in- eursionis; Hollandus major viginti, minor viginti quinque annis transfert domicilium Ultrajectum, ubi vigesimo anno tutela vel cura finitur. Quid dicemus preventurum illum suam in tutelam ? Respondi ex facto consultus minori hodie constituendi domicilii, facultatem non esse, tutori esse; qui ut contrahere, ita et domi- cilium potest constituere, quod collocetur illud per contractum, de quo mox latius. Proinde in proposita mihi specie, cum ma- ter, que tutrix esset, mutato a morte viri domicilio, Ultrajectum concessisset, ibique infans adolevisset : dixi ex Ultrajectinis legi- bus estimandos perfecte etatis annos ; dummodo fraus absit, aut prejudicium tertii, extra quod vix est ut non dixeris tutori, max- ime matri locum ad habitandum, pupillumque educandun, ele- gendi jus esse, illudque ipsum dubii veriti Batavi jurisconsulti tutori agnato auctores fuerunt, ut stipularetur a matre illa, cum cogitaret ex Hollandia concedere Trajectum, ne ea res infantis adspectu ullo modo domicilii mutationem induceret ; quamquam fateor, si quid hoc ad rem pertinet, posita hac sententia, in potes- tate tutoris fore, tutela semet ocius exuere, nisi tum potius super fraude querendum foret.’2 John Voet says: ‘ Plane, si etiam- num minorennis sit, patre vel matre vidua domicilium mutante, filium etiam videri mutasse, si et ipse translatus sit, nec ex prioris sed novi domicilii, a patre matreve recenter constituti, jure censeri in dubio debere, rationis est. Utut enim haud difficulter admittendum sit, minorennem non magis posse domi- cilium mutare, quam contrahendo se obligare: tamen quemad- modum contrahere auctore tutore permissum ei est, ita et domicilium cum patre matreve, tanquam tutele ejus aut saltem educationi preposita, tutoribus czteris non contradicentibus, mutare nihil vetat: nisi ex circumstantiis manifestum esset, talem domicilii pupillaris translationem in fraudem proximo- 1 Bynkers. Quest. Privat. Juris. lib. 1, c. 16, p. 174-186, ed. 1744. 2 Rodenburg, de Diy. Stat. tit. 2, c. 1, s. 6; 2 Boullenois, Appx. p. 57, 58. 704 CONFLICT OF LAWS. [s. 505-505 8, rum, spem successionis ex prioris domicilii lege habentium; factam esse.’? 505 a. Bynkershoek thinks it impracticable to make any such exception of cases of fraud from the intrinsic difficulty of ascer- taining what circumstances shall constitute evidence of a fraudu- lent change of domicil.2. Burgundus seems to hold with Bartolus, that the domicil of the guardian is also the domicil of the minor. ‘Pupilli ipsi sibi constituere domicilium non possunt. Barto- lus autem ibi sensit habere domicilium, ubi cum tutoribus, sive aliter habitaverint. Quz sententia ita demum mihi vera videtur, nisi in academiam studiorum causa, vel alio profecti, remanendi animo ibi non steterint. Qui veniam etatis impetravit, et pro- prie negotiationi commodisque subservit, ipse sibi minor domi- cilium instruere potest. Uxor ibi censetur habere domicilium, ubi maritus habitat. Legitima tori separatione facta, ipsa sibi domicilium instruet.’® 505 6. Boullenois has spoken with so little clearness and pre- cision on this subject, that it is not very easy to say, with entire exactness, what is his opinion. From the best examination which I have been able to make of his various discussions of this subject in his different works, he seems to have thought: (1) That the law of the actual domicil of the parents of a minor constituted the rule to regulate the succession to the minor, if he died during his minority, although it was not the domicil of his birth, but was acquired by his parents afterwards. (2) That the like rule did not apply to the case of a minor under tutelage; and that his guardian could not by a change of domicil change the succession to the property of the minor. (38) That hence if a minor, follow- ing the change of domicil of his parents, should die, his movable estate would be governed by the law of succession of the new domicil, if there was no fraud in the removal. (4) But that there was no reason why a minor might not-be reputed domiciled in the domicil of his guardian, so far as the law of that domicil would confer on him particular faculties or privileges; and that therefore, if the law of the domicil of the guardian would give him the power of making a testament of his movables, he might make one conformable to that law ; for it is but just that in such 1 J. Voet, ad Pand. 5, 1, s. 100, tom. 1, p. 347. 2 Bynkers. Quest. Jur. Priv. lib. 1, c. 16, p. 182, 188, ed. 1744. - 5 Burgundus, tract. 2, n. 34, p. 80, 81. CHAP. XIII.] FOREIGN GUARDIANSHIPS. 705 a case, a person domiciled there, even although a minor, should be held subject to the real laws, or laws in rem, of the place where he is domiciled without fraud.} 1 Boullenois, Dissert. sur Quest. de la Contrar. des Lois, Quest. 2, p, 59- 62; 2 Boullenois, obs. 32, p. 49-53. It may not be unacceptable to give some extracts from Boullenois in this place. He saysin his Dissertations: En effet, ily aplusieurs raisons, pour lesquelles le dernier domicile du pére doit régler, la succession mobiliaire du fils, lorsqu’il décéde en minorité. La premitre est, que le fils mineur tombant sous la puissance d’autrui, on n’a pas voulu qu’il put dépendre d’un tuteur de changer l’ordre de succéder au mineur en lui faisant changer de domicile; en sorte qu’on n’a pas cru qu’un tuteur dut avoir la liberté de donner ou d’dter aux héritiers présomptifs. La seconde est, qu’un mineur 4 raison de sa minorité est toujours présumé grevé et chargé de fidéi- commis envers les héritiers de celui de qui il a recu les biens qui doivent com- poser sa succession, et un tuteur ne doit pas avoir le pouvoir de déroger & cette espece de fidéi-commis. Again he says: Sur le changement de domicile d’un mineur en ce qui touche ses biens, il semble qu’il y auroit quelque considération dfaire. Il paroitroit assez convenable que Ja succession d’un mineur au dessus de la pleine puberté fut réglée par le domicile de ses pere et mére. Que dés qu’il est pourvu par mariage, il puisse se choisir tel domicile que bon lui sem- blera, et que sa succession mobiliaire soit régie par ce domicile. Que le fils mineur en suivant le domicile du pére, ou de la mére survivante, sa succes- sion mobiliaire soit pareillement assujettie aux loix de ce nouveau domicile, pourvu que d’ailleurs il n’y ait point de fraude: Que peut faire de mieux un mineur que de continuer de vivre sous l’éducation de celui de ses pére et mére que Dieu lui a conservé, et dés qu’il y a prudence et justice dans cette conduite, ce nouveau domicile devient une demeure juste et légitime pour le mineur, dont la succession mobiliaire doit suivre le sort. Que le fils mineur qui fait trafic de marchandises et qui pour ce, s’est choisi un domicile soit pareillement en ce qui touche ses biens mobiliers, assujetti & Ja loi du lieu qui a été le centre de sa fortune, et cela paroit indispensable quand le bien du mineur est un bien d’in- dustrie. Il n’y a pas @inconvénient qu’un mineur soit réputé domicili¢é au do- micile de son tuteur, quant aux facultez particulitres que la loi de ce domicile peut lui donner ; c’est pourquoi si par la Joi du domicile de son tuteur il a fa- culté de tester deses meubles il pourra tester conformément a cette loi. Il est juste dans ce cas qu’un domicilié, méme mineur, subisse les loix pures réelles du liew'ot il est domicilié sans fraude. Mais quant a son état de majeur, ou de mineur on ne scauroit le faire dépendre que de la loi de son origine, par les raisons qui ont été cy-devant alléguées. Boullenois, Diss. de la Contrar. des Lois, quest. 2, p. 59,61, 62. In his larger Treatise, he says: Au surplus, ce que nous disons ici pour le cas de Ja succession mobiliaire ab intestat, doit-il avoir lieu pour le cas d’un testament? Sil s’agissoit, par exemple, de savoir si le mineur incapable de tester par la loi de son domicile de droit, le pourroit en vertu de la loi de son domicile de fait. L’auteur des Observations sur Henrys, observe loco citato, que si des enfants mineurs sont mises sous la tutelle d’un Lyonnois, ils pourront faire un testament, lorsqu’ils seront parvenus a la pu- berté, parce que les mineurs suivent, & cet égard, le domicile de leur tuteur. Tl dit qu’il ’a ainsi décidé en consultation avec M. Severt, pour le testament du Servieres, fait 4 lage de dix-huit ans. Son pére s’étoit marié et établi a Paris: aprés son déces et celui de sa femme, ses enfants, qui étoient en bas age, fu- 465 706 CONFLICT OF LAWS. [s. 505 6. 505 ec. On the other hand, Mornac, Christinzeus, Bouhier, and Pothier maintain the opinion, in unequivocal terms, that the do- micil of a minor, so far as it regards his succession to his estate, cannot be changed by his guardian. Mornac says: ‘ Quesitum est, mortuo impubere, de cujus bonis mobilibus agitur, quod spec- tari debeat illius domicilium, utrum patris et matris, an tutoris, apud quem defunctus est; atque id, quia locus domicilii paren- tum, et locus domicilii tutoris contrarias, quoad successiones mo- bilium, diversasque consuetudines ferant. Videbatur nonnullis constituendum domicilium in edibus tutoris, ut qui patrem refer- rent mis sous la tutelle, de Charles Groflier, leur oncle paternel; domicilié en Lyonnois. Le sieur Servieres fils avant que de. partir pour l’armée, ou il fut tué, fit son testament au profit d’une de ses sceurs: il fut contesté par une autre sceur, et la décision fut pour le testament. M. le P. Bouhier, c. 21, n. 4, n’adopte pas cette décision, et j’avoue qu’elle n’est pas sans difficulté. En effet, puisque la loi détermine le domicile du mineur, par le domicile du pére, je parle, d’un mineur non établi, pourquoi luidonner deux domiciles, l'un pour régler sa succession mobiliaire, et l’autre pour régler sa capacité personnelle de tester? I] n’y a, comme nous venons de le dire, que le domicile de la personne qui puisse rendre capable celui qui est inca- pable ; et puisque le domicile du mineur est fixé au domicile du pére, com- ment celui de fait, qu’il peut avoir partout ailleurs, peut-il affecter sa per- sonne, préférablement % son domicile de droit qui est nécessairement, selon la loi, son vrai domicile ? D’ailleurs un testament apporte toujours un change- ment dans la succession légale du testateur, et la loi du domicile de droit qu’a le mineur, ne lui permet pas de disposer de ses biens, et de changer rien dans sa succession. Mais pour le soutien de la décision de MM. Severt et Breton- nier, deux savants consultants, ne peut-on pas répondre que le mineur est dans son devoir, quand il demeure avec son tuteur qui est chargé de son éducation, qu’il y demeure nécessairement et sans fraude? A la bonne heure que le do- micile de son pére régle sa succession ab intestat; c’est intérét des héritiers qui la voulu ainsi, et c’est pour cela qu’il retient le domicile de son pére. Mais si le mariage, si l’6émancipation permettent & un mineur de changer de do- micile, comme en convient M. Bouhier lui-méme, et que dans ce cas, le mineur puisse tester conformément & Ja loi du domicile qu’il s’est choisi, pourquoi ne * veut-on pas pareille chose dans le cas ot le mineur passe, par nécessité, et sans fraude, dans le domicile de son tuteur ? II est vrai que dans le cas du mariage et de l’émancipation, la succession mobiliaire de ce mineur se réglera par la loi de son domicile de choix, et que je n’en dirai pas de méme par rapport & un mineur qui n’est ni marié niémancipé; mais ce que je ne dirai pas pour le cas de la succession ab intestat, parce qu’il y a une jurisprudence formée A cet égard, je puis le dire pour le cas du testament, parce que la loi n’a rien décidé 14-dessus, et qu’il semble juste de laisser’ un mineur, que la mort prévient, une capacité que lui donne la loi of il demeure, actuellement, sans fraude. Néanmoins le premier avis me paroit le meilleur; un mineur hors le domicile de son pére, avec son tuteur, habite avec lui; mais il n’est pas proprement do- micilié avec lui; il séjourne en attendant sa majorité; c’est un plaideur qui attend 1A que le temps lui fasse gagner son procés. 2 Boullenois, obs. 32, p. 51- -53; ante, s. 44, note 2, p. 44. CHAP. XIII] FOREIGN GUARDIANSHIPS. 707 \ tet. Preevaluit vero eorum sententia, qui domicilium minoris presertim eo casu in loco originis, id est, in edibus paternis ac maternis collocandum dicerent. Cum enim domicilium quatuor modis contrahi soleat, natura, ac origine, item voluntate, ac con- cilio, deinde conventione, aut ex necessitate muneris. Solum ex his naturale domicilium minori superest, locus scilicet, in quo ipse creverit, parentesque defecerint ; absurdumque aliud fuerit affin- gere minori in ceteris, quod ipse per etatem non habeat illigendi nempe domicilii consilium. Imo et prestaretur ansa interdum tutoribus fraudandi veros mobilium minoris intereuntis heredes transferentibus scilicet domicilium in loca, quibus successura sibi viderent ex patriis meribus, intereunte valetudinario minore de- sideria.’1 Christinzeus adopts the very language of Mornac on this subject.2, Bouhier is equally direct and positive ; holding that the minor retains the domicil of his parents, and that it can- not be changed by his guardian. He says that the inviolable rule of the law in Burgundy is, that the domicil of minors, in re- spect to the succession to their property, cannot be changed by their guardians during their minority; and he reasons out the doctrine at large. Pothier takes a distinction between the change of the domicil of a parent and the change of domicil of a guar- dian; and holds that in the former case, if a change is made without fraud, the minor follows the domicil of his parents and of the survivor. But in the case of a guardian no such effect follows ; for the minor is no part of the family of the guardian, but is like a stranger there, and only for a time (ad tempus).* 1 Mornacci, obs. ad Cod. lib. 3, tit. 20, tom. 3, p. 558, ed. 1721. 2 Christin. Decis. 176, tom. 2, p. 204. 8 Bouhier, Cout. de Bourg. c. 21, s. 3, p. 883; Id. c. 23, s. 160-167, p. 441, 452. ’ 4 Pothier, Coutume d’Orléans, Introd. n. 17. He uses there the following language: ‘Il nous suffit de dire, que les mineurs ne composent pas la famille de leur tuteur, comme les enfans composent la famille de leur pére: ils sont dans la maison de leur tuteur comme dans une maison étrangeré; ils y sont ad tempus, pour le temps que doit durer Ja tutelle; par conséquent le domicile de leur tuteur n’est pas leur vrai domicile, et ils ne peuvent étre cénsés en avoir autre que le domicile paternel, jusqu’s ce qu’ils soient devenus en age de sen établir un eux-mémes par leur propre choix, et qu’ils aient effectivement établi. Tln’en est pas de méme de la mére: la puissance paternélle étant, dans notre droit, différent en cela du droit romain, commune au pere et & la mére, la mére, aprés la mort de son mari, succede aux droits et & la qualité de chef de la famille, qu’avoit son mari vis-a-vis de leurs enfans: son domicile, quelque part qu’elle juge de la transférer sans fraude, doit donc étre celui de 708 CONFLICT OF LAWS. [s. 506, 506. Change of Domicil of Minors. —The same question has occurred in England; and it was on that occasion held that a guardian may change the domicil of his ward, so as to affect the right of succession, if it is done bona fide and without fraud.1 (a) In that case the father, a native of England, died intestate, domi- ciled in Guernsey, leaving a widow, and infant children by her, and also by a former wife. The widow, after his death, was ap- pointed guardian of her own children, and, in conjunction with the guardian of the children of the first marriage, sold their es- tate in Guernsey, and invested the amount in the English funds, and afterwards removed to England with the children. On the death of some of the children under age, the question arose, whether their shares were distributable by the law of England, or by that of Guernsey ; and it was decided by the Master of the Rolls, Sir William Grant, that it was to be by the law of Eng- land. On that occasion the learned judge said: ‘ Here the ques- tion is, whether, after the death of the father, children remain- ing under the care of the mother follow the domicil which she may acquire, or retain that which their father had at his death, until they are capable of gaining one by acts of theirown. The weight of authority is certainly in favor of the former proposition. It has the sanction both of Voet and Bynkershoek; the former however qualifying it by a condition that the domicil shall not have been changed for the fraudulent purpose of obtaining an advantage by altering the rule of succession. Pothier, whose au- ses enfans, jusqu’s ce qu’ils aient pu s’en choisir un, qui leur soit propre. I] y auroit fraude, s’il ne paroissoit aucune raison de sa translation de domicile, que celle de se procurer des advantages dans les successions mobiliaires d2 ses enfans. Les enfans suivent le domicile que leur mére s’établit sans fraude, lorsque ce domicile lui est propre, et que, demeurant en viduité, elle conserve la qualité de chef de famille; mais lorsqu’elle se remarie, quoiqu’elle acquiére Je domicile de son second mari en la famille duquel elle passe, ce domicile de son second mari ne sera pas celui de ses enfans, qui ne passent pas comme elle en la famille de leur beau-pére; C’est pourquoi ils sont censés continuer d’avoir leur domicile au lieu ot Vavoit leur mere avant que de se remarier, comme ils séroient censés le conserver, si elle étoit morte.’ ae aon v. Wightman, 3 Mer. 67; Robertson on Personal Succession, (a) It should be observed that in the father’s death. 8 Mer. 67; John- this case it was the mother that was stone v. Beattie, 10 Cl. & F. 42, 188; held to have the power to change the ante, s. 46, note. domicil of her minor children after CHAP. XIIL] FOREIGN GUARDIANSHIPS, 709 thority is equal to that of either, maintains the proposition as ‘thus qualified. There is an introductory chapter to his treatise on the Custom of Orleans, in which he considers several points that are common to all the customs of France, and, among others, the law of domicil. He holds, in opposition to the opinion of some jurists, that a tutor cannot change the domicil of his pupil; but he considers it as clear that the domicil of the surviving mother is also the domicil of the children, provided it be not with a fraudulent view to their succession that she shifts the place of her abode. And he says that such fraud would be pre- sumed if no reasonable motive could be assigned for the change. There never was a case in which there could be less suspicion of fraud than the present. The father and mother were both natives of England. They had no long residence in Guernsey ; and, after the father’s death, there was an end of the only tie which con- nected the family with that island. That the mother should re- turn to this country, and bring her children with her, was so much a matter of course, that the fact of her doing so can excite no suspicion of an improper motive. I think therefore the mas- ter has rightly found the deceased children to have been domi- ciled in England. It is consequently by the law of this country that the succession to their personal property must be regulated.’ } 1 Potinger v. Wightman, 3 Mer. 79, 80. Mr. Burge on this subject re- marks: ‘The domicil of choice being that which the person himself estab- lishes, it can only be acquired by him who is sui juris. It cannot therefore be acquired by a lunatic or minor. The domicil of the father, or of the mother, being a widow, is that of the child, and a change by either of those parents of their former domicil would necessarily operate as a change of the child’s domicil. It is however only during the mother’s widowhood that she could change the domicil of herinfant. The domicil which she acquired on her second marriage would not become that of the infant; but his domicil would continue to be that which the mother possessed previously to her second mar- riage. The power which the parent thus possesses of changing the domicil of his child is assimilated to that which the guardian of an infant possesses of binding him by contracts entered into by him on behalf of the infant. But this power it is said must be exercised by the parent bona fide. If he changed the domicil of the child, who was sick, with no other apparent object than that of removing him from a place in which, according to the law of succession there prevailing, the parent-would not succeed to the child’s estate, to another place which admitted the parent to such succession, the removal would be deemed a fraud on the rights of those who would have succeeded if no such Temoval had taken place, and would not be allowed to prevail. But if the health of the child was such as to afford no expectation of his death, or if there Was any reasonable motive for the removal, or indeed if the child had at- 710 CONFLICT OF LAWS. [s. 506-509. This doctrine has also been recognized as the true doctrine in America.! 507. Executors and Administrators. — Secondly, in relation to executors and administrators. According to the Roman law, which made no distinction in this respect between movable and immovable property, the title ‘ heir’ was indiscriminately applied to every person who was called to the succession, whether he was so called by the act of the party or by operation of law. Thus the person who was created universal successor by a will was called the testamentary heir (heres factus),and the next of kin by blood, in cases of intestacy, was called the heir at law (heres na- tus) or heir by intestacy. The heir, whether consisting of one or more persons, and whether testamentary or by intestacy, was en- titled by succession to all the estate of the deceased, whether it was real or personal; and he was chargeable with all the burdens and debts due from him.2 But inasmuch as the succession in tained an age when, by the law of the place of his domicil, he had the power of making a testament, in which latter case there could be no ground for presum- ing any interested motive on the part of the parent in changing his domicil, the removal could not be impeached.’ 1 Burge, Col. & For. Law, pt. 1, c. 2, p. 38, 89. Notwithstanding this weight of authority, which however with one ex- ception is applied solely to the case of parents or a surviving parent, there is much reason to question the principle on which the decision is founded, when it is obviously connected with a change of succession to the property of. the child. In the case of a change of domicil by a mere guardian, not being a parent, it is extremely difficult to find any reasonable principle on which it can be maintained that he can, by any change of domicil, change the right of suc- cession to the minor’s property. The reasoning of Bynkershoek upon the point is very unsatisfactory, while that of Mornac, Bouhier, and Pothier has solid reason and justice to sustain it. See Robertson on Succession, p. 196- 208. . 3 Guier v. O’Daniel, 1 Binn. (Pa.) 349, note; Cutts v. Haskins, 9 Mass. 543; Holyoke v. Haskins, 5 Pick. (Mass.) 20. 2 1 Domat, b. 1, tit. 1, p. 557; Id.s. 1, n. 1, 2, p. 558. Domat says that in France, in the provinces which are governed by the testamentary law, and not by the Roman law (Droit écrit), the title of heirs is given only to the heirs by blood, or heirs at law, and that the testamentary heirs are called universal legataries. But this distinction is merely nominal, and the same rules are applied to the universal legataries as to the heirs by blood. 1 Domat, b. 1, tit. 1, p. 557, 558. Erskine, in his Institutes, b. 2, tit. 2, s. 8, p. 192, says that in Scotland ‘ Heritable subjects are those immovables which on the death ot the proprietor descend to the heir; and movables, those which go to the ex- ecutors, who are on that account sometimes styled heredes in mobilibus. It may be also observed that those who undertake to gather in and distribute among such as are interested in the succession the movable estate of a person deceased, in virtue of a nomination, either by the testator, or by the judge, CHAP. XIII] FOREIGN ADMINISTRATIONS. 711 either case might be onerous, as well as profitable, the law al- lowed the heir, whether he were so by testament or by intestacy, to renounce the inheritance if he pleased ; or he might accept it with the benefit of an inventory, the effect of which was to ex- onerate the heir from any further liability than the amount of the assets or property inventoried.1 These explanations are im- portant in order fully to understand the reasonings of foreign ju- rists, and to apply them to the present subject ; for the civil-law distinctions every where pervade the jurisprudence of continental Europe. 508. Heirs by the Roman Law.— It will be at once seen that the executor under the common law in many respects corresponds with the testamentary heir of the civil law, and that the adminis- trator in many respects corresponds with the heir by intestacy. The principal distinction between them which is here important to be considered is, that executors and administrators have no right except to the personal estate of the deceased; whereas the Roman heir was entitled to administer both the real estate and personal estate ; and all the assets were treated as of the same nature, without any distinction of equitable assets or of legal assets.” 509. Immovables. — From what has already been said, the heir, whether testamentary or by intestacy, of immovable property, can take only according to the lex loci rei; or, in other words, he is not admissible as heir, so as to administer the estate in any foreign country, unless he is duly qualified according to the principles, tules, and forms of the local law.? In this respect he does not differ, either in regard to rights or to responsibilities, from an heir or devisee chargeable at the common law or by statute with the bond.debts of his ancestor or testator. It is for the same reason that a power to sell immovable property, given to an executor, cannot be executed, unless upon due probate of the will in the place where the property is situate, and showing that it may be frequently get the name of executors, because it is their office to execute the last will of the deceased.’ See id. b. 3, tit. 9,8. 1, 2, 26. 1 1 Domat, b. 1, tit. 1, 8.4, n. 8, 4, p. 598. 2 1 Brown, Civil & Adm. Law, s. 344, note. ® See 2 Kames, Eq. b. 3, c. 8, 8. 3, p. 332; Vattel, b. 2, c. 8, s. 109-111; 1 Boullenois, obs. 17, p. 242; Id. Prin. Gén. 87, p. 9; Lewis v. McFarland, 9 Cranch, 151. 712 CONFLICT OF LAWS. [s. 509-513, lawfully done by the lex loci rei sitz.1_ And if the party claims, not under a power, but as a devisee, in trust to sell it for the payment of debts, it is also necessary to have a like probate of the will. But it is not necessary in the latter case to take out letters of administration, although the devise be in trust to the party by the description of executor; for in such case he takes as devisee and not as executor, and his title is under the will, and not under the letters testamentary. 510, Movables. — But in regard to movable estate a like rule does not necessarily prevail in foreign countries governed by a ju- risprudence which is drawn from or modelled upon the civil law; for movables being treated as having no situs, and to be governed by the law of the domicil of the testator or intestate, the title of the heir, taking its effect directly from that law, is, or at least may consistently be, held to carry the right to such property, wherever it may be locally situated in the same manner as the title would or might pass by an assignment by the owner by an act inter vivos.® 511.. Scotch Law. — Lord Kames seems to take a distinction between the case of a testamentary heir and that of an heir by intestacy, asserting that the nomination of an executor (heres de mobilibus, or heres fiduciarius*) by the testator in his testa- ment, as to his movables, is effectual all the world over, jure gen- tium, and will be sustained in Scotland; whereas letters of administration in a foreign country are strictly territorial, and when granted in a foreign country are not recognized in Scotland unless they are confirmed there by a proper judicial proceed- ing® It may be so; but Erskine lays it down as clear law, that in Scotland neither executors nor administrators, foreign or do- mestic, are entitled to administer the estate of the deceased, until they have been duly confirmed by the competent judge. What perhaps Lord Kames meant to say was, that the title of executor was a good title, jure gentium, and when it was estab- lished in the manner and by the process prescribed by the law of 1 Wills v. Cowper, 2 Hamm. (Ohio) 124. 2 Lewis v. McFarland, 9 Cranch, 151. 8 2 Kames, Eq. b. 3, c. 8, 8. 4. 4 Ersk. Inst. b. 8, tit. 9, s. 2, 26. 5 2 Kames, Eq. b. 3, c. 8, s. 3; Id. s. 4, p. 347, 348. = is Ersk. Inst. b. 1, tit. 9, 8. 27, 29. See Robertson on Succession, p. 263- CHAP. XII] FOREIGN ADMINISTRATIONS. 713 the place where it was sought to be exercised, it ought to be held of universal obligation. And so it probably is in all civilized na- tions, except such (if any such there now are), as adopt the Droit d’aubaine, and confiscate the movable property of all foreigners dying, and leaving such property within their territories. 512. Title of Hxecutors and Administrators, —In regard to the title of executors and administrators, derived from a grant of ad- ministration in the country of the domicil of the deceased, it is to be considered that that title cannot de jure extend, as a mat- ter of right, beyond the territory of the government which grants it, and the movable property therein. (a) As to movable pro- perty situated in foreign countries, the title, if acknowledged at all, is acknowledged ex comitate; and of course it is subject to be controlled or modified, as every nation may think proper, with reference to its own institutions, and its own policy, and the rights of its own subjects. (6) And here the rule to which reference has been so often made applies with great strength, that no nation is under any obligation to enforce foreign laws prejudicial to its own rights, or to those of its own subjects. Per- sons domiciled and dying in one country are often deeply in- debted to foreign creditors living in other countries, where there are personal assets of the deceased. In such cases it would be a great hardship upon such creditors to allow the original execu- tor or administrator to withdraw those funds from the foreign country without the payment of such debts, and thus to leave the creditors to seek their remedy in the domicil of the original ex- ecutor or administrator, and perhaps there to meet with obstruc- tions and inequalities in the enforcement of their own rights from the peculiarities of the local law. 518. Suits by and against them. — It has hence become a gen- eral doctrine of the common law, recognized both in England and America, that no suit can be brought or maintained by any 864; McNamara v. McNamara, 62 Ga. (a) See Moore v, Field, 42 Penn. St. 472; Dial v. Gary, 14 S. C. 578; Sheldon v. Rice, 30 Mich. 296; Ca- banne v. Skinker, 56 Mo. 357; Apper- son v. Bolton, 29 Ark. 418. So of foreign receivers. City Ins. Co. v. Commercial Bank, 68 Ill. 348; Ruth- erford v. Clark, 4 Bush (Ky.) 27; Suc- cession of De Roffignac, 21 La. An. 200. (6) An executor, duly qualified in England, of the estate of one domi- ciled abroad, may sell leasehold pro- perty in England like an ordinary English executor, though he could not do so in the country of the executor. Hood v. Barrington, L. R. 6 Eq. 218. [s. 513, 714 CONFLICT OF LAWS. executor or administrator, or against any executor or administra- tor, in his official capacity, in the courts of any other country ex- cept that from which he derives his authority to act in virtue of the probate and letters testamentary, or the letters of adminis- tration there granted to him.1(a) But if he desires to maintain any suit in any foreign country, he must obtain new letters of administration, and give new security according to the general rules of law prescribed in that country, before the suit is brought.? (6) 1 Bond v. Graham, 1 Hare, 482. 2 Preston v. Melville, 8 Cl. & F. 1,12; Whyte v. Rose, 3 Q. B. 498, 507; Spratt v. Harris, 4 Hagg. Ecc. 405; Price v. Dewhurst, 4 My. & Cr. 76. The authorities to this point are now exceedingly numerous and entirely conclusive. (a) See Silver v. Stein, 21 L. J. Ch. 312; 9 Eng. L. and Eq. 216; Vermilya v. Beatty, 6 Barb. 431; Smith v. Webb, 1 Barb. 231; Swearingen v. Morris, 14 Ohio St. 429; Bell ». Nichols, 38 Ala. 678; Gilman v. Gilman, 54 Me. 453; Beatty v. Mason, 30 Md. 409; Bald- win’s Appeal, 81 Penn. St. 441; Sher- man v. Page, 85 N. Y. 123; Freeman’s Appeal, 68 Penn. St. 151; Magraw »v. Irwin, 87 Penn. St. 189; Vickery v. Beir, 16 Mich. 50; In re Ames, 52 Mo. 290; Hedenbergv. Hedenberg, 46 Conn. 30 (explaining Marcy v. Marcy, 32 Conn. 308); Burbank v. Payne, 17 La. An. 15; Wright v. Gilbert, 51 Md. 146; Barton v. Higgins, 41 Md. 589; Fogle uv. Schaeffer, 23 Minn. 304; Klein v. French, 57 Miss, 662; Jefferson v. Glover, 46 Miss. 510; Riley v. Mose. ley, 44 Miss. 37; Carr v. Lowe, 7 Heisk. 84; Simpson v. Foster, 46 Tex, 618; Davis v. Phillips, 32 Tex. 566; Clopton v. Booker, 27 Ark. 482; Hat- chett v. Berney, 65 Ala. 89. But see Bell v. Nichols, 38 Ala. 678; Manly v. Turnipseed, 37 Ala. 522; Johnson v. Jackson, 56 Ga. 326. An important principle laid down in Newton v. Bronson, 18 N. Y. 587, should however be noticed here. It was there declared that the authority of an executor was not conferred by the Probate Court, but by the will. He is donee of a power, and though he must qualify as executor, still, when he has performed that condition, he acts, in conveying property, as devisee of a power created by the testator; and hence he may, if the will authorize, convey lands in another state. See also Conklin v. Egerton, 21 Wend. 430, 436. It should be noticed that the change of domicil of an administrator or exe- cutor to another state annuls his offi- cial authority within the state of his appointment. Whittaker v. Wright, 85 Ark. 511. Of course the courts of one state cannot remove an executor or admin- istrator of another. Tillman v. Walk- up, 7 8. C. 60. (b) See Gilman v. Gilman, 54 Me. 453; Beatty v. Mason, 30 Md. 409; Succession of Butler, 30 La. An. 887; Sloan v. Frothingham, 65 Ala. 593; Williams v. Jones, 14 Bush (Ky.) 418; Lawrence v. Lawrence, 3 Barb. Ch. 71; Noonan v. Bradley, 9 Wall. 394; Mackey v. Coxe, 18 How. 100; Par- sons v. Lyman, 20 N. Y. 103; Newton v. Bronson, 18 N. Y. 587; Conner v. Paul, 12 Bush (Ky.) 144. But see Crawford v. Graves, 15 La. An. 243; Brownlee v. Lockwood, 20 N. J. Eq. a Bowman v. Carr, 5 Lea (Tenn.) 571. CHAP. xu] FOREIGN ADMINISTRATIONS. 715 So, on the other’ hand, if a creditor wishes a suit to be brought in any foreign country, in order to reach the effects of a deceased testator or intestate, situated therein, it will be necessary that let- ters of administration should be there taken out in due form ac- eording to the local law, before the suit can be maintained ; for the executor or administrator appointed in another country is not su- able there, and has no positive right to or authority over those assets, neither is he responsible therefor. The right of a foreign executor or administrator to take out such new administration is See Lee v. Moore, Palmer, 163; Tourton v. Flower, 3 P. Wms. 369, 370; Thorne v. Watkins, 2 Ves. 85; Attorney-General v. Cockerell, 1 Price, 179; Burn v. Cole, Ambl. 416; Lowe v. Farlie, 2 Madd. 101; 1 Hagg. Ecc. 93, 239; Mitford’s Eq. Pl. 177 (4th ed.); Fenwick v. Sears, 1 Cranch, 259; Dixon v. Ramsay, 8 Cranch, 819, 323; Kerr v. Moon, 9 Wheat. 565; Armstrong v. Lear, 12 Wheat. 169; Thompson v. Wilson, 2 N. H. 291; Dickinson v. Mc- Craw, 4 Rand. (Va.) 158; Glenn v. Smith, 2 Gill & J. (Md.) 493; Stearns v. Burnham, 5 Greenl. (Me.) 261; Goodwin v. Jones, 8 Mass. 514; Borden v. Borden, 5 Mass. 67; Gaylord v. Stevens, 11 Mass. 256; Langdon v. Potter, 11 Mass. 318; Dangerfield v. Thruston, 8 Mart. N.S. (La.) 232; Riley v. Riley, 8 Day (Conn.) 74; Champlin v. Tilley, id. 303; Trecothick v. Austin, 4 Mason, 16, 32; Ex parte Picquet, 5 Pick. (Mass.) 65; Holmes v. Remsen, 20 Johns. (N. Y.) 229, 265; Smith v. Union Bank, 5 Pet. 518; Campbell v. Tou- sey, 7 Cowen (N. Y.) 64; Logan v. Fairlie, 2 Sim. & Stu. 285; Atty ». Bouwens, 4 M. & W. 171, 192, 193; Tyler v. Bell, 1 Keen, 826, 829; 2 My. & Cr. 89, 109. On this occasion Lord Cottenham said: ‘ That an estate can- not be administered in the absence of a personal representative, and that such personal representative must obtain his right to represent the estate from the ecclesiastical court in this country, has, I believe, never before been doubted. The cases of Tourton v. Flower, 3 P. Wms. 369; Atkins v. Smith, 2 Atk. 63; Swift v. Swift, 1 Ball & B. 326; Attorney-General v. Cockerell, 1 Price, 165; Lowe »v. Farlie, 2 Madd. 101; Logan v. Fairlie, 2 Sim. & Stu. 284, all proceed upon this, that the courts in this country, for the security of property, will not administer the property of a person deceased in the absence of a person au: thorized to represent the estate; and that they look only to the judgment of the ecclesiastical courts in this country, in granting probate or letters of admin- istration, to ascertain who are so authorized; and it is immaterial what eccle- siastical court in this country has granted probate or letters of administration, “provided thestate of the property was such as to give it jurisdiction.’ But see Anderson ». Caunter, 2 My. & K. 763, which seems not a sound authority. Lord Cottenham, in Tyler v. Bell, 2 My. & Cr. 110, manifestly disapproved of it. 8 Burge, Col. & For. Law, pt. 2, ¢. 28, s. 5, p. 1010-1012. Mr. Chancel- lor Walworth, in McNamara v. Dwyer, 7 Paige (N. Y.) 239, 241, held that, although a foreign administrator could not sue, he might be sued in another state for an account of the assets received under the foreign administration. Can such a distinction be maintained? The Supreme Court of the United States, in Vaughan v. Northup, 15 Pet. 1, decided against it. S. P.Bond e. Graham, 1 Hare, 482 ; Price v. Dewhurst, 4 My. & Cr. 76, 80. See Preston v. Melville, 8 Cl. & F. 12, 14. [s. 513, 513.4, 716 CONFLICT OF LAWS, usually admitted as a matter of course, unless some special reason intervene to vary or control it (a) and the new administration is treated as merely ancillary or auxiliary to the original foreign ad- ministration, so far as regards the collection of the effects and the proper distribution of them.1(0) Still however the new admi- nistration is made subservient to the rights of creditors, legatees, and distributees, who are resident within the country where it is granted, (c) and the residuum is ‘transmissible to the foreign country only when a final account has been settled in the proper tribunal where the new administration is granted, upon the equi- table principles adopted by its own law in the application and distribution of the assets found there.? (d) 1 Harvey v. Richards, 1 Mason, 381; Stevens v. Gaylord, 11 Mass. 256; Case of Miller’s Estate, 3 Rawle (Penn.) 312. 2 Preston v. Melville, 8 Cl. & F. 12, 14. See Harvey v. Richards, 1 Mason, 881; Dawes v. Boylston, 9 Mass. 887; Boston v. Boylston, 2 Mass. 384; Rich- ards v. Dutch, 8 Mass. 506; Dawes v. Head, 3 Pick. (Mass.) 128; Hooker v. Olmstead, 6 Pick. (Mass.) 481; Davis v. Estey, 8 Piek. (Mass.) 475; Jennison v. Hapgood, 10 Pick. (Mass.) 77; Stevens v. Gaylord, 11 Mass. 256; Case of Miller’s Estate, 3 Rawle (Pa.) 312; Gravillon v. Richards, 13 La. 293. Many .. complicated questions may grow out of original and ancillary administrations, some of which have been stated in the cases of Harvey v. Richards, 1 Mason, 881, and Dawes v. Head, 3 Pick. (Mass.) 128. The following extract from the opinion of Mr.'Chief Justice Parker in the latter case deserves an attentive perusal. The question there arose, how assets under an ancillary administra- (a) See Williams v. Jones, 14 Bush (Ky.)418; Woodruff v Schultz, 49 Iowa, 430; Goodman v. Winter, 64 Ala. 410. (6) But see Carr v. Lowe, 7 Heisk. (Tenn.) 84; Carroll v. McPike, 58 Miss. 569. (c) ‘If.a citizen of another country dies indebted to citizens of this coun- try, and owns personal property here, we appropriate it to the payment of creditors in the order prescribed by our law, and not that of the domi- cil.’ Carson v. Oates, 64 N. C. 115; Moye v. May, 8 Ired. (N. C.) Eq. 131. See also Fellows v. Lewis, 65 Ala. 343. (d) See Succession of Cordeviolle, 24 La. An. 319; Barry’s Appeal, 88 Penn. St. 131; Fretwell v. McLemore, 52 Ala. 124; Moses v. Hart, 25 Gratt. (Va.) 795; Wright v. Phillips, 56 Ala. 69; Miner v. Austin, 45 Iowa, 221; Findley v. Gidney, 75 N. C. 395; Par- ker’s Appeal, 61 Penn. St. 478. Though the same person conducts both the principal and the ancillary adminis- tration, he will not be liable on his ancillary administration bond for pro- ceeds of land sold in the foreign state, though the money is brought into the state of the forum. State v. Osborn, 71 Mo. 86. The court of the State of ancillary administration may in its own discretion make distribution to those who, by the law of the decedent’s domicil, are entitled. Partee v. Kort- recht, 54 Miss. 66. A note given to a man to secure a debt in the state of his domicil be- longs on his death to his representa- tive there, and not to another repre- sentative of the estate in a foreign jurisdiction where the decedent may have happened to die. Mcllvoy ». Alsop, 45 Miss. 365. CHAP. XIIL] FOREIGN ADMINISTRATIONS. 717 518 a. English Administration. — In England ‘it is well esta- blished that, in the case of a British subject dying intestate in tion were to be disposed of in cases of insolvency, and of debts due to credi- tors belonging to the same country as the deceased debtor. The Chief Justice, after disposing of these particulars, said: ‘Thus this action is determined without touching the questions upon which it was supposed it would turn, which are of a novel and delicate nature, and, though often glanced at, do not appear to have been decided, either in this or any other state of the Union. We wish to avoid anything which may be construed into a conclusive adjudi- eation, and yet are of opinion that it will be useful to throw out for considera- tion the results of our reasonings upon this subject. If the technical diffi- culties upon which this cause has been decided had not occurred, but the estate had been rendered insolvent here, and a decree of distribution for a pro- portion had been issued, or if the debt of Lenox and Sheafe had been ascer- tained by a judgment, and the pleadings to a suit on the bond had been the same in that case as now, the question would be, whether the funds col- lected here by an ancillary administration should be appropriated to the payment of such debts as might be regularly proved here, notwithstanding it was made to appear that the whole estate was insufficient to pay all the debts, and that the effects here were wanted by the executor abroad to enable him duly to administer the estate. It has been contended that this should be done, because the administrator has given bond here in the same manner as if this were the original administration, and because the statute which authorizes this administration requires that the judge of probate shall set- tle the estate in the same way and manner as he would if the original will had been proved here. With respect to the bond, it ,will be saved by a faithful administration of the estate according to law; and with re- spect to the settlement by the judge of probate, this must be understood to authorize him to requiré the administrator to account, and that the due course of proceedings in the probate office shall be observed. It certainly cannot be construed to mean that in all cases a final settlement of the estate shall take place here; if it did, then if there were no debts here, and none to claim as legatees or next of kin, it would be necessary for all such to prove their right and receive their distributive shares here, notwithstanding the settlement must in such case be made according to the laws of the country where the de- ceased had his domicil. But we think in such case it would be very clear that the assets collected here should be remitted to the foreign executor or admin- istrator; for it seems to be a well-settled principle that the distribution is to be made according to the laws of the country where the deceased was domi- ciled; and if any part is to be retained for distribution here, it will be only by virtue of some exception to this general rule, or because the parties inter- ested seek their remedy here; in which case it might be within the legal dis-° cretion of the court here to cause distribution, or to remit, according to the circumstances and condition of the estate. An exception to the general rule grows out of the duty of every government and its courts to protect its own citizens in the enjoyment of their property and the recovery of their debts, so far as this may be done without violating the equal rights of creditors living in a foreign country. In relation to the effects found within our jurisdiction and collected by the aid of our Jaws, a regard to the rights and interests of our citizens requires that those effects should be made answerable for debts due 718 CONFLICT OF LAWS. [s. 513 a. ‘the colonies or in foreign countries, a prerogative administration extends to all the personal property of the intestate, wherever to them, in a just proportion to the whole estate of the deceased, and all the claims upon it, whatever they may be. In the several cases which have come before this court, where the legal character and effects of an ancillary admin- istration have been considered, the intimations have been strong that the ad- ministrator here shall be held to pay the debts due to our citizens. The cases, Richards v. Dutch, Dawes v. Boylston, Selectmen of Boston v. Boylston, and Stevens v. Gaylord, are of this character. In all these cases however we must suppose the court had reference to a solvent estate, and in such case there seems to be no question of the correctness of the principle; for it would be but an idle show of courtesy to order the proceeds of an estate to be sent to a foreign coun- try, the province of Bengal for instance, and oblige our citizens to go or send there for their debts, when no possible prejudice could arise to the estate or those interested in it, by causing them to be paid here ; and possibly the same remark may be applicable to legacies payable to legatees living here, unless the circum- stances of the estate should require the funds to be sent abroad. Whether citi- zens of other states, claiming payment of their debts of the administrator here, are to be put upon the same footing with citizens of Massachusetts, by virtue of the privileges and immunities secured to them by the constitution of the United States, is a point which we do not now decide. But without doubt the courts of the United States, having full equity powers, would enforce payment upon the principles above stated, where there is no suggestion of insolvency of the estate. There would be no doubt, we think, that payment of debts by the administrator here, after sufficient proof that they were due, and an allowance of his account therefor by the Probate Court with proper notice, would be faithful administration according to the condition of his bond, and would be a proper way of accounting to the principal administrator abroad. In regard to effects thus collected within our jurisdiction, belonging to an insolvent estate of a deceased person having his domicil abroad, the question may be more difficult. We cannot think however that in any civilized country advantage ought to be taken of the accidental circumstance of property being found within its territory, which may be reduced to possession by the aid of its courts and laws, to sequester the whole for the use of its own subjects or citizens, where it shall be known that all the estate and effects of the deceased are insufficient to pay his just debts. Such a doctrine would be derogatory to the character of any government. Under the English bankrupt system, foreigners as well as subjects may prove their debts, and share in the distribution. Without doubt, in other foreign countries, where there is a cessio bonorum, or other process relating to bankrupt estates, the same just principle is adopted. It was so under our bankrupt law, while that was in force, and no reason can be sug- gested why so honest and just a principle should not be applied in the case of insolvent estates of deceased persons. It is always practised upon in regard to persons dying within our jurisdiction, having had their domicil here; that is, creditors of all countries have the same rights as our own citizens to file their ciaims and share in the distribution. There cannot be then a right in any one or more of our citizens, who may happen to be creditors, to seize the whole of the effects which may be found here, or claim an appropriation of them to the payment of their debts, in exclusion of foreign creditors. It is said this is no more than what may be done by virtue of our attachment law, in regard CHAP. XU] FOREIGN ADMINISTRATIONS, 719 situate at the time of his death, whether in Great Britain, or in the colonies, or in any country abroad ; and, indeed, from the late case to the property of a living debtor who is insolvent. But the justness of that law is very questionable, and its application ought not to be extended to cases, by analogy, which do not come within its express provisions. What then is to be done with the effects collected here belonging to an insolvent. estate in a foreign country ? Shall they be sent home in order to be appropriated accord- ing to the laws of that country? This would often work great injustice, and always great inconvenience, to our own citizens, whose debts might not be large enough to bear the expense of proving and collecting them abroad; and in countries where there is no provision for an equal distribution, the pursuit of them might be wholly fruitless; as in Great Britain, our citizens, whose debts would generally be upon simple contract, such as bills of exchange, pro- missory notes, accounts, &c., would be postponed to creditors by judgment, bond, &c., and even to other debts upon simple contract which might be pre- ferred by the executor or administrator. It would seem too great a stretch of courtesy to require the effects to be sent home, and our citizens to pursue them under such disadvantages. What then shall be done to avoid, on the one hand, the injustice of taking the whole funds for the use of our citizens to the preju- dice of foreigners, when the estate is insolvent, and, on the other, the equal injustice and greater inconvenience of compelling our own citizens to seek satisfaction of their debts in distant countries ? The proper course would un- doubtedly be to retain the funds here for a pro rata distribution, according to the laws of our state, among the citizens thereof, having regard to all the assets, either in the hands of the principal administrator, or of the administta- tor here, and having regard also to the whole of the debts which by the laws of either country are payable out of those assets, disregarding any fanciful pre- ference which may be given to one species of debt over another, considering the funds here as applicable to the payment of the just proportion due to our own citizens; and if there be any residue, it should be remitted to the principal administrator, to be dealt with according to the laws of his own country, the subjects of that country, if there be any injustice or inequality in the payment or distribution, being bound to submit to its laws. The only objection which can be made to this mode of adjusting an ancillary administration upon an in- solvent estate is the difficulty and delay of executing it. The difficulty would not be greater than in settling many other complicated affairs, where many persons have interests of different kinds in the same funds. The powers of a court of chancery are competent to embrace and settle all cases of that nature, even if the powers of the Court of Probate are not sufficiently extensive; which however is not certain. The administrator here should be held to show the condition of the estate abroad, the amount of property subject to debts, and the amount of debts, and a distribution could be made upon perfectly fair and equitable principles. The delay would undoubtedly be considerable, but this would not be so great an evil as either sending our citizens abroad upon a for- lorn hope to seek for the fragments of an insolvent estate, or paying the whole of their debts out of the property without regard to the claims of foreign credi- tors. And if the Probate Court has not sufficient power to make such an equitable adjustment, a bill in equity, in which the administrator here should be the principal respondent, would probably produce the desired result, and then time and opportunity could be given to make known the whole condition 720 CONFLICT OF LAWS. [s. 513 a, of Scarth v. Bishop of London, it appears that, where the intestate dies abroad, not having goods in divers dioceses in England, but of the estate, and all persons interested might be heard before any final decree; in the mean time the administrator could be restrained from remitting the funds until such decree should be passed.” Dawes v. Head, 3 Pick. (Mass.) 143-148. The following extracts are made from the opinion of the court in Harvey v, Richards: ‘One objection urged against the exercise of the authority of the court is, that, as national comity requires the distribution of the property ac- cording to the law of the domicil, the same comity requires that the distribu- tion should be made in the same place. This consequence, however, is not admitted; and it has no necessary connection with the preceding proposition. The rule that distribution shall be according to the law of the domicil of the deceased is not founded merely upon the notion that movables have no situs, and therefore follow the person of the proprietor, even interpreting that maxim in its true sense, that personal property is subject to that law which governs the person of the owner. Nor is it perhaps founded upon the presumed inten- tion of the deceased that all his property should be distributed according to the law of the place of his domicil, with which he is supposed to be best acquainted and satisfied ; for the rule will prevail even against the express in- tention of the deceased, unless the mode in which that intention is expressed would give it legal validity asa will. It seems indeed to have had its origin in a more enlarged policy, founded upon the general convenience and necessities of mankind; and in this view the maxim above stated flows from, rather than guides, the application of that policy. The only reason why any nation gives ‘effect to foreign laws within its own territory is the endless embarrassment which would otherwise be introduced in its own intercourse with foreign nations. The rights of its own citizens would be materially impaired, and in many in- stances totally extinguished, by a refusal to recognize and sustain the doctrines of foreign law. ‘The case now under consideration is an illustration of the per- fect justice and wisdom of this general practice of nations. A person may have movable property and debts in various countries, each of which may have a different system of succession. If the law rei site were generally to prevail, it would be utterly impossible for any such person to know in what manner his property would be distributed at his death, not only from the uncertainty of its situation from its own transitory nature, but from the impracticability of knowing with minute accuracy the law of succession of every country in which it might then happen to be. He would be under the same embarrassment if he attempted to dispose of his property by a testament; for he could never fore- see where it would be at his death. Nay, more, it would be in the power of his debtor, by a mere change of his own domicil, to destroy the best digested will; and the accident of a moment might destroy all the anxious provisions of an excellent parent for his whole family. Nor is this all. The nation itself to which the deceased belonged might be seriously affected by the loss of his wealth from a momentary absence, although his true home was in the centre of its own territory. These are great and serious evils, pervading every class of the community, and equally affecting every civilized nation. But ina marti- time nation, depending upon its commerce for its glory and its revenue, the mischief would be incalculable. The common and spontaneous consent of nations, therefore, established this rule from the noblest policy, the promotion CHAP. XuI.] FOREIGN ADMINISTRATIONS. 721 only in the diocese of London, administration granted to such intestate by the Consistory Court of the Bishop of London will be of general convenience and happiness, and the avoiding of distressing difficul- ties equally subversive of the public safety and private enterprise of all. It flowed from the same spirit that dictated judicial obedience to the foreign com- missions of the admiralty. Sub mutuz vicissitudinis obtentu, damus peti- ' musque vicissim, is the language of the civilized world on this subject. There can be no pretence that the same general inconvenience or embarrassment attends the distribution of foreign effects according to the foreign law by the tribunals of the country where they are situate. Cases have been already stated in which great inconvenience would attend the establishment of any rule ex- cluding such distribution. It may be admitted also that there are cases in which it would be highly convenient to decline the jurisdiction and remit the parties to the forum domicilii. Where there are no creditors here, and no heirs or legatees here, but all are resident abroad, there can be no doubt that a court of equity would direct the remittance of the property upon the applica- tion of any competent party. The correct result of these considerations upon principle would seem to be, that whether the court here ought to decree distri- bution or remit the property abroad is a matter not of jurisdiction, but of judi- cial discretion, depending upon the particular circumstances of each case; that there ought to be no universal rule upon this subject; but that every nation is bound to lend the aid of its own tribunals for the purpose of enforcing the tights of all persons having a title to the fund, when such interference will not be productive of injustice or inconvenience, or conflicting equities. It is further objected that a rule which is to depend for its application upon the particular circumstances of each case is too uncertain to be considered a safe guide for general practice. But this objection affords no solid ground for declining the jurisdiction, since there is an infiuite variety of cases in which no general rule has been or can be laid down, as to legal or equitable relief in the ordinary con- troversies before judicial tribunals. In many of these the difficulty is intrinsic in the subject-matter; and where a general rule cannot easily be extracted, each case must, and indeed ought, to rest on its own particular circumstances. The uncertainty, therefore, is neither more nor less than belongs to many other complicated transactions of human life, where the law administers relief ex equo et bono. Another objection, addressed more pointedly to a class of cases like the present, is the difficulty of settling the accounts of the estate, ascer- taining the assets, what debts are sperate, what desperate; and finally ascer- taining what is the residue to be distributed, and who are the next of kin entitled to share. And to add to our embarrassment, we are told that we can- not compel the foreign executor to render any accounts in our courts. I agree at once that this cannot be done if he is not here; but I utterly deny that the administrator here cannot be compelled to account to any competent court for all the assets which he has received under the authority of our laws. And if the foreign executor chooses to lie by, and refuses to render any account of the foreign funds in his hands so far as to enable the court here to ascertain whether the funds are wanted abroad for the payment of debts or legacies or . hot, he has no right to complain if the court refuses to remit the assets, and ' distributes them among those who may legally claim them. And as to settling the estate, or ascertaining who are the distributees, there is no more difficulty than often falls to our lot in many cases arising under the ordinary probate 46 722 CONFLICT OF LAWS. [s. 513 a, 514, equally effectual.’ ! How far this doctrine is intended to be carried is not perhaps very clearly defined ; and certainly, if carried fully out, it may materially impair the general doctrine as to the ne- cessity of local administrations, as well as trench upon the rights of foreign creditors and foreign governments. Is it meant to be said that, if personal property is in a foreign country at the death of the intestate, it may be removed from thence, and administered under a prerogative administration in England, or administered in England without such a removal, and in either case be obligatory upon the foreign government, and pass a perfect title to the property ? 514. Administrator collecting Assets abroad. — But although an. executor or administrator, appointed in one state, is not in virtue of such appointment entitled to sue, nor is he liable to be sued, in his proceedings. All these objections are, in fact, reasons for declining to exercise the jurisdiction in particular cases, rather than reasons against the existence of the jurisdiction itself. It seems indeed admitted by the learned counsel for the defendant that, if there be no foreign administration, it would be the duty of the court to grant relief upon an administration taken here. Yet every ob- jection already urged would apply with as much force in that as in the present case, The property would be to be distributed according to the foreign law of the deceased’s domicil. The same difficulty would exist as to ascertaining the debts and legacies, and the assets and distributees entitled to share. But it is said, in the case now put, the administration here would be the principal administration, whereas in the case at bar it is only an auxiliary or ancillary administration. I have no objection to the use of the terms principal and auxiliary, as indicating a distinction in fact as to the objects of the different administrations; but we should guard ourselves against the conclusion that therefore there is a distinction in law as to the rights of parties. There is no magic in words. Each of these administrations may be properly considered as a principal one, with reference to the limits of its exclusive authority; and each might, under circumstances, justly be deemed an auxiliary administration. If the bulk of the property, and all the heirs and legatees and creditors, were here, and the foreign administration were only to recover a few inconsiderable claims, that would most correctly be denominated a mere auxiliary administra- tion for the beneficial use of the parties here, although the domicil of the tes- tator were abroad. The converse case would of course produce an opposite result, But I am yet to learn what possible difference it can make, in the rights of parties before the court, whether the administration be a principal or an auxiliary administration. They must stand upon the authority of the law to administer or deny relief, under all the circumstances of their case, and not upon a mere technical distinction of very recent origin.’ Harvey v. Richards, 1 Mason, 381. See also Granvilon v. Richards, 13 La. 293. (a) s 1 ae v. Rose, 3 Q. B. 498, 507; Scarth v. Bishop of London, 1 Hagg. ec. 625. (a) Banta v. Moore, 2 McCarter (N. J -) 101. CHAP. XIII] FOREIGN ADMINISTRATIONS, 723 official capacity, in any other state or country; yet there are many other questions which may require consideration, and in which a conflict of laws may arise in different countries. In the first place let us suppose that an executor or administrator should go into a foreign country, and, without there taking out new letters of ad- ministration, should there collect property, effects, and debts of his testator or intestate, found or due there ; the question might arise, whether he would not thereby, to the extent of his receipt and collection of such assets, be liable to be sued in the courts of that country by any creditor there. Upon general principles it would seem that he would so be liable; and, upon the principles of the common law, he would be liable as an executor de son tort, or person intermeddling with such assets without any rightful au- thority derived from the local authorities under a new grant of administration there. For it would not lie in his mouth to deny that he had rightfully received such assets ; and he could not rightfully receive them except as executor(a) It would be quite a different question whether the payment of any such debts, or the delivery of any such property or effects to him by the debt- ors, or by other persons owing or possessing the same, would be a valid payment or discharge of such persons therefrom, or would confer any title to the same upon such executor or administrator, at least against any executor or administrator, subsequently ap- pointed in such foreign state or country, and contesting the right or title.2 Upon that question there is much room for discussion and doubt, notwithstanding what has been asserted in some of the tribunals acting under the common law. (6) For it is ex- ceedingly clear that the probate grant of letters testamentary or ‘of letters of administration in one country give authority to col- lect the assets of the testator or intestate only in that country, and do not extend to the collection of assets in foreign countries ; 1 Campbell v. Tousey, 7 Cowen (N. Y.) 64. 2 Preston v. Melville, 8 Cl. & F. 1, 12, 14. 8 Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45, 49; post, s. 515. (a) See Hutchins ». State Bank, of such payment, Citizens’ Bank v. 12 Met. (Mass.) 421, 425; Mackey v. Sharp, 53 Md. 521, referring to Wil- Coxe, 18 How. 100; Middlebrook v. kins v. Ellett, 9 Wall. 740; Williams v. Merchants’ Bank, 8 Abb. App. Dec. Storrs, 6 Johns. Ch. 353; Rand v. Hub- (N. Y.) 295; Hedenberg v, Heden- bard, 4 Met. (Mass.) 255; Hutchins v. berg, 46 Conn. 30. State Bank, 12 Met. (Mass.) 421. (0) See, in support of the validity 724 CONFLICT OF LAWS. [s. 514, 514 a, for that would be to assume an extra-territorial jurisdiction or authority, and to usurp the functions of the foreign local tribu- nals in those matters.1_ It is no answer to the objection, to say 1 See Pond v. Makepeace, 2 Met. (Mass.) 114; Preston v. Melville, 8 Cl. & F. 1, 12,14. See Attorney-General v. Bouwens, 4 M. & W. 171, 190-192. On this occasion Lord Abinger said: ‘Whatever may have been the origin of the jurisdiction of the ordinary to grant probate, it is clear that it is a limited jurisdiction, and can be exercised in respect of those effects only which he would have had himself to administer in case of intestacy, and which must therefore have been so situated as that he could have disposed of them in pios usus. As to the locality of many descriptions of effects, household and mova- ble goods, for instance, there never could be any dispute. But to prevent con- flicting jurisdictions between different ordinaries, with respect to choses in action and titles to property, it was established as law that judgment debts were assets for the purposes of jurisdiction, where the judgment is recorded; leases, where the land lies; specialty debts, where the instrument happens to be; and simple-contract debts where the debtor resides at the time of the testator’s death; and it was also decided that as bills of exchange and promis- sory notes do not alter the nature of the simple-contract debts, but are merely evidences of title, the debts due on these instruments were assets where the debtor lived, and not where the instrument was found. In truth, with respect to simple-contract debts, the only act of administration that could be performed by the ordinary would be to recover or to receive payment of the debt, and that would be done by him within whose jurisdiction the debtor happened to be. These distinctions being well established, it seems to follow that no ordinary in England could perform any act of administration within his dio- cese, with respect to debts due from persons resident abroad or with respect to shares or interest in foreign funds payable abroad, and incapable of being transferred here; and therefore no duty would be payable on the probate or letters of administration in respect of such effects. Buton the other hand it is clear that the ordinary could administer all chattels within his jurisdiction; and if an instrument is created of a chattel nature, capable of being trans- ferred by acts done here, and sold for money here, there is no reason why the ordinary or his appointee should not administer that species of property. Such an instrument is in effect a salable chattel, and follows the nature of other chattels as to the jurisdiction to grant probate. In this case, assuming that the foreign governments are liable to be sued by the legal holder, there is no conflict of authorities; for their governments are not locally within the ju- risdiction, nor can be sued here; and no actof administration can be performed in this country, except in the diocese where the instruments are, which may be dealt with, and the money received by their sale in this country. Let us suppose the case of a person dying abroad, all whose property in England con- 'sists of foreign bills of exchange, payable to order, which bills of exchange are well known to be the subject of commerce, and to be usually sold on the Royal Exchange. The only act of administration which his administrator could perform here would be to sell the bills and apply the money to the pay- ment of his debts. In order to make titles to the bills to the vendee, he must have letters of administration; in order to sue in trover for them, if they are improperly withheld from him, he must have letters of administration (for even if there were a foreign adininistration, it is an established rule that an CHAP. xu] FOREIGN ADMINISTRATIONS. 725 that the effects of the testator or intestate are assets wherever they are situated, whether at home or abroad; and that such effects as are in a foreign country at the time of the death of the testator or intestate, although they remain and are wholly ad- ministered there by the executor, are equally assets. Doubtless this is true; but the question is not whether they are assets or not, but who is clothed with authority to administer them; and this must be decided by the local jurisdiction where they are situated ; for the original administration has no extra-territorial operation.! (a) 514 a. Liability to account at Home. —TIn the next place, let us suppose that an executor or administrator, appointed in the state where his testator or intestate died, should go into a foreign country, and should, without taking out new letters of adminis- tration, collect assets in such foreign country, and bring them home to the state from which he had received his original letters testamentary or letters of administration ; the question might arise, whether, in such a case, he would be liable to account in the courts of the latter state for all the assets which he had so received in the foreign country, in the same way and under the like circum- stances as he would be liable to account for them if he had received them in the home state. In other words, whether they would constitute a part of the home assets which he is bound to adminis- ter, and for which he is liable toaccount under the domestic admi- nistration according to the domestic laws. It has been said that administration is necessary in the country where the suit is instituted); and that these letters of administration must be stamped with a duty according to the salable value of the bills; the case of Hunt v. Stevens is an express au- thority.” See also Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45-47; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153. 1 Attorney-General v. Dimond, 1 Cr. & J. 356, 370; ante, s. 513. (a) By the English law if a mar- tied woman becomes ‘entitled to pro- perty from a deceased relative, which is situated in England, and she and her husband both die, without any step taken by him to reduce the pro- perty into possession during her life- time, or taking out administration on her estate after her death, their child must take out two administrations, one on his father’s and the other on his mother’s estate, as being two distinct devolutions of property. And the same course must be pursued if the parents and child are all domiciled in America, although the property when once obtained is to be distributed in America, where the law might not re- quire this double authority of admin- istration. Partington v. Attorney- General, Law. Rep. 4 H. L. 100. 726 CONFLICT OF LAWS. {s. 514 a, 5145. the assets, so received and collected are to be so administered and accounted for as home assets by such executor or administrator, And the doctrine laid down in an ancient case is relied on for this purpose ; where it is asserted to have been held by the court that, ‘if the executor have goods of the testator in any part of the world, they shall be charged in respect of them; for many merchants and other men who have stocks and goods to a great value beyond sea are indebted here in England; and God forbid that those goods should not be liable to their debts; for otherwise there would be a great defect in our law.’ Now this language in its broad import is certainly unmaintainable in our day ; for it goes to the extent of making a domestic executor or administrator liable for all assets of the testator or intestate which are locally situate abroad ; although, as we have seen, he has not in virtue of the domestic letters of administration any authority to collect them, or to compel payment or delivery thereof to himself? But the cir- cumstances of the case called for no such doctrine. The case was of a testator who died in Ireland, and the defendant, who was his executor, collected and administered in Ireland certain property of the deceased. Afterwards he came to England, and was sued there bya creditor asexecutor; and the question arose, whether he was liable to the creditor in such suit for the assets collected and received by him in Ireland under the administration there. With reference therefore to the actual facts of the case, the more general question did arise. But according to the doc- trine maintained in England in modern times, he was not at all liable to be sued in England as executor, under letters testamen- tary taken out in Ireland; and a fortiori not for the assets re- ceived and administered in Ireland under that appointment.2 The authority of the case may therefore well be doubted in both of its aspects.4 1 Dowdale’s Case, 6 Rep. 47,48; Cro. Jac. 55; cited and approved also in Evans v. Tatem, 9 Serg. & R. (Penn.) 252, 259. ‘ 2 Ante, s. 314, 8 Ante, s. 314; post, s. 515. . 4 «Tf after such administration shall have been completed, any surplus should remain, and it shall appear that there are trusts to be performed in Scotland, to which it was devoted by Sir Robert Preston, it will be for the Court of Chancery to consider whether such surplus ought or ought not to be paid to the pursuers, for the purpose of being applied in the performance of such trusts; and in considering that question every attention ought to be paid to the authority under which the pursuers have been appointed trustees, and the consent which led to such appointment. It is premature to decide that CHAP. XIII] FOREIGN ADMINISTRATIONS. 727 514 6. Liability of a Foreign Administrator. — Some ofthe Ame- rican courts have gone the length of recognizing, to its full extent, the doctrine asserted in this case; and have held that a foreign executor or administrator coming here, having received assets in the foreign country is liable to be sued here, and to account for such assets, notwithstanding he has taken out no new letters of administration here, nor has the estate been positively settled in the foreign state.’(a) The doctrine asserted in these courts is, that such a foreign executor or administrator is chargeable. here, as executor, for all the assets which he still retains in his hands, or which he has expended or disposed of here, unless ex- pended or disposed of here in the due course of administration, whether they were received here or in a foreign country, although he has not taken out any new letters of administration here.? There is very great difficulty in supporting these decisions to the extent of making the foreign executor or administrator liable here for assets received by him abroad in his representative character, and brought here by him. Ifa foreign executor or administrator cannot sue in his representative character in another state for the assets of the deceased situate there, without new letters of ad- ministration, because he derives his authority solely from a foreign government, which has no authority to confer any right upon him, except to collect and receive the assets found within its own territorial jurisdiction, and to which therefore he is pro- perly and directly responsible for the due administration of the assets actually collected and received in such foreign country point, it being at present unascertained whether there will be any surplus of the personal estate in this country, or what will be the amount of it, and no declaration of right by the Court of Session would be binding upon the Court of Chancery, under whose jurisdiction the property in England is placed by the suits which have been instituted.’ Preston v. Melville, 8 Cl. & F. 14. 1 Swearingen v. Pendleton, 4 Serg. & R. (Penn.) 389, 392; Evans v. Ta- tem, 9 Serg. & R. (Penn.) 252, 259; Bryan v. McGee, 2 Wash. C. C. 337; Campbell v. Tousey, 7 Cowen (N. Y.) 64. 2 Thid. (a) See Baker v. Smith, 3 Met. rule in Pennsylvania. See Magraw (Ky.) 264; Johnson v. Jackson, 56 Ga. 326; s. c. 834 Ga. 511; Crawford v. Graves, 15 La. An. 243 (that a fo-. reign administrator may sue in Loui- siana for property wrongfully brought there); Dillard v. Harris, 2 Tenn. Ch. 196. The text no longer states the v. Irwin, 87 Penn. St. 139; Sayre v. Helme, 61 Penn. St. 299. As to the cases of Campbell v. Tousey, 7 Cowen (N. Y.) 64, and Marcy v. Marey, 32 Conn. 308, see Hedenberg v. Heden- berg, 46 Conn. 30, which follows the text. 728 CONFLICT OF LAWS. [s. 5148, under its exclusive appointment, it is not easy to perceive how he can be suable in such state for such assets in his hands, received abroad by him under the sanction of the foreign administration, and by the authority of the foreign government, to which he is thus accountable for all such assets. One of the learned courts however which decided the point seems to have taken it for granted that a foreign executor or administrator was of course suable here for all assets found in his hands. ‘ If a foreign exe- cutor,’ said the court, ‘is liable to be sued here, of which we ap- prehend there can be no question, he must, from the very nature of the case, prima facie, be responsible for the assets which are shown to have been in his possession within this state.’ With great deference, that was the very point to be established by some just reasoning, founded upon the principles of international juris-- prudence generally recognized by foreign jurists, or by the uni- form established doctrine of the common law on this subject in modern times. It will be found exceedingly difficult to cite any modern authorities at the common law in support of such doc- trine,! since no authority could be shown which supported it. On the other hand, there are other American authorities which indicate a very different doctrine.2, The modern English authori- 1 In the cases of Swearingen v. Pendleton, 4 Serg. & R. 389, 392, and Evans v. Tatem, 9 Serg. & R. 252, 259, the Supreme Court of Pennsyl- vania contented itself with merely affirming the doctrine in Dowdale’s Case (6 Coke, 47), without any general reasoning on the subject. 2 The very recent case of Fay v. Haven, 8 Met. (Mass.) 109, is directly in point. See Boston v. Boylston, 2 Mass. 384: Goodwin v. Jones, 3 Mass. 514; Davis v. Estey, 8 Pick. (Mass.) 475; Dawes v. Head, 3 Pick. (Mass. ) 128; Doo- little v. Lewis, 7 Johns. Ch. (N. Y.) 45, 47; McRae v. McRae, 11 La. 571. In the case of Boston v. Boylston, 2 Mass. 384, 391, Mr. Justice Sedgwick, in deliv- ering the opinion of the court after adverting to the fact that the testator died in England, and that administration was there granted of his estate to the defendant cum testamento annexo, and that the defendant took out ancillary letters of administration in Massachusetts, where the suit was brought, and in respect whereof he was called upon to account with the plaintiffs for the as- sets both in England and America, said: ‘The judge of probate has, in this case, proceeded, and in all similar cases must proceed, according to the powers which are delegated to him by this statute. He can exercise no other powers. He has granted to the respondent administration on the estate of Thomas Boylston, lying in this government, with the will annexed. All the authority then given to the administrator is over the estate lying in this government. The judge is to settle the said estate. What estate? Clearly I think the estate lying in this government. And it will neither consist with the inten- tion of the legislature nor the purposes of justice, because the administrator CHAP. xUL] FOREIGN ADMINISTRATIONS. 729 ties are to the same effect. They fully establish the doctrine that, if aforeign executor or administrator brings or transmits property with the will annexed is here, to proceed upon the fiction that, by his relation to the testator in the same capacity, in England, we ought to consider all the assets possessed by him there as the estate of the testator lying in this govern- ment; because the estate by the statute subjected to the control of the Court of Probate, and to be settled by it, was that which was lying here before granting the letters of administration. To that, and to that only, do the words, and as I think, the meaning of the legislature extend. The argument from the inconveniences of admitting the construction for which the counsel for the appellants have contended is strong and irresistible. It may reasona- bly be presumed that the largest part of the testator’s estate lies in the country where the original administration is granted; and that there also is the great- est portion of claims upon it. For what purpose of utility is the property to be transported to a distant region, and those to whom it belongs compelled to follow it for the satisfaction of their demands? The expense and trouble of such a procedure, while wholly unnecessary, could not fail to be considerable. Suppose an English merchant of great property and extensive dealings to have been the testator; suppose this property to be principally in England, but portions of it to be left in several foreign countries, and that the adminis- trator appointed there goes to collect it, and seeks the aid of the foreign go- vernmeuts for that purpose; and they, under pretence of giving this aid, claim an authority of drawing within their jurisdiction all the personal property of the testator, and all those who have demands upon it or are interested in it. All these governments are independent of each other; and what is to esta- blish a right of precedence? The commencement of-a prosecution? How is this to be known? How are the other authorities to be controlled? If this is to be the construction, who will become bound for the administrator? By what means can the liability of the administrator and his sureties be known? In terms they only guarantee the settlement of the estate lying within the commonwealth; but in effect, if this construction be admitted, estate lying in every part of the globe. It is, in our opinion, impossible that such could have been the intention of the legislature. There are innumerable other inconveniences which might be, but which it is unnecessary should be, pointed out.’ In Goodwin v. Jones, 3 Mass. 514, 519, 520, Mr. Chief Jus- tice Parsons, in delivering the opinion of the court, said: ‘ When any person, an inhabitant of another state, shall die intestate, but leaving real estate within this commonwealth, if administration should not be granted by some judge of probate of a county in which the estate lies, there would be no legal remedy for the creditors of the deceased to avail themselves of his real estate for the payment of the debts due them. Therefore, to prevent a failure of justice, administration in such case must be granted by some probate court here; and the administrator so appointed will, by virtue of his letters of admi- nistration and of the laws, also have the administration of all the goods, chattels, rights, and credits of the intestate, which were within the state. And if a foreign administrator of that intestate should also have the administration of his personal estate here, there would exist two administrators of the same goods of the same intestate, independent of each other, and deriving their au- thority from different states, a consequence which cannot be admitted. But the granting of administration here cannot divest the foreign administrator of 730 CONFLICT OF LAWS. [s. 514.8. here, which he has received under the administration abroad, or if he is personally present he is not, either personally or in his repre- sentative capacity, liable to asuit here ; nor is such property liable here to creditors; but they must resort for satisfaction to the fo- any rights already vested in him; and the necessary inference is, that whether administration be or be not granted in this state, an administrator appointed in another state cannot legally claim any interest: in the goods of his intestate which are subject to an administration granted in this state. And it is no objection to this reasoning, that debts due to the intestate on simple contract are to be considered as goods situate where he dies. For if the position be ad- mitted, contrary to the authority of Wentworth, in his Executor (page 46), where it is supposed that such debts are bona notabilia where the debtor lives; yet the administrator, if he recover judgment on such contract in this state, may satisfy it by an extent on lands, which certainly in their disposition are exclusively subject to the control of the laws of the commonwealth. We have no particular statute relating to foreign administrators; but the manner in which an executor of a will proved without the state may execute his trust within, is regulated by the statute of 1785, June 19,c. 12. The executor, or any person interested in any will proved without the state, may produce a copy of it, and of the probate under the seal of the foreign court which proved it, before the judge of probate of any county where the testator had real or perso- nal estate whereon the will may operate, and request to have the same filed and recorded, which the judge, after notice and hearing all parties, may order to be done; and he may then take bonds of the executor, or may grant admin- istration cum testamento annexo of the testator’s estate lying in this govern- ment not administered, and may settle the estate, as in cases where the will has been proved before him. This statute needs no explanation. The execu- tor of a will proved without the state cannot intermeddle with the effects of the testator in the state but with the assent of a judge of probate, to whom he must first give bond. Neither can an administrator with the will annexed intermeddle, unless he is appointed by some judge within the state who has authority to settle the whole estate within his jurisdiction. And it would be inconsistent with the manifest intent of the statute to allow an administrator of an intestate, not an inhabitant or resident within the state at his death, an authority derived from a foreign administration which he could not have under the foreign probate of a will of which he was the executor.’ In Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45, 47, Mr. Chancellor Kent said: ‘It is well settled that a party cannot sue or defend in our courts, as executor or adminis- trator, under the authority of a foreign court of probate. Our courts take no notice of a foreign administration; and before we can recognize the personal representative of the deceased in his representative character, he must be clothed with authority derived from our law. Administration only extends to the assets of the intestate within the state where it was granted; if it were otherwise, the assets might be drawn out of the state, to the great inconve- ‘nience of the domestic creditors, and be distributed, perhaps, on very different terms, according to the laws of another jurisdiction. The authorities on this subject were cited by me in the case of Morrell v. Dickey (1 Johns. Ch. (N. Y.) 154); and I presume there is no dispute about the general rule, and the only difficulty lies in the application of it to this particular case.’ CHAP. XU] FOREIGN ADMINISTRATIONS. 731 rum of the original administration! (a) So where property is remitted by a foreign executor to this country to pay legacies, no suit can be maintained for it, if there is no specific appropriation of it, without an administration taken out here.? (0) 1 Currie v. Bircham, 1 D. & R. 35; Davis v. Estey, 8 Pick. (Mass.) 475; Att.-Gen: v. Bouwens, 4 M. & W. 171, 191; Tyler v. Bell, 1 Keen, 826, 829; 2 My. & Cr. 89, 109, 110; Att.-Gen v. Dimond, 1 Cr. & J. 356, 871; Spratt v, Harris, 4 Hagg. Ecc. 408; Att.-Gen. v. Hope, 2 Cl. & F. 84, 90, 92; 8 Bligh, 44;1C. M. & R. 5388. But see Dowdale’s Case, 6 Rep. 47, and Anderson v. Caunter, 2 My. & K. 763; Spratt v. Harris, 4 Hagg. Ecc. 405, 408; ante, s. 518, 5144. In Scrimshire v. Scrimshire (2 Hagg. Cons. 420), Sir Edward Simpson said: ‘Tf an Englishman makes a will abroad, and makes a foreigner executor, and has no effects in England, and the executor proves the will lawfully abroad, that probate, or sentence of the proper court, establishing. the will as to effects there of a man domiciled there, would be a bar to a discovery in chancery of effects abroad.’ 2 Logan v. Fairlie, 2 Sim. & Stu. 284. (a) Campbell v. Sheldon, 13 Pick. (Mass.) 8; but see Hervey v. Fitz- patrick, Kay, 421; Orr Ewing v. Orr Ewing, 22 Ch. D. 456 (C. A.); Mc- Namara v. Dwyer, 7 Paige (N. Y.) 239; Brown v. Knapp, 17 Hun (N. Y.) 160. (2) Trusts under Foreign Wills. — A court of equity will enforce the trusts created by a foreign will, if the trustee is within the jurisdiction. Da- vis v. Morriss, 76 Va. ; 14 Reporter, 286; Bright v. Bright, 3 Baxt. (Tenn.) 109, 112, 114. This is simply an ap- plication of the general principle, that equity, as it acts in personam, may enforce any equitable right where the person against whom relief is sought is within the jurisdiction. Penn ». Lord Baltimore, 1 Ves. 444; 2 Wh. & T. L. C. (5th ed.) 939, 955; Kildare v. Eustace, 1 Vern. 419; Massie v. Watts, 6 Cranch, 148, 159; Shattuck v. Cassidy, 3 Edw. Ch. (N. Y.) 152; Newton v. Bronson, 18 N. Y. 587; Vaughan v. Barclay, 6 Whart. (Pa.) 392. When a testator bequeaths a fund to a trustee in a foreign country for charitable purposes to be executed in that country, the court of the testa- tor’s domicil will direct the transfer of the fund to the trustee selected by the testator, and leave it to the foreign tribunals to enforce the execution of the trust. Att.-Gen. v. Lepine, 2 Swans. 181; Emery v. Hill, 1 Russ. 112; Chamberlain v. Chamberlain, 43 N. Y. 424, 432; Burbank v. Whitney, 24 Pick. (Mass.) 146, 154; Fellows v Miner, 119 Mass. 541; Silcox ». Harper, 82 Ga. 639; Story, Eq. Jur. s. 1186. In In re Liddiard, 14 Ch. D. 310, where the trusts of an English will were for the benefit of persons re- sident in Australia, the court appointed as trustees two persons who resided in Australia, and who intended to sell the English investments and invest the money in Australia. See also Bright v. Bright, 3 Baxt. (Tenn.) 109. But in Massachusetts, in Campbell v. Wal- lace, 10 Gray, 162, which was followed in Jenkins v. Lester, 131 Mass. 355, it was held that the court had no juris- diction to enforce a trust created by a foreign will which had not been proved in Massachusetts. In these cases the property constituting the trust fund was not in Massachusetts at the testa- tor’s decease, nor afterwards until it was received by the trustee; it there- fore gave no jurisdiction to grant pro- bate of the will in Massachusetts, and 732 CONFLICT OF LAWS. [s. 515, 515. Voluntary Payment to a Foreign Administrator. — But although an executor or administrator is not entitled to maintain no probate granted there could affect that property. The decision in Camp- bell v. Wallace was placed simply upon the ground that the case was covered by the decision of the same court in Campbell v. Sheldon, 13 Pick. (Mass.) 8. That case however only decided that a suit could not be brought in Massachusetts against a foreign exe- cutor or administrator concerning the administration of the estate. In ap- plying it to the facts of Campbell v. Wallace, the court seems to treat the execution of the trusts of the will as if it were a part of the administration of the testator’s effects. But when a fund bequeathed to a trustee is re- ceived by him, the administration, so far as relates to that fund, is at an end, just as when any other legatee receives his legacy. The trustee takes it with the obligation of applying it according to the trust, and this obli- gation is one which the beneficiaries may enforce in a court of equity. It is difficult to see any reason why they may not enforce it in any country where the trustee may be, just as they may enforce other equitable rights. It is admitted that they can do so when the trust is created by deed. The title, rights, and obligations of the trustee and -of the beneficiaries are precisely the same whether the trust is created by deed or will. In Jenkins v. Lester, 1381 Mass. p. 357, it is said, as a reason why the trust should not be enforced against the trustee, that ‘ The trust on which the property is held by her having been created by judicial decree of a court of another state having ju- risdiction of the matter, she is account- able in the courts of that state for the due execution of the trust.’ The only decree mentioned in the case was the probate of the will. The reason there- fore would not apply to a French or German will, for what is called pro- bate by us is unknown on the continent of Europe, and wills take effect there without it. It seems also hardly cor- rect to say that the trust was created by a judicial decree. The probate was only a decree declaring that the will had been duly proved, and, though the will would not be allowed to have effect without probate, it was the will that gave the property to the trustee and created the trust. Cf. 1 Wms. Ex. (8th ed.) 297; Crusoe v. Butler, 36 Miss. 150,170. But if the trust was created by a judicial decree, that seems to be no reason why the trust should not be enforced by the courts of another state against a trustee with- in their jurisdiction who has received the trust-fund by virtue of the decree. It is not a recognized principle that courts will not enforce the judgments or decrees of foreign courts. It can make no difference that the trustee is also accountable to the courts of the state where the will was proved. He is not more accountable to those courts than he would be if the trust had been created in that state by deed, unless some special statute makes him so. Certainly it is no part of the jurisdic- tion of a court of probate to adminis- ter the trusts of a will, unless such jurisdiction is specially conferred by statute. The Massachusetts court re- cognizes that foreign tribunals will ad- minister a charitable trust created by a Massachusetts will and to be execu- ted in the foreign country (Burbank ». Whitney, 24 Pick. p. 154), and it would be inferred that the tribunals of Massachusetts would administer a charitable trust to be executed in that state, although it were contained in a foreign will which could not be proved in Massachusetts because there was no property there for it to operate upon. It follows that the same juris- diction exists in respect of private CHAP, XIII] FOREIGN ADMINISTRATIONS. 733 a suit in a foreign court, in virtue.of his original letters of admi- nistration, yet it has been said that, if a debtor chooses volunta- rily there to pay him a debt which he may lawfully receive under that administration, the debtor will be discharged.1(a) This proposition is, or at least may be, true to the extent in which it is thus guardedly laid down and limited. For if an administration should be taken out on a creditor’s estate in the country where both the creditor and debtor resided at the time of his death, there, inasmuch as a debt is properly due in that country, and properly falls within that administration, it may be paid volun- tarily by the debtor in another country, if he should afterwards change his domicil to that country, or if he should be found 1 The proposition is thus guardedly laid down in Stevens v. Gaylord, 11 Mass. 256. But the question may also arise, whether the voluntary payment of a debt by a domestic debtor in a foreign country to a foreign administrator, when there is no domestic administrator appointed, will be a good discharge of the debtor. Debts are due not only in the domicil of the debtor, but in the domicil of the creditor; and indeed, unless a particular place of payment is ap- pointed, they are due and may be demanded anywhere. If a debtor be found in the foreign country where the creditor died, and where an administrator is appointed, he would certainly be suable there, and could not protect himself by a plea that he was liable to pay only to the administrator appointed in the place of his (the debtor’s) domicil. Lord Hardwicke, in Thorne v. Watkins (2 Ves. 35), said that all debts follow the person, not of the debtor in respect of the right or property, but of the creditor to whom due. In Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 49, Mr. Chancellor Kent held that a voluntary pay- ment to a foreign executor or an administrator was a good discharge of the debt. See Shultz v. Pulver, 3 Paige (N. Y.) 182; Hooker v. Olmstead, 6 Pick. (Mass.) 481; Atkyns v. Smith, 2 Atk. 63; Trecothick v. Austin, 4 Mason, 16, 33. trusts. The existence of such juris- diction is recognized when the court allows the trust fund to be taken to a foreign country by a trustee residing in that country. A trustee of a will ought not to be able, any more than a trustee of a deed, to escape perform- ance of the trust by leaving the coun- try where it originated and taking the fund with him. It is no answer to say that security might have been required ofhim. Security can only be required under the provisions of local statutes, which exist in comparatively few places. And if security is taken, there is no principle of law by which the beneficiary must not follow the trust- fund or the trustee, but must look only to the security. A refusal by the foreign tribunals to enforce the trust under such circumstances would seem very like a denial of justice. As to the appointment of new trus- tees, see Curtis v. Smith, 60 Barb. (N. Y.) 9; Curtis v. Smith, 6 Blatch. C.C. 587; Chase v. Chase, 2 Allen (Mass.) 101; Dorsey v. Thompson, 87 Md. 25. (a) A foreign administrator can give a good discharge to a debtor of the decedent in the foreign state, if there are no creditors there or persons entitled as distributees, against an ad- ministrator in the foreign state. Wil- kins v. Ellett, 9 Wall. 740. 734 CONFLICT OF LAWS. [s. 515-516. there ; and the discharge of the administrator will be held a good discharge everywhere else, although no new administration be taken out; because the right to receive it primarily attached where the original administration was granted. Thus, for exam- ple, if an intestate should die in Ireland, leaving a bond debt there due by a debtor, residing there at the time of his death, ‘that bond debt would be bona notabilia there, and a payment afterwards by the debtor made in England to such administrator would or might be a good discharge, notwithstanding no admi- nistration was taken out in England.} 515 a. There is however (as has been already stated 2) much reason to doubt whether the doctrine be maintainable to the ex- tent which the proposition has been sometimes understood to justify ; that is to say, so as to apply it to a debt due by a debtor, who at the death of the creditor is actually domiciled in and owes the debt in the foreign country, where no administration is taken out. Suppose an administration should afterwards be granted in a foreign country; would it be any bar to an action brought by the foreign administrator against the debtor for the same debt, that the debtor had already paid it to another admini- strator, who had no right to demand it in virtue of his original administration, and who therefore might properly be deemed a stranger to the debt? Suppose a contest to arise between the original administrator and the foreign administrator in relation to the administration of the debts, so received as assets of the deceased, could the original administrator retain it against the will of the foreign administrator ; or thereby subject it to a diffe- rent application in the course of administration and marshalling assets from that which would otherwise exist? It seems diffi- cult to answer these questions in the affirmative, without shak- ing some of the best-established principles of international law on this subject.? (a) 1 Huthwaite v. Phaire, 1 Man. & G. 159, and particularly what is said by Lord Chief Justice Tindal in page 162. 2 Ante, s. 514. See Preston v. Melville, 8 Cl. & F. 1, 14. 8 See Currie v. Bircham, 1 D. & R. 35; Tyler v. Bell, 1 Keen, 826; 2 My. & Cr. 89, 109, 110; Attorney-General v. Dimond, 1 Cr. & J. 356, 370; contra, Anderson v. Caunter, 2 My. & K. 763. But the latter case seems overruled. Ante, s. 518; post, s. 518-521, 525; Huthwaite v. Phaire, 1 Man. & G. 159, 164, 165. (a) See McNamara v. McNamara, 62 Ga. 200. CHAP. XuII.] FOREIGN ADMINISTRATIONS, 735 516. Title acquired by the Lew Situs.— And here it may be necessary to attend to a distinction important in its nature and eonsequences. If a foreign administrator has, in virtue of his administration, reduced the personal property of the deceased, there situated, into his own possession, so that he has acquired the legal title thereto according to the laws of that country ; if that property should afterwards be found in another country, or be carried away and converted there against his will, he may maintain a suit for it there in his own name and right personally, without taking out new letters of administration; for he is, to all intents and purposes, the legal owner thereof, although he is so in the character of trustee for other persons. (a) In like manner, if a specific legacy of personal property is bequeathed in a foreign country, and the legatee has, under an administration there, been admitted to the full possession and ownership by the administrator, he may afterwards sue in his own name for any injury or conversion of such property in another country, where the property or wrong-doer may be found, without any probate of the will there.1 (6) The plain reason in each of these cases is, that the executor and the legatee have, each in his own right, be- come full and perfect legal owners of the property by the local law ; and a title to personal property, duly acquired by the lex loci rei site, will be deemed valid, and be respected as a lawful and perfect title in every other country. (¢) 1 See Commonwealth v. Griffith, 2 Pick. (Mass.) 11; Bollard v. Spencer, 7 T. R. 358; Shipman v. Thompson, Willes, 103; Slack v. Walcott, 3 Mason, 508, 513. (a) Jefferson v. Glover, 46 Miss. 510. In similar cases receivers may sue in their individual capacity. Ca- gill ». Wooldridge, 8 Baxter (Tenn.) 580. (6) See Brown v. Knapp, 79 N. Y. 136. (c) For a similar reason it was re- cently held that where a widow by the law of France, where her husband was domiciled and died, became enti- tled to all the debts, claims, and causes of action, left by him, and to enforce them in her own name, she might do 80 in England without taking out ad- ministration there, the law of the par- ties’ domicil attaching to them. Van- quelin v. Bouard, 15 C. B. N.S. 341. So a foreign administrator who has obtained judgment as such in the state of his appointment may sue upon the judgment in other states without new administration. Barton v. Hig- gins, 41 Md. 539; Cherry v. Speight, 28 Tex. 503; Rucks v. Taylor, 49 Miss. 552. So the sole devisee of an estate may after settlement thereof bring suit in another state (the testa- tor owing no debts there) in his own name to recover a sum due the plain- tiff individual under the will. Mor- ton v. Hatch, 54 Mo. 408. 736 CONFLICT OF LAWS. [s. 517-519. 517. Negotiable Securities. — The like principle will apply where an executor or administrator, in virtue of an administration abroad, becomes there possessed of negotiable notes belonging to the deceased, which are payable to bearer; for then he be- comes the legal owner and bearer by virtue of his administra- tion; and may sue thereon in his own name; and he need not take out letters of administration in the state where the debtor resides, in order to maintain a suit against him.1 (a) And fora like reason it would seem that negotiable paper of the deceased, payable to order, actually held and indorsed by a foreign execu- tor or administrator in the foreign country, who is capable there of passing the legal title by such indorsement, would confer a complete legal title on the indorsee, so that he ought to be treated in every other country as the legal indorsee, and allowed to sue thereon accordingly, in the same manner that he would be if it were a transfer of any personal goods or merchandise of the deceased, situate in such foreign country.” 517 a. Fund sent from Abroad for Distribution. — And when an executor appointed abroad has remitted to another country (as, for example, to England) that fund, to be distributed between legatees there domiciled, the distribution may be made either voluntarily by the remittee, or enforced by a court of equity in such country, without any administration being taken there, or making the legal representative of the testator a party to the suit 518. Principal and Ancillary Administration.— Where there are different administrations granted in different countries, that is deemed the principal or primary administration which is granted in the country of the domicil of the deceased party; for the final distribution of his effects among his heirs or distributees is to be decided by the law of his domicil. Hence any other ad- ministration which is granted in any other country is treated as in its nature ancillary merely, and is, as we have seen, generally 1 Robinson v. Crandall, 9 Wendell (N. Y.) 425. But see Stearns v. Burn- ham, 5 Green]. (Me.) 261; Thompson v. Wilson, 2 N. H. 291; McNeilage ». Holloway, 1 B. & A. 218; ante, s. 354, 358, 359. 2 Ib. and ante, s. 358, 359. 3 Arthur v. Hughes, 4 Beay. 506. (a) See Barrett v. Barrett, 8Greenl. 187; Sanford v. McCreedy, 28 Wis. (Me.) 353; Purple v. Whithed, 49 Vt. 103; Rucks v. Taylor, 49 Miss. 552. CHAP. XII] FOREIGN ADMINISTRATIONS. 737 held subordinate to the original administration. (2) But each _administration is nevertheless deemed so far independent of the others, that property received under one cannot be sued for under another, although it may at the moment be locally situate within the jurisdiction of the latter. Thus if property is received by a foreign executor or administrator abroad, and it is afterwards re- mitted here, an executor or administrator appointed here could not.assert a claim to it here, either against the person in whose hands it might happen to be, or against the foreign executor or administrator. The only mode of reaching it, if necessary for the purposes of due administration in the foreign country, would be to require its transmission or distribution, after all the claims against the foreign administration had been duly ascertained and settled? (6) 519. Goods in Transitu.— But suppose a case where the personal estate of the deceased has not, at the time of his decease, any positive locality in the place of his domicil or in any foreign ter- ritory, but it is strictly in transitu to a foreign country, and afterwards arrives in the country of its destination. It may be asked, in such case to whom would the administration of such property rightfully belong? Would it belong to the administra- tor in the place of the domicil of the deceased, or to the admini- strator appointed in the place where it had arrived? And if (as may well happen in case of a ship and cargo sent abroad) the property, or its proceeds, should afterwards return to the domi- cil of the original owner, would the administrator there appointed be ‘entitled to take it, and bound to account for it in the due course of administration? Practically speaking, no doubt is en- tertained on this subject ; and the property, whenever it returns to the country of the domicil of the owner, whether by remittance or otherwise, is understood to be under the administration of the 1 Ante, s. 514. 2 2 Currie v. Bircham, 1 D. & R. 35. See Jauncy v. Sealey, 1 Vern. 397; ante, s. 518, 515, 515a. See Huthwaite ». Phaire, 1 Man. & G. 159. 8 See Dawes v. Head, 3 Pick. (Mass.) 128-148; Harvey v. Richards, 1 Ma- son, 881; ante,s. 513, and note, s. 514; Boston v. Boylston, 2 Mass. 384; Good- win v. Jones, 3 Mass. 514; Dawes v. Boylston, 9 Mass. 337. (a) Shegogg v. Perkins, 34 Ark. (b) See Lynes v. Coley, 1 Redf. 117. But see Carroll v. McPike, 53 (N. Y.) 407; Banta v. Moore, 2 Mc- Miss. 569; Carr v. Lowe, 7 Heisk. Carter (N. J.) 101. _ (Tenn.) 84, under statutory law. : 47 738 CONFLICT OF LAWS. [s. 519-522, administrator appointed there. Nor has there been a doubt hith- erto judicially expressed, that property, so sent abroad and re- turned, might and should be so administered, and that all parties would be protected in their doings in regard to it. 520. Ships and Cargoes. — Debts.— Indeed according to the common course of commercial business, ships and cargoes, and the proceeds thereof, locally situate in a foreign country at the time of the death of the owner, always proceed on their voyages and return to the home port without any suspicion that all the parties concerned are not legally entitled so to act ; and they are taken possession of and administered by the administrator of the forum domicilii, with the constant persuasion that he may not only rightfully do so, but that he is bound to administer them as part of the funds appropriately in his hands. A different course of adjudication would be attended with almost inextricable diff- culties, and would involve this extraordinary result, that all the personal property of the deceased must be deemed to have a fixed situs where it was at the moment of his death; and, if removed from it, must be returned thither for the purpose of a due admini- stration. Nay, debts due in a foreign country would be absolutely required to be retained there until a local administration was ob- tained, and could not without peril be voluntarily remitted to the creditor’s domicil. And if the debtor should in the mean time remove to another country, it might become matter of ex- treme doubt whether a payment to a local administrator there would discharge him from the debt.! But it may perhaps, after all, be doubtful whether, with a strict regard to the principles of international law, the personal property of the deceased testator or intestate, whether it consisted of goods or of debts, situate at the time of his death in a foreign country, could be lawfully dis- posed of except under an administration granted in that country, although they had since been removed or transmitted to the do- micil of the deceased, and had been received by his administra- tor appointed there.” 521. Orcutt v. Orms. — A case illustrative of these remarks has recently occurred. The personal estate of an intestate consisted in a considerable degree of stage-coaches and stage-horses, belong- ing to a daily line, running from one state to another ; and letters 1 See Stevens v. Gaylord, 11 Mass. 256; ante, s. 515, 5154. 2 See ante, s. 518-518; post, s. 525. CHAP. XU] FOREIGN ADMINISTRATIONS, 739 of administration were taken out by the same person in both states, one being that of the intestate’s domicil. A question arose under which administration the property was to be accounted for, part of it being in one state and part in the other, and part in transitu from one to the other at the moment of the intestate’s death. The learned Chancellor of New York said, that if ad- ministration had been granted to different individuals in the two states, the property must have been considered as belong- ing to that administrator who first reduced it to possession within the limits of his own state. But that in the case before him, as both administrations were granted to the same person, if an account of administration were to be taken, it would be necessary to settle that by ascertaining what had been inven- toried and accounted for by him under the administration in the other state.1 522. Relation between Different Administrations. — Where ad- ministrations are granted to different persons in different states, they are so far deemed independent of each other that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration ; for in contemplation of law there is no privity between him and the other administrator.2(a) It might be dif- ferent if the same person were administrator in both states.2 On the other hand, a judgment recovered by a foreign administrator against the debtor of his intestate will not form the foundation of an action against the debtor by an ancillary administrator ap- pointed in another state. But the foreign administrator himself might in such a case maintain a personal suit against the debtor in any other state ; because the judgment would, as to him, merge 1 Oreutt v. Orms, 3 Paige (N. Y.) 459. 2 Lightfoot v. Bickley, 2 Rawle (Penn.) 481. 8 Tbid. 4 Talmage v. Chapel, 16 Mass. 71. as to executors. And ifa testator by will appoints different executors In different states, there may be such a (a) This seems to be the settled law as to administrators (Low v. Bartlett, 8 Allen, 259; Ela v. Edwards, 13 Allen, 48; Merrill v. New England Mut. Life Ins. Co., 103 Mass. 245; McLean v. Meek, 18 How. 16; Pond v. Makepeace, 2 Met. (Mass.) 114. See Bigelow, Estoppel, 99, 100, 255, 256, 8d ed.), although it may not be privity between them that a judgment against one in one state may be evi- dence, but not conclusive evidence, against another in a different state. Hill v. Tucker, 13 How. 458, distin- guishing Aspden v. Nixon, 4 How. 467. 740 CONFLICT OF LAWS. [s. 522, 523, the original debt, and make it personally due to him in his own right, he being responsible therefor to the estate.! (a) 1 Ibid. (a) In Aspden v. Nixon, 4 How. 467, it was determined that a foreign administrator or executor, who was also the administrator or executor of the same estate in one of the Ame- rican states, duly appointed, could not be held liable to account in the place of the principal foreign admi- nistration for any of the effects be- longing to the estate which he had received under the American admi- nistration; and that consequently a decree of the court of chancery in England, where the principal admi- nistration was, exonerating such ad- ministrator or executor from all re- sponsibility to account for any effects of the estate in his hands, was no bar to a similar proceeding in this country against the same person, claiming to charge him with effects of the estate received here, which were in his hands at the time of the adjudication in England. This decision proceeds upon the ground that a person who is ad- ministrator of the same estate in dif- ferent states, and who has received assets under both administrations, can- not be compelled to account for any such effects except in the place where they were received. The same doctrine has since been repeatedly reaffirmed by the same court. Thus it was afterwards held (Stacy v. Thrasher, 6 How. 44) that there was such a want of privity between different administrators in different states, that an action of debt would not lie in one state against an administrator on a judgment recovered against a different administrator of the same intestate appointed under the authority of another state. And the subject is further discussed very much at length by Mr. Justice Wayne, with similar conclusions, in a later case. Hill v. Tucker, 13 How. 458. It But see Smith v. Nicholls, 5 Bing. (N. C.) p. 208; post, s. 607. is also held by the same court that the record of a debt against an admi- nistrator in one state is not sufficient evidence of the debt against an ad- ministrator in another state. ill v. Meek, 18 How. 16. So also must be regarded allowances by commis- sions of insolvency in the different states, if the decision last stated is to be followed; those allowances being merely for the purpose of reaching the estate within that particular jurisdic- tion. The subject came again under con- sideration before the same court in Mackey v. Coxe, 18 How. 100, where it was decided that an administra- tor appointed in the ‘Cherokee Ter- ritory might receive payment of a debt in the District of Columbia, and his discharge, or that of his autho- rized attorney, would be valid. But this is upon the ground that by the act of Congress he might sue in the courts of that district. He did howerer out of abundant caution take new letters of administration in that district. The true law in regard to ancillary administrations is here stated, that this being an ancillary ad- ministration, it depended upon the discretion of the orphans’ court which granted it, whether the money remain- ing in the hands of the ancillary ad- ministrator, after the satisfaction of all claims in this jurisdiction, should be distributed here by the ancillary administrator, or remitted to the prin- cipal administrators for distribution, and until that direction shall be exe- cuted, and the ancillary administrator directed which course to pursue, he is in no default. Concerning remedies in regard to the distribution of the estates of de- ceased persons in the national tribu- nals, where the parties in interest CHAP, XIII] FOREIGN ADMINISTRATIONS. 741, 528. Real Securities. — So strict is the principle that a foreign administrator cannot do any act as administrator in another state, reside in different states, it is settled that a creditor cannot have an execu- tion in a court of the United States, so as to levy upon the property of an estate reported as insolvent, which is in the course of settlement as such. Williams v. Benedict, 8 How. 107; Peale v. Phipps, 14 How. 868; Bank of Tennessee v. Horn, 17 How.157. Whe- ther it is competent for state authority to compel foreign creditors in all cases to seek their remedies in the state courts against the estates of decedents, to the exclusion of the jurisdiction of the United States courts, seems not to have been fully determined. Green v. Creighton, 23 How. 90, 107. But upon principle it would not seem competent for the several states to exclude the jurisdiction of the national tribunals in matters of this kind, any more than in common-law actions. But the mode of enforcing remedies in the United States courts will undoubtedly be at- tended with some embarrassments. And where the state laws provide that suits pending at the decease of a debtor whose estate is represented insolvent shall be discontinued and brought be- fore the commissioners of insolvency, this, it would seem, must extend to the national courts, the same as a sta- tutory bar. It would seem to be the established tule however in the national tribu- nals to allow a foreign creditor to pursue his claim to judgment there, without regard to state laws confer- ring exclusive jurisdiction in the set- tlement of estates upon particular state courts. But such judgments must be brought into the probate court before any distribution is there decreed, or else it would seem im- practicable to entitle them to an equal share in the distribution, where the assets prove insufficient to pay all the creditors. But in a case where all the credi- tors had been paid, and the admini- strators still held assets in their hands, the creditor, having recovered judg- ment in the courts of the United States, was held entitled to maintain a bill in equity in those courts to enforce the payment of his judgment before any distribution to the heirs, notwithstand- ing such judgment had not been pre- sented before the commissioners of insolvency appointed to audit all claims against the estate, and the provision in the state statutes that all claims not presented to such commissioners should be forever barred after a certain time, which in this case had already ex- pired. Union Bank v. Jolly, 18 How. 503; Green v. Creighton, 23 How. 90. The question of the right of those claiming title through deceased par- ties to maintain an action in a foreign forum to enforce those rights, without having taken letters of administration there, in a recent case came before the court of common pleas; where it was held that the widow of a French sub- ject, who became donee of the univer- sality of the real and personal estates of the succession of her husband, and’ in whom, as such, all his rights by the law of France vested, and who was entitled to enforce the same in her own name, and who also became liable for all her husband’s liabilities, and who was compelled to pay the amount of certain bills of exchange, of which her husband was drawer and the de- fendant acceptor, and who had re- covered judgment thereon in France against the defendant,—was not bound to take out letters of administration in England in order to entitle her to maintain an action upon such judgment. Vanquelin v. Bouard, 10 Jur. N.S. 566; 15 C. B. N.S. 341. The last case seems to proceed upon the ground that the plaintiff claimed 742 CONFLICT OF LAWS. [s. 523-525, that where the local laws convert real securities in the hands of an administrator into personal assets, which he may sell or assign, he cannot dispose of such real securities until he has taken out letters of administration in the place rei site.1 Thus mortgages are declared by the laws of Massachusetts to be personal assets in the hands of administrators, and disposable by them accord- ingly. But the authority cannot be exercised by any except ad- ministrators who have been duly appointed within the state.2: On the other hand, if an administrator sells real estate for the pay- ment of debts, pursuant to the authority given him under the local laws rei site, he is not responsible for the proceeds as assets in any other state; but they are to be disposed of and accounted for solely in the place and in the manner pointed out in the local laws.8 524. Modes of Administering. —In relation to the mode of ad- ministering assets by executors and administrators, there are in different countries very different regulations. The priority of debts, the order of payments, the marshalling of assets for this purpose, and, in cases of insolvency, the mode of proof, as well as the mode of distribution, differ in different countries.‘ In some countries all debts stand in an equal rank and order, and in cases of insolvency the creditors are to be paid pari passu. In others, there are certain classes of debts entitled to a priority of } Goodwin ». Jones, 8 Mass. 514, 519. See Bissell v. Briggs, 9 Mass. 467, 468. But see Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45,47; Attorney-Gen- eral v. Bouwens, 4 M. & W. 171, 191, 192. 2 Cutter v. Davenport, 1 Pick. (Mass.) 81. But see Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45, 47. 5 Peck v. Mead, 2 Wendell (N. Y.) 471; Hooker v. Olmstead, 6 Pick. (Mass.) 481, 483; Goodwin v. Jones, 3 Mass. 514, 519, 520. * Harvey v. Richards, 1 Mason, 421; ante, s. 323-328, 401-403. in her own right, and not in the right of the deceased. This might have been: placed upon the mere ground of judg- ment recovered in the name of the plaintiff. But the court put the case mainly upon the ground that the plain- tiff by paying the debts of her husband had become the owner, in her own right, of all the effects belonging to his estate, and might enforce those tights in her own name. This may be true of personal estate in the hands of a foreign executor, which is after- wards converted in a foreign state (Bullock v. Rogers, 16 Vt. 294), but is more questionable in regard to choses in action, whith can only be sued by some personal representative of the deceased appointed by the probate courts in the forum where the action is brought. Whyte v. Rose, 3 Q. B. 493, CHAP. XUL] FOREIGN ADMINISTRATIONS. 743 payment ; and they are therefore deemed privileged debts. Thus in England, bond debts and judgment debts possess this privi- lege; and the like law exists in some of the states of this Union. Similar provisions may be found in the law of France in favor of particular classes of creditors.?- On the other hand, in Massachu- setts, and in many other states of the Union, all debts except those due to the government possess an equal rank, and are paya- ble pari passu. Let us suppose then that a debtor dies domiciled in a country where such priority of right and privilege exists, and he has personal assets situate in a state where all debts stand in an equal rank, and administration is duly taken out in the place of his domicil, and also in the place of the situs of the assets. What rule is to govern in the marshalling of the assets, — the law of the domicil, or the law of the situs ? The es- tablished rule now is that in regard to creditors the administra- tion of assets of deceased persons is to be. governed altogether by the law of the country where the executor or administrator acts, and from which he derives his authority to collect them, and not by that of the domicil of the deceased. The rule has been laid down with great clearness and force on many occasions.® (a) 525. Ground of the Doctrine. —The ground upon which this doctrine has been established seems entirely satisfactory. Every nation, having a right to dispose of all the property actually situ- ated within it, has (as has often been said) a right to protect itself and its citizens against the inequalities of foreign laws which are injurious to their interests. The rule of a preference or of an 1 Smith v. Union Bank, 5 Pet. 518. 2 Merlin, Répertoire, Privilege ; Civil Code of France, art. 2092-2106. ® See Harrison v. Sterry, 5 Cranch, 299; Milne v. Moreton, 6 Binn. (Penn.) 353, 3861; Olivier v. Townes, 2 Mart. N.S. (La.) 93, 99; ante, 8. 388; De Sobry v. De Laistre, 2.-Harr. & J. (Md.) 193, 224; Smith v. Union Bank, 5 Pet. 518, 523; Dawes v. Head, 3 Pick. (Mass.) 128; Holmes v. Rem- sen, 20 Johns. (N. Y.) 265; Case of Miller’s Estate, 3 Rawle (Penn.) 312; McElmoyle ». Cohen, 13 Pet. 812. Where there are administrations and assets in different states, and the estate is insolvent, the general principle adopted by the courts of Massachusetts is to place creditors there,.as to the assets in the state, upon a footing of equality with. other creditors in the state where the party had his domicil at his death. Davis v. Estey, 8 Pick. (Mass.) 475. . .(a) See St. John v. Hodges, 9 Baxter (Tenn.) 334. But see Dial v. Gary, 148. C. 578. : 744 CONFLICT OF LAWS. [s. 525-527, equality in the payment of debts, whether the one or the other course is adopted, is purely local in its nature, and can have no just claim to be admitted by any other nation which, in its own domestic arrangement, pursues an opposite policy. And in a con- flict between our own and foreign laws, the doctrine avowed by Huberus is highly reasonable, that we should prefer our own, ‘In tali conflictu magis est, ut jus nostrum, quam jus alienum, servemus.’! 526. Opinions of Foreign Jurists. — It seems that many foreign jurists, but certainly not all,? maintain a different opinion, holding that in every case the privileges of debts, and the rank and order of payment thereof, are to be governed by the law of the domicil of the debtor at the time of his contract or of his death. They found themselves upon the general rule that the creditor must pursue his remedy in the domicil of the debtor, and that debts follow his person, and not that of the creditor. This rule was ac- knowledged in matters of jurisdiction in the Roman law, in which itis said: ‘Juris ordinem converti postulas, ut non actor rei fo- rum, sed reus actoris sequatur. Nam, ubi domicilium reus habet, 1 Huberus, de Confl. Leg. lib. 1, tit. 8, s. 11. See also Smith v. Union Bank, 5 Pet. 518; ante, s. 322-827. ? See ante, s. 325 a-325 0, and 1 Boullenois, p. 684-690; Rodenburg, Diver- sit. Statut. tit. 2, c. 5, 16; 2 Boullenois, Appx. p. 47-50. 8 Livermore, Dissert. p. 164-171; ante, s. 323-328. See also s. 401-403. Mr. Livermore has, in his Dissertations (p- 164-171), controverted the cor- rectness of the American doctrine; and he holds that the law of the debtor’s domicil at the time when the debt was contracted furnishes the true rule. Mr. Henry lays down the rule that when the laws of the domicil of the credi- tor and debtor differ, as to classing debts and rights of action among personal or real property, the law of the domicil of the debtor must prevail in suits on them. Henry on Foreign Law, 84, 35. Mr. Dwarris states the same rule, and quotes the maxims: ‘ Actor sequitur forum rei,’ and ‘ Debita sequuntur per- sonam debitoris.’ He admits indeed that debts and rights of action attend upon the person of the creditor, ‘ Inherent ossibus creditoris;’ but, to recover them, one must follow the forum rei, and person of the debtor. If the ques- tion regard the distribution of the creditor's estate, the law of his domicil is to be observed. If the question is, in what degree or proportion the represen- tatives of the debtor should be charged with payment from his effects, then it is of a passive nature, and the law of the domicil of the debtor should be fol- lowed. Dwarris on Statut. 650. It would be difficult to point out in the English law any authority in support of this doctrine. See also Dumoulin’s and Casa- regis’s opinions cited in Livermore, Dissert, 162, 163; Molin, Opera, tom. 1. In Consuetud. Paris. de Fiefs. tit. 1, s. 1, gloss. 4, n. 9, p. 56, 57, ed. 1681; Casaregis in Rubr. Stat. Civ. Genus de Success. ab Intest. n. 64, tom. 4, p. 42, 43; ante, s. 822-328. CHAP. XIII] FOREIGN ADMINISTRATIONS. 745 vel tempore contractus habuit, licet hoc postea transtulerit, ibi tan- tum eum conveniri oportet.’? But it by no means follows that be- cause this was the rule in the municipal jurisprudence of Rome, therefore it ought to be adopted as a portion of modern interna- tional law. Nor does it necessarily follow, even if the rule were admitted to govern as to the forum where the suit should be brought against the debtor in his lifetime, that upon his death, in a conflict of the rights and privileges of creditors (concursus credi- torum) of different countries, the municipal law of the country of the debtor should overrule the jurisprudence of the situs of the effects.?. 527. This however seems to be the doctrine of Coquille, Me- vius, Carpzovius, Burgundus, Rodenburg, Mattheus, and Gaill.3 But itis manifest from the language used by them that itis a matter of no small difficulty ; and a diversity of laws and opinions may well be presumed to exist in regard to it. Boullenois holds the same doctrine. Hertius seems in one passage to affirm it, saying: ‘Si de re immobili agitur, spectandas esse leges situs rei indubium est, etiamsi privilegium in ea propter qualitatem per- sone tribuatur. At in rebus mobilibus, si ex contractu vel quasi agatur, locus contractus inspiciendus esset. Enimvero, quia an- telatio ex jure singulari vel privilegio competit, non debet in pre- judicium illius civitatis, sub qua debitor degit, et res ejus mobiles contineri censeatur, extendi. Ad jura igitur domicilii debitoris, ubi fit concursus creditorum, et quo omnes cujuscunque generis lites adversus illum debitorem propter connexitatem caus@ tra- huntur, regulariter respiciendum erit.’® Yet he afterwards ad- 1 Cod. 8, 18, 2. 2 Ante, s. 332-337. 3 Livermore, Dissert. s. 254-257, p. 166-171; Rodenburg, de Div. Stat. tit. 2, e. 5,8. 16; 2 Boullenois, Appx. p. 47; ante, s. 324-825 0 ; 1 Boullenois, p. 686-— 687; I. obs. 30, p. 818-834; Bouhier, Cout. de Bourg. c. 21, s. 204, ¢. 22, 8. 151; Mevius, Comm. in Jus. Lubesence, lib. 3, tit. 1, art. 11, n. 24-27, p. 89, 40; Id. art. 10, n. 51, p. 33; Mattheus, de Auction. lib. 1, ¢. 21, s. 35, n. 10, p. 294, 295; Gaill, obs. Pract. lib. 2, obs. 180, n. 12-14, p. 563; Bur- gundus, tract. 2, n. 21; p. 72, ed. 1621; ante, s. 824-327. Not having access to the works of Carpzovius and Coquille, I am obliged to rely on the citations which I find in Livermore’s Dissertations of Coquille’s opinion, and upon Ro- denburg, Mevius (ubi supra), and Hertius for the citations from Carpzovius. The other authors I have examined, and the citations are correct. Ante, 8. 324-897; post, s. 782. * 1 Boullenois, p. 818; Id. obs. 30, p. 834. 5 1 Hertii Opera, de Collis. Leg. s. 4, n. 64, p. 150, ed. 1787; Id. p. 211, ed. 1716; ante, s. 3250. 746 CONFLICT OF LAWS. [s. 527-529, mits that cases may exist where undue preferences, given by the local laws of one state in favor of its own subjects, may be met with a just retaliation by others! He cites a passage from Huberus,? which would seem to show that the latter was of a dif- ferent opinion. A creditor (says Huberus) upon a bill of ex- change, exercising his right in a reasonable time, has a preference in Holland over all other creditors upon the movable property of his debtor. Hehas property of the like kind in Friesland, where no such law exists. Will such a creditor be there preferred to other creditors? By no means; since those creditors, by the laws there received, have already acquired a right.’ ‘ Creditor ex causa cambii, jus suum in tempore exercens, prefertur apud Batavos omnibus aliis debitoribus [creditoribus ?] in bona mobilia debitoris. Hic habet ejusmodi res in Frisia, ubi hoc jus non ob- tinet. An ibi creditor etiam -preferetur aliis creditoribus ? Nullo modo; quoniam heic creditoribus, vi legum hic receptarum jus pridem quesitum est.’? Upon this Hertius remarks: ‘ Nimirum recte disceret in sect. antec. non teneri potestates sequi jus alienum in fraudem sui juris, et civium suorum. Hine in quibusdam Ger- manie regionibus cives et incole in concursu creditorum anteha- bentur exteris, et pro consuetudine, que Biberaci est, ut cives chirographiarii preferantur extraneis forensibus, anteriorem hypo- thecam habentibus, pronunciatum in camera imperiali.’* Now, this seems a virtual surrender of the main ground in all cases where there is a conflict of laws, as to the priorities and prefe- rences of creditors, between the law of the domicil of the debtor, or of the contract, and that of the situs of the movables. 528. Primary Fund for Payment of Debts. —In the course of administration also in different countries, questions often arise as to particular debts, whether they are properly and ultimately payable out of the personal estate, or are chargeable upon the real estate of the deceased.(a) In all such cases the law of the 1 Ibid. 2 Huberus, J. P. Univers. c. 10, s. 44. 8 I quote the passage as I find it in Hertius, not having access to the work of Huberus here referred to. Huberus, J. P. Univers. c. 10, s. 44; 1 Hertii Opera, de Collis. Leg.s 4, n. 64, p. 150, ed. 1737; Id. p. 211, ed. 1716. See ante, s. 325a. Should not debitoribus be creditoribus ? 4 1 Hertii Opera, de Collis. Leg. s. 4, n. 64, p. 150, ed. 1787; Id. p. 211, 212, ed. 1716; ante, s. 825. (a) See Rice v. Harbeson, 63 N. Y. 493. CHAP. XIII] . FOREIGN ADMINISTRATIONS. 747 domicil of the deceased will govern in cases of intestacy ; and in cases of testacy the intention of the testator. A case illustrating this doctrine occurred in England many years ago. A testator who lived in Holland, and was seised of real estate there, and of considerable personal estate in England, devised all his real es- tate to one person, and all his personal estate to another, whom he made his executor. At the time of his death he owed some debts by specialty, and some by simple contract in Holland, and he had no assets there to satisfy those debts; but his real estate was by the laws of Holland made liable for the payment of sim- ple-contract debts, as well as specialty debts, if there were not personal assets to answer the same. The creditors in Holland sued the devisee, and obtained a decree there for the sale of the lands devised for the payment of their debts. And then the de- visee brought a suit in England against the executor (the legatee of the personalty) for reimbursement out of the personal estate. The court decided in his favor, upon the ground that in Holland, as in England, the personal estate was the primary fund for the payment of debts, and that it should come in aid of the real es- tate, and be in the first place charged.} 529. Seoteh Law.—In the Scottish law the same doctrine is ‘recognized; that is to say, that the fund which is primarily chargeable with the debt shall ultimately bear it in exoneration of all other funds. But in its application under the local law to particular cases, an opposite result may be produced from that in the case just mentioned ; for the personal estate is in such cases exonerated, and the real estate made to bear the debt. Thus, for example, in Scotland heritable bonds are primarily payable out of the real estate ; and, as we have seen, the personal estate of a person domiciled and dying in England is held exon- erated from the charge of such a heritable bond, made by him upon real estate in Scotland to secure a debt contracted in England; and the Scottish estate is compellable to bear the bur- den? On the other hand, by the law of Scotland, movable debts (in contradistinction to heritable bonds) are primarily and pro- 1 Anonymous, 9 Mod. 66; Bowaman v. Reeve, Prec. Ch. 577. 2 Ante, s. 466-488; Drummond v. Drummond, 6 Bro. P. C. 601 (Tomlins’s ed.); cited 2 V. & B. 181; Winchelsea v. Garetty, 2 Keen, 293, 310; Robert- son on Succession, 209, 214; 4 Burge, Col. & For. Law, pt. 2, ch. 15, s. 4, p. 722-734; ante, s. 266 a, 366, 486, 487. 748 CONFLICT OF LAWS. [s. 529, 530. perly chargeable upon the personal estate. The creditor may in- deed enforce payment against the real estate in the hands of the heir; but if he does so, the heir is entitled to relief against the executor out of the personal estate. In other words, according to the law of Scotland, the real estate, though subject to the pay- ment of movable debts, is only a subsidiary fund for the purpose of payment. Payment therefore by the heir does not extinguish the debt in his hands, but vests in him a right to recover the amount against the personal estate! The question has arisen whether under such circumstances the heir is entitled to enforce a payment out of the personal estate of his ancestor, not only in Scotland, but in England (where he died domiciled), according to whose laws the personal estate is also the primary fund for the payment of debts ; and it has been held that he is so entitled, upon the ground that, as between the heir and the persons en- titled to the distribution of the personal estate, the primary fund must in all cases ultimately bear the burden.? 1 Winchelsea v. Garetty, 2 Keen, 293, 308. 2 Winchelsea v. Garetty, 2 Keen, 293, 310-312. See Lord Langdale’s opi- nion cited at large, ante, s. 266 a. CHAP. XIV.] JURISDICTION AND REMEDIES, 749 CHAPTER XIV. JURISDICTION AND REMEDIES. 580. Classification. — We are next led to the consideration of the subject of remedies, or the modes of redress for the violation of the rights of other persons by proceedings in courts of justice. And in the nature of things these may well be classed into three sorts: first, those remedies which purely regard property, movable and immovable ; secondly, those which purely regard persons ; and thirdly, those which regard both persons and property. The Roman jurisprudence took notice of this distinction, and accord- ingly divided all remedies, as to their subject, into three kinds: (1) Real actions, otherwise called vindications, which were those in which a man demanded something that was his own, and which were founded on dominion, or jus in re; (2) Personal actions, denominated also condictions, which were those in which aman demanded what was barely due. to him, and which were founded on some obligation, or jus ad rem; (8) Mixed actions, which were those in which some specific thing was demanded, and where also some personal obligations were claimed to be per- formed.1_ The real actions of the Roman law were not, like the real actions of the common law, confined to real estate, but they included personal as well as real property. But the same dis- tinction, as to classes of remedies and actions, equally pervades the common law as it does the civil law. Thus we have in the common law the distinct classes of real actions, personal actions, and mixed actions ; the first embracing those which concern real estate, where the proceeding is purely in rem; (a) the next em- 1 Halifax on the Roman Law, b. 3, ¢. 1, s. 4,5, p. 25, 28; 1 Brown, Civil & Adm. Law, p. 439, 440. In Pothier’s work on the Customs of Orléans, there will be found a correspondent division of actions into the same classes. Pothier, Coutumes d’Orléans, Introd. Gén. c. 4, art. 109-122. (a) This use of the term “in rem,’’ note a), though common to the older as will appear hereafter (post, s.592a, books of English law, — the result per- 750 CONFLICT OF LAWS. [s. 530-534, bracing all suits in personam for contracts and torts; and the last embracing those mixed suits where the person is liable by reason of, and in connection with, property. 581. Questions of Jurisdiction. —In considering the nature of actions, we are necessarily led to the consideration of the proper tribunal in which they should be brought; or, in other words, what tribunal is competent to entertain them in point of juris- diction. And here the subject naturally divides itself into the consideration of matters of jurisdiction in regard to the admini- stration of mere municipal and domestic justice ; and matters of jurisdiction in regard to the administration of justice inter gentes, founded upon principles of public law. 532. Roman Law.— Place of Jurisdiction.—In the Roman jurisprudence, and among those nations which have derived their jurisprudence from the civil law, many embarrassing ques- tions as to jurisdiction seem to have arisen.2 The general rule of the Roman Code is, that the plaintiff must bring his suit or action in the place where the defendant has his domicil, or where he had it at the time of the contract. ‘Juris ordinem,’ said the Emperor Diocletian, ‘ converti postulas ; ut non actor rei forum, sed reus actoris sequatur. Nam ubi domicilium reus habet, vel tempore contractus habuit, licet hoc postea tanstulerit, ibi tan- tum eum conveniri oportet.® But it is not to be understood that this rule applied to all cases where the party defendant was found, without any regard to the situation of the thing sought, as if its object were to show more favor to the party defendant than to the plaintiff. Its sole object was that the adjudication might be made where it could be enforced. Thus we find the doctrine laid down in the Code, that although the general rule is 13 Black. Com. 294; Com. Dig. Action, N. 2 See 1 J. Voet, ad Pand. 5, 1, 203; Id. 64, 66, 74, 91, 92; Huberus, lib. 5, tit. 1, de Foro Compet. tom. 2, s. 88-52, p. 722-730; Strykius, tom. 6, 11, p.1, 8, tom. 7, 1, p. 5; 1 Boullenois, obs. 25, p. 601, 618, 619, 635. 8 Cod. 3, 18, 2; ante, s. 526. one instituted without relation to indi- vidual rights, in perfect contrast to a haps of a confusion between the real actions of the English law and the ac- tions inrem of the Roman law, —is now becoming obsolete, except in a sense which permits its application to per- sonalty as well as to realty. In the proper sense a proceeding in rem is proceeding in personam; and the most familiar example of a proceeding in rem in this sense is found in cases of personalty, as for example in the case of a ship libelled as prize of war. CHAP. XIV.] JURISDICTION AND REMEDIES. 751 that the plaintiff must bring his suit in the domicil of the defend- ant, yet this was dispensed with in certain suits in rem, which might be brought in the place rei site. ‘Actor rei forum, sive in rem, sive in personam sit actio, sequitur. Sed et in locis, in quibus res, propter quas contenditur, constitute sunt, jubemus in rem actionem adversus possidentem moveri.’ ! 533. Huberus. — Forum Domicilii, Rei Site, Ret Geste.— Hu- berus thus explains the doctrine. ‘ Cujus ratio non tam est, quod reus sit actore favorabilior, etsi verissima ; sed quod necessitatis vocandi et cogendi alium ad jus zequum, non nisi a superiore pro- ficisci queat: superior autem cujusque non est alienus, sed pro- prius rector. Vocandi, inquam, et cogendi; quandoquidem sine coactione judicia forent elusoria; nec alibi forum lege stabilitur, quam ubi illa cogendi facultas adhiberi potest; non tamen, ut ubicunque illa valet, sit forum, sed ubi res et equitas patitur. Vis illa compellandi partes ad equum jus, imprimis est in loco domicilii, est etiam in loco rei site, et rei geste, si reus illic ha- beri possit, alias secus. Hine tria sunt loca fori in jure nostro, domicilii, rei site, rei geste.’? And hence he thinks that the rule of the civil law rei site applies not only to immovables, but to movables, although many jurists confine it to the former.2 ‘Sed heic aliam potius rationem sequimur; quod in foro stabiliendo maxime consideretur, an in promptu sit effectum dare citationi, in cogendis partibus ad obsequium jurisdictionis; que facultas que locum habet in mobilibus, ubi detinentur, quam in immo- bilibus, ubi site sunt.’ 4 534. But he admits that, as the forum domicilii was of univer- sal operation, actions in rem might be brought in the forum do- micilii, as well as in the forum rei site. ‘ Videlicet, hoc semper tenendum, domicilii forum esse generale, quod in cunctis actioni- bus, adeoque etiam in actionibus in rem, obtinere, sciendum est, ut de dd. legibus constat.’® Again he says: ‘Summa igitur hac 1 Cod. 3, 19, 8; 1 Boullenois, obs. 25, p. 618, 619; post, s. 551. 2 Huberus, lib. 5, tit. 1; De Foro Compet. s. 38, tom. 2, p. 722. See also 1 Boullenois, obs. 25, p. 618, 619; post, s. 551. ® The subject is a good deal controverted among the civilians; but the pre- sent work does not require me to engage in the task of discussing the various opinions which are held by them. The Jearned reader will find many of them referred to in J. Voet, ad Pand. 1, 5, s. 77, &c., p. 887. * Huberus, tom. 2, lib. 5, tit. 1, s. 48, p. 727. 5 Td. s. 49, p. 728. 752 CONFLICT OF LAWS. [s. 534-538, esto. Domicilium jn omnibus rebus et actionibus prebet forum. Res sita preterea in actionibus in rem singularibus, non excluso domicilio.’1_ And he supposes the same rule to apply in modern times in the civil-law countries. ‘Hee ego de foro domicilii, reique site alterne conjuncto, moribus hodiernis eodem modo putem obtinere, quemadmodum jure Cesaris prescriptum est; ut maxime in rem agatur, ubi res sita est; possit tamen omnino etiam, ubi reus habitat.’ 2 585. Mixed Actions.—In regard to mixed actions, although there is no text of the Roman law directly in point, Huberus thinks that they may be brought either in the place-of domicil of the defendant or of the rei site. ‘De mixtis actionibus, excepta hereditatis petitione, que partim in rem, partim in personam, esse dicuntur, non sunt textus speciales, ubi sint instituenda. Ideoque id ex earum proprietate colligunt interpretes, cum par- tim imitentur naturam personalium, partim in rem actiones, illas et apud domicilium et apud rem sitam esse movendas, ete. Proinde sic est statuendum. Posse quidem illas actiones utroque loco, domicilii, situsque, moveri ; verum, si faciende sunt adjudi- cationes manuque divisio regenda sit, partes ad judicem loci re- mittendas esse, res ipsa loquitur.’ 3 536. Forum Rei Gest. — The civil law contemplated another place of jurisdiction ; to wit, the place where a contract was made or was to be fulfilled, or where any other act was done, if the de- fendant or his property could be found there, although it was not the place of his domicil. ‘Tllud sciendum est, eum, qui ita fuit obligatus, ut in Italia solveret, si in provincia habuit domicilium, utrubique posse conveniri, et hic, et ibi.’* Huberus explains this thus: ‘Sequitur causa fori tertia, quam rem gestam esse diximus, eamque vel ex contractu vel ex delicto admisso, etc. Sed con- tractus ita forum tribuit, si contrahens in eodem loco reperiatur; quod convenit, requisito communi inde ab initio collocato, nullam esse fori causam, nisi cum facultate cogendi conjunctam ; qualis non est ex historia contractus, si vel reus ibi non inveniatur, vel bona duntaxat sita non habeat, in que missio fieri possit, quando reus se in loco contractus non sistit.’5 These distinctions of the 1 Huberus, tom. 2, lib. 5, tit. 1, s. 50, p. 728. 2 Td. s. 50. 8 Id. s. 51, p. 729. ‘ Dig. 5, 1, 19, 4. See also, as to all these distinctions, Pothier, Pand. 5, 1, n. 29-44; Cod. 8, 18, 1. 5 Huberus, tom. 2, lib. 5, tit. 1, s. 58, 54, p. 729, 780. CHAP. XIV.] JURISDICTION AND REMEDIES. 753 Roman law have found their way into the jurisprudence of most, if not all, of the continental nations of modern Europe. 587. General Doctrine of Foreign Jurists. — Accordingly we find it laid down by foreign jurists generally that there are, pro- perly speaking, three places of jurisdiction : first, the place of do- micil of the party defendant, commonly called the forum domicilii ; secondly, the place where the thing in controversy is situate, commonly called the forum rei site ; and thirdly, the place where the contract is made or other acts done, commonly called forum ret geste, or forum contractus. ‘ Vis illa compellandi partes ad equum jus,’ says Huberus, ‘imprimis est in loco domicilii; est etiam in loco rei site; et rei geste, si reus illic haberi posse; alias secus.’1_ The same distinctions are fully laid down by John Voet and Boullenois, to whom we may generally refer for more copious information.? They are also recognized in the Scottish law. They have been here brought into view because they con- stitute the basis of the reasoning of many of the foreign jurists in discussing the great doctrines respecting the competency of tribunals to hold jurisdiction of causes, and the proper operation of judgments and decrees rei judicate. They are also known as fundamental elements in the actual jurisprudence of many of the modern nations of continental Europe.* 588. Common Law.— Local and Transitory Actions.—In the 1 Huberus, tom. 2, lib. 5, tit. 1, de Foro Compet. s. 38, p. 722. 2 J. Voet, ad Pand. 5, 1, de Judiciis, p. 303, s. 64-149; 1 Boullenois, obs. 25, p. 601; Id. p. 618, 619; Id. p. 6835; Henry on Foreign Law, c. 8, p. 54, ¢. 9, p. 63. 3 Erskine, Inst. b. 1, tit. 2, s. 16-22, p. 29-39. 4 See Code de Procédure Civile of France, b. 1, tit. 1, art. 1-4; Henry on Foreign Law, c. 8, p. 54, c. 9, p. 63, c. 10, p. 71; Pardessus, Droit Comm. tom. 5, art. 1353; 1 Boullenois, obs. 25, p. 601, 618, 619; Id. 635, In France, jurisdiction would seem generally to belong either to the place of domicil, or to the place rei site. Jurisdiction in the place of the contract, or of the other act done, does not seem to have been recognized under the old jurisprudence, and it does not exist in the modern Code. Code de Procédure Civile, art. 1, 2. ‘Le lieu,’ says Boullenois, ‘ oi se passent les actes, celui ou les parties s’obli- gent de payer, et leur soumission, ne déterminent pas la justice ow elles doivent plaider.’ 1 Boullenois, obs. 30, p. 829-832; 2 Boullenois, p. 455-457. Du- moulin says: ‘ Ceeterum ex eo solo, quod quis promisit solvere certo loco, licet ibi conveniri possit de jure, sicut si ibi contraxisset; tamen hoc non observa- tur in hoe regno; quia in hoc regno non sortitur quis forum ratione contractus, etiam vere et realiter facti in loco.’ Molin. Opera, Comm. in Decii, tom. 3, p. 837, ed. 1681; 1 Boullenois, obs. 30, p. 829. See also Pothier, Traité de la Procédure Civile, ¢. 1. 48 754 CONFLICT OF LAWS. [s. 538-540, corresponding distribution of actions by the common law into personal actions and real actions and mixed actions,! the two lat- ter are, in point of jurisdiction, confined to the place rei site ; and the former are generally capable of being brought wherever the party can be found. Or, as the judicial phrase is, in the com- mon law, real actions and mixed actions are local, and personal actions are transitory.” 589. Foundation of Jurisdiction.— Considered in an interna- tional point of view, jurisdiction, to be rightfully exercised, must be founded either upon the person being within the territory, or upon the thing being within the territory ; for otherwise there can be no sovereignty exerted, upon the known maxim, ‘ Extra terri- torium jus dicenti impune non paretur.’?(a@) Boullenois puts this rule among his general principles. The laws of a sovereign rightfully extend over persons who are domiciled within his ter- ritory, and over property which is there situate. Vattel lays down the true doctrine in clear terms. ‘ The sovereignty,’ says he, ‘ united to domain, establishes the jurisdiction of the nation in its territories, or the country which belongs to it. It is its pro- vince, or that of its sovereign, to exercise justice in all places un- der its jurisdiction, to take cognizance of. the crimes committed, and the differences that arise in the country.’® On the other hand, no sovereignty can extend its process beyond its own terri- torial limits to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals.6(0) This subject however de- serves a more exact consideration. 540. Jurisdiction as regards Persons. — In the first place let us consider the subject of jurisdiction a little more particularly in regard to persons. These may be either citizens, native or natu- 3 3 Black. Com. 117, 118. ? 3 Black. Com. 294; Com. Dig. Action, N.; 1 Chitty, Com. & Manuf. p. 647-649. 8 Dig. 2, 1, 20. * 1 Boullenois, Pr. Gén. 1, 2, p. 2, 3. 5 Vattel, b. 2, c. 8, 5. 84. é (a) See Yelverton v. Yelverton, 1 42. See Russel v. Smyth, 9 M. & W. Sw. & T. 586; Warrender ». Warren- 819; De Witt v. Burnett, 3 Barb. 96; der, 9 Bligh, 144. Gilbreath v. Bunce, 65 Mo. 349. (®) Picquet v. Swan, 5 Mason, 35, CHAP. XIV.] JURISDICTION AND REMEDIES, 755 ralized, or foreigners. In regard to the former, while within the territory of their birth or of their adopted allegiance, the juris-. diction of the sovereignty over them is complete and irresistible. It cannot be controlled ; and it ought to be respected everywhere. But as to citizens of a country domiciled abroad, the extent of ju- risdiction which may be lawfully exercised over them in personam is not so clear upon acknowledged principles. It is true that na- tions generally assert a claim to regulate the rights and duties and obligations and acts of their own citizens, wherever they may be domiciled. And so far as these rights, duties, obligations, and acts afterwards come under the cognizance of the tribunals of the sovereign power of their own country, either for enforcement or for protection or for remedy, there may be no just ground to ex- clude this claim. (4) But when such rights, duties, obligations, and acts come under the consideration of other countries, and especially of the foreign country where such citizens are domi- ciled, the duty of recognizing and enforcing such a claim of sover- eignty is neither clear, nor generally admitted. The most that can be said is, that it may be admitted ex comitate gentium. But it may also be denied ex justitia gentium, whenever it is deemed injurious to the interests of such foreign nations, or subversive of their own policy or institutions. No one, for instance, would im- agine that a judgment of the parent country, confiscating the property or extinguishing the personal rights or personal capaci- ties of a native subject, on account of such a foreign residence, would be recognized in any other country. And it would be as little expected, as a matter of right, that any other country would ‘enforce a judgment against such persons in the parent country, obtained in invitum, on account of a supposed contumacy in re- maining abroad, to which suit he had never appeared, and of which he had received no notice, however the proceedings might be in conformity to the local laws. This is the just result dedu- cible from the axioms of Huberus already quoted; and espe- cially from the first and second of these axioms. Whatever authority should be given to such judgments must be purely ex comitate, and not as matter of absolute or positive right on one side, and of duty on the other. 1 Ante, s. 29. (a) Deck v. Deck, 2 Sw. & Tr. 90; and see Bond v. Bond, id. 93. 756 CONFLICT OF LAWS. [s. 541-543, 541. Foreigners. —In regard to foreigners resident in a coun- try, although some jurists deny the right of a nation generally to legislate over them, it would seem clear, upon general princi- ples of international law, that such a right does exist; (a) and the extent to which it should be exercised is a matter purely of municipal arrangement and policy. Huberus lays down the doctrine in his second axiom. All persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof.! Boullenois says that the sovereign has a right to make laws to bind foreign- ers in relation to their property within his domains; in relation to contracts and acts done therein; and in relation to judicial proceedings, if they implead before his tribunals. And fur- ther, that he may of strict right make laws for all foreigners who merely pass through his domains, although commonly this authority is exercised only as to matters of police. Vattel asserts the same general doctrine, and says that foreigners are subject to the laws of a state while they reside in it. And in relation to disputes which may arise between foreigners, or between a citizen and a foreigner, he holds that they are to be determined by the judge of the place, and according to the laws of the place of the defendant’s domicil.6 542. Policy of some Nations. — There are nations indeed which wholly refuse to take cognizance of controversies between for- eigners, and remit them for relief to their own domestic tribu- nals, or to that of the party defendant, and especially as to matters originating in foreign countries. Thus in France, with few exceptions, the tribunals do not entertain jurisdiction of con- troversies between foreigners respecting personal rights and in- terests.° (6) But this is a matter of mere municipal policy and 1 Ante, s. 29; Huberus, tom. 2, lib. 1, tit. 8, s.2, p. 588; ante, s. 29, note 3; Henry ou Foreign Law, c. 8, p. 54, c. 9, p. 63, ¢. 10, p. 71. 2 1 Boullenois, Pr. Gén. 4, 5, p. 3. 8 Id. 5, p. 8. 4 Vattel, b. 1, c. 19, s. 218; Id. b. 2, ¢. 8, s. 99, 101, 103. (See Caldwell v. Van Vlissengen, 16 Jur. 115; 9 Eng. Law & Eq. 51.) § Id. b. 2, ¢. 8, s. 108. ® See Pardessus, Droit Comm. tom. 5, art. 1470-1478, p. 238; [Henry on Foreign Law, Appendix, p. 214-216. (a) Peabody v. Hamilton, 106 Mass. () See Lang v. Reid, 12 Moore, 17. . 86. 2 P.C CHAP. XIV.] JURISDICTION AND REMEDIES. 757 convenience, and does not result from any principles of interna- tional law. In England and America, on the other hand, suits are maintainable, and are constantly maintained, between for- eigners, where either of them is within the territory of the state in which the suit is brought. 543. Property in other Countries. —But although every na- tion may thus rightfully exercise jurisdiction over all persons within its domains, yet we are to understand that, in regard thereto, the doctrine applies only to suits purely personal, or to suits connected with property within the same sovereignty. For although the person may be within the territorial jurisdiction, yet it is by no means true that, in virtue thereof, every sort of suit may there be maintainable against him. A suit cannot, for instance, be maintainable against him, so as absolutely to bind his property situate elsewhere ; and, a fortiori, not so as absolutely to bind his rights and titles to immovable property situate elsewhere. It is true that some nations do, in maintain- ing suits in personam, attempt, indirectly, by their judgments and decrees, to bind property situate in other countries; but it is always with the reserve, that it binds the person only in their own courts in regard to such property. And certainly there can be no pretence that such judgments or decrees bind the pro- perty itself, or the rights over it which are established by the laws of the place where it is situate. If a Court of Chancery in England should compel a bankrupt, by its decree, to convey his personal and real estate, situate in foreign countries, to the assignees under the commission (as it was at one time thought they might do, although now the doctrine is repudiated!) ; yet such a decree would not operate to transfer the property, so as to affect the rights of creditors, or the regular operation of the laws of the state rei site. So a foreign court cannot, by its judgment or decree, pass the title to land situate in another country ; neither can it bind such land by a judgment or decree that, in default of the defendants in the suit conveying, it shall be conveyed by the deed of its own officers to the plaintiffs. Such a conveyance made by its officers would be treated in the country where the land is situate as a mere nullity.” a 1 Ex parte Blakes, 1 Cox, 398; Selkrig v. Davies, 2 Rose, 79, 291; 2 Dow, 1. * Watts v. Waddle, 6 Pet. 889, 400. 758 CONFLICT OF LAWS. [s. 544, 545, 544. Chancery Jurisdiction.— The doctrine of the English: Courts of Chancery on this head of jurisdiction seems carried to an extent which may perhaps in some cases not find a perfect warrant in the general principles of international public law; and therefore it must have a very uncertain basis, as to its re- cognition in foreign countries, so far as it may be supposed to be founded in the comity of nations. (a) That doctrine is, that the Court of Chancery, having authority to act upon the person (agere in personam) may indirectly act upon real estate situate in a foreign country, through the instrumentality of this au- thority over the person; and that it may compel him to give effect to its decree respecting such property, whether it goes to the entire disposition of it, or only to affect it with liens or bur- dens.1 (6) Lord Hardwicke asserted the jurisdiction in several cases.2, At a more recent period the Court of Chancery asserted the jurisdiction over a British creditor who had fraudulently. obtained a judgment in the British West Indies against his debtor, and had on an execution sold his debtor’s real estate there, and become the purchaser thereof; and the court set aside the purchase for the fraud It is observable that in this last case all the parties were British subjects, and the original judg- ment was in a British island. The Master of the Rolls, Sir R. P. Arden, on that occasion said: ‘ Upon the whole, it comes to this, that, by a proceeding in the island, an absentee’s estate might be brought to sale, and for whatever interest he has, without any particular upon which they are to bid; the question is, whether any court will permit the transaction to prevail to that extent. It is said this court has no jurisdiction, because it is a proceeding in the West Indies. It has been argued very sensibly that it is strange for this court to say it is void by the laws of the island for want of notice. I admit I am bound to say that according to those laws a creditor may do this. To that ‘law he has had 1 See 1 Eq. Abr. 183; Arglasse v. Muschamp, 1 Vern. 75, 135; Kildare v. Eustace, 1 Vern. 419. 2? See Foster v. Vassall, 8 Atk. 589; Penn v. Lord Baltimore, 1 Ves. 444. 8 Cranstown v. Johnston, 3 Ves. 170; 5 Ves. 277. (a) See Norris », Chambers, 29 tern Union Tel. Co. v. Pacific Tel. Co. Beav. 253. 49 Ill. 90 (injunction refused); Snook (2) See Loney v. Penniman, 43 Md. v. Snetzer, 25 Ohio St. 516; Muller ». 181; Keyser v. Rice, 47 Md. 203; Wes- Dows, 94 U. S. 444. CHAP. x1Vv.] JURISDICTION AND REMEDIES. 759 recourse and wishes to avail himself of it; the question is, whether an English court will permit such an use to be made of the law of that island or any other country. It is sold, not to satisfy the debt, but in order to get the estate, which the law of that country never could intend, for a price much inadequate to the real value ; and to pay himself more than the debt for which the suit was commenced, and for which only the sale could be holden. It was not much litigated that the courts of equity here have an equal right to interfere with regard to judgments or mortgages upon the lands ina foreign country, as upon lands here. Bills are often filed upon mortgages in the West Indies. The only distinction is, that this court cannot act upon the land directly, but acts upon the conscience of the person living here. Archer v. Preston, Lord Arglasse v. Muschamp, Lord Kildare v. Eustace (1 Eq. Abr. 183; 1 Vern. 75, 185, 419). Those cases clearly show that with regard to any contract made, or equity between persons in this country, respecting lands in a foreign country, particularly in the British dominions, this court will hold the same jurisdiction as if they were situated in England. Lord Hardwicke lays down the same doctrine (8 Atk. 589). Therefore without affecting the jurisdiction of the courts there, or questioning the regularity of the proceedings, as in a court of law, or saying that this sale would have been set aside either in law or equity there, I have no difficulty in saying, which is all I have to say, that this creditor has availed himself of the advan- tage he got by the nature of those laws, to proceed behind the back of the debtor upon a constructive notice, which could not operate to the only point to which a constructive notice ought, that there might be actual notice without wilful default; that he has gained an advantage which neither the law of this nor of any other country would permit. I will lay down the rule as broad as this: this court will not permit him to avail himself of the law of any other country to do what would be gross injus- tice.” ? 545. Its Limits.— To the extent of this decision perhaps there may not be any well-founded objection ;? and the same doctrine has been repeatedly acted upon by the equity courts of 1 Cranstown v. Johnston, 3: Ves. 170; 5 Ves. 277. 2 Jackson v. Petrie, 10 Ves. 164. 760 CONFLICT OF LAWS. [s. 545-547. America.1(a) But even in England the Court of Chancery will not act directly upon lands in the plantations, so as to affect the title, or the possession, or the rents and profits thereof.? Nor will it entertain jurisdiction over contracts with regard to lands in fo- reign colonies, so as to touch the title there, or to prevent a sale thereof by an injunction ;° although it has been repeatedly held, in very general terms, that there is no doubt of the jurisdiction of the Court of Chancery, as to land in the West Indies, or in other foreign places, if the persons are in England.* 546. Actions against Non-Residents. — But it is not an uncom- mon course for a nation by its own municipal code to provide for the institution of actions against non-resident citizens, and against non-resident foreigners, by a citation viis et modis, as it called, or by an attachment of their property, nominal or real, within the limits of its own territorial sovereignty ; and to proceed to judgment against the party defendant, whether he has any actual notice of the suit or not, or whether he ever appears to the suit or not. In respect to such suits, in personam, by a mere personal citation, viis et modis, such as by posting up such a citation on the Royal Exchange in London, as is done in the Admiralty in England, or by an edictal citation, as it is called, posted up at the quay in Leith, at the market-cross of Edinburgh, and the pier and shore of Leith, according to the practice of Scotland,® there is no pretence to say that such modes of proceeding can confer any le- gitimate jurisdiction over foreigners who are non-residents, and 1 See Massie v. Watts, 6 Cranch, 148, 158; Ward v. Arredondo, Hopkins, Te Mead v. Merritt, 2 Paige (N. Y.) 402; Mitchell ». Bunch, 2 Paige (N. Y.) 2 Roberdeau v. Rous, 1 Atk. 548. See 1 Vern. 75, 185, 419; post, s. 551. 8 White v. Hall, 12 Ves. 821. See Massie v. Watts, 6 Cranch, 148, 156. 4 Jackson v. Petrie, 10 Ves. 165. 5 Ersk. Inst. b. 1, tit. 2, s. 17, 18; Id. b. 4, tit. 1, s. 8. After a decree is obtained in personam in Scotland, it seems that letters of horning, as they are called, issue, requiring the defendant to comply with the decree, which may be served by personal service, or, if the party cannot be found, by application at his place of domicil or dwelling-house, and if he is out of the kingdom, then he is charged by a copy put up at the market-cross in Edinburgh, and at the pier and shore of Leith. Ersk. Inst. b. 2, tit. 5, s. 55; Id. b. 4, tit. 3, s. 9. See Douglas v. Forrest, 4 Bing. 686, 690. (a) See Olney v. Eaton, 66 Mo. proper case. Snook v. Snetzer, 25 563. So one may be enjoined from Ohio St. 516. suing in another state for debt in a CHAP. x1v.] JURISDICTION AND REMEDIES, "61 do not appear to answer the suit, whether‘they have notice of the suit or not. The effects of all such proceedings are purely local ; and elsewhere they will be held to be mere nullities. (a) 547. Buchanan v. Rucker. — Lord Ellenborough put this doc- trine with great clearness and force, in a case before the court where a judgment was obtained, in the island of Tobago, against a party stated in the proceedings to be ‘ formerly of the city of Dunkirk, and now of the city of London, merchant,’ and who was cited to appear at the ensuing court to answer the plaintiff’s ac- tion by a summons, which was returned served ‘by nailing up a copy of the declaration at the court-house door,’ and on which service judgment was afterwards given by default of the defendant to appear and defend it. It was attempted to maintain the judgment as authorized by the local law, in cases -of persons absent from the island. Lord Ellenborough, in delivering the judgment of the court, said: ‘ By persons absent from the island must necessarily be understood persons who have been present and within the jurisdiction, so as to have been subject to the pro- cess of the court; but it can never be applied to a person who, for aught appears, never was present within or subject to the ju- Tisdiction. Supposing however that the act had said in terms . that, though a person sued in the island had never been present’ within the jurisdiction, yet that it should bind him, upon proof of nailing up the summons at the court door; how could that be obligatory upon the subjects of other countries? Can the Island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed juris- diction? The law itself however, fairly construed, does not warrant such an inference; for “absent from the island” must be taken only to apply to persons who had been present there, and were subject to the jurisdiction of the court out of which the process issued; and as nothing of that sort was in proof here to show that the defendant was subject to the jurisdiction at the time of commencing the suit, there is no foundation for raising an assumpsit in law upon the judgment so obtained.’? 1 Buchanan »v. Rucker, 9 East, 192, 194. See Cranstown,v. Johnston, 3 Ves. 170; 5 Ves. 277; Cavan v. Stewart, 1 Stark. 525; Becquet v. McCarthy, 2B. & Ad, 951; Ferguson v. Mahon, 11 A. & E. 179, 182. In Smith v. Nicolls, (a) See Schibsby v. Westenholz, L. R. 6 Q. B. 153; Bischoff v. Wethered, 9 Wall. 812. 762 CONFLICT OF LAWS. [s. 547, 548, This doctrine has been fully recognized in. the American courts.! (a) 1 Fenton v. Garlick, 8 Johns. (N. Y.) 194; Borden v. Fitch, 15 Johns. 121; Bissel v. Briggs, 9 Mass. 462; Mills v. Duryee, 7 Cranch, 481, 486; Picquet». Swan, 5 Mason, 35, 48, 44; Buttrick v. Allen, 8 Mass. 278. 5 Bing. N. C. 208, which was an action of trover for a ship, the defendant among other things, pleaded a foreign judgment and recovery by the plaintiff in the yice-admiralty court at Sierra Leone for the same subject-matter. To that plea there was a replication that the defendant was not in the colony of Sierra Leone, or at any place within thé jurisdiction of the vice-admiralty court, at the commencement of, or at any time during, the proceedings, or any time until after the judgment in the colony of Sierra Leone, and had no notice thereof, &c.; and Lord Chief Justice Tindal, in delivering his opinion, adverting to this point, said: ‘The effect of the plaintiff’s replication is this, — he shows some matters by which, at least prima facie, the judgment relied on is a void judgment; for he says, at the time of the suit being commenced,and from that time down to the termination of the suit, not only was the defendant in that ac- tion absent from the place, but that he had no person whatever, no agent, or any other person, on whom any process or monition from the court could be served, or who could answer for him. Till that is answered by showing that there was some law in the colony from which, in the situation the party was, the judgment would not be a void one, we must say the plaintiff is setting up that which, if unanswered, shows it to be a void judgment. In Plummer v. Wood- burne, (4 B. & C. 625) the court says that, before you set up a foreign judg- - ment as conclusive in the nature of an estoppel between the parties, it must appear on the record that it is decisive and binding between them in the colony where the judgment is given. That does not appear here; and therefore, on both grounds, I think the plea is a bad plea, as far as the foreign judgment is concerned.’ See also Plummer v. Woodburne, 4 B. & C. 625. Lord Brougham, in alluding to the same subject in Don v. Lippmann, 5 Cl. & F. 1, 20, 21, said: ‘ But supposing that the debt might have been sued for in France, then comes the question, whether the French judgment cannot be sued on as a substan- tive cause of action. Itis, in fact, tendered as one of the grounds of suit here. A foreign judgment is good here for such a purpose, provided that it has not been obtained by fraud or collusion, or by a practice contrary to the principles of all law. Sinclair v. Frazer (Mor. 4543) which was affirmed in this house, showed that we regard a foreign judgment only as prima facie evidence of a debt. Buchanan v. Rucker (1 Camp. 63; 9 East, 192) esta- blished that the court before which a foreign judgment is brought by a proceed- ing of this sort may examine whether it has been rightly obtained or not; and the principle of the decision cannot be confined to the case of- a party not be- ing within the jurisdiction at the time the judgment is obtained. If he isa foreigner, and is not within the jurisdiction, but is by force kept out of it be- fore the action, and is not sued by proper forms, his case is even stronger than that of the defendant in Buchanan v. Rucker, and he must have the same principle applied to it. The case of Douglas v. Forrest (4 Bing. 686) shows how much the application of the rule is affected by circumstances. In that (2) See De Witt v. Burnett, 3 Barb. 96. CHAP. XIV.] JURISDICTION AND REMEDIES. 763 548. Douglas v. Forrest.—In a recent case the validity of a judgment rendered in a foreign country in a suit against persons who were non-residents, and had no actual notice of the suit, and did not appear and answer the same, came before the Court of Common Pleas in England, upon a Scottish judgment rendered against a Scottish absentee, upon a due attachment of his herita- ble property in Scotland, and due proclamation, by what is tech- nically called ‘ horning ’ in Scotland, which judgment was rendered against the defendant by default for his non-appearance to answer the suit. The question was, whether the judgment so rendered was void or not. It was held that the judgment was valid. This decision was founded partly upon the construction of the articles of union between Scotland and England, and partly upon the recognition of such a practice as valid by a British act of par- liament, and partly upon the fact that the judgment was against a Scottish subject.!. On that occasion Lord Chief Justice Best, in delivering the opinion of the court, said; ‘ A natural-born subject of any country, quitting that country, but leaving property under the protection of its laws, even during his absence owes obedience to those laws, particularly when those laws enforce a moral obli- gation. The deceased, before he left his native country, acknow- ledged, under his hand, that he owed the debts; he was under a moral obligation to discharge those debts as soon as he could.’ ? And after adverting to the case of Buchanan v. Rucker, and some others, he added: ‘ To be sure, if attachments, issued against any persons who were never within the jurisdiction of the court issu- ing them, would be supported and confirmed in the country in which the person attached resided, the legislature of any country case, which was an action in an English court on a Scotch judgment of horn- ing against a Scotchman born, the court guards itself against a general infe- rence from the decision. The Chief Justice, in delivering the judgment of the court, says (4 Bing. 703): “ We confine our judgment to a case where the party owed allegiance to the country in which the judgment was so given against him, and by the laws of which country his property was, at the time those judgments were given, protected.”” Beckett ». McCarthy (2 B.& Ad. 951) has been supposed to go to the verge of the law; butthe defendant in that case held a public office in the very colony in which he was originally sued.’ Tn the still more recent case of Ferguson v. Mahon, 11 A. & E.179 ; 3P. & D. 148, the Court of King’s Bench in England held, in an action on an Trish judgment, that it was a good plea in bar that the defendant was never served with, nor had notice of, any process in the action. ‘ 1 Douglas v. Forrest, 4 Bing. 686, 702, 703. 2 Thid. 764 CONFLICT OF LAWS. [s. 548-549, might authorize their courts to decide on the rights of parties who owed no allegiance to the government of such country, and were under no obligation to attend its courts or obey its laws. We confine our judgment to a case where the party owed allegi- ance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his’ property was, at the time those judgments were given, protected. The debts were contracted in the country in which the judgments were given, whilst the debtor resided in it.? 548 a. Becquet v. McCarthy. — Another case also occurred at a later period which presented a similar question. An action was brouglit and a judgment recovered in the island of Mauritius against a party who had been a former resident in the island, but who was absent from the island during the whole course of the proceedings. By a law of the colony it was provided that if a suit was instituted against an absent party, process should be served upon the king’s procurator-general in the colony ; but it was not expressly provided that the procurator-general should communicate with the absent party. It appeared that the pro- cess was served on the procurator-general, but it did not appear that the absent party had any notice thereof. The court held that the judgment was valid. Lord Tenterden, on that occasion, in delivering the opinion of the court, said: ‘ Another objection, and not an unimportant one, was, that the testator, when the proceedings were instituted against him, was absent from the island ; and it was urged that it was contrary to the principles of natural justice that any one should be condemned unheard and in his absence. Proof however was given that by the law of the colony, in the case of a person formerly resident in the island ab- senting himself, and not leaving any attorney upon whom process in a suit might be served, the procurator-general or his deputy was bound to take care of the interest of such absent party. It was said that the law of the island did not provide any means whereby the procurator-general or his deputy might be required to hold communication with, or receive directions from, an absent person. There may perhaps be some deficiency in the law in that respect ; but as the law of the island is that the process shall * Douglas v. Forrest, 4 Bing. 686,702, 7038. See also Becquet v. McCarthy, a & aa 951; Don v. Lippmann, 5 Cl. & F. 1,21; Plummer v. Woodburne, & C. 625. CHAP. XIV.] JURISDICTION AND REMEDIES. 765 be served upon the public officer, it must be presumed that he would do whatever was necessary in the discharge of that public duty ; and we cannot take upon ourselves to say that the law is so contrary to natural justice as to render the judgment void in a case where the process was so served.” ! 549. Proceedings by Attachment of Property.— A still more common course in many states and nations is to proceed against non-residents, whether they are citizens or whether they are fo- reigners, by a seizure or attachment of their property situate or found within the territory. Sometimes the seizure or attachment is purely nominal, as, for example, of a chip, or a cane, or a hat. In other cases the seizure or attachment is bona fide of real pro- perty or personal property within the territory, or of debts due to the non-resident persons in the hands of their debtors who live within the country.2_ In such cases, for all the purposes of the suit, the existence of the property so seized or attached within the territory constitutes a just ground of proceeding to enforce the rights of the plaintiff to the extent of subjecting such property to execution upon the decree or judgment. But if the defendant has never appeared and contested the suit, it isto be treated to all intents and purposes as a mere proceeding in rem, and not as personally binding on the party as a decree of judgment in per- sonam ; or, in other words, it only binds the property seized or attached in the suit, to the extent thereof, and is in no just sense a decree or judgment binding upon him beyond that property. In other countries it is uniformly so treated, and is justly consid- ered as having no extra-territorial force or obligation. (a) 1 Becquet v. McCarthy, 2 B. & Ad. 951, 958, 959. It has been justly re- marked by Lord Brougham in Don v. Lippmann, 5 Cl. & F. 21, that that case ‘has been supposed to go to the verge of the law; but the defendant in that case held a public office in the very colony in which he was originally sued.’ Perhaps a stronger doubt of its correctness might upon principles of public justice have been pronounced. Boullenois manifestly deems an exercise of jurisdiction against an absent foreigner to be unfounded in point of authority. 1 Boullencis, obs. 25, p. 610. 2 See Henry on Foreign Law, c. 8-10, p. 54, 63, 71; Douglas v. Forrest, 4 Bing. 686, 700, 701. 8 See Phelps v. Holker, 1 Dall. 261; Kilburn v. Woodworth, 5 Johns. (N. Y.) 87; Pawling v. Bird, 13 Johns. (N. Y.) 192; Bissell v. Briggs, 9 Mass. 462; Robinson v. Ward, 8 Johns. (N. Y.) 86; post, s. 592. But see Douglas v. (a) See Galpin v. Page, 18 Wall. 174; Cooper v. Reynolds, 10 Wall. 350; D’Arcy v. Ketchum, 11 How. 308. 766 CONFLICT OF LAWS. [s. 550. 550. Jurisdiction as regards Property. — In the next place let us consider the subject of jurisdiction in regard to property. It Forrest, 4 Bing. 686, 702, 703; Shumway v. Stillman, 6 Wend. (N. Y.) 447; 1 Boullenois, obs. 25, p. 609, 610, 619, 620, 622, 623, 624, 628; 6 Harr. & J. (Md ) 191; Taylor v. Phelps, 1 Harr. & G. (Md.) 492. Mr. Chief Justice Par- sons, in his very able opinion in Bissell v. Briggs, 9 Mass. 468, has made some pointed remarks on this subject, from which the following extract is made: ‘To illustrate this position, it may be remarked that a debtor, living in Mas- sachusetts, may have goods, effects, or credits in New Hampshire, where the creditor lives. The creditor there may lawfully attach these, pursuant to the laws of that state, in the hands of the bailiff, factor, trustee, or garnishee of his debtor, and on recovering judgment, those goods, effects, and credits may lawfully be applied to satisfy the judgment; and the bailiff, factor, trustee, or garnishee, if sued in this state for those goods, effects, or credits, shall, in our courts, be protected by that judgment, the court in New Hampshire having jurisdiction of the cause for the purpose of rendering that judgment, and the bailiff, factor, trustee, or garnishee producing it, not to obtain execution of it here, but for his own justification. If however those goods, effects, and credits are insufficient to satisfy the judgment, and the creditor should sue an action on that judgment in this state to obtain satisfaction, he must fail; because the defendant was not personally amenable to the jurisdiction of the court render- ing the judgment. And if the defendant, after the service of the process of foreign attachment, should either in person have gone into the state of New Hampshire, or constituted an attorney to defend the suit, so as to protect his goods, effects, or credits from the effect of the attachment, he would not thereby have given the court jurisdiction of his person; since this jurisdiction must re- sult from the service of the foreign attachment. It would be unreasonable to oblige any man living in one state, and having effects in another state, to make himself amenable to the courts of the last state, that he might defend his pro- perty there attached.’ See post, s. 584, 592, 598-618. Mr. Burge has made the following remarks on the same subject: ‘In order that it may produce the effect of res judicata in the country in which it is pronounced, and a fortiori in a foreign country, the sentence must be given by a competent tribunal. It must put a final termination to the matter in litigation, and it must be certain. The want of either of these requisites is such a defect as to render the sentence null and void, and this defect is called a nullity. The judicial tribunal must be competent to entertain jurisdiction of the subject-matter of the suit. If, according to the constitution of the tribunal, the subject-matter of the sentence was excluded from its cognizance, the sentence pronounced by the individuals composing it would possess the weight which belonged to an arbitrament made by those to whom the litigating parties had submitted their differences, but it would not possess the authority of res judicata. Where a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create any necessity for an appeal, Such a defect in the sentence cannot be cured by the appearance of the party. Another nullity in the sentence is a decision given upon that which was not demanded or not contested, or when more has been adjudged than was demanded, for in either case the judge has exceeded his jurisdiction: ‘* Ultra id, quod in judi- cium deductum est, potestas judicis nequaquam potest excedere.’’ The party against whom the sentence has been obtained must be, subject to the jurisdic CHAP. XxIVv.] JURISDICTION AND REMEDIES. "67 will be unnecessary to discuss the matter at large, as to personal property, since the general doctrine is not controverted that, tion of that tribunal. Such a jurisdiction is founded either in respect of the defender’s domicil in the territory of the tribunal, ratione domicilii, or in re- spect of his being possessed of some estate or subject within it, ratione rei site, or on the arrestment made by the decree of the court of the party’s movable effects, arrestum causa fundande jurisdictionis. A jurisdiction acquired by the arrest of the defender’s property was not known to the civil law, but it was admitted in the jurisprudence of Holland, Spain, France, and Scotland, in all personal actions in which the defender is bound, ‘‘ad dandum, faciendum, et prestandum.’’ Itis not allowed in order to compel the defender to appear before any other judicial tribunal than that of the place in which the immova- ble property, the subject of the suit, is situated. By the law of Scotland the jurisdiction is founded not only on the defendant’s domicil, but on his personal residence in a place for forty days. Jt admits jurisdiction ratione rei site, unless it has for its object a question merely personal, as of status. Where a foreigner not otherwise subject to the jurisdiction of the courts of Scotland is possessed of movable property there, the jurisdiction is acquired by arresting his goods, and so fixing them within the judge’s territory, or by their being already a subject of competition in a court of that kingdom. By the civil law _the jurisdiction was acquired in respect of the place in which the contract was entered into, or in which it was to be performed; but the codes founded on the civil law do not admit a jurisdiction in either of these cases unless the defend- ant is found in that place. The citation of the defender, the vocatio in jus, juris experiendi causa vocatio, is essential to the yalidity of the sentence, be- cause otherwise he has not had the opportunity of defending himself against the claim of his adversary. That citation need not have been served on him personally; it is sufficient if it be left at his house. When the tribunal acquires jurisdiction either ratione rei site, or by arrestment in consequence of the defender having no domicil in loco fori, this citation is necessarily a merely formal act. By the Code Civil, the public minister is specially charged with the duty of watching over the interest of those who are presumed to be absent, and he is to be heard upon all demands which concern them. The Code de Procédure makes provision for delivering to certain public officers copies of the process, which may be issued against foreigners. The jurisdiction exercised by the courts of England is in fee founded on the personal service of the process on the defendant. Indeed, according to the ancient law, the plaintiff could not proceed in an action before the defendant had actually appeared in court to answer him; and even if he pertinaciously neglected or refused to appear, the only course was to issue continued process, or to distrain upon his goods, in order thereby, as it was expected, to induce him to appear, or to outlaw him, by which process he incurred a qualified forfeiture of his land and goods, and all his civil rights as a subject were suspended. But in certain cases, after actual personal service, the plaintiff was, by the aid of certain statutes, permitted to enter an appearance for the defendant. But if the de- fendant were abroad, or avoided the service of process, and had no goods (the distraining of which was considered nearly equivalent to actual service, be- cause it was supposed the defendant would hear of that proceeding), then the only course was, and still'is, to proceed to outlawry, which. however does not enable the plaintiff to proceed in his action, or to obtain judgment therein, 768 CONFLICT OF LAWS. [s. 550-552. although movables are for many purposes to be deemed to have no situs, except that of the domicil of the owner, yet this being but a legal fiction, it yields whenever it is necessary for the pur- pose of justice that the actual situs of the thing should be examined. (a) A nation within whose territory any personal property is actually situate has as entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there. It may regulate its transfer, and subject it to process and execution, and provide for and control the uses and disposition of it, to the same extent that it may exert its authority over immovable property.1_ One of the grounds upon which, as we have seen, jurisdiction is assumed over non-residents, is through the instrumentality of their per- sonal property, as well as of their real property, within the local sovereignty.” Hence it is that, whenever personal property is taken by arrest, attachment, or execution within a state, the title so acquired under the laws of the state is held valid in every other state ;? and the same rule is applied to debts due to non- residents, which are subjected to the like process under the local laws of a state.* (6) 551. Immovables.—In respect to immovable property every attempt of any foreign tribunal to found a jurisdiction over it must, from the very nature of the case, be utterly nugatory, and its decree must be forever incapable of execution in rem. We but only causes a seizure of the lands, goods, and property of the defendant, as forfeited to the king for the defendant’s contumacy and disrespect of his process. But the plaintiff may thereupon, by application to the Court of Ex- chequer or by petition, when his claim exceeds fifty pounds, obtain satisfac- tion of his debt by sale of the defendant’s property seized under his outlawry, unless previously the defendant appears to the action, and enables the plaintiff to try the merits.” 3 Burge, Col. & For. Law, pt. 2, c. 24, p. 1016, 1019. 1 See ante, s. 423 a. 2 Ante, s. 549. 8 Lord Kenyon expressed his opinion to the following effect in Ogden v. Folliott, 3 T. R. 733: ‘I have always understood it to be clear,’ said he, ‘that all judicial acts done in one country over the property of the subjects within their jurisdiction are conclusive on the property of those parties in any other country.’ 4 See Bissell v. Briggs, 9 Mass. 462, 468, 469. But see Folliott v. Ogden, 1H. Bl. 124, 185; 3 T. R. 726, 733. See Don v. Lippmann, 5 Cl. & I. 1, 19. (a) Graham». First National Bank, (0) See Denny v. Faulkner, 22 84 N. Y. 398; Green v. Van Buskirk,5 Kans. 89. : Wall. 807; 7 Wall. 189; note to s. 383, ante. CHAP. XIV.] JURISDICTION AND REMEDIES. 769 have seen indeed that by the Roman law a suit might in many cases be brought, either where theeproperty was situate or where the party had his domicil.1 This might well be done within any of the vast domains over which the Roman empire extended ; for the judgments of its tribunals would be everywhere respected and obeyed. But among the independent nations of modern times there would be insuperable difficulties in such a course. And hence, even in countries acknowledging the Roman law, it has become a very general principle that suits in rem should be brought where the property is situate; and this principle is applied with almost universal approbation in regard to immova- ble property.2. The same rule is applied to mixed actions, and to all suits which touch the realty. 552. Boullenois. — Boullenois has treated this whole subject with becoming fulness and accuracy. He has divided actions into those which are purely personal, those which are purely teal, and those which are mixed and partake of the character of both, following in these respects, as he avows, the division of Burgundus.* The first (personal actions), respect the quality, state, or condition of persons, and pronounce against them judg- ments purely personal, ad dandum, vel faciendum, aut non fa- ciendum. The next (real actions), respect things, either the proprietary right or ownership, or the right of possession, or the right or title of a creditor, or some other right or title. The last (mixed actions), respect both persons and things, either in adjudging the property to one, or pronouncing against him a personal judgment for the profit of the other, or adjudging the property to one, and adjudging the other to make restitution of the profits to him ; so that it is the title of the action which char- 1 Ante, s. 582, 545; post, s. 586, 591. * The jurisdiction as to the rights of real property is local, the subject be- ing fixed and immovable. Lord Chief Justice de Grey in Rafael v. Ferelst, 2 W. BI. 1058. 8 Henry on Foreign Law, c. 8, s. 8, p. 59, c. 9, 8. 1, p. 63; 1 Boullenois, obs. 25, p. 601, &c.; Id. p. 618, 619; Id. p. 635, &e. bon * The language of Burgundus is: Omnium condemnationum summa divi- sio, pariter in tria genera deducitur. Aut enim in rem, aut in personam, aut in utramque concipiuntur. In rem, quoties alicui res asseritur, hoc est ejus esse dicitur, vel jure creditoris, aut alio modo possidenda datur. In personam, si condemnetur ad aliquid dandum aut patiendum, faciendum aut non facien- dum, vel, si persone statum afficiat. In utramque si et res, et personz simul Ww condemnationem veniant. Burgundus, tract. 3, n. 1, 2, p. 84, 85. 49 770 CONFLICT OF LAWS. [s. 552-554, acterizes theaction.! Personal actions may rightfully be brought between natives in any competent tribunal of the realm; and between foreigners also, who have submitted to the jurisdiction, wherever the laws allow its exercise; and between natives and foreigners in like manner.? But in all these cases the domicil of the party defendant is commonly supposed to be within the jurisdiction. Real actions ought to be brought in the place rei site ; and this is the rule, not only when the property in contro- versy is situate in the same kingdom, but also when the parties, . being domiciled in one country, engage in a litigation as to pro- perty locally situate in another country.* If therefore a judg- ment should be rendered in one country respecting property in another, it will be of no force in the latter. It is true that pro- perty within a country does not make the owner generally a subject of the sovereign where it is locally situate ; but it sub- jects him to his jurisdiction ‘secundum quid, et aliquo modo.’5 Mixed actions, so far as they regard the realty, are to be brought in the place rei site; but if the personal damages or claims be separable in their nature and character, they may be sued for as personal actions. There are many other jurists who adopt the like distinctions.” 553. Vattel.— Vattel explicitly avows the same doctrine. ‘The defendant’s judge’ (that is, the competent judge), says he, ‘is the judge of the place where the defendant has his settled abode, or the judge of the place where the defendant is when any sud- den difficulty arises, provided it does not relate to an estate in 1 1 Boullenois, obs. 25, p. 601, 602. 2 Boullenois makes a distinction in suits between natives and foreigners to this effect. If a foreigner sues a native, then the jurisdiction is well founded against the latter in the place of his domicil, and the foreigner is bound by the judgment. If the foreigner is defendant and has submitted to the juris- diction, then the same result follows. If he has not submitted or has not appeared to the suit, then the judgment is not obligatory. 1 Boullenois, obs. 25, p. 609, 610. He founds himself in this opinion upon the general rule, Ac- tor sequitur forum rei; and he quotes with approbation the remark of J. Gaill: Quis manens extra regnum non tenetur in parlamento respondere super actione personali. Id. p. 612. sa 1. wis aaa obs. 25, p. 601-603, 606, 609, 610. See also Id. Prin. Gén. »p. 8,9. * Id. obs, 25, p. 618-620, 622, 623; Id. Prin. Gén. 35, 87, p. 9. 5 Id. obs. 25, p. 623-625. 8 Td. obs. 25, p. 635, 636. 7 Id. obs. 25, p. 601-651; 1 Hertii Opera, de Collis. Leg. s. 70, p. 182, ed. 1787; Id. p. 215, ed. 1716; J. Voet, ad Pand, 1,4, 1, s. 28, p. 241. CHAP. XIV.] JURISDICTION AND REMEDIES, 771 land, or to a right annexed to such an estate. In such a case as property of this kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such [real] property can only be decided in the state in which it depends.’ } 554. Injuries to Immovables. —It will be perceived that, in many respects, the doctrine here laid down coincides with that of the common law. It has been already stated that, by the common law, personal actions, being transitory, may be brought in any place where the party defendant can be found ;?(a@) that real actions must be brought in the forum rei site; and that mixed actions are properly referable to the same jurisdiction? Among the latter are actions for trespasses and injuries to real property which are deemed local; so that they will not lie else- where than in the place rei site. This distinction was recognized as long ago as 1665, in a case * where the twelve judges certified, that for torts to the person and the personal property done ‘ abroad, a remedy lay in a suit in personam in England ; but that 1 Vattel, b. 2, ¢. 8, s. 103. 2 Personal injuries are of a transitory nature, et sequunter forum rei. Lord Chief Justice de Grey in Rafael v. Ferelst, 2 W. Bl. 1058. See Mostyn »v. Fabrigas, Cowp. 161, 176, 177; Robinson v. Bland, 2 Burr. 1077; 1 W. BI. 259; ante, s. 364. 8 Ante, s. 864; 4 Cowen, 527, note. Lord Mansfield in Mostyn v. Fabri- gas, Cowp. 161, 176, said: ‘ There is a formal and a substantial distinction as to the locality of trials. I state them as different things. The substantial distinction is, where the proceeding is in rem; and where the effect of judg- ment cannot be had, if it is laid in a wrong place. That is the case of all ejectments, &c. With regard to matters that arise out of the realm there is a substantial distinction of locality too; for there are some cases that arise out of the realm which ought not to be tried anywhere but in the country where they arise. As if two persons fight in France, and both happening casually to be here, one should bring an action of assault against the other, it might be a doubt whether such an action could be maintained here; because though it is not a criminal prosecution, it must be laid to be against the peace of the king; but the breach of the peace is merely local, though the trespass against the person is transitory.’ His lordship here doubtless alluded to a case ofa personal trespass between foreigners; for in a subsequent part of the same opinion he expressly held that, as between subjects, not only upon con- tracts, but for personal torts, an action might be maintained in England; and indeed that was the very point decided in the case then in judgment. 4 Skinner v. East India Company, cited in Cowp. 167, 168. (a) Peabody v. Hamilton, 106 Mass. 217. 772 CONFLICT OF LAWS. [s. 554-557, for torts to real property or to fixtures abroad no suit Jay. Lord Mansfield and Lord Chief Justice Eyre held at one time a differ- ent doctrine, and allowed suits to be maintained in England for injuries done by pulling down houses in foreign unsettled regions, viz., in the desert coasts of Nova Scotia and Labrador.! But this doctrine has been since overruled as untenable according to the actual jurisprudence of England, ? (a) however maintainable it might be upon general principles of international law, if the suit were for personal damages only.® (6) 555. Grounds of Exclusive Jurisdiction. — The grounds upon which the exclusive jurisdiction is maintained over immovable property are the same upon which the sole right to establish, regulate, and control the transfer, descent, and testamentary dis- position of it has been admitted by all nations. The inconve- niences of an opposite course would be, innumerable, and would subject immovable property to the most distressing conflicts aris- ing from opposing titles, and compel every nation to administer almost all other laws except its own, in the ordinary administra- tion of justice.* 556. Procedure. — Having stated these general principles in relation to jurisdiction (the result of which is, that no nation can rightfully claim to exercise it, except as to persons and. property 1 Cited by Lord Mansfield in Mostyn v. Fabrigas, Cowp. 180, 181. 2 Doulson v. Matthews, 4 T. R. 503. 8 The doctrine of this last case was very fully examined and affirmed by Mr. Chief Justice Marshall in the case of Livingston v. Jefferson, before the Circuit Court of Virginia, in 1811, 4 Hall’s Am. Law Journal, 78; 1 Brock. 203. It was an action quare clausum fregit, brought against Mr. Jefferson on account of an alleged trespass to lands (the Batture) in New Orleans, by his order, while he was President of the United States. The suit was dismissed for want of jurisdiction. * Ante, s. 364, 365. (a) See Watts v. Kinney, 6 Hill (N. Y.) 82; 23 Wend. (N. Y.) 484. (6) Ithas been determined however in a late case in America, that a per- son residing in Pennsylvania, and own- ing real estate situated there, might maintain an action in the Circuit Court of the United States, in the state of New Jersey, against a canal corpora- tion chartered by the latter state, for consequential injuries done to such real estate by the defendant’s canal, “in another state. situated also in New Jersey. Rundle v. Delaware Canal, 1 Wall. jun. 275. See also Holmes v. Barclay, 4 Louis. Ann. 63. So it has been determined in Ohio, that an action on the case for diverting water from the plaintiff's mill, situated in Ohio, might be sus- tained in the courts of that state, al- though the act of diversion took place Thayer v. Brooks, 17 Ohio, 489. CHAP. xIV.] JURISDICTION AND REMEDIES. 773 within its own domains), we are next led to the consideration of the question, in what manner suits arising from foreign causes are to be instituted, and proceedings to be had until the final judgment. Are they to be according to the law of the place where the ‘parties, or either of them, live? Or are they to be according to the modes of proceeding and forms of suit prescribed by the laws of the place where the suits are brought? Fortunately here there is scarcely any ground left open for controversy, either at the common law or in the opinions of foreign jurists, or in the actual practice of nations. It is universally admitted and esta- blished that the forms of remedies and the modes of proceeding and the execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted ; or, as the civilians uniformly express it, according to the lex fori. (a) 557. Reasons for the Doctrine. — The reasons for this doctrine are so obvious that they scarcely require any illustration. The business of the administration of justice by any nation is, in a pe- culiar and emphatic sense, a part of its public right and duty. Each nation is at liberty to adopt such forms, and such a course of proceeding, as best comport with its convenience and interests, and the interests of its own subjects, for whom its laws are par- ticularly designed. The different kinds of remedies, and the modes of proceeding best adapted to enforce rights and guard against wrongs in any nation, must materially depend upon the structure of its own jurisprudence. What would be well adapted to the jurisprudence, either customary or positive, of one nation, for rights which it recognized, or for duties which it enforced, or for wrongs which it redressed, might be wholly unfit for that of an- other nation, either as having gross defects or steering wide of the appropriate remedial justice. A nation acknowledging the 1 See, on this point, 1 Burge, Col. & For. Law, pt. 1, ¢. 1, p. 24; Fergusson v. Fyffe, 8 Cl. & F. 121; General Steam Navigation Co. v. Guillou, 11 M. & W. 877. (a) See Freeman’s Bank v. Ruck- man, 16 Gratt. (Va.) 126; Collins Iron Co. v. Burkam, 10 Mich. 283; Laird v. Hodges, 26 Ark. 856; Scudder v. Union Bank, 91 U. S. 406; Rice v. Harbeson, 63 N. Y. 498; Adams v. Wait, 42 Vt. 16; Peters v. Stewart, 45 Conn. 108; Burchard v. Dunbar, 82 Ill. 450; Mineral Point R. Co. »v. Barron, 83 Ill. 365: Halley v. Ball, 66 Til. 250; Denny ». Faulkner, 22 Kans. 89; Lindsay v. Hill, 66 Me. 212, And see especially Rice v. Merrimack Ho- siery Co., 56 N. H. 114. 774 CONFLICT OF LAWS. [s. 557, 558. existence of peculiar rights and privileges, either personal or real, such as seigniorial rights, or trusts in the realty, would naturally introduce correspondent remedies. While other nations, in which such rights and privileges and trusts did not exist, might well dis- pense with the formalities which they might require. The juris- prudence of one nation may be very refined and artificial, with a multitude of intricate and perplexed proceedings ; that of another may be rude, uninformed, and harsh, consisting of an undigested mass of usages. It would be absolutely impracticable to apply the process and modes of proceeding of the one nation to the: other. Besides there would be an utter confusion in all judicial proceedings by attempting to engraft upon the remedies of one country those of all other countries whose subjects should be par- ties or be interested therein. No tribunal on earth, however learned, could hope, by any degree of diligence, to master the laws and processes and remedies of all other nations; and the qualifications and limitations properly belonging thereto. A whole life might be passed in obtaining little more than a few un- connected elements ; and litigation would thus become immea- surably complicated, if not absolutely interminable. All that any nation can therefore be justly required to do, is to open its own tribunals to foreigners, in the same manner and to the same extent as they are open to its own subjects, and to give them the same redress, as to rights and wrongs, which it deems fit to ac- knowledge in its own municipal code for natives and residents. 1 Lord Brougham, in delivering his judgment in Don v. Lippmann, 5 Cl. & F. 1, 18, 14; made some striking remarks on this subject. ‘The law on this point is well settled in this country, where this distinction is properly taken, that whatever relates to the remedy to be enforced, must be determined by the lex fori, the law of the country to the tribunals of which the appeal is made. This rule is clearly laid down in the British Linen Co. v. Drummond, 10 B. & C. 903; De la Vega v. Vianna, 1 B. & Ad. 284; and in Huber v. Steiner, 2 Scott, 304; 1 Hodges, 206; 2 Bing. N. C. 202; 2 Dowl. Pr. 781; 4 M. & Scott, 328, though the reverse had previously been recognized in Williams v. Jones, 13 East, 439. Then, assuming that to be the settled rule, the only question in this case would be, whether the law now to be enforced is the law which relates to the contract itself, or to the remedy. When both the parties reside in the country where the act is done, they look of course to the law of the country in which they reside. The contract being silent as to the law by which it is to be governed, nothing is more likely than that the lex loci contractus should be considered at the time the rule; for the parties would not suppose that the contract might afterwards come before the tribunals of a foreign country. But it is otherwise when the remedy actually comes to be enforced. The parties do CHAP. XIV.] JURISDICTION AND REMEDIES. 775 558. Rule of the Common Law. — The doctrine of the common law is so fully established on this point, that it would be useless to do more than to state the universal principle which it has pro- mulgated ; that is to say, that, in regard to the merits and rights involved in actions, the law of the place where they originated is to govern: ‘In iis, que spectant decisoria cause, et litis decisio- nem, inspiciuntur statuta loci, ubi contractus fuit celebratus.’ 1 But the form of remedies and the order of judicial proceedings are to be according to the law of the place where the action is in- stituted, without any regard to the domicil of the parties, the ori- gin of the right, or the country of the act.? not necessarily look to the remedy when they make the contract. They bind themselves to do what the law they live under requires; but as they bind them- selves generally, it may be taken as if they had contemplated the possibility of enforcing it in another country. That is the lowest ground on which to place the case. The inconvenience of pursuing a different course is manifest. Not only the principles of the law, but the known course of the courts, renders it necessary that the rules of precedent should be adopted, and that the parties should take the law as they find it, when they come to enforce their contract. It is true that there may be no difficulty in knowing the law of the place of the contract, while there may be a great difficulty in knowing that of the place of the remedy. But that is no answer to the rule. The distinction which exists as to the principle of applying the remedy exists with even greater force as to the practice of the courts where the remedy is to be enforced. No one can say that, because the contract has been made abroad, the form of action known in the foreign court must be pursued in the courts where the contract is to be en- forced, or the other preliminary proceedings of those courts must be adopted, or that the rules of pleading, or the curial practice of the foreign country, must necessarily be followed. No one will assert that, before the jury court in Scot- land, the English creditor of a domiciled Scotchman would have the right to call for a trial of the case by a jury; or, take the converse, that a Scotchman might refuse the intervention of a jury here, and insist on having the case tried as in Scotland, by the judge only. No one will contend in terms that the foreign rules of evidence should guide us in such cases; and yet it is not so easy to avoid that principle in practice, if you once admit that, though the remedy is to be enforced in one country, it is to be enforced according to the laws which govern another country.’ 1 2 Boullenois, obs. 46, p. 462; ante, s. 260; Bank of the United States v. Donnally, 8 Pet. 361, 372; Andrews v. Pond, 18 Pet. 65; Wilcox v. Hunt, 13 Pet. 878. See also Bouhier, Coutume de Bourg. c. 18, n. 10; ante, s. 242, 260-273. * The authorities are exceedingly numerous. Among them we may cite the following: Andrews v. Herriot, 4 Cow. (N. Y.) 508; and see id. 528, n. (10), and authorities there cited; 2 Kent, Comm. 118, &c.; Robinson v. Bland, 2 Burr. 1084; De la Vega v. Vianna, 1 B. & Ad. 284; Trimbey ». Vignier, 1 Bing. N. C,, 159-161; Don v. Lippmann, 5 Cl. & F. 1, 13, 19, 20; ante, s. 557, note; Fenwick v. Sears, 1 Cranch, 259; Nash v. Tupper, 1 Caines (N. Y.) 776 CONFLICT OF LAWS. [s. 559, ‘ 559. Foreign Jurists. — Nor are the foreign jurists less pointed in their recognition of it. Thus Bartolus, in speaking upon con- 402; Pearsall v. Dwight, 2 Mass. 84; Smith v. Spinolla, 2 Johns. (N. Y.) 198; Van Reimsdyk v. Kane, 1 Gallis. 371; Lodge v. Phelps, 1 Johns. Cas. (N. Y.) 189; Trasher v. Everhart, 3 Gill & J. (Md.) 234; Hyde v. Goodnow, 3 Com- stock (N. Y.) 270; Wood v. Watkinson, 17 Conn. 510; Peck v. Hozier, 14 Johns, (N. Y.) 846; Ohio Ins. Co. v. Edmondson, 5 La. 295-300; Warren v. Lynch, 5 Johns. (N. Y.) 239; Jones v. Hook, 2 Rand. (Va.) 303; Wilcox v. Hunt, 13 Pet. 378, 879; French v. Hall, 9 N. H. 187; Bank of the United States v. Don- nally, 8 Pet. 361, 370-373. This last case was an action brought in Virginia on a promissory note made in Kentucky, not under seal, but which by the law of Kentucky was deemed a specialty. The statute of limitations of Virginia was pleaded in bar; and one question was, whether it was a good bar or not. On that occasion the court said: ‘The other point, growing out of the statute of limitations, pleaded to the fourth and fifth counts (for as to the three first counts it is conceded to be a good bar), involves questions of a very different character as to the operation and effect of a conflict of laws in cases governed by the lex loci. The statute of limitations of Virginia provides that * all actions of debt, grounded upon any lending or contract without specialty,” shall be commenced and sued within five years next after the cause of such action or suit, and not after. This being the language of the act, and confessedly governing the remedy in the courts of Virginia, the bar of five years must apply to all the cases of contract which are without specialty, or in other words are not founded on some instrument acknowledged as a specialty by the law of that state. The common law being adopted in Virginia, and the word “ specialty”? being a term of art of that law, we are led to the consideration whether the present note is deemed in the common law to be a specialty. And certainly it is not so deemed. It is not a sealed contract, nor does it fall under any other description of instruments or contracts or acts known in the common law as specialties. The argument does not deny this conclusion; but it endeavors to escape from its force, by affirming that the note is a specialty according to the laws of Kentucky; and if so, that this constitutes a part of its nature and obli- gation; and it ought everywhere else, upon principles of international juris- prudence, to be deemed of the like validity and effect. The act of Kentucky of the 4th of February, 1812, provides ‘that all writings hereafter executed without a seal or seals, stipulating for the payment of money or property, or for the performance of any act, duty, or duties, shall be placed upon the same footing with sealed writings, containing the like stipulations, receiving the same consideration in all courts of justice, and to all intents and purposes having the same force and effect, and upon which the, same species ‘of action may be founded, as if sealed.”? Now it is observable that this statute does not in terms declare that such writings shall be deemed specialties; nor does it say that they shall be deemed sealed instruments. All that it affirms is, that they shall be put upon the same footing as sealed instru- ments, and have the same consideration, force, effect, and remedy, as sealed instruments. So that it is perfectly consistent with the whole scope and object of the act, to give them the same dignity and obligation as specialties, without intending to make them such. A state legislature may certainly pro- vide that the same remedy shall be had in a promissory note as on a bond or sealed instrument; but it will not thereby make the note a bond or sealed CHAP. XIV.] JURISDICTION AND REMEDIES. 777 tracts, says: ‘ Quero, quid de contractibus? Pone contractum celebratum per aliquem forensem in hac civitate; litigium ortum est, et agitatur lis in loco originis contrahentis. Cujus loci statuta debent servari vel spectari? Distingue; Aut loquimur de statuto, aut de consuetudine, que respiciunt ipsius contractus solennita- tem, aut litis ordinationem, aut de his, que pertinent ad jurisdic- tionem ex ipso contractu evenientis executionis. Primo casu, inspicitur locus contractus. Secundo casu, aut quaris de his, que pertinent ad litis ordinationem, et inspicitur locus judicii; aut de his que pertinent ad ipsius litis decisionem, et tunc, aut de his, que oriuntur secundum ipsius contractus naturam tempore con- tractus, aut de his, que oriuntur ex post facto, propter negligen- tiam vel moram ; primo casnu inspicitur locus contractus,’ &c.! instrament. It may declare that its obligation and force shall be the same as if it were sealed; but that will still leave it an unsealed contract. But what- ever may be the legislation of a state as to the obligation or remedy on contract, its acts can have no binding authority beyond its own territorial jurisdiction. Whatever authority they have in- other states depends upon principles of international comity and a sense of justice. The general principle adopted by civilized nations is, that the nature, validity, and interpretation of contracts are to be governed by the law of the country where the contracts are made or are to be performed. But the remedies are to be governed by the laws of the country where the suit is brought; or, as it is compendiously expressed, by the lex fori. No one will pretend that, because an action of covenant will lie in Kentucky on an unsealed contract made in that state, therefore a like action will lie in another state, where covenant can be brought only on a contract under seal. It is an appropriate part of the remedy, which every state pre- scribes to its own tribunals, in the same manner in which it prescribes the times within which all suits must be brought. The nature, validity, and interpretation of the contract may be admitted to be the same in both states; but the mode by which the remedy is to be pursued, and the time within which it is to be brought, may essentially differ. The remedy, in Virginia, must be sought within the time, and in the mode, and according to the descriptive characters of the instrument known to the laws of Virginia, and not by the description and characters of it prescribed in another state. An instrument may be negotiable in one state which yet may be incapable of negotiability by the laws of another state; and the remedy must be in the courts of the latter on such instrument, according to its own laws. If, then, it were admitted that the promissory note now in controversy were a specialty by the laws of Kentucky, still it would not help the case, unless it were also a specialty and recognized as such by the laws of Virginia; for the laws of the latter must govern as to the limitation of suits in its own courts, and as to the interpretation of the meaning of the words used in its own statutes.’ Post, 8. 567. 1 Bartolus, Comm. ad Cod. 1, 1,1; Bart. Oper. tom. 7, p. 4, ed. 1602; 2 Boullenois, obs. 46, p. 455, 456; ante, s. 301. 778 CONFLICT OF LAWS. [s. 560-565. 560. Rodenburg asserts the same distinction. ‘ Primum utamur vulgata doctorum distinctione, qua separantur ea, que litis for- mam concernunt ac ordinationem, ab iis, que decisionem aut ma- teriam. Lis ordinanda secundum morem loci in quo ventilatur.’! Boullenois affirms the same doctrine. ‘ A l’égard,’ says he, ‘du principe de décision, quantum ad litis decisoria, il se tire, ou de la loi du contrat, ou de la loi de la situation, ou de la volonté pré- sumée des parties, lorsqu’elles ont contracté ensemble ; en un mot la loi seule de la jurisdiction n’y influe point comme telle. Di- versitas fori non debet meritum cause variare. A l’égard des for- malités judiciaires, quantum ad litis ordinationem, la régle est de suivre la procédure et les usages observés dans le lieu ou I’on plaide.’? Hertius states the same point in his compendious way. ‘ Expedita est doctorum responsio, jura judicii tantum in illis ob- servanda esse, que ad ordinem processus judicialis pertinent, etsi lis sit de bonis immobilibus, in alio territorio sitis.’ 3 561. Strykius states it in the following language: * Quoties- cunque circa judicii ordinationem controvertitur, statuta loci judicii, omnibus ceteris posthabitis, introspiciantur. In modo procedendi consuetudo judicii attendenda, ubi lis agitatur. In modo vero decidendi, seu in ipsa cause decisione, consuetudo litigantium, seu ubi actus est gestus, attendendus.’4 Huberns says: ‘ Adeoque receptum est optima ratione, ut in ordinandis ju- diciis loci consuetudo, ubi agitur, etsi de negotio alibi celebrato, spectetur.’® Dumoulin says: ‘Unde an instrumentum habeat executionem, et quo modo debeat exequi, attenditur locus ubi agitur, vel fit executio. Ratio, quia fides instrumenti concernit meritum, sed virtus executoria et modus exequendi concerit processum.’® Again he adds: * Quod in his, que pertinent ad processum judicii, vel executionem faciendam, vel ad ordinationem judicii, semper sit observanda consuetudo loci in quo judicium + Rodenburg, de Div. Stat. tit. 2, p.5,n. 16; 2 Boullenois, Appx. p. 47; 1 Boullenois, 660, 685, 818; ante, s. 825 c, 325 d, 825 A, note 2. ? 1 Boullenois, obs. 33, p. 535-546; Id. Prin. Gén. 49, p. 11. 8 1 Hertii Opera, de Collis. Leg. s. 4, n. 70, p. 152, 158, ed. 1787; Id. p. 215, ed. 1716. agen on any 4 Strykii Tract. et Disp. tom. 2, p- 27; De Jure Princ. ext. Territ. c. 3, n. 34; ante, s. 295. 5 Huberus, tom. 2, lib. 1, tit. 3, de Conf. Leg. s. 7. * 1 Boullenois, obs. 23, p. 523, 524; Molin. Oper. Comm. ad Cod. 1,1, tom. 3, p. 554, ed. 1681. CHAP. XIV.] JURISDICTION AND REMEDIES, 779 agitatur.’! Emerigon says: ‘Pour tout ce qui concerne l’ordre judiciaire, on doit suivre lusage du lieu ot l’on plaide. Pour ce qui est de la décision du fond, on doit suivre, en régle générale, les lois du lieu ot le contrat a été passé. Cette distinction est consignée dans tous nos livres.’ ? 562. We may conclude this reference to the opinions of foreign jurists by a citation from John Voet, who states at once the rule and the reason of it. ‘Quia vero regionum, civitatum, vicorum varia, imo contraria spe jura sunt, observandum est, quantum quidem ad ordinem judicii formamque attinet, judicem nullius al- terius sed sui tantum fori leges sequi. Sed in litis ipsius defini- tione, si de solennibus contractus, testamenti, vel negotii alterius questio sit, validum pronunciare debet ac solenne negotium, quo- ties adhibita invenit solennia loci, in quo illud gestum est, licet aliz, aut majores, in loco judicii ad talem actum solennitates re- quisite essent.’ § 563. There are many questions however which may arise as to what are, and what are not, matters properly belonging to the remedy (ad litis ordinationem), and what are, and what are not, matters properly belonging to the merits (ad litis decisionem),. Many cases of this sort may be found collected and discussed by foreign jurists upon the peculiarities of their own jurisprudence. But they could not be made intelligible to a laavyer under the common law, without occupying a space in explanations wholly disproportionate to their importance in a treatise like the present. = 564. Cases arising under the Common Law.—It may be of more utility to introduce a few illustrations of the doctrine aris- ing peculiarly under the common-law modes of proceeding, first, in regard to persons who may sue; secondly, in regard to process and proceedings ; and thirdly, in regard to certain defences against actions arising from matters ex post facto, and founded on local law or customary practice. 565. Persons who may sue. — Transfer of Claim. —In the first 11 Boullenois, obs. 23, p. 523, 524; Molin. Oper. Comm. Cod. 6, 32, tom. 3, p. 735, ed. 1681. 2 1 Emerigon, Traité des Assur. c. 4, 5. 8,n. 2, p. 122; Le Roy v. Crown- inshield, 2 Mason, 163. See-also to the same effect, P. Voet, de Stat. s. 10, c.1,n, I, 6, p. 281, 285, 286, ed. 1715; Id. p, 839-341, ed. 1661. 8 J. Voet, ad Pand. 1, 5, 1, s. 51, p. 328. * See 1 Boullenois, obs. 23, p. 585-569. CONFLICT OF LAWS. [s. 565. 780 place, in regard to persons who may sue. It may be laid down as a general rule that all foreigners, sui juris, and not otherwise spe- cially disabled by the law of the place where the suit is brought, may there maintain suits to vindicate their rights and redress their wrongs. The same doctrine applies to foreign sovereigns (a) and to foreign corporations.1 (6) But questions may arise where the party suing is not the original party to the debt or claim, but he 1 Foreign corporations may also be sued in all cases where they have pro- perty within the jurisdiction. Libbey v. Hodgson, 9 N. H. 394; but quzre of some of the doctrines in the case. (c) Story, Eq. Pl. s. 55; Hullett v. King of Spain, 2 Bligh, N.S. 51; 1 Dow & Cl. 169; 1 Cl. & F. 333; Colombian Government v. Rothschild, 1 Sim. 94; South Carolina Bank v. Case, 8 B. & C. 427; Berne v. Bank of England, 9 Ves. 347; Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 870; Bank of Augusta v. Earle, 13 Pet. 519, 588, 589. (@) (a) See The Sapphire, 11 Wall. 164; Hullett v. King of Spain, 1 Dow & Cl. 169. It was recently decided in Eng- land, after much discussion, that the United States of America might main- tain a suit in England in its own name, and not merely in the name of the President. United States v. Wagner, Law Rep. 2 Ch. 582, overruling the decision of Wood, V.C., in Law Rep. 8 Eq. 724. + As to suits against foreign sove- reigns, see Duke of Brunswick v. King of Hanover, 2 H. L. C.1; De Haber v. Queen of Portugal, 17 Q. B. 171. (2) Railroad Co. v. Harris, 12 Wall. 65. Such corporations may sue in contract, or in trover, or in real ac- tions. British America Land Co. v. Ames, 6 Met. (Mass.) 391; Society for Propagating Gospel v. Wheeler, 2 Gall. 105; Runyan v. Coster, 14 Pet. 122; American Ins. Co. v. Owen, 15 Gray (Mass.) 498. And they may levy upon the judgment like natural persons. See Bard v. Poole, 2 Kern. 495; New York Dry Docks v. Hicks, 5 McLean, 111; Lathrop v. Commercial Bank, 8 Dana, 114; Lumbard v. Aldrich, 8N. H. 81; Merrick v. Van Santvoord, 34 N. Y. 208. For, as we have else- where seen, whatever may be said concerning corporations created by a foreign power, their existence will be recognized and respected if not incon- sistent with domestic law. Ante, s. 106, note; Merrick v. Van Santvoord, supra; Christian Union v. Yount, 101 U. S. 352; Cowell v. Springs Co., 100 U. S. 55; Williams v. Creswell, 51 Miss. 817. The rights of foreign receivers will also be recognized when not in conflict with the claims of domestic attaching creditors, in case perhaps there is no intervention by creditors of the party represented by the receiver. Hurd v. Elizabeth, 41 N. J. 1; Cooke v. Or- ange, 48 Conn. 401; Pond v. Cooke, 45 Conn. 126; Blake Crusher Co. v. New Haven, 46 Conn. 473. Bagby »v. Railroad Co. 86 Penn. St. 291, where a foreign creditor’s claim was rejected in favor of the foreign receiver, on grounds of res judicata. (c) See Danforth v. Penny, 3 Met. (Mass.) 564; Peckham v. North Parish in Haverhill, 16 Pick. (Mass.) 274; McQueen v. Middletown Manuf. Co. 16 Johns. (N. Y.) 5. (d) But if the foreign corporation has no place of business in the state, and is not doing business there, it cannot be sued there upon a foreign contract. Camden Mill Co. v. Swede Tron Co., 82 N. J. 15. CHAP. XIV.] JURISDICTION AND REMEDIES. "81 takes a derivative title only from the original party, as where he is an assignee or grantee or donee of the debt or other claim. We have already had occasion to take notice of a peculiarity of the common law, that debts and choses in action are not, with the ex- ception of negotiable promissory notes and bills of exchange, as- signable. 1 Hence if any other debt or chose in action, such as a bond, or a covenant, or other contract, is assigned, no action can be maintained thereon in a common-law court by the assignee in his own name.? The same rule has been applied to assignments of debts or choses in action, made in foreign countries, although the assignee might be entitled to found an action thereon in such foreign country in his own name, in virtue of such assignment? For (it has been said) the inquiry in whose name the suit is to be brought, belongs not so much to the right and merit of the claim, as to the form of the remedy. No distinction seems to have been made in England as to the right to sue, between the case of an assignee by the private voluntary act of the assignor, and an assignee by operation of law by an assignment in invitum under the bankrupt laws. Thus it has been held that a Scotch assignee of a bankrupt could not maintain a suit in his own name in England for a chose in action of the bankrupt, which was ad- mitted to pass under the assignment. In America contradictory 1 Ante, s. 354, 355, 395-400. 23 Burge, Col. & For. Law, pt. 2, c. 20, p. 777, 778; Wolff v. Oxholme, 6M. & S. 99; ante, s. 354, 355. : 8 Wolff v. Oxholme, 6 M. & S. 99; Folliott v. Ogden, 1 H. Bl. 131; Innes v. Dunlop, 8 T. R. 595; Jeffrey v. McTaggart, 6 M. & S. 126. ‘4 Jeffery v. McTaggart, 6 M. & S. 126, and Wolff v. Oxholme, 6 M. & S. 99. But see, in Smith v. Buchanan, 1 East, 11, the dictum of Lord Kenyon to the contrary. In Alivon v. Furnival, 1 C. M. & R. 277, two out of three syndics of a French bankrupt sued a debtor of the bankrupt in their own names in England; and the objection was taken that they had no title to sue. The court overruled the objection. Mr. Baron Parke, in delivering the judgment of the court, said: ‘ Lastly, it is said that, though two may act and bring an action, yet they must sue in the name of all. Now the effect of the testimony of Colin is that two may sue in France without a third, and the witness for the defendant does not prove the contrary, and there seems no reason why it should not be so. The property in the effects of the bankrupt does not appear to be absolutely transferred to these syndics in the way that those of a bankrupt are in this country; but it should seem that the syndics act as mandatories or agents for the creditors, the whole three, or any two or one of them, having the power to sue for and recover the debts in their own names. This isa peculiar right of action, created by the law of that coun- try; and we think it may by the comity of nations be enforced in this, as 782 CONFLICT OF LAWS. [s. 565, 566, decisions have been made upon the same point, some courts affirm- ing, and others denying, the right of the assignee to sue in his own name, although the weight of authority must now be ad- mitted to be against the right. 566. The reasoning of these decisions seems equally to apply to the case of a foreign assignee by the voluntary act of the party, even where he could sue in his own name in the country in which the assignment was made, although certainly there is room for a distinction in such a case, and it has sometimes been recognized. Thus in a case where the assignee of an Irish judg- ment brought a suit in his own name in England, such a judg- ment being assignable in Ireland, so as to vest a title at law in the assignee, the Court of Common Pleas held that he was en- titled to recover ; because (as it should seem) a legal title by the lex loci vested in him, and the case was not to be governed by the law of England, as the assignment was in Ireland? The distinction, although nice, is at the same time clear ; for the remedy is sought upon a legal right, vested ex directo by the lo- cal law in the assignee against the judgment debtor. There does not seem therefore any solid ground upon principle why a right confessedly legal in the country where it originated, and passing a direct and positive fixed title in the assignee, should not have the same remedy in every other country which legal fixed titles in the party are there entitled to. It is assuming the very ground in controversy to assert that it is a mere equitable much as the right of foreign assignees or curators, or foreign corporations ap- . pointed or created ina different way from that which the law of this country requires. Dutch West India Company v. Moses, 1 Str. 612; National Bank ». De Bernales, 1 Ry. & M. 190; Solomons v. Ross, 1 H. Bl. 131, n. We do not pronounce an opinion, whether this objection is available on the plea of nil debet, or ought to have been pleaded in abatement (though we were much struck with the argument of the learned counsel for the plaintiff), as we think it is not available at all upon the evidence in this case.’ See also ante, s. 419, 420. 1 See ante, s. 358, 359, 419, 420; Milne v. Moreton, 6 Binn. (Pa.) 8745 Goodwin v. Jones, 3 Mass. 514, 519; Dawes v. Boylston, 9 Mass. 357; Orr v Amory, 11 Mass. 25; Ingraham v. Geyer, 13 Mass. 146, 147; Byrne v. Walker, 7 Serg. & R. (Pa.) 488; Bird v. Caritat, 2 Johns. (N. Y.) 342; Bird ». Pier- pont, 1 Johns. (N. Y.) 118; Murray v. Murray, 5 Johns. Ch. (N. ¥.) 60; Brush v. Curtis, 4 Conn. 812; Raymond v. Johnson, 11 Johns. (N. Y.) 488; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 485. 2 O'Callaghan v. Thomond, 3 Taunt. 82, 84; ante, s. 355; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 777, 778. CHAP. XIV.] JURISDICTION AND REMEDIES. 783 title; for the local law has adjudged. it otherwise, and vested the original title ex directo in the assignee. In the common case where an executor or administrator indorses negotiable paper in the country from which he derives his administrative au- thority, no one will doubt that the legal title passes to the indor- see, and that he may sue thereon in any other country in his own name ; and yet such an indorsement in another country by the executor or administrator would not be admitted to have any such validity or effeot.1 However, the doctrine of this case has been much doubted ; and therefore it can scarcely be thought to be unexceptionable in point of authority. There are cer- tainly dicta and decisions which are pointedly the other way, and in which it is said that the suit must be brought in the name of the assignor, if the lex fori requires it.? (a) 1 Ante, s. 353 a, 354, 358, 359; Trimbey v. Vignier, 1 Bing. N. C. 151, 159, 160. 2 The dictum of Lord Loughborough in Folliott v. Ogden, 1 H. Bl. 135, and that of Lord Ellenborough in Wolff v. Oxholme, 6 M. & S. 92, 99, are to this effect. But the recent case of Alivon v. Furnival,1C. M. & R. 277, 296, certainly as far as it goes upholds it. Ante, s. 565, note. See also Robinson v. Campbell, 3 Wheat. 212. The case of Wolff v. Oxholme, 6 M. & S. 92, 99, may perhaps be distinguishable in its circumstances, as well as in the reason- ing of the court. Lord Ellenborough’s language in the last case was as fol- lows: ‘ One of the points insisted upon in the argument for the defendant was that this assignment and the suit instituted upon it were a bar to the plaintiff’s demand; but we think that they cannot have that effect. The assignee could not sue in the courts of this country in his own name; the action must have been brought here in the names of the original creditors, even if they had as- signed the debt for a valuable consideration ; and although the assignment gave the assignee a right to sue in his own name in Denmark, yet the defendant does not appear to have been prejudiced by that measure even there, nor has any material consequence resulted therefrom. And we consider the case to stand now just as it would have done if no assignment had been made, and if the suit in Denmark had been brought by the plaintiffs themselves, instead of being instituted by their trustees.’ See ante, s. 358, 359, 899, note. See Trasher v. Everhart, 8 Gill & J. (Md.) 234; McRae v. Mattoon, 10 Pick. (Mass.) 52; Pearsall v. Dwight, 2 Mass. 84; 3 Burge, Col. & For. Law, pt. 2, ¢. 20, p. 777, 778. This subject is ably discussed on different sides in two articles in the American Jurist, viz.: in the number for January, 1833 (vol. 9, p. 42), and in the number for January, 1834 (vol. 11, p. 101), to which I gladly refer as giving a more satisfactory view of this subject than, with reference to the plan of the present work, I have been able to give. It may be thought that the case of foreign executors and administrators, as assignees by operation of law of the deceased’s estate, stands upon a similar ground. But it appears (2) See Foss v. Nutting, 14 Gray, 484; Richardson v. New York Cent. RB, Co.,.98 Mass. 85, 92. 784 CONFLICT OF LAWS. [s. 567-569. 567. Instruments under Seal. — Another illustration may be taken from the forms of action upon instruments under seal. Thus in Virginia a contract to pay money, with a scrawl instead of a seal, is treated as a sealed instrument, so that debt lies upon it in that state. But in New York, where such a scrawl is not treated as a seal, the remedy must be as upon an unsealed simple contract.! (a) The same doctrine has been maintained in Eng- land upon an instrument executed in Jamaica, where there was no seal, but a mark or scrawl in the place where the seal is usually affixed? On the other hand, a single bill is deemed in Virginia not to be a specialty ; in Maryland it is otherwise. A remedy brought in Maryland upon such a single bill, executed in Virginia, cannot be by an action of assumpsit, as upon a sim- ple contract, but must be by action of debt, as upon a specialty.? 568. Process. — Melan v. Fite James. —In the next place as to process and proceedings. ‘There is no controversy that ina general sense the mode of process constitutes a part of the remedy. But the question has arisen whether, upon contracts made in a foreign country, and which by the laws of that coun- try are precluded from being enforced by a personal arrest or imprisonment, the like exemption applies in suits to enforce them in another country where such process constitutes a part of the remedial justice. Such a contract existed, or was sup- posed to exist, in a case where a bond given in France, and sued in England, was understood to bind the property and not the person of the party in France. On that occasion Lord Chief Justice Eyre said: ‘If it appears that this contract creates no personal obligation, and that it could not be sued as such by the laws of France, on the principle of preventing arrests so vexa- tious as to be an abuse of the process of the court, there seems to me to proceed on principles materially different, applicable to rights, and “not merely to remedies. Ante, s. 399, note, s. 420, 512, 513. 1 Warren v. Lynch, 5 Johns. (N. Y.) 239. See also Andrews v. Herriot, 4 Cow. (N. ¥.) 508. But see Meredith » Hinsdale, 2 Caines (N. Y.) 362. 2 Adam v. Kerr, 1 B. & P. 360. See also Bank of the United States v. Donnally, 8 Pet. 361; ante, s. 558, note. 8 ‘Trasher v. Everhart, 3 Gill & J. (Md.) 284; Bank of the United States v. Donnally, 8 Pet. 361; ante, s. 558, note. , 4 Melan v. Fitz James, 1 B. & P. 188; 8 Burge, Col. & For. Law, pt. 2, c. 20, p. 766-768. (a) See Le Roy v. Beard, 8 How. 464. . GHAP. XIV.] JURISDICTION AND REMEDIES, 785 to be a fair ground on which the court may interpose to prevent a proceeding so oppressive as a personal arrest in a foreign coun- try, at the commencement of a suit, in a case which, as far as one can judge at present, authorizes no proceeding against the person in the country in which the transaction passed. If there could be none in France, in my opinion there can be none here. I cannot conceive that what is no personal obligation in the country in which it arises, can ever be raised into a personal obligation by the laws of another. If it be a personal obligation there, it must be enforced here in the mode pointed out by the law of this country. But what the nature of the obligation is, must be determined by the law of the country where it was entered into; and then this country will apply its own law to enforce it’! And accordingly the court discharged the party from the arrest. 569. The Principle. — There does not seem the least reason to doubt the entire correctness of the doctrine thus laid down. If the contract creates no personal obligation, but an obligation in rem only, it cannot be that its nature can be changed, or its obligation varied, by a mere change of domicil. That would be to contradict all the principles maintained in all the authorities, that the validity, nature, obligation, and interpretation of a con- tract are to be decided by the lex loci contractus2 A suit in personam in England could not be maintained except upon some contract which bound the person. If it bound the property only, the proceeding should be in rem; and if in express terms the party bound his property only, and exempted himself from a personal liability, no one would doubt that a suit in personam would not be maintainable. The same principle would apply, if the laws of a country should declare that certain classes of contracts should not bind the person at all, but only property, or a particular species of property. Such laws do probably exist in some countries. But it does not follow, because a personal remedy is not given by the laws of a country, that therefore there is no personal obligation in a contract.’ (a) 1 Tbid. See also Ohio Ins. Co. v. Edmondson, 5 La. 295, 300. 2 Ante, s. 263-273; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 765, 766, 776. 8 Talleyrand v. Boulanger, 3 Ves. 447; Flack v. Holm, 1 Jac. & W. 405. (2) See Liverpool Credit Co. v. menting on Talleyrand v. Boulanger, Hunter, L, R. 8 Ch. App. 479, com- supra. 60 786 CONFLICT OF LAWS. [s. 570-572, 570. Its Application.— The real difficulty lies not in the principle itself, but in its application. There is a great distinc- tion between a contract which ex directo excludes personal lia- bility, and a contract made in a country which binds the party personally, but where the laws do not enforce the contract in personam, but only in rem. In the latter case the remedy con- stitutes no part of the contract. The liability is general, so far as the acts of the parties go, and the mode of enforcing is a mere matter of municipal regulation. It is strictly a part of the lex. fori, and may be changed from time to time, as the legislature may choose.1 This was the view of the matter taken by Mr. Jus- tice Heath in the caSe alluded to; for he, in dissenting from the opinion of the court, did not deny the principles of the decision, but held that the contract was personal. * We all agree,’ said he, ‘that in construing contracts we must be governed by the laws of the country in which they are made, for all contracts have reference to such laws. But when we come to remedies, it is another thing. They must be pursued by the means which the law points out where the party resides. The laws of the country where the contract was made can only have reference to the nature of the contract, not to the mode of enforcing it. Whoever comes voluntarily into a country subjects himself to all the laws of that country, and therein to all the remedies di- rected by those laws on his particular engagements.’ ? 571. The Better Opinion. —The doctrine of this case has been sometimes followed in America.? But the better opinion now es- tablished both in England and America is, that it is of no conse- quence whether the contract authorizes an arrest or imprisonment of the party in the country where it was made, if there is no ex- emption of the party from personal liability on the contract. He is still liable to arrest or imprisonment in a suit upon it in a fo- reign country, whose laws authorize such a mode of proceeding as a part of the local remedy.t In a recent case in England, where 1 See Ogden v. Saunders, 12 Wheat. 213. _7 Melan v. Fitz James, 1 B. & P. 142; Hinkley v. Marean, 3 Mason, 88; Titus v. Hobart, 5 Mason, 378. 8 Symonds v. Union Ins. Co., 4 Dall. (Penn.) 417. 4 See Imlay v. Ellefsen, 2 East, 453; Peck v. Hozier, 14 Johns. (N. Y.) 346; Robinson v. Bland, 2 Burr. 1089; Hinkley v. Marean, 3 Mason, 88; Titus x Hobart, 5 Mason, 378; Smith »v. Spinolla, 2 Johns. (N. Y.) 198, 200; De la Vega v. Vianna, 1 B. & Ad. 284; 3 Burge, Col. & For. Law, pt. 2, c. 20, p. 766- CHAP. XIV.] JURISDICTION AND REMEDIES, 787 the plaintiff and defendant were both foreigners, and the debt was contracted in a country by whose laws the defendant would not have been liable to arrest, an application was made to discharge the defendant from arrest on that account; but the court refused the application. Lord Tenterden on that occasion, in delivering the opinion of the court, said: ‘ A person suing in this country must take the law as he finds it. He cannot by virtue of any regu- lation in his own country enjoy greater advantages than other suitors here. And he ought not therefore to be deprived of any superior advantage which the law of this country may confer. He is to have the same rights which all the subjects of this king- dom are entitled to.’1(a@) The same doctrine has been solemnly promulgated by the House of Lords on a still more recent occasion.? 572. Judgments and Executions. — The like principles apply to the form of judgments to be rendered, and of executions to be granted in suits. They must conform to the lex fori, although the party defendant may, in his domestic forum, have been en- titled to a judgment exempting his person from imprisonment, in virtue of a discharge under an insolvent law existing there, and of which he had there judicially obtained the benefit.2 And it will make no difference in such case whether the contract sued on was made in a state granting such discharge or not, or whether the parties were citizens of that state or not. The effect of such a discharge is purely local. It is addressed solely to the courts of the state under whose authority the exemption is al- lowed. But it has nothing to do with the process, proceedings, or judgments of the courts of other states, which are to be go- verned altogether by their own municipal jurisprudence. Wher- ever a remedy is sought, it is to be administered according to the 769; Atwater v. Townsend, 4 Conn. 47; Woodbridge v. Wright, 3 Conn. 523, 526; Smith v. Healy, 4 Conn. 49. 1 De la Vega v. Vianna, 1 B. & Ad. 284. See also Whittemore v. Adams, 2 Cowen (N. Y.) 626; Willings v. Consequa, 1 Pet. C. C. 817; Courtois v. Car- pentier, 1 Wash. C. C. 376; Bird v. Caritat,2 Johns. (N. Y.) 345; Wayman v. Southward, 10 Wheat. 1. See Henry on Foreign Law, p. 81-86. 2 Don v. Lippmann, 5 Cl. & F. 1, 13-15; ante, s. 557, note. 8 Hinkley v. Marean, 3 Mason, 88; Titus v. Hobart, 5 Mason, 378 ; Atwater ‘ ». Townsend, 4 Conn. 47; Woodbridge v. Wright, 3 Conn. 523, 526; Smith v. Healey, 4 Conn. 49; 3 Burge, Col. & For. Law, pt. 2, ¢. 21, s. 7, p. 878, 879. (a) See Noonan v. Kemp, 34 Md. 73. CONFLICT OF LAWS. [s. 572-574 a, 788 lex fori, and such a judgment is to be given as the laws of the state where the suit is brought, authorize and allow, and not such a judgment as the laws of other states authorize or require.! (a) 578. Foreign Jurists. — The general doctrine is stated in am- ple terms by Paul Voet. ‘ Quid, si actiones sint intentande, et quidem personales, an sequemur statutum domicilii debitoris, an statutum loci ubi exigi vel intentari poterunt? Respondeo, etsi bene multi velint tales actiones certo loco non circumscribi, in- specta tantum illa corporali circumscriptione, ut tamen eas velint censeri de loco ubi agi et exigi possunt.’? Again he adds: ‘Sed revertar, unde fueram digressus, ad concursum statutorum vari- antium circa judicia. Ubi occurrunt nonnulla circa solemnia in judiciis servanda, circa tempora, cautiones, probationes, causarum decisiones, executiones, et appellationes. Finge, enim, alia ser- vari solemnia, in loco domicilii litigatoris, alia in loco contractus, alia in loco rei site, aliain judicii loco. Quenam spectanda so- lemnia? Respondeo ; Spectanda sunt solemnia, id est, stylus ju- dicis fori illius, ubi litigatur. Idque in genere verum est, sive loquamur de civibus, sive forensibus ; statuta quippe circa solem- nia meo sensu mixti erant generis ; adeoque vires exserunt tam- intraquam extra territorium, tam in ordine ad incolas, quam ad exteros.’ 8 574. The same doctrine is fully confirmed by John Voet, asa received doctrine of foreign law. ‘ Multis presterea in locis id ob- tinet, ne duo ejusdem provincie seu territorii incole se invicem, 1 Hinkley v. Marean, 3 Mason, 88; Titus v. Hobart, 5 Mason, 878; Atwater v. Townsend, 4 Conn. 47; Smith v. Healey, 4 Conn. 49; Woodbridge v. Wright, 3 Conn. 523. See also Suydam v. Broadnax, 14 Pet. 67. 2 P. Voet, ad Stat. s. 10, c. 1, n.2, p. 281, ed. 1715; Id. p. 340, ed. 1661. 8 Id. n. 6, p. 285, ed. 1715; Id. p. 345, 346, ed. 1661. (a) See Toomer v. Dickerson, 37 Ga. 440. And it often happens that, by reason of the form of a judgment rendered in a foreign jurisdiction, no adequate remedy can be found out of the particular place where rendered. Thus in regard to bonds with penal- ty for the performance of successive or continuing obligations or duties: where upon default the obligee has bronght suit and obtained judgment for the penalty, with an assessment of damages for past breaches, the judg- ment for the penalty remaining as a pledge for future performance, upon which, by the local law, the obligee is entitled to bring scire facias, from time to time, as successive breaches occur, and obtain a reassessment of damages and another execution for each; no recovery upon the judgment for the penalty can be had, the adju- dication in that form not importing an absolute debt. Dimick v. Brooks, 21 Vt. 569; Battey »v. Holbrook, 11 Gray, 212; post, s. 609. CHAP. XIV.] JURISDICTION AND REMEDIES, 789 aut bona, sistant in alio territorio. Sic duo Brabantini se invicem non extra Brabantiam ; duo Hollandi non extra Hollandun, ete. Quod si quis, neglecta statuti dispositione, concivem aut bona ejus alibi stiterit, litis movende gratia, non peccabunt quidem istius loci judices, si arrestum confirment ; cum non ligentur alieni ter- ritorii legibus talem arrestationem concivium vetantibus. Sed, qui ita detentus litigare coactus est, recte petet a suo judice, con- demnari concivem, ut arresti vinculum, contra statuti domicilii prohibitionem alibi impositum, remittat, litique alibi coepte cum impensis renunciet, ac solvat mulctam statuto dictatam.’1 And he proceeds to add that in some places the practice is in suits be- tween two foreigners belonging to one and the same country, to remit the parties to their domestic forum ; which however is done, not as a matter of right or duty, but of comity, or from policy, to prevent injurious delays to the suits of their own citizens. ‘Quod tamen vel ex comitate magis, quam necessitate fit, vel magis ad declinandam nimiam litium frequentiam judicibus molestam, civi- bus inde suaram litium protelationem patientibus damnosam.’? 574 a. Dumoulin also affirms a similar doctrine in the passages already cited. ‘Unde, an instrumentum habeat executionem, et quomodo debeat exequi, attenditur locus, ubi agitur, vel fit exe- cutio. Ratio, quia fides instrumenti concernet meritum ; sed vir- tus executoria et modus exequendi concernit processum.2 Quod in his, que pertinent ad processum judicii, vel executionem fa- ciendam, vel ad ordinationem judicii, semper sit observanda con- suetudo loci, in quo judicium agitatur.’* Burgundus is equally expressive, ‘Eodem modo dicemus, in contexanda actione, fori consuetudines observandas esse, ubi contenditur, quia et in judi- ciis quasi contrahitur. Idem in arrestis seu manuum injectioni- bus tenendum est, ut scilicet consuetudinem loci spectemus, ubi facta est manus injectio: quia arrestatio apud nos ingressus est judicii, et duntaxat litis pendentiam, non executionem generet.’® 1 J. Voet, ad Pand. 2, 4, s. 45, p. 129; cited also 1 B. & Ad. 288, note; ante, 8. 562. 2 Thid. 8 Molin. Opera, tom. 3, Com. ad Cod. 1, 1, 1, p. 559, ed. 1681; ante, s. 561. 41d. 6, 82, p. 785 [741], ed. 1681; 1 Boullenois, obs. 23, p. 528, 524; ante, s. 561. 5 Burgundus, tract. 5, n. 1, p. 118, 119; 1 Boullenois, obs. 23, p. 524, 526; 2 Boullenois, obs. 46, p. 488. But see Burgundus, tract. 4, n. 27, p. 116, cited post, s. 574, note. 790 CONFLICT OF LAWS. {s. 574 a-574 , This indeed seems, with few exceptions, to be the general doctrine maintained by foreign jurists ; and Boullenois has collected their opinions at large.t He treats the question of imprisonment as purely one modus exequendi; and he applies the same principle to mesne process and to process of execution.2 He accordingly puts the case where a Frenchman contracts a common debt ina country by whose laws such a debt imparts a right to arrest the body, and says that this right isa mere mode of enforcing the contract, modus exequendi, and consequently it depends upon the law of the place where the execution of it is sought; so that if it is sought in a place where no such arrest of the body is al- lowable, the creditor has no right to claim any restraint by such a rigorous course.8 5746. But a distinction is taken by some foreign jurists be- tween a contract made in a country between a stranger and a citizen thereof, or between two citizens, and a contract made in the same country between two foreigners belonging to another country, when the law of the place where the contract is made allows an arrest of the person, and the law of the place where the suit is brought or to which the two foreigners belong, disallows such an arrest. Thus in Brabant there is a law of Charles the Fourth which prohibits any Brabanter from arresting another Brabanter in a foreign jurisdiction; and Peckius puts the ques- tion, whether in a case of this sort any Brabanter may arrest ano- ther Brabanter in Spain, Italy, England, France, or other foreign country. And he holds that he may not: first, because the pro- hibitory law is absolute, and comprehends subjects even in a fo- reign territory; secondly, because the power of establishing a law between subjects is not limited to the territory of the sovereign; thirdly, because if the sovereign may bind his subjects every- where, this privilege equally binds them everywhere, as a part of the law; fourthly, because a sentence of excommunication would bind the subjects in a foreign territory ; and a fortiori, then, this privilege does bind them ; and fifthly, because the incapacity of the prodigal binds him in a foreign territory, and this case of privilege is as strong or stronger. Hence he concludes that _ 7 1 Boullenois, obs. 23, p. 523-525, 528, 529; Id. p. 585-548, 544-569. See Henry on Foreign Law, p. 81-85. ? Id.; Henry on Foreign Law, p. 55, 56, 81-85. 8 1 Boullenois, obs. 28, p. 525, 528, 529; Id. obs. 25, p. 601, &c. ‘ CHAP. xIVv.] JURISDICTION AND REMEDIES. 791 not only the person, but the movables of the Brabanter (which follow his person) also, would be free from arrest. ‘Unde sicut persona arrestari non potest, ita nec bona mobilia ejusdem.’} 574¢. There is great reason to doubt both the premises and the conclusions of Peckius in asserting this distinction; and cer- . tainly it now has no admitted recognition in the common law.? Peckius asserts another distinction, in which he has apparently the support of Christinzeus and Everhardus, and some other ju- rists, that where the law of the place of contract allows an arrest, but the law of the place of payment does not (and so e contra in the converse case), the law of the latter is to prevail. He quotes the language of Everhardus on the same point with approbation: ‘Quod si in loco celebrati contractus sit statutum, quod debitor possit capi et incarcerari, vel quod instrumenta notariorum ha- beant executionem paratam; in loco vero destinatez solutionis, non sit simile statutum, sed servetur jus commune, attendatur, quoad hoc, mos, observantia, statutum, aut lex, destinatz solu- tionis. Quippe, quod in his, que concernunt judicariam execu- tionem, inspicitur locus destinate solutionis.’® He then adds in the converse case: ‘Quod et in arrestatione, si similis casus oc- currat, locus destinate solutionis et judicii spectari debeat.’ 4 Christineus uses similar language.6 The common law of Eng- land and America however does not recognize any such dis- tinction.® 1 Peck. de Jure Sist. c. 8, n. 1-6; Peckii Opera, p. 753, ed. 1666. 2 Ante, s. 568-571. Mr. Henry however thinks the distinction sound, and deems it supported by the case of Melan v. Fitz James, 1 B. & P. 138; ante, s. 568-572. Burgundus says: Affinia solutioni sunt, prescriptio, oblatio rei debitz, consignatio, novatio, delegatio, et ejus modi. Burgundus, tract. 4, n. 28, p. 116. 8 Everhard. Consil. 78, n. 22, p. 208; Peck. de Jure Sist. c. 11, p. 758, ed. Peck. Oper. 1666. 4 Peck. Oper. de Jur. Sist. c. 11, n. 1, p. 758, 759, ed. 1666. 5 Christin. tom. 1, decis. 283, n. 12, p. 355; 1 Boullenois, obs. 23, p. 525; 2 Boullenois, obs. 46, p. 488. ; 6 Post, s. 581; Campbell v. Stein, 6 Dow, 116; Don v. Lippmann, 5 Cl. & F. 1, 19, 20. In this latter case, Lord Brougham said, speaking on this point: ‘All the authorities, Huber (De Confl. Leg. in Div. Imp.), Voet (Dig. 24, 3, 12), and Lord Kames (Kames’s Principles of Equity, 3, 8, 6, 1, 5, 3), are cited in that case. Campbell v. Stein, 6 Dow, 116, was an action for a bill of costs for business done in this House. ‘The court below there allowed the rule of Scotch prescription. That judgment was affirmed by Lord Eldon, who however said that he moved it with regret. He said that it had been ruled that the debtor being in Scotland, and the creditor in England, the debtor 792 CONFLICT OF LAWS. [s. 574 d-576, 574d. Peckius then puts another case, where the contract of indebtment is made in a country where an arrest is not allowed, and the debtor has not promised to pay in another country where an arrest is allowed, but he is found there; whether in such a case he may nevertheless be arrested there, the debt being then due. He thinks he may; because to this extent it may be truly said that the law and usage of the place of the judgment ought in this matter to be observed; and that in those things which concern the proceedings in suits, foreigners are bound by the laws of the place where they are liable to be sued. ‘Sed quid, si quis contraxit in loco, in quo illius loci homines non utuntur arresto, neque promisit solvere in patria arresti, sed tamen illice reperi- tur; utrum nihilominus arrestari possit? Existimo, quod sic, si vel tempus solutionis elapsum vel in mora periculum sit; quia adhuc verum est dicere, quod statutum et consuetudo loci ju- dicii servari debet in isto modo; et in his, que ad ordinationem judiciorum pertinent, forenses ligantur statutis loci, ubi con- veniuntur.’ ! . 575. Defences ex post Facto. —In the next place as to defences arising from matters ex post facto. These may be of the nature of counter-claims or set-offs to actions, analogous to compensa- tion in the Roman and foreign law ;? or they may be matters of discharge, such as discharges under insolvent laws, arising at a might plead the Scotch rule of prescription; that that was against some of the old authorities, but was in accordance with those of later date. That case cannot be reconciled with the principle that the locus solutionis is to prescribe the law. It has nothing to do with the case. Why is it then that the law of the domicil of the debtor was there allowed to prevent the plaintiff from re- covering ? It was because the creditor must follow the debtor, and must sue him where he resides; and by the necessity of that case was obliged to sue him in Scotland. In that respect therefore there was in that case no differ- ence between the lex loci solutionis and the lex fori; and it must be admitted that in such case the rules of evidence, and, if so, the rules of practice, may be varied, as they are applied in one court or the other. But governing all these cases is the principle that the law of the country where the contract is to be enforced must prevail in enforcing such contract, though it is conceded that the lex loci contractus may be referred to, for the purpose of expounding it. If therefore the contract is made in one country, to be performed in a second, and is enforced in a third, the law of the last alone, and not of the other two, will govern the case.’ 1 Peckii Opera, de Jure Sist. c. 11, p. 758, 759, ed. 1666. The same point was held in Don v. Lippmann, 5 Cl. & F. 1, 20; ante, s. 574 c, note. 2 Pothier, Oblig. n. 587, 588. CHAP, xIv.] JURISDICTION AND REMEDIES. 793 subsequent period ; or they may be laws regulating the time of instituting suits, called in the foreign law statutes of prescrip- tion, and in the common law statutes of limitation. The latter defence will deserve a very exact consideration. The former may be disposed of in a few words. The subject of discharges from the contract, either by the act of the parties or by opera- tion of law, has been already sufficiently considered! As to set- off or compensation, it is held in the courts of common law that a set-off to any action, allowed by the local law, is to be treated as a part of the remedy; and that therefore it is admissible in claims between persons belonging to different states or countries, although it may not be admissible by the law of the country where the debt which is’sued was contracted.2 (a) The liens, and implied hypothecations, and priorities of satisfaction, given to creditors by the law of particular countries, and the order of payment of their debts, are, as we have already seen,® generally treated as belonging to the proceedings in suits (ad litis ordina- tionem), and not to the merits of the claim.* 576. Statutes of Limitation. —In regard to statutes of limita- tion or prescription of suits, and lapse of time, there is no doubt that they are strictly questions affecting the remedy, and not questions upon the merits. They go ad litis ordinationem, and not ad litis decisionem, in a just juridical sense.6 The object of them is to fix certain periods within which all suits shall be 1 Ante, s. 330-352. See also 3 Burge, Col. & For. Law, pt. 2, c. 21, s. 7, p. 874-886, 2 Gibbs v. Howard, 2 N. H. 296; Ruggles ». Keeler, 3 Johns. (N. Y.) 263. See Pothier on Oblig. n. 641, 642. § Ante, s. 322 6-328, 423 a. 4 Rodenburg, de Div. Stat. tit. 2,c. 5, n. 15, 16; 2 Boullenois, Appx. p. 47, 49; 1 Boullenois, obs. 25, p. 634, 635, 639; Id. p. 685, 818. See also P. Voet, de Stat. s. 10, c. 1, n. 2-6, p. 282-289, ed. 1715; Id. p. 340-346, ed. 1661. 5 1 Boullenois, obs. 23, p. 580; Fergusson v. Fyffe, 8 Cl. & F. 121, 140. (a) See Mineral Point R. Co. v.’ v. Barron, supra; Leiber v. Union Pa- Barron, 83 Ill. 865; Second National Bank v. Hemingray, 31 Ohio St. 168; Davis v. Morton, 5 Bush (Ky.) 160; Carver v. Adams, 38 Vt. 500; Bank of Gallipolis v. Trimble, 6 B. Mon. (Ky.) 601. But see Bliss v. Houghton, 13 N. H. 126; Harrison v. Edwards, 12 Vt. 648. Exemption laws also relate tothe remedy. Mineral Point R. Co. cific R. Co. 49 Iowa, 688. So of Sta- tutory law abolishing the distinction between sealed and simple contracts. Williams v. Haines, 27 Iowa, 251. So of mere registration laws. Ex parte Melbourn, L. R. 6, Ch. 64. But comp. dictum in Hicks v. Powell, L. R. 4 Ch. 741. So of forfeiture laws. Lindsay v. Hill, 66 Me. 212. 794. , CONFLICT OF LAWS. [s. 576, 577, brought in the courts of a state, whether they are brought by or against subjects, or by or against foreigners. And there can be no just reason, and no sound policy, in allowing higher or more extensive privileges to foreigners than are allowed to subjects. Laws thus limiting suits are founded in the noblest policy. They are statutes of repose to quiet titles, to suppress frauds, and to supply the deficiency of proofs arising from the ambiguity and obscurity, or the antiquity of transactions. They proceed upon the presumption that claims are extinguished, or ought to be held extinguished, whenever they are not litigated in the proper forum within the prescribed period. They take away all solid grounds of complaint, because they rest on the negligence or laches of the party himself. They quicken diligence, by making it in some measure equivalent to right. They discourage litiga- tion, by burying in one common receptacle all the accumulations of past times which are unexplained, and have now from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mor- tal: ‘ Ne autem lites immortales essent, dum litigantes mortales sunt.’ ?(@) 577. Foreign Jurists. — It has accordingly become a formulary in international jurisprudence, that all suits must be brought within the period prescribed by the local law of the country where the suit is brought (lex fori), otherwise the suits will be barred ; and this rule is as fully recognized in foreign jurispru- dence as itis in the common law.2(b) Not indeed that there 1 J. Voet, ad Pand. 5, 1, 53, p. 328. * The authorities in the common law are very numerous. A considerable number of them are cited in 4 Cowen (N. Y.) 528, note 10; Id. 530; Van Reimsdyk v. Kane, 1 Gallis. 371; Le Roy v. Crowninshield, 2 Mason, 151, British Linen Co. v. Drummond, 10 B. & C. 903; De la Vega v. Vianna, 1B. & Ad. 284; Huber v. Steiner, 2 Bing. N. C. 202, 209-212; Don v. Lippmann, 5 Cl. & F. 1, 18-17; Medbury ». Hopkins, 8 Conn. 472; Woodbridge ». Wright, 3 Conn. 523; Bank of the United States v. Donnally, 8 Pet. 861; Bulger v. Roche, 11 Pick. (Mass.) 36; De Couche ». Savetier, 3 Johns. Ch. (N. Y.) 190; Lincoln v. Battelle, 6 Wend. (N. Y.) 475. (a) And the statute of frauds is, like rule will obtain as to a contract like the statute of limitations, a mat- made abroad, although it was valid by ter affecting the remedy merely; and the law of the place where made. Le- if by the law of the forum no action rouxy. Brown, 12 C. B. 801; 14 Eng. L. can be maintained on a particular oral and Eq. 257. contract if made in that country, the (2) See Brown v. Stone, 4 La. An. CHAP. xIv.] , JURISDICTION AND REMEDIES. 795 are no diversities of opinion upon this subject; but the doctrine is established by a decisive current of well-considered authori- ties! Thus Huberus lays down the doctrine in clear terms, ap- plying it to the very case of a prescription; and he assigns the reason: ‘ Ratio hac est, quod prescriptio et executio non perti- nent ad valorem contractus, sed ad tempus et modum actionis instituende, que per se, quasi contractum, separatum negotium constituit. Adeoque receptum est optima ratione, ut ordinandis judiciis, loci consuetudo, ubi agitur, etsi de negotio alibi cele- brato, spectatur, ut docet Sandius, ubi tradit, etiam in executione sententiz alibi late, servari jus loci, in quo fit executio, non ubi res judicata est.’2 Paul Voet says: ‘ Ubi quoad actionis intenta- tionem, occurrit illa ‘difficultas, an si diversa sint statuta circa actionis finitionem seu terminum, spectandus sit terminus statuti debitoris, an creditoris? Respondeo; quia actor sequitur forum rei, ideo extraneus petens a reo, quod sibi debetur, sequetur ter- minum statuti prescriptum actioni in foro rei. Et quia hoe sta- tutum non exserit vires extra territorium statuentis, ideo, etiam reo alibi convento, tale statutum objicere non poterit.’3 Boulle- f 1 See Ersk. Inst. b. 3, tit. 7, n. 49, p. 633, 634. 2 Huberus, tom. 2, lib. 1, tit. 3, de Conflict. Leg. s. 7; 1 Hertii Opera, de Collis. s. 4, n. 65, p. 150, 151, ed. 1737; Id. p. 812, ed. 1716.' Hertius seems of a different opinion; saying that if the prescription only of the place where the suit is brought could prevail, the times of prescription would be very un- certain; for a man might frequently be sued in different places. 1 Hertii Opera, de Collis. Leg. s. 4, n. 65, p. 150, ed. 1737; Id. p. 212, ed. 1716. See also the opinions of other jurists to the same point in 1 Boullenois, obs. 28, p. 528- 530; 2 Boullenois, obs. 46, p. 487, 488; Ersk. Inst. b. 3, tit. 7, 8. 48, p. 633, 634; J. Voet, ad Pand. 2, 44, 8, s. 10,12; 3 Burge, Col. & For. Law, pt. 2, ¢. 21, s. 7, p. 878, 879. 8 P. Voet, de Stat. s. 10, c. 1, n. 1, p. 281, ed. 1715; Id. p. 840, ed. 1661. 235; Young v. Crossgrove, ib. 233; Miller v. Brenham, 68 N. Y. 83; Scud- der v. Union Bank, 91 U. S. 406; Paine v. Drew, 44 N. H. 806; Ruck- maboye v. Mottichund, 8 Moore, P. C. 36; Pinney v. Cummings, 26 Ohio St. 46; McMerty v. Morrison, 62 Mo. 140; Carson v. Hunter, 46 Mo. 467; Langston v. Aderhold, 60 Ga. 876; Mineral Point R. Co. v. Barron, 83 Il. 865; Hoggett ». Emerson, 8 Kans. 262; Swickard v. Bailey, 3 Kans. 507; O’Bannon v. O’Bannon, 18 Bush (Ky.) 588; McDonald v. Underhill, 10 Bush (Ky.) 584; Bige- low v. Ames, 18 Minn. 527; Fletcher v. Spaulding, 9 Minn. 64; Perkins v. Guy, 55 Miss. 153; Hubbard v. Epps, 9 Baxter (Tenn.) 231. But see Wilson v. Demers, 12 L. Can. Jur. 222. The rule in regard to ac- tions barred in the foreign state has. been changed by statute in many states. Van Dorn v. Bodley, 38 Ind. 402 (see Harris v. Harris, ib. 423); Webster v. Rees, 23 Iowa, 269; Sloan v. Waugh, 18 Iowa, 224; Mass. Pub. Stat. c. 197,58. 11. 796 CONFLICT OF LAWS. [s. 577-580, nois holds a similar doctrine, asserting that the bar of prescrip- tion is a part of the modus procedendi.! It is in vain, he adds, to assert that the bar of prescription is a peremptory exception (exceptio peremptoria), and that, according to Baldus, ‘exceptio peremptoria pertinent ad decisionem cause ;’ that remark pro- perly applies to a peremptory exception which falls upon the contract, and not to one which falls only upon the action or pro- ceedings ina suit.2. Many other jurists might be cited in sup- port of this doctrine, if it were necessary to go at large into the subject.2 The doctrine of the Scottish courts is in precise con- formity to that of the common law. 578. Necessity of the Rule. — But if the question were entirely new, it would be difficult upon principles of international justice or policy to establish a different rule. Every nation must have a right to settle for itself the times and modes and circumstances within and under which suits shall be litigated in its own courts. There can be no pretence to say that foreigners are entitled to crowd the tribunals of any nation with suits of their own which are stale and antiquated, to the exclusion of the common admi- nistration of justice between its own subjects. As little right can foreigners have to insist that the times and modes of proceed- ing in suits provided by the laws of their own country shall su- persede those of the nation in which they have chosen to litigate their controversies, or in whose tribunals they are properly par- ties to any suit. 579. Objections of Foreign Jurists. — The reasoning sometimes insisted upon by foreign jurists, in opposition to this plain and intelligible doctrine, is, in the first place, that the statute of limi- tations or prescription really operates as a peremptory bar, and therefore does not in fact touch the mode of proceeding, but the merits of the case; ‘non tangit modum simplicem procedendi, 1 1 Boullenois, obs. 28, p. 530; post, s. 579. 2 Thid. 8 See 1 Boullenois, obs. 28, p. 530, 550; 2 Boullenois, obs. 46, p. 455, 456; . Casaregis, Disc. 179, s. 59, 60; P. Voet, de Stat. s. 10, ¢ 1,8. 1, p. 281, ed. 1715; Id. p. 839, 340, ed. 1661. See 3 Burge, Col. & For. Law, pt. 2, c. 10, ae p. 122-124; Id. c. 21,8. 7, p. 878-880; Ersk. Inst. b. 3, tit. 7, s. 48, p. 633, 4 Ersk. Inst. b, 3, tit. 7, s. 48, p. 683; Le Roy v. Crowninshield, 2 Mason, 174; Kames on Equity, b. 3, c. 8, 8. 4,6; P. Voet, de Stat. s.10,c 1,n.1, p. 280, 281, ed. 1715; Id. p. 839, 840, ed. 1661. CHAP, XIV.] JURISDICTION AND REMEDIES. 797 sed tangit meritum cause ;”! and, in the next place, that it sub- jects the party to different prescriptions in different places, and therefore leaves his rights in uncertainty.2 The latter objection may be answered by the obvious consideration, that if the party chooses to reside within any particular territory, he thereby sub- jects himself to the laws of that territory, as to all suits brought by or against him. It may be added that, as the law of prescrip- tion of a particular country, even in case of a contract made in such country, forms no part of the contract itself, but merely acts upon it ex post facto in case of a suit, it cannot properly be deemed a right stipulated for, or included in the contract. Even these foreign jurists do not pretend that the prescription of a country where a contract is made constitutes a part of the con- tract. What they contend for amounts at most only to this, that the prescription of the lex loci contractus acts upon, and apper- tains to, the decision of the cause. ‘ Hoe pertinet ad decisionem cause,’ says Baldus. ‘ Prescriptio utique ad contractum et me- ritum cause pertinet, non ad processum,’ says Gerhard Titius.? This objection indeed is fully and satisfactorily answered by Boullenois in the passage above cited. 580. The other objection is well founded in its form, but it ‘ 1 1 Boullenois, obs. 23, p. 529, 530; ante, s. 577. ? 1 Hertii Opera, de Collis. Leg. s. 4, n. 65, p. 150, 151, ed. 1787; Id. p. 212, ed. 1716. 3 1 Boullenois, obs. 23, p. 529, 530; Ersk. Inst. b. 3, tit. 7, s. 48, p. 633, 634. 4 Ante, s. 577. Lord Brougham also in delivering his judgment in Don »v. Lippmann, 5 Cl. & F. p. 1,15, 16, met the very objection. His language on that occasion was (it being the case of a bill of exchange accepted and payable in France, and sued afterwards in Scotland, and the Scottish prescription set up as a bar): ‘It is said that the limitation is of the very nature of the con- tract. First, it is said that the party is bound for a given time, and for a given time only. That is a strained construction of the obligation. The party does not bind himself for a particular period at all, but merely to do something on a certain day, or on one or other of certain days. In the case at the bar, the obligation is to pay a sum certain at a certain day; but the law does not sup- pose that he is, at the moment of making the contract, contemplating the period at which he may be freed by lapse of time from performing it. The argument that the limitation is of the nature of the contract supposes that the parties look only to the breach of the agreement. Nothing is more contrary to good faith than such a supposition, that the contracting parties look only to the period at which the statute of limitations will begin to run. It will sanc- tion a wrong course of conduct, and will turn a protection against laches into a premium for evasiveness.’ 798 CONFLICT OF LAWS. [s. 580, 581, does not shake the ground of the general doctrine. It is true, as Baldus contends, that the statute of limitations or prescription does go to the decision of the cause: ‘ Exceptio peremptoria per- tinet ad decisionem cause.’ But that is not the question. The question is, whether it is a matter of the original merits, as for example a question of the original validity, or interpretation, or discharge of a contract, or whether it is a matter touching the time and mode of remedial justice, which is provided by law to redress grievances, or to prevent wrongs, or to suppress vexatious litigation. Suppose a nation were to declare (as France has done in regard to foreigners in some cases) that no suits should be maintained in its own courts between foreigners.! This would be a peremptory exception. But could it be denied that France had a right so to regulate the jurisdiction of its own tribunals? or that it was an enactment touching remedies? Considered in their true light, statutes of limitation or prescription are ordina- rily simple regulations of suits, and not of rights. They regulate the times in which rights may be asserted in courts of justice, and do not purport to act upon those rights. Boullenois has truly said: ‘ L’exception ne tombe, que sur l’action et la procédure in- tentée.’2 Pothier very properly treats prescription (fin de non recevoir), not so much as an extinguishment of the debtor claim, as an extinguishment of the right of action thereon.? And this is precisely the manner in which the subject is contemplated at the common law as well as by many foreign jurists.‘ (a) 581. Another Doctrine of Foreign Jurists.— And here again upon the same mistaken foundation already discussed, some for- eign jurists (as we have seen®) maintain the doctrine in rela- 1 Ante, s. 542. ? 1 Boullenois, obs. 23, p. 580; ante, s. 577; Ersk. Inst. b. 8, tit. 7, s. 48, p. 633, 634. 3 Pothier on Oblig. n. 640-642. 4 Sturges v. Crowninshield, 4 Wheat. -122, 200, 207; J. Voet, ad Pand. 44, 3, 10; D’Aguesseau, CEuvres, tom. 5, p. 374, 4to ed.; Le Roy v. Crowninshield, 2 Mason, 170, 171; Merlin, Répert. tit. Prescription, sect. I. s. 3, n. 7. Cor- porations are deemed to be domiciled in the country from which they derive their act or charter of incorporation; and therefore the same rule applies to them as applies to private persons in cases of prescription. 3 Burge, Col. & For. Law, pt. 2, c. 21, 8. 7, p. 881, 882. (b) 5 Ante, s. 574 c. (2) See Ruckmaboye v. Motti- (6) See Louisville R. Co. v. Letson, chund, 8 Moore, P. C. 36. 2 How. 497. CHAP. XIV.] JURISDICTION AND REMEDIES, 799 tion to contracts (a doctrine repudiated by the common law?), that if they are made in one place, and to be performed or paid in another place, the law of prescription of the latter place is to govern. Such is the opinion of Everhardus. ‘ Aut querimus,’ says he, ‘quis locus inspiciatur, quoad extinctionem actionis propter preescriptionem statutoriam, vigentem in uno loco, et non in alio, ubi statuta locorum sunt diversa. Et certum est, quod inspicitur locus destinatz solutionis.’? Bartolus, Burgun- dus, and Christinzus hold the same opinion.2 Of course, the doctrine of these authors must be understood to be limited to prescription in personal actions; for as to prescription in cases of immovable property, it is beyond reasonable doubt that it is and ought to be governed purely by the lex loci rei sitet Du- moulin has laid down the distinction in broad but exact terms. ‘Aut statutum disponit de prescriptione, vel usucapione rerum corporalium, sive mobilium, sive immobilium, et tune indistincte inspicitur locus, ubi res est. Idem in rebus sive juribus incor- poralibus limitatis ad res corporales, sive quatenus ad illas res limitantur; secus si de juribus, vel actionibus personalibus, sive momentaneis, sive annuis persone adherentibus, id est non limitatis ad certas res, etiamsi illis actionibus adhereat hypo- 1 Thid. 2 Everhard. Consil. 78, p. 208; 2 Boullenois, obs. 46, p. 488. 8 2 Boullenois, obs. 46, p. 488. It is surprising that Mr. Henry should have cited this doctrine of foreign authors as sound law (apparently copying it from Boullenois) without considering that the whole course of English opinions on this subject disclaimed it. Henry on Foreign Law, c. 8, s. 1, 2, p. 54, 55. Pardessus says that, when a debtor pleads a statute of prescription, the right to use this plea, and the time within which it should be pleaded, will be regulated by the law of the place where he has promised to pay; or if this place has not been determined, then at the domicil of the debtor, at the time when he con- tracted the obligation; because prescription being a plea given to the debtor against the demand of his creditor, it is naturally in the domicil of the debtor or of his government that he should find this protection. Pardessus, tom. 5, pt. 6, tit. 9, c. 2, 8. 2, art. 1445, p. 275; Henry on Foreign Law, Appendix, p. 987. Pardessus goes on to state that these rules apply to the case where several sureties for the same debt reside in jurisdictions where the laws respecting prescriptions are different. Each in becoming a surety must be supposed to have intended to enjoy all the real pleas or exceptions existing in favor of the principal debtor, without renouncing the particular prescription in his own favor, to extinguish his obligation as surety, which is regulated by the law of his domicil at the moment when he signed the contract. Pardessus, id. art. 1495, p. 275, 276; Henry on Foreign Law, 238. This is certainly pressing the doctrine to a very great extent. 4 1 Boullenois, obs. 20, p. 850; J. Voet, ad Pand. 44, 3, 12. 800 CONFLICT OF LAWS. [s. 581, 582. theca generalis, vel accessoria rerum corporalium.’? Paul Voet takes the like distinction. ‘Quid, si itaque contentio de aliquo jure in re, seu ex ipsa ré descendente? vel ex contractu, vel actione personali, sed in rem scripta? An spectabitur loci statu- tum, ubi dominus habet domicilium, an statutum rei site? Re- spondeo; Statutum rei site. Ut tamen actio etiam intentari possit, ubi reus habet domicilium. Idque obtinet, sive forensis sit ille, de cujus re controversia est, sive incola loci ubi res est sita.’2_ John Voet maintains the same doctrine. ‘Si preescrip- tioni implende alia prefinita sint tempora in loco domicilii actoris, alia in loco ubi reus domicilium fovet, spectandum vide- tur tempus, quod obtinet ex statuto loci, in quo reus commora- tur, nisi de immobilium prescriptione questio sit; quo casu neque leges domicilii przscribentis, neque leges domicilii ejus, in cujus prejudicium prescriptio sit, sed magis leges loci, in quo sita immobilia, spectande sunt; cum tralatitium sit, immobilia regi lege loci, in quo sita sunt.’? Pothier and Merlin fully re- cognize the same doctrine.t The common law has firmly fixed its own doctrine, that the prescription of the lex fori must pre- vail in all cases of personal actions. In all cases of real actions, and of actions touching things savoring of the realty, the pre- scription of the law rei sitz is also to prevail.6 And as by the common law no actions of this sort can be brought ex directo, except in the place rei site, it follows that the lex fori governs as a universal rule, applicable to all cases.® 1 Molin, Opera, tom. 3, Com. ad Cod. 1, 1, 1, p. 557, de Prescript. ed. 1681; 1 Boullenois, obs. 20, p. 350. 2 P. Voet, de Statut. s. 9, c. 1, n. 2, p. 251, ed. 1715; Id. p. 305, ed. 1661. 3 J. Voet, ad Pand. 2, 44, 3, n. 12, p. 887; 3 Burge, Col. & For. Law, pt. 2, c. 10, s. 5, p. 122, 125; J. Voet, ad Pand. 1, 5, 1, n. 77. * Pothier, Traité de la Prescript. n. 247; Merlin, Répert. tit. Prescription, sect. I. s. 8,n. 7; 3 Burge, Col. & For. Law, pt. 2,c. 10, s. 5, p. 128, 124. 5 See Cargile v. Harrison, 9 B. Mon. 518. ® See British Linen Co. v. Drummond, 10 B. & C. 903; Huber v. Steiner, 2 Bing. N. C. 202, 209-216; Don v. Lippmann, 5 Cl. & F. 1, 13-17; Bulger v. Roche, 11 Pick. (Mass. ) 86; De Couche v. Savetier, 3 Johns. Ch. (N. Y.) 190, 218, 219; De la Vega v. Vianna, 1 B. & Ad. 284; Lincoln rv. Battelle, 6 Wend. (N. Y.) 475; ante, s. 552-555; Broh v. Jenkins, 9 Mart. (La.) 526; 3 Burge, Col. & For. Law, pt. 2, c. 10, s. 5, p. 128-125. The Roman law seems to have given an election to the plaintiff to bring his action in the domicil of the de- fendant (reus) or of the rei site. Ante, s. 582; 1 Boullenois, obs. 25, p. 618, 619. CHAP. xIV.] JURISDICTION AND REMEDIES. 801 582. Statutes extinguishing the Right.— But although statutes of limitation or prescription of the place where the suit is brought may thus properly be held to govern the rights of parties in such suit, or, as the proposition is commonly stated, the recovery must be sought and the remedy pursued within the times prescribed by the lex fori, without regard to the lex loci contractus, or the origin or merits of the cause; yet there is a distinction which deserves consideration, and which has been often propounded. It is this. Suppose the statutes of limitation or prescription of a particular country do not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period, and the parties are resident within the jurisdiction during the whole of that period, so that it has actually and fully operated upon the case; under such circumstances, the question might properly arise, whether such statutes of limitation or prescription may not afterwards be set up in any other country to which the parties may remove, by way of extinguishment or transfer of the claim or title. This is a point which does not seem to have received as much consideration in the decisions of the common law as it would seem to require. That there are countries in which such regulations do exist is unquestionable. There are states which have declared that all right to debts due more than a prescribed term of years shall be deemed ex- tinguished ; and that all titles to real and personal property not pursued within the prescribed time shall be deemed for ever fixed in the adverse possessor.! Suppose for instance (as has occurred) personal property is adversely held in a state for a period beyond that prescribed by the laws of that state, and after that period has elapsed the possessor should remove into another state which has a longer period of prescription, or is without any prescription ; could the original owner assert a title there against the possessor, whose title by the local law and the lapse of time had become final and conclusive before the removal? It has 1 See J. Voet, ad Pand. 44, 8,8. 5, 6,9; Ersk. Inst. b. 3, tit. 7, 8. 1, 2, 7, 8; Beckford ». Wade, 17 Ves. 87; Lincoln v. Battelle, 6 Wend. (N. Y.) 475. A statute of this sort, extinguishing the title to real estate after an adverse pos- session, and transferring the title to the adverse possessor, actually exists in the state of Rhode Island, Act of 1822, Digest of Rhode Island Laws, p. 363, 864, ed. 1822. 51 802 CONFLICT OF LAWS. [s. 582, 582 a, certainly been thought that, in such ‘a case, the title of the pos- sessor cannot be impugned.’ If it cannot, the next inquiry is, whether the bar of a statute extinguishment of a debt, lege loci, ought not equally to be held a peremptory exception in every other country? This subject may be deemed by some persons still open for future discussion. Jt has however the direct au- thority of the Supreme Court of the United States in its favor ;? and its correctness has been recently recognized by the Court of Common Pleas in England. In the American courts other than the Supreme Court, it does not seem hitherto to have obtained any direct approval or recognition. But in all the cases in which the question might have been incidentally discussed in these courts, the statutes under consideration did not purport to extinguish the right, but merely the remedy.* 582 a. Limitation of Actions upon Judgments. — A question of a kindred character has been discussed of late years both in Eng- land and America; and that is, whether the statute of limita- tions or prescription of the country where a suit is brought is a good defence and bar to a suit brought there to enforce a foreign judgment. In both countries it has been held that it is a good defence and bar.6 In America the case was stronger than it was as presented in England, for it was a judgment rendered in one of the United States which was sought to be enforeed in another state of the Union, and therefore fell within the clause of the constitution which declares that full faith and credit and effect shall be given in each state to the judicial pro- ceedings of every other. It was thought that this clause did not 1 See Beckford v. Wade, 17 Ves. 88; Newby v. Blakey, 8 Hen. & Mun. 57; Brent v. Chapman, 5 Cranch, 358; Shelby v. Guy, 11 Wheat. 361, 371, 372. But see Dudley v. Warde, Amb. 118. 2 Shelby v. Guy, 11 Wheat. 361, 371, 372. ° Huber v. Steiner, 2 Bing. N. C. 202, 211. See also Don v. Lippmann, 5 Cl. & F. 1, 16, 17; 3 Burge, Col. & For. Law, pt. 2, c. 10, s. 5, p. 128, 124. * On this subject see De Couche v. Savetier, 3 Johns. Ch. (N. Y.) 190, 218, 219; Van Reimsdyk v. Kane, 1 Gallis. 371; Le Roy v. Crowninshield, 2 Mason, 151, and the cases there cited; Lincoln v. Battelle, 6 Wend. (N. Y.) 475; 1 Domat, b. 3, s. 4, art. 1, p. 464; Id. art. 10, p. 466. John Voet says in one place: ‘Si prescriptioni implende alia prefinita sint tempora in loco domicilii actoris, alia in loco, ubi reus domicilium fovet, spectandum videtur tempus, quod obtinet ex statuto loci, in quo reus commoratur.’ J. Voet, ad Pand. 44, 3, 12, p. 877. 5 Don v. Lippmann, 5 Cl. & F. 1, 19-21; McElmoyle v. Cohen, 13 Pet. 312. CHAP, XIV.] JURISDICTION AND REMEDIES. 803 in the slightest degree vary the application of the general princi- ple, that in all matters of proceedings in courts the lex loci was to govern.! (a) ., 1 McElmoyle v. Cohen, 13 Pet. 312, 327, 828. Mr. Justice Wayne, in de- livering the opinion of the court, after adverting to the clause of the constitu- tion of the United States, and the interpretation thereof, said: ‘ Such being the faith, credit, and effect to be given to a judgment of one state in another by the constitution and the act of congress, the point under consideration will be determined by settling what is the nature of a plea of the statute of limi- tations. Is it a plea that settles the right of a party on a contract or judgment, or one that bars the remedy ? Whatever diversity of opinion there may be among jurists upon this point, we think it well settled to be a plea to the remedy; and consequently that the lex fori must prevail. Higgins v. Scott, 2 B. & Ad. 413; 4 Cowen (N. Y.) 528, note 10; Id. 580; Van Reimsdyk v. Kane, 1 Gallis. 871; Le Roy v. Crowninshield, 2 Mason, 151; British Linen Co. v. Drummond, 10 B. & C. 903; De la Vega v. Vianna, 1 B. & Ad. 284; De Couche v. Savetier, 8 Johns. Ch. (N. Y.) 190; Lincoln v. Battelle, 6 Wend. (N. Y.) 475; Gulick v. Loder, 2 Green (N. J.) 572; 3 Burge, Col. & For. Law, p. 888. The statute of Georgia is, ‘‘ that actions of debt on judgments ob- tained in courts, other than the courts of this state, must be brought within five years after the judgment obtained.’”? It would be strange if, in the now well understood rights of nations to organize their judicial tribunals according to their notions of policy, it should be conceded to them in every other respect than that of prescribing the time within which suits shall be tigated in their courts. Prescription is a thing of policy, growing out of the experience of its necessity; and the time after which suits or actions shall be barred has been, from a remote antiquity, fixed by every nation in virtue of that sovereignty by which it exercises its legislation for all persons and property within its jurisdiction. This being the foundation of. the right to pass statutes of pre- scription or limitation, may not our states, under our system, exercise this right in virtue of their sovereignty ? Or is it to be conceded to them in every other particular than that of barring the remedy upon judgments of other states by the lapse of time? The states use this right upon judgments ren- dered in their own courts; and the common law raises the presumption of the payment of a judgment after the lapse of twenty years. May they not then limit the time for remedies upon the judgments of other states, and alter the common law by statute, fixing a less or larger time for such presumption, and altogether barring suits upon such judgments, if they shall not be brought within the time stated in the statute ? It certainly will not be contended that judgment creditors of other states shall be put upon a better footing in regard to a state’s right to legislate in this particular, than the judgment creditors of the state in which the judgment was obtained. And if this right so exists, may it not be exercised by a state’s restraining the remedy upon the judgment of another state, leaving those of its own courts unaffected by a statute of limitations, but subject to the common-law presumption of payment after the lapse of twenty years. In other words, may not the law of a state fix diffe- rent times for barring’the remedy in a suit upon a judgment of another state, and for those of its own tribunals? We use this mode of argument to show (a) See Townsend v. Jemison, 9 How. 419. 804 CONFLICT OF LAWS. [s. 582. 582 6. Distinction to be Odserved. —It may be important then carefully to distinguish between cases where the statute of limi- tations is strictly a mere bar to the remedy, and cases where it goes directly to the extinguishment of the debt, claim, or right, Where it professes to dispose of the latter, it would seem difficult to say that a mere removal to another country can revive an ex- tinguished debt, claim, or right, or change the positive title of property acquired and perfected under the local law of the place where the parties and property are situated.!1| But where it pro- fesses to deny or control or extinguish the remedy only, other considerations may properly apply. It has indeed been decided upon a recent occasion in one of the American courts, that in cases falling within the latter predicament it will make no diffe- rence whether both parties have remained domiciled in the same country where the original cause of action arose, during the whole period required by the local statute of limitations to bar the rem- edy thereon, or whether they have changed their domicil after it has begun to run.? But the reasoning which thus repels any such distinction is not so clear or decisive as has been supposed. Every nation has a complete and exclusive sovereignty to-enact laws which shall limit all rights of action to certain prescribed periods within its own tribunals, and to declare that after that pe- riod all rights of action shall be extinguished ; and if the parties remain domiciled within the territorial jurisdiction during that whole period, the law ipso facto operates on the case, and the rights of action are completely extinguished there. But the same doctrine is not true, or rather may not be true, where be- fore the prescribed period has arrived one or both of the parties have changed their national domicil; for by such change they the unreasonableness of a contrary doctrine. But the point might have been shortly dismissed with this safe declaration, that there is no direct constitu- tional inhibition upon the states, nor any clause in the constitution, from which it can be even plausibly inferred that the states may not legislate upon the remedy in suits upon the judgments of other states, exclusive of all interference with their merits. It being settled that the statute of limitations may bar recoveries upon foreign judgments; that the effect intended to be given under our constitution to judgments is, that they are conclusive only as regards the merits; the common-law principle then applies to suits upon them, that they must be brought within the period prescribed by the local law, the lex fori, or the suit will be barred.’ ; 1 Don v. Lippmann, 5 Cl. & F. 1, 15-17. * Bulger v. Roche, 11 Pick. (Mass.) 36. CHAP. XIV.] JURISDICTION AND REMEDIES, 805 have ceased to be under the exclusive dominion of the nation whose statute of limitations has begun to operate upon their rights of action, but has not as yet extinguished them. The laws thereof can no longer operate on those rights, at least not operate except within the territorial limits of the nation. Elsewhere they can be deemed as having only an inchoate and imperfect effect ; and the change of domicil suspends their power to extinguish the rights of action in future, since they can have no binding extra- territorial force. It is no answer to say that when once the sta- tute of limitations begins to run, no subsequent impediment stops it from continuing to run. That is true in the nation whose laws contain such provisions or inculcate such a doctrine. But no other nation is bound to give effect to such provisions or to such a doctrine. They are strictly intra-territorial regulations and interpretations of the lex fori, which other nations are not bound to observe or keep. While the parties were domiciled there, the statute of limitations continued to run against them, but it had not then extinguished any rights of action. When they changed their domicil, the statute, as to them or their rights of action, in respect to personal property or personal claims, was no longer operative or obligatory, but the statutes only of their new domi- cil. It would, or at least might, then require a very different consideration, where the local law had before the change of do- micil actually extinguished all rights of action ; for then to revive them is to create new rights, and not to enforce old rights sub- sisting at the time of the removal.! 1 In Bulger v. Roche, 11 Pick. (Mass.) 36, the very case arose of a cause of action extinguished by the local law of the country (Nova Scotia) where both parties resided during the whole period of the running of the statute of limita- tions; and the supreme court of Massachusetts held that the right of action, after a change of domicil of the defendant by a removal to Massachusetts, was not thereby extinguished in the state tribunals, but might be pursued within the period prescribed by the statute of limitations of Massachusetts. On that occasion Mr. Chief Justice Shaw in delivering the opinion of the court said: ‘The facts, so far as they are material, are these: that the cause of action accrued in 1821, more than six years before the commencement of this action; that the plaintiff and defendant were both domiciled at Halifax in Nova Scotia, and were subjects of the King of Great Britain; and that by the law of that country an action of assumpsit is barred in six years. Itis stated in the repli- cation, and admitted by the rejoinder, that the plaintiff came into this com-- monwealth for the first time in 1829, and that the. action was commenced within six years from that time. That the law of limitations of a foreign country cannot of itself be pleaded as a bar to an action in this commonwealth 806 CONFLICT OF LAWS. [s. 583. 583. Remarks of John Voet.— What has been thus far stated on this head may be concluded by quoting a passage from John Voet, the correctness and force of which, in point of principle, are submitted to the consideration of the reader. ‘ Quod, si resti- tutio concedenda sit non ex causa, que ipsum negotium ab initio seems conceded, and is indeed too well settled by authority to be drawn in question. Byrne v. Crowninshield, 17 Mass. 55. The authorities both from the civil and the common law concur in fixing the rule that the nature, vali- dity, and construction of contracts are to be determined by the law of the place where the contract is made; and that all remedies for enforcing such contracts are regulated by the law of the place where such remedies are pur- sued. Whether the law of prescription, or statute of limitation, which takes away every legal mode of recovering a debt, shall be considered as affecting the contract like payment, release, or judgment, which in effect extinguish the contract, or whether they are to be considered as affecting the remedy only by determining the time within which a particular mode of enforcing it shall be pursued, were it an open question, might be one of some difficulty. It was ably discussed upon general principles in a late case (Le Roy v. Crowninshield, 2 Mason, 151) before the circuit court, in which however it was fully conceded by the learned judge, upon a full consideration and review of all the authori- ties, that it is now considered to be a settled question. A doubt was intimated in that case, whether, if the parties had remained subjects of the foreign coun- try until the term of limitation had expired, so that the plaintiff’s remedy would have been extinguished there, such a state of facts would not have pre- sented a stronger case, and one of more serious difficulty. Such was the case in the present instance. But we think it sufficient to advert to a well-settled rule in the construction of the statute of limitations, to show that this circum- stance can make no difference. The rule is this: that where the statute has begun to run, it will continue to run notwithstanding the intervention of any impediment which, if it had existed when the cause of action accrued, would have prevented the operation of the statute. For instance, if this action accrued in Nova Scotia in 1821, and the plaintiff or defendant had left that country in 1825, within six years, in 1828, after the lapse of six years, the action would be as effectually barred, and the remedy extinguished there, as if both had continued to reside in Halifax down to the same period. So that when the parties met here in 1829, so far as the laws of that country, by taking away all legal remedy, could affect it, the debt was extinguished, and that equally whether they had both remained under the jurisdiction of those laws till the time of limitation had elapsed, or whether either or both had previously, left it. The authorities referred to therefore must be held applicable to a case where both parties were subject to the jurisdiction of a foreign state when the bar arising from its statute of limitations attached. The same conclusion re- sults from the reason upon which these cases proceed, which is, that statutes of limitation affect only the time within which a legal remedy must be pursued, and do not affect the nature, validity, or construction of the contract. This reason, whether well founded or not, applies equally to cases where the term of limitation has elapsed when the parties leave the foreign state, as to those where it has only begun to run before they have left the state, and elapses afterwards.’ But see Don v. Lippmann, 5 Cl. & F. 1, 15-17. CHAP. xIV.] JURISDICTION AND REMEDIES. 807 comitabatur (uti comitatur metus, dolus, error), sed ex ea, que post supervenit (qualis est usucapio verum, aut preescriptio jurium et actionum, propter absentiam non interrupta), ita generaliter definiendum existimo, illius loci leges in restitutione facienda at- tendendas esse, secundum cujus loci leges impleta summo jure fuit per absentiam usucapio vel prescriptio. Quid enim, obsecro, aut justius aut equius, quam ut ex eorundem legislatorum pre- scripto remedium adversus lesionem indulgeatur, ex quorum prescripto et summo jure primitus lesio nata fuit? Quibus consequens est, ut si immobilium rerum usucapio impleta sit, ser- ventur in restitutione facienda jura regionis, in qua immobiles res site sunt: adeoque, ut in amittendo, sic et in recuperando dominio, regantur immobilia ex situs sui lege, juxta vulgatam re- gulam in materia statutaria. Sin mobilia usucapta fuerint, in restitutione magis erit, ut serventur leges domicilii ejus, qui per ‘ (a) 1 Rose v. Himely, 4 Cranch, 269, 270. 2 Ante, s. 582, 545, 551. 3 1 Boullenois, obs. 25, p. 618, 619, 623. 4 Id. p. 619; 1 Hertii Opera, de Collis. s. 4, n. 73, p. 153, 154, ed. 1737; Id. p. 216, ed. 1716. See also J. Voet, ad Pand. 1,1, ps. 2, n. 11, p. 44, and ante, s, 362, note 3. 5 J. Voet, ad Pand. 2, 42, 1, n. 41, p. 788. (a) The case of Cammell v. Sew- doctrine. There a cargo of deals con- ell, 5 H. & N. 728, illustrates this signed to an English firm was shipped CHAP. XV.] FOREIGN JUDGMENTS. 813 592. Movables.— The same principle is applied to-all other cases of proceedings in rem against movable property within the in a Russian port on board a Prussian vessel, which, on its way to England, was cast away upon the coast of Nor- way; but the cargo was safely landed. Steps were taken by the captain, with- out authority or the existence of any necessity, to sell the cargo; and for that purpose certain judicial proceed- ings took place, under which an auc- tion was decreed, and the deals sold to a purchaser, under whom the de- fendant claimed, notwithstanding the protest of the agent of the plaintiffs, who were English underwriters, and who had become owners of the deals by having accepted an abandonment and paid as upon a total loss. The plaintiffs thereupon instituted a suit in the Superior Diocesan Court in Norway, praying that the public auc- tion should be disallowed, and the purchaser compelled to deliver up the goods in specie. That court however affirmed the previous proceedings, and directed that the auction should be confirmed. The goods were after- wards consigned by the purchaser to the defendants in England, who re- fused to deliver them up to the plain- tiffs. The Court of Exchequer held that the judgment of the Diocesan Court in Norway was in the nature of a judgment in rem, and that the plaintiffs were concluded by it as such, but seemed to think that, even if nota judgment in rem, it would still bind the plaintiffs, as being the judgment of a court of competent jurisdiction, to which the plaintiffs had themselves resorted, and accordingly gave judg- ment for the defendant. Upon ap- peal all the judges in the Exchequer Chamber were of opinion (without finding it necessary directly to decide the point) that the judgment in Nor- way was not a judgment in rem; but they held (Byles, J. dissenting) that, inasmuch as by the law of Norway an innocent purchaser at the judicial sale would have a good title to the goods purchased, even though the master could not, as between himself and his owners, or the owners of the cargo, justify such sale, the law of Norway would prevail; and in terms proceeded to affirm the proposition that ‘if per- sonal property is disposed of in a manner binding according ‘to the law of the country where it is, that disposition is binding everywhere;’ and the judgment of the Court of Exchequer was affirmed, but on that ground only. And in a still later case a ship was, while in a port of an English colony, repaired and furnished with necessa- ries for the voyage. The captain drew on his owner for the amount due, “put the bill was never accepted. The ship sailed on its prescribed voyage, and before reaching England entered a French port. The bill was in- dorsed to a French subject, who sued the captain on it in the Tribunal de Commerce, and obtained a judgment against him; but the judgment freed him from personal arrest, and declared the debt ‘ privileged on the ship,’ that is, having a priority over others; and the ship was taken possession of by the French authorities under this judgment. While the ship was on its voyage, and before its arrival in the French port, the owner had executed a mortgage thereof to a creditor, and neither the original owner nor the mortgagee was in any way personally cited in the action on the bill. The ship could not be actually sold under the judgment of the Tribunal de Com- merce until such judgment was ap- proved by the Civil Tribunal of the district. It was confirmed after citing in the original owner and his assignee in bankruptcy (for he had in the meantime become bankrupt), and the 814 CONFLICT OF LAWS. [s. 592, 592 a, jurisdiction of the court pronouncing the judgment.1. Whatever the court settles as to the right or title, or whatever disposition it makes of the property by sale, revendication, transfer, or other act, will be held valid in every other country, where the same question comes directly or indirectly in judgment before any other foreign tribunal. (a) This is very familiarly known in the cases of proceedings in rem in foreign courts of admiralty, whether they are causes of prize, or of bottomry, or of salvage, or of for- feiture, (5) or of any of the like nature, over which such courts have a rightful jurisdiction, founded on the actual or constructive possession of the subject-matter (res).2(¢) The same rule is 1 See Kames on Equity, b. 8, c. 8, s. 4; French v. Hall, 9 N. H. 187. 2 Croudson v. Leonard, 4 Cranch, 434; Williams v. Armroyd, 7 Cranch, 423; Rose v. Himely, 4 Cranch, 241; Hudson v. Guestier, 4 Cranch, 293; The Mary, 9 Cranch, 126, 142-146; 1 Stark. Ev. pt. 2, s. 81, p. 238, &c.; Marshall, Insur. b. 1, c. 9, s. 6, p. 412, 485; Cases cited in 4 Cowen (N. Y.) 520, n. 3; Grant v. McLachlin, 4 Johns. (N. Y.) 384; Peters v. Warren Ins. Civil Tribunal disregarded the opi- nion of an English lawyer as to the’ relative rights of the holder of a bill of exchange, and the holder of a bill of sale of the ship. The assignee of the mortgage afterwards instituted be- fore the Civil Tribunal a process in the nature of a replevy of the ship, but failed in the suit, andthe ship was sold. It was held by the House of Lords, after great deliberation, that there had been a judgment in rem in the French court, and that the title of the vendee of the ship, although an Englishman, could not be disturbed in that country. Castrique v. Imrie, Law Rep. 4H. L. 414. And Lord Chelmsford declared the rule to be that a proceeding in a foreign court to enforce a maritime lien, which by the law of that foreign country, and of all foreign codes founded upon the civil law, is a proceeding in rem, though not so recognized by the law of England, must be so treated and held there. Comp. The Mecca, 6 P. D. 106. (a) In Castrique v. Imrie, supra, it was said by Mr. Justice Blackburn: ‘ We may observe that the words as to an action being in rem or in personam, and the common statement that the one is binding on third persons and the other not, are apt to be used by English lawyers without attaching any very definite meaning to those phrases. We apprehend the true principle to be that indicated in the last few words quoted from Story. We think the in- quiry is: first, whether the subject- matter was so situated as to be within the lawful control of the state under the authority of which the court sits; and secondly, whether the sovereign authority of that state has conferred on the court jurisdiction to decide as to the disposition of the thing, and the court has acted within its jurisdiction. If these conditions are all fulfilled, the adjudication is conclusive against all the world.’ (6) Or of damage by collision. Harmer v. Bell, 7 Moore, P. C. 267; 22 Eng. L. & Eq. 62. (c) See Whitney v. Walsh, 1 Cush. (Mass.) 29; The Mary Anne. Ware, 103; Barrow v. West, 23 Pick. (Mass.) 270; Monroe v. Douglas, 4 Sandf. (N. Y.) Ch. 179. CHAP. XV.] FOREIGN JUDGMENTS, 815 applied to other courts proceeding in rem, such as the Court of Exchequer in England, and to other courts exercising a like ju- risdiction in rem upon seizures. And in cases of this sort it is wholly immaterial whether the judgment be of acquittal or of condemnation. In both cases it is equally conclusive. But the doctrine however is always to be understood with this limita- tion, that the judgment has been obtained bona fide and without fraud; for if fraud has intervened, it will doubtless avoid the force and validity of the sentence.2 So it must appear that there have been regular proceedings to found the judgment or decree; and that the parties in interest in rem have had notice or an opportunity to appear and defend their interests, either personally or by their proper representatives, before it was pro- nounced ; for the common justice of all nations requires that no condemnation should be pronounced before the party has an op- portunity to be heard.* 592 a. Garnishment. — Proceedings also by creditors against the personal property of their debtor in the hands of third per- sons, or against debts due to him by such third persons (commonly called the process of foreign attachment, or garnishment, or trustee process), are also treated as in some sense proceedings in rem, and are deemed entitled to the same consideration.2 But in this last class of cases we are especially to bear in mind that to make any judgment effectual the court must possess and exercise a tightful jurisdiction over the res, and also over the person, at least so far as the res is concerned; otherwise it will be disre- garded. And if the jurisdiction over the res be well founded, Co., 8 Sumner, 389; Blad v. Bamfield, 3 Swanst. 604, 605; Bradstreet v. Neptune Ins. Co., 3 Sumner, 600; Magoun v. New England Ins. Co., 1 Story, 157. 1 Ibid. And Stark. Ev. p. 2,s. 67, 80, 81, p. 836; Gelston v. Hoyt, 3 Wheat. 246; Williams v. Armroyd, 7 Cranch, 423. 2 Tbid. 8 See post, s. 597; Duchess of Kingston’s Case, 11 State Trials, p. 261, 262; 20 Howell, State Trials, p. 355; Id. p. 538, the opinion of the judges; Bradstreet v. N eptune Ins. Co., 8 Sumner, 600; Magoun v. New England Ins. Co.,1 Story, 157. 4 Sawyer v. Maine Ins. Co., 12 Mass. 291; Bradstreet v. Neptune Ins. Co. 3 Sumner, 600; Monroe v. Douglas, 4 Sandf. Ch. 180 (an important case on this subject) ; Magoun v. New England Ins. Co., 1 Story, 157. 5 See cases cited in 4 Cowen (N. Y.) 520, 521, n.; ante, s. 549; Holmes v Remsen, 20 Johns. (N. Y.) 229; Hull v. Blake, 13 Mass. 153; McDaniel ». Hughes, 3 East, 867; Phillips v. Hunter, 2 H. Bl. 402, 410. 816 [s. 592 a, 593. CONFLICT OF LAWS. but not over the person, except as to the res, the judgment will not be either conclusive or binding upon the party in personam, although it may be in rem.} (a) 1 Ante, s. 549, and note; Bissell v. Briggs, 9 Mass. 468. See also 3 Burge, Col. & For. Law, pt. 2, c. 24, p. 1014-1019. Some very important questions may arise in cases of foreign attachment or garnishment. Suppose A., a creditor of B., should bring a suit by foreign attachment or garnishment in a foreign country against C. as garnishee of the property or credits of B., willa judgment rendered in that suit conclude D., who claims the same property or credit by a prior title in another suit therefor in the same country, or in an- other country? Will it make any difference that A., before obtaining his judgment, had notice of D.’s claim and right? Will it make any difference that D. might’ by the lex fori have intervened in the first suit to vindicate his title, and to support it, if he was not domiciled in the country at the time, although he had notice of the same suit? Another case may be put involving similar considerations. Suppose a suit is brought in a foreign country by A. against B. to recover property there situate, to which C., who is domiciled in a foreign country, also claims title; and by the law of the country where the suit is brought, C. might intervene for his title; but he does not, although he has notice of the suit. If A. obtains judgment in the suit for the property against B., will that judgment bind C. in the courts of that country in a sub- sequent suit brought there by C. against A. for the same property? If it will bind him there, will it bind him in a suit brought in the country of his own domicil, or in another foreign country? These questions are propounded for the consideration of the learned reader, without any attempt to discuss or solve thein. (a) See Ocean Ins. Co. v. Ports- mouth Ry. Co., 3 Met. (Mass.) 420; Danforth v. Penny, Id. 564. The truth. is that in the chief sense which distin- guishes judgments in rem from judg- ments in personam, the sense, that is to say, in which the former proceed irrespective of individual rights, while the latter proceed wholly upon the rights of individuals, --in this sense judgments in cases of attachment, gar- nishment, and the like are not judg- ments in rem at all. They bind at most only the specific parties to the action, including of course their suc- cessors in right. It is very different with a true proceeding in rem, such- as an action in admiralty against a vessel for violating the laws of neu- trality. Judgment executed in such a case concludes all the world. The nature of proceedings at com- mon law in attachment has been most clearly stated by Sir John Jervis in The Bold Buccleugh, 7 Moore, P. C. 267, 282; where he says: ‘The fo- reign attachment is founded upon a plaint against the principal debtor, and must be returned “ nihil’’ before any step can be taken against the garnishee; the proceeding in rem, whether for wages, salvage, collision, ‘or on bottomry, goes against the ship in the first instance. In the former case the proceedings are in personam; in the latter, they are in rem. The attachment, like a common-law dis- tringas, is merely for the purpose of compelling an appearance.’ See to the same effect Megee v. Beirne, 39 Penn. St. 50. And see further, Wood- ruff v. Taylor, 20 Vt. 65; Barber v. Hartford Bank, 9 Conn. 407; Myers v. Beeman, 9 Ired. (N. C.) 116; Ormond v. Moye, 11 Ired. (N. C.) 564; Kieffer v. Ehler, 18 Penn. St. 388. Nor are CHAP. XV.] FOREIGN JUDGMENTS, 817 593. Oonclusiveness of the Judgment.—In all these cases the same principle prevails, that the judgment acting in rem shall be held conclusive upon the title and transfer and disposition of the property itself, in whatever place the same property may after- wards be found, and by whomsoever the latter may be questioned, and whether it be directly or incidentally brought in question. But it is not so universally settled that the judgment is conclusive of all the points which are incidentally disposed of by the judg- ment, or of the facts or allegations upon which it professes to be founded. In this respect different rules are adopted by diffe- rent states both in Europe and in America. In England such judgments are held conclusive, not only in rem, but also as to all the points and facts which they professedly or incidentally decide! In some of the American states the same doctrine pre- vails. While in other American states the judgments are held conclusive only in rem, and may be controverted as to all the incidental grounds and facts on which they profess to be founded.? (a) 1In Blad v. Bamfield, decided by Lord Nottingham, and reported in 3 Swanst. 604, a perpetual injunction was awarded to restrain certain suits of trespass and trover forseizing the goods of the defendant (Bamfield) for trad- ingin Ireland contrary to certain privileges granted to the plaintiff and others. The property was seized and condemned in the Danish courts; Lord Notting- ham held the sentence conclusive against the suits, and awarded the injunc- tions accordingly. 2 See 4 Cowen (N. Y.) 522, n. and cases cited; Vandenheuvel v. U. Ins. Co., 2 Caines Cas. (N. Y.) 217; 2 Johns. Cas. (N. Y.) 451, 481; Robinson v. Jones, 8 Mass. 586; Maley v. Shattuck, 3 Cranch, 485; 2 Kent, Com. 120, 121, and cases there cited; Tarleton v. Tarleton, 4 M. & 8. 20. See Peters v. Warren Ins. Co., 8 Sumner, 389; Gelston v. Hoyt, 3 Wheat. 246. judgment, whether in rem or in perso- the statutory proceedings in replevin a nam, has no binding effect thereon. proceedings in rem in this proper sense. Megee v. Beirne, supra; Certain Logs of Mahogany, 2 Sum. 589; Dow ». Sanborn, 3 Allen (Mass.) 181. (a) Facts incidentally decided. — It is not quite clear what is here meant by facts ‘incidentally’ decided; and the same term is sometimes loosely employed by the courts. If facts un- necessary to the decision are meant (and that is the sense to which the word as applied to judgments is com- monly used), it is pretty clear that the 2 4 The settled rule even with regard to domestic judgments is that a judg- ment or decree is conclusive only of facts without the existence and proof or admission of which it could not have been rendered; Burlen v. Shan- non, 99 Mass. 200; Leonard v. Whit- ney, 109 Mass. 265; West v. Platt, 127 Mass. 367; Morse v. Elms, 131 Mass. 151; Porter v. Wagner, 36 Ohio St. 471; Marvin v. Dutcher, 26 Minn. 391; Dunham v. Bower, 77 N. Y. 76; 818 CONFLICT OF LAWS. [s. 594-596, 594. Guardianship. — A similar doctrine has been contended for, and in many cases successfully, in favor of sentences of a peculiar character ; such as those which touch the general capa- city of persons, and those which concern marriage and divorce, Thus foreign jurists strongly contend that the decree of a fo- reign court, declaring the state (status) of a person, and placing him, as an idiot, or minor, or prodigal, under guardianship, ought to be deemed of universal authority and obligation.1 And so it ought and doubtless would be deemed, in regard to all acts done 1 1 Boullenois, obs. 25, p. 663, Burgundus’s opinion. Indeed Burgundus seems to have been of opinion that the only judgments which ought to have any force or operation extra-territorially are those which respect the state and condition of persons. ‘Sed quoniam omnis propositi nostri summa eo spectat, ut sciatur, utrum suum sententia egrediatur territorium, executia- mus itaque naturam singularuam. Nam mihi sola,’ says he, ‘illa sententia, que de statu persone fertur, explicare vires extra territorii limites videtur.’ Burgundus, tract. 3, n. 11, 12, p. 90; 1 Boullenois, obs. 25, p. 603. Providence v. Adams, 11 R. I. 190; Supples v. Cannon, 44 Conn. 424. The term ‘incidentally’ however is probably used here in the less common sense of facts on which the judgment was founded when brought into the case by way of avoidance of other facts directly alleged on the one side or on the other. Whether the judg- ment would be conclusive upon such facts is a disputed question. In an ably reasoned case in New Hampshire it is held (of a domestic judgment) that the decision would not control such facts. King v. Chase, 15 N. H. 9, followed in Vaughan v. Morrison, 55 N. H. 580, 589. See also Western Ins. Co. v. Virginia Coal Co., 14 W. Va. 250; Lentz v. Wallace, 17 Penn. St. 412. So in New York it is held that a foreign decree of condemnation in admiralty, though conclusive of the change of property, is only prima facie evidence of the facts on which it purports to have been founded. Ocean Tns. Co. v. Francis, 2 Wend. 64; 8. c. 6 Cow. 404; Radcliff v. United Ins. Co., 9 Johns. 277; Vandenheuvel »v. United Ins. Co., 2 Johns. Cas. 451; Smith v. Williams, 2 Caines Cas, 110, 118. But the better rule in the case of domestic judgments, and a fortiori in the case of foreign judgments, ap- pears to be that the judgment is con- clusive of all facts which become under the pleadings or evidence neces- sary to it, whether presented by direct affirmation and denial or by avoidance. See Railroad Co. v. Schutte, 103 U. S. 118, 143; Bissell ». Kellogg, 60 Barb. 617; Wood v. Jackson, 8 Wend. 9; Bigelow, Estoppel, 110-113, 3d ed. Indeed courts in one or two cases have gone still further, and held foreign judgments in rem conclusive of facts not necessary to the decision where it appeared nevertheless that a clear and’ precise issue had been joined and de- cided upon them. Bernardi v. Mot- teux, 2 Doug. 574; Hughes v. Corne- lius, 2 Show. 232, note. On the other hand, it is perfectly clear that the judgment will have no effect in regard to facts that cannot be clearly shown to have been in issue. In cases of obscurity or ambiguity there can be no estoppel. Bradstreet v. Neptune Ins. Co., 3 Sum. 600; Christie v. Secretan, 8 T. R. 192; Rob- inson v. Jones, 8 Mass. 536. CHAP. xv.] FOREIGN JUDGMENTS. 819 and authority exercised within the jurisdiction of the sovereign whose tribunals have pronounced the sentence. But the neces- sity of giving it universal effect, so as to make the guardianship operative and effectual in all other countries, in regard to the person and his property in those countries, is not so obvious. But we have already had occasion to consider this subject in another place.’ (a) 595. Sentences concerning Marriage and Divorce.— As to sen- tences confirming marriages or granting divorces, they may well stand upon a distinct ground. If they are pronounced by com- petent tribunals in regard to persons within the jurisdiction, there is great reason to say that they ought to be held of univer- sal conclusiveness, force, and effect in all other countries. Lord. Hardwicke is reported to have said in a case before him, in which the validity of a marriage in France was asserted to have been established by the sentence of a court in France having the proper jurisdiction thereof: ‘It is true that, if so, it is conclusive whether in a foreign court or not, from the law of nations in such cases; otherwise the rights of mankind would be very pre- carious.’ ? ' 596. Remarks of Lord Stowell.— On the other hand, Lord Stowell, in a case before him in which the validity of a foreign sentence of divorce was set up as a bar to proceedings in the English ecclesiastical courts between the same parties, said: ‘Something has been said on the doctrine of law regarding the respect due to foreign judgments; and undoubtedly a sen- tence of separation in a proper court for adultery would be en- titled to credit and attention in this court. But I think the 1 Ante, s. 495-594. ° Roach v. Garvan, 1 Ves. sen. 157. See also a case in the time of Charles IL, cited by Lord Hardwicke in Boucher v. Lawson, Cas. t. Hard. 89; and also in Kennedy v. Cassillis, 2 Swanst. 326, note. (a) Itis held in Louisiana that a decree rendered in that state appoint- ing a tutor to a minor cannot be im- peached in any collateral action by a debtor of the minor. Succession of Gorrisson, 15 La. An. 27. This is much like the effect of a decree ap- pointing a particular person admini- strator of an estate, which binds all the world. Lawrence v. Englesby, 24 Vt. 42; Farrar v. Olmstead, Id. 123; Steen v. Bennett, Id. 303; Loring v. Steineman, 1 Met. (Mass.) 204; Con- nolly ». Connolly, 82 Gratt. (Va.) 657. A foreign decree establishing a per- son’s pedigree may also bind all per- sons. Ennis v. Smith, 14 How. 400. 820 ‘CONFLICT OF LAWS. Js. 596-598. conclusion is. carried too far, when it is said that a sentence of nullity of marriage is necessarily and universally binding on other countries. Adultery and its proofs are nearly the same in all countries. The validity of marriage however must de- pend ina great degree on the local regulations of the country where it is celebrated. A sentence of nullity of marriage there- fore in the country where it was solemnized would carry with it great authority in this country. But I am not prepared to say that a judgment of a third country on the validity of a marriage not within its territories, nor had between subjects of that coun- try, would be universally binding. For instance, the marriage alleged by the husband is a French marriage; a French judg- ment on that marriage would have been of considerable weight ; but it does not follow that the judgment of a court at Brussels on a marriage in France would have the same authority, much less on a marriage celebrated here in England. Had there been a sentence against the wife for adultery in Brabant, it might have prevented her from proceeding with any effect against her husband here; but no such sentence anywhere appears.’ ? 597. Validity of such Sentences. — This subject however has already been considered at large in the preceding discussions relative to divorces. The result of the doctrine therein stated is, that the English courts seem not to be disposed to admit that any valid sentence of divorce can be pronounced in any foreign country, which shall amount to the dissolution of a marriage celebrated in England between English subjects, at least so far as such a divorce is to have any force or operation in England. At the same time it may be remarked that the doctrine, so appa- rently held, has undergone very elaborate discussions at a very recent period ; and the grounds upon which it rests have been greatly shaken? (a) But in Scotland and in America a differ- ent doctrine is maintained; and it is firmly held that a sentence of divorce pronounced between parties actually domiciled in the country, whether natives or foreigners, by a competent tribunal Sinclair v. Sinclair, 1 Hagg. Cons. 297. See also Scrimshire v. Scrim- shire, 2 Hagg. Cons. 397, 410. 2 Ante, s. 215, 225-228. (2) See Dolphin v. Robins, 7 H. L. Cas. 390; Shaw v. Gould, L. R. 3 H. L. 55; Harvey v. Farnie, 8 App. Cas. 43 ; ante, note (a) to s. 229 a. CHAP. xv.] : FOREIGN JUDGMENTS. 821 having jurisdiction over the case, is valid, and ought to be held everywhere a complete dissolution of the marriage, in whatever country it may have been originally celebrated! (a) Of course we are to understand that the sentence is obtained bona fide and without fraud; -for fraud in this case, as in other cases, will viti- ate any judgment, however well founded in point of jurisdic- tion.? 598. Judgments in Personam. —In the next place as to judg- ments in personam. And here a distinction is commonly taken between suits brought by a party to enforce a foreign judgment, and suits brought against a party who sets up a foreign judgment in bar of the suit by way of defence. In the former case it is often urged that no sovereign is bound jure gentium to execute any foreign judgment within his dominions; and therefore if execution of it is sought in his dominions, he is at liberty to examine into the merits of the judgment, and to refuse to give effect to it, if upon such examination it should appear unjust and unfounded. He acts in executing it upon the principles of comity, and has therefore a right to prescribe the terms and limits of that comity.2 But it is otherwise (it is said) where the defendant sets up a foreign judgment as a bar to proceedings ; for if it has been pronounced by a competent tribunal and carried into effect, the losing party has no right to institute a new suit elsewhere, and thus to bring the matter again into controversy ; and the other party is not to lose the protection which the for- eign judgment gave him. It is ‘then res judicata, which ought to be received as conclusive evidence of right; and the exceptio rei judicates under such circumstances is entitled to universal conclusiveness and respect. This distinction has been very 1 See Ante, s, 212, 215-230. 2 See Stark. Ev. pt. 2, s. 77, 79, 83; Duchess of Kingston’s Case, 11 State Trials, 261, 262; s. c. 20 Howell, State Trials, 355, and the opinion of the judges; p. 588, note. See also Mr. Hargrave’s learned argument in this case, as to the conclusiveness of res judicata, especially in cases of jactitation of marriage and divorce, and of the effect of fraud in procuring such sentences. Harg. Law Tracts, 449, 479, 483. See also Bowles v. Orr, 1Y. &C. 464. ; ® 2 Kent, Com. 119, 120; and the cases there cited. See also 1 Boullenois, obs. 25, p. 601; post, s. 611-618. ‘4 2 Kent, Com. 119, 120, and cases there cited. (@) See Burlen v. Shannon, 99 Mass. 200; Kerr v. Kerr, 41 N.Y. 272. 822 CONFLICT OF LAWS. [s. 598-599 a, frequently recognized as having a just foundation in interna- tional justice.1 (a) 599. Remarks of Lord Chief Justice Eyre. — Lord Chief Jus- tice Eyre has stated it with his usual force in an elaborate judg- ment. ‘If we had the means,’ said he, ‘we could not examine a judgment of a court in a foreign’state brought before us in this manner (that is, by the defendant asa bar). It is in one way only that the sentence or judgment of the court of a foreign state is examinable in our courts, and that is when the party who claims the benefit of it applies to our courts to enforce it. When it is thus voluntarily submitted to our jurisdiction, we treat it, not as obligatory perhaps in the country in which it was pro- nounced, nor as obligatory to the extent to which by our law sentences and judgments are obligatory; not as conclusive, but as matter in pais; as a consideration prima facie sufficient to raise a promise. We examine it as we do all other considerations or promises; and for that purpose we receive evidence of what the law of the foreign state is, and whether the judgment is war- ranted by that law. In all other cases we give entire faith and credit to the sentences of foreign courts, and consider them as conclusive upon us.2 The same distinction is found applied in the same manner in the jurisprudence of Scotland.® 599 a. Merger by Foreign Judgment. — The view which was thus taken by Lord Chief Justice Eyre does not appear to have been acted upon to its full extent in subsequent times. It would seem a natural result from that view, that if a suit was brought for the same cause of action in an English court, which had already been decided in favor of either party in a foreign court of competent jurisdiction, and was final and conclusive there, that judgment might be well pleaded in bar of the new suit upon the original cause of action, and would, if bona fide, be conclu- sive. It may be doubted however whether the same doctrine is 1 Id.; Burrows v. Jemino, 2 Str. 738; cited Cas. t. Hard. 87; Boucher v. Lawson, Cas. t. Hard. 80; 2 Swanst. 826, note; Tarleton v. Tarleton, 4 M. & S. 20; Taylor v. Phelps, 1 Har. & G. (Md.) 492; Griswold v. Pitcairn, 2 Conn. 85. ? Phillips v. Hunter, 2 H. Bl. 410. 8 Erskine, Inst. b. 4, tit. 8, s. 4. (a) See Burnham v. Webster, 1 Wood. & M. 174; Rangely v. Webster, 11 N. H. 299. CHAP. XV.] FOREIGN JUDGMENTS. 823 at present entertained in England.(a@) In a recent case the court seem to have thought that, if a plaintiff has recovered judg- ment in a foreign country upon any original cause of action, he may, notwithstanding, sue in England upon that original cause of action, or may sue upon the judgment there obtained at his option; because the original cause of action is not merged in (a) It is well settled in England now that judgment in a foreign court in favor of the plaintiff will not be treated as a merger of the cause of action, and the plaintiff may sue there- on again in the domestic forum. Bank * of Australasia v. Harding, 9 C. B. 661; Bank of Australasia v. Nias, 16 Q. B. 717. See Wilson v. Tunstall, 6 Tex. 921; Frazier v. Moore, 11 Tex. 755; Wood v. Gamble, 11 Cush. (Mass.) 8. But the rule concerning judgments of the American states is different under the constitution and act of congress pertaining thereto, and the doctrine of merger prevails. Bank of United States v. Merchants’ Bank, 7 Gill, 415; Mc- Gilvray v. Avery, 30 Vt. 538; Green v. Starr, 52 Vt. 426; Hatch ». Spofford, 92 Conn. 485; Walsh v. Durkin, 12 Johns. 100. See North Bank v. Brown, 50 Me. 214 ; Child v. Eureka Powder Works, 45 N. H. 547; Baxley v. Li- nah, 16 Penn. St. 241; Cleaves v. Lord, 43 Me. 290; Bank of North America v. Wheeler, 28 Conn. 433. In some cases it has been held that a judgment recovered in one state upon a judgment rendered in another mer- ges the first judgment, so as to destroy allrights, such as liens on land, created by it. Gould v. Hayden, 63 Ind. 448, citing Purdy v. Doyle, 1 Paige (N. Y.) 558, 561; Denegre v. Haun, 13 Iowa, 240; Whiting v. Beebe, 7 Eng. (Ark.) 421, 549; Chitty v. Glenn, 3 Mon. (Ky.) 424; Frazier v. McQueen, 20 Ark. 68; Neale v. Jeter, Id. 98; Bank of U. S. v. Patton, 5 How. (Miss.) 200; Brown v. Clarke, 4 How. (U.S.) 4. But the cases cited for this proposition are cases of domestic judgments; some others may be added to the same effect. McNutt v. Wilcox, 3 How. (Miss.) 419; Phillips v. Wills, 14 Ark. 595; Dougherty v. McDonald, Id. 597; Smi- ser v. Robertson, 16 Ark. 599. The contrary view has been held in Weeks v. Pearson, 5 N. H. 324; Mumford v. Stocker, 1 Cow. (N. Y.) 178; Gris- wold v. Hill, 2 Paine, 492; Andrews ». Smith, 9 Wend. (N. Y.) 58. And see Bank of Old Dominion »v. Allen, 13 Rep. (Va) 509. The first and last of these (but the point was only alluded to in the last) were cases of judgments of other states; the rest were cases of domestic judgments rendered by other courts of the state. In most of these cases it was pointed out that the rule of merger applies only in favor of a higher obligation over a lower (while here we have only obligations of the same degree); and this irrespective of the court in which the judgment was rendered. See Gould v. Hayden, 63 Ind. 443. It may be inconvenient that two judgments should subsist in the same state against the same person on the same demand; but no such inconve- nience can exist in the case of judg- ments rendered in different states, and there is no sufficient reason for the application of the purely technical doc- trine of merger, subversive of substan- tial justice as it would be in such cases. Indeed in view of the fact that one satisfaction would satisfy both judgments, there is little to be said in favor of the doctrine of merger, rea- sonable as that doctrine may be in ordinary cases, by a second judgment obtained upon the first even in the saine state. 824 CONFLICT OF LAWS. [s. 599 a-603. such a judgment.! Now if the original cause of action is not merged in a case where the judgment is in favor of the plaintiff, it seems difficult to assert that it is merged by a judgment in the foreign court in favor of the defendant. 600. Distinction stated by Lord Kames.— Lord Kames has marked out and supported another distinction, between suits sus- taining and suits dismissing a claim. ‘In the last place,’ says he, ‘come foreign decrees; which are of two kinds, one sustaining the claim, and one dismissing it. A foreign decree sustaining the claim is not one of those universal titles which ought to be made effectual everywhere. It is a title that depends on the authority of the court whence it issued, and therefore has no coercive au- - thority extra territorium. And yet, as it would be hard to oblige the person who claims on a decree to bring a new action against his party in every country to which he may retire, therefore com- mon utility, as well as regard to a sister court, has established a rule among all civilized nations that a foreign decree shall be put in execution, unless some good exception be opposed to it in law or in equity ; which is making no wider step in favor of the decree than to presume it just till the contrary be proved. But this includes not a decree decerning for a penalty ; because no court reckons itself bound to punish or to concur in punishing any delict committed extra territorium.’ 601. ‘A foreign decree which, by dismissing the claim, affords an exceptio rei judicate against it, enjoys a more extensive privi- lege. We not only presume it to be just, but will not admit any evidence of its being unjust. The reasons follow. A deereet- arbitral is final by mutual consent. A judgment-condemnator ought not to be final against the defendant, because he gave no consent, Buta decreet-absolvitor ought to be final against the plaintiff, because the judge was chosen by himself ; with respect to him, at least, it is equivalent to a decreet-arbitral. Public util- ity affords another argument extremely cogent. There is nothing 1 Smith v. Nicolls, 5 Bing. N.C. 208, 221-224. There were peculiar cir- cumstances in the case, and therefore the point was not positively decided. The same doctrine seems to have been asserted in Hall v. Odber, 11 East, 118; but there also it was not directly decided. But see Plummer v. Woodburne, 4 sare 625; ante, s. 547, note; Becquet v. McCarthy, 2 B. & Ad. 951; ante, s. 548 a. 2 A foreign judgment for costs may be enforced in England. Russell v. Smyth, 9 M. & W. 810. CHAP. XV.] FOREIGN JUDGMENTS. 825 more hurtful to society than that lawsuits be perpetual. In every lawsuit there ought to be a ne plus ultra; some step ought to be ultimate; and a decree dismissing a claim is in its nature ulti- mate. Add a consideration that regards the nature and constitu- tion of a court of justice. A decree dismissing a claim may, it is true, be unjust, as well as a decree sustaining it. But they differ widely in one capital point; in declining to give redress against a decree dismissing a claim, the court is not guilty of authorizing injustice, even supposing the decree to be unjust; the utmost that can be said is, that the court forbears to interpose in behalf of justice. But such forbearance, instead of being faulty, is highly meritorious in every case where private justice clashes with public utility. The case is very different with respect to a decree of the other kind; for to award execution upon a foreign decree, without admitting any objection against it, would be, for aught the court can know, to support and promote injustice. A court, as well as an individual, may in certain circumstances have reason to forbear acting, or executing their office; but the doing injustice, or the supporting it, cannot be justified in any circumstances.’ 4 602. Remarks upon this Distinction. — It does not appear that this distinction of Lord Kames, between judgments sustaining suits and judgments dismissing them, has been recognized in the common law.? And there seems quite as much reason that a de- fendant should be protected against a new litigation, after there has been a final sentence in his favor, as there is that a plaintiff should be protected in the enjoyment of any right which is esta- blished by a sentence in his favor. The sentence for the defend- ant may, in its legal operation, as completely establish a right in him, or as completely establish the non-existence of any right in the plaintiff, as the contrary sentence would establish an adverse right in the plaintiff, and the non-existence of any repugnant right in the defendant. 603. Enforcing Judgments.—In the next place as to judg- ments in personam, which are sought to be enforced by a suit in a foreign tribunal. There has certainly been no inconsiderable fluctuation of opinion in the English courts upon this subject. It 1 2 Kames on Equity, p. 865, 38d ed. 1778. 2 See the cases cited in Stark. Ev. pt. 2, s. 80; Hoyt v. Gelston, 13 Johns. (N. ¥.) 561; 3 Wheat. 246; The Bennet, 1 Dodson, 175, 180. 826 CONFLICT OF LAWS. [s. 603-606. is admitted on all sides, that in such cases the foreign judgments are prima facie evidence to sustain the action, and are to be deemed right until the contrary is established ;1 (a) and of course they may be avoided if they are founded in fraud, or are pro- nounced by a court not having any competent jurisdiction over the cause. But the question is, whether they are to be deemed conclusive ; or whether the defendant is at liberty to go at large into the original merits, to show that the judgment ought to have been different upon the merits, although obtained bona fide. If the latter course be the correct one, then a still more embarrass- ing consideration is, to what extent, and in what manner, the origi- nal merits can be properly inquired into. 604. Different Opinions. — Lord Nottingham, in a case where an attempt was made to examine a foreign sentence of divorce in Savoy, in the reign of Charles the Second, held that it was con- clusive, and its merits not examinable. ‘ We know not,’ said he, ‘the laws of Savoy. So, if we did, we have no power to judge by them. And therefore it is against the law of nations not to give credit to the sentences of foreign countries till they are reversed by the law, and according to the form, of those countries wherein they were given. For what right hath one kingdom to reverse the judgment of another? And how can we refuse to let a sen- tence take place until it be reversed ? And what confusion would follow in Christendom, if they should serve us so abroad, and give no credit to our sentences.’8 Lord Hardwicke manifestly held the same opinion, saying, ‘ That where any court, foreign or do- mestic, that has the proper jurisdiction of the cases, makes the deterinination, it is conclusive to all other courts.’ # 605. On the other hand, Lord Mansfield thought that foreign 1 See Walker v. Witter, Doug. 1, and cases there cited; Arnott v. Redfern, 3 Bing. 853; Sinclair v. Fraser, cited Doug. 4, 5, note; Houlditch v. Donegall, 2 Cl. & F. 470; 8 Bligh, 801; Don v. Lippmann, 5 Cl. & F. 1, 19, 20; Price v. Dewhurst, 8 Sim. 279; Alivon v. Furnival, 1 C. M. & R. 277; Hall v. Odber, 11 East, 118; Ripple v. Ripple, 1 Rawle (Pa.) 386. -? See Bowles v. Orr, 1 Y. & C. 464; ante, s. 544, 545-550; Ferguson v. Ma- hon, 3 P. & D. 148; Price v. Dewhurst, 8 Sim. 279, 302; Don v. Lippmann, 5 Cl. & F. 1, 19-21; Ferguson v. Mahon, 11 A. & E. 179, 182. 8 Kennedy v. Cassillis, 2 Swanst. note, 826, 327. ; * Boucher v. Lawson, Cas. t. Hard. 89. See also Roach v. Garvan, 1 Ves. 57. (a) See Monroe v. Douglas, 4 Sandf. Ch. (N. Y.) 126. CHAP, XV.] FOREIGN JUDGMENTS. 827 judgments gave a ground of action, but that they were examina- ble! The same doctrine was held by Lord Chief Baron Eyre? and Mr. Justice Buller,* the latter relying upon a decision of the House of Lords as giving the true line of distinction between foreign and domestic judgments. In that case the House of Lords reversed a decision of the Court of Session of Scotland, in which the latter court held the plaintiff bound, in a suit upon a foreign judgment, to prove before the court the general nature and extent of the demand on which the judgment had been ob- tained. The reversal expressly declared that the judgment ought to be received as evidence, prima facie, of the debt; and that it lay upon the defendant to impeach the justice thereof, or to show the same to have been irregularly or wrongfully obtained. But it may be remarked of this last decision, that it does not-go to the extent of establishing the doctrine that the merits of the judgment ab origine are re-examinable de novo ; but only that its justice may be impeached, or its irregularity or fraud shown.® 606. Present English Doctrine. — Lord Kenyon seems clearly to have been of a different opinion, and expressed serious doubts whether foreign judgments were not binding upon the parties here.6 And Lord Ellenborough, upon an occasion in which the argument was pressed before him that a foreign judgment was re-examinable, and that the defendant might impeach the justice of it, pithily remarked that he thought he did not sit at nisi prius to try a writ of error upon the proceedings of the court abroad.’ In a more recent case Sir L. Shadwell, the Vice-Chancellor, upon 1 Walker ». Witter, Doug. 1, 6, note 38; Herbert v. Cook, Willes, 36, note; Hall v. Odber, 11 East, 118; Bayley v. Edwards, 3 Swanst. 703, 711, 712. ? Phillips v. Hunter, 2 H. Bl. 410; ante, s. 2. 8 Galbraith v. Neville, cited Doug. 6, note 3. * Sinclair v. Fraser, Doug. 4, 5, note 1. 5 Ante, s. 544-550, 603. In Alivon v. Furnival, 1 C. M. & R. 277, it seems to have been held, although not expressly so laid down by the court, that the proceedings of foreign courts must be presumed to be consistent with the foreign law, until the contrary is distinctly shown; and that therefore the principle adopted by a foreign court in assessing damages cannot be im- pugned, unless contrary to natural justice, or proved not to be conformable to the foreign law. The same point was adjudged in Martin v. Nicolls, 3 Sim. 458, and Becquet v. McCarthy, 2 B. & Ad. 951; Ferguson v. Mahon, 11 A. & E. 179, 182. 6 Galbraith v. Neville, Doug. 5, note 3. See also Guinness v. Carroll, 1 B. & Ad. 459. 7 Tarleton v. Tarleton, 4M. & S. 21. But see Hall v. Odber, 11 East, 118. 828 CONFLICT OF LAWS. [s.. 606-608, a full examination of the authorities, held the opinion that the true doctrine was that foreign judgments were conclusive evidence, and not re-examinable; that this was the true result of the old au- thorities ; and therefore, in asuit brought in England to enforce a foreign judgment, he held the judgment to be conclusive The present inclination of the English courts seems to be to sustain the conclusiveness of foreign judgments;? although certainly there yet remains no inconsiderable diversity of opinion among the learned judges of the different tribunals.’ (a) 607. Objections to a Different Doctrine. — It is indeed very dif- ficult to perceive what could be done if a different doctrine were maintainable to the full extent of opening all the evidence and merits of the cause anew on a suit upon the foreign judgment. Some of the witnesses may be since dead; some of the vouchers may be lost or destroyed. The merits of the cause, as formerly before the court upon the whole evidence, may have been decid- edly in favor of the judgment; upon a partial possession of the original evidence, they may now appear otherwise. Suppose a case purely sounding in damages, such as an action for an assault, for slander, for conversion of property, for a malicious prosecu- tion, or for a criminal conversation ; is the defendant to be at liberty to retry the whole merits, and to make out, if he can, a new case upon new evidence ?4* Or is the court to review the former decision, like a court of appeal, upon the old evidence ? In a case of covenant, or of debt, or of a breach of contract, are all the circumstances to be re-examined anew? If they are, by what laws and rules of evidence and principles of justice is the 1 Martin v. Nicolls, 3 Sim. 458. * See Guinness v. Carroll, 1 B. & Ad. 459; Becquet v. McCarthy, 2 B. & Ad. 951. ® In Houlditch v. Donegall, 8 Bligh, 301, 337-340, Lord Brougham held a foreign judgment to be only prima facie evidence, and gave his reasons at large for that opinion. On the other hand, Sir L. Shadwell, in Martin v. Nicolls, held the contrary opinion, that it was conclusive; and also gave a very elaho- rate judgment on the point, in which he reviewed the principal authorities. Of course the learned judge meant to except, and did except in a later case (Price v. Dewhurst, 8 Sim. 279, 302), judgments which were produced by fraud. See also Don v. Lippmann, 5 Cl. & F. 1, 20, 21; ante, s. 545-605; Alivon v. Fur- nival, 1 C. M. & R, 277, 284. See also Ferguson v. Mahon, 11 A. & E. 179, 182; Henderson v. Henderson, 8 Hare, 100, 113-115. : 4 See Alivon v. Furnival, 1 C. M. & R. 277. (a) See note to s. 608. CHAP. XV.] FOREIGN JUDGMENTS. 829 validity of the original judgment to be tried? Is the court to open the judgment, and to proceed ex equo et bono? Or is it to administer strict law, and stand to the doctrines of the local ad- ministration of justice? Is it to act upon the rules of evidence acknowledged in its own jurisprudence, or upon those of the fo- reign jurisprudence? These and many more questions might be put to show the intrinsic difficulties of the subject. Indeed the rule that the judgment is to be prima facie evidence for the plain- tiff would be a mere delusion, if the defendant might still ques- tion it by opening all or any of the original merits on his side ; for under such circumstances it would be equivalent to granting a new trial. It is easy to understand that the defendant may be at liberty to impeach the original justice of the judgment by showing that the court had no jurisdiction, or that he never had any notice of the suit;! or that it was procured by fraud; or that upon its face it is founded in mistake; or that it is irregular and bad by the local law, fori rei judicata. To such an extent the doctrine is intelligible and practicable. Beyond this, the right to impugn the judgment is in legal effect the right to retry the merits of the original cause at large, and to put the defend- ant upon proving those merits.” 608. American Doctrine. — The general doctrine maintained in the American courts in relation to foreign judgments certainly is that they are prima facie evidence, but that they are impeach- ble.2 (a) But how far and to what extent this doctrine is to be 1 Ferguson v. Mahon, 11 A. & E. 179, 182. 2 See Arnott v. Redfern, 2 C. & P. 88; 3 Bing. 353; Novelli v. Rossi, 2 B. & Ad. 757; Douglass v. Forrest, 4 Bing. 686; Obicini v. Bligh, 8 Bing. 335; Martin v. Nicolls, 3 Sim. 458; Alivon v. Furnival,1C.M.& R. 277. See also Stark. Ev. pt. 2, s. 67; Phillips & Amos on Evidence (8th ed.), p. 537, 538 (1838); Buttrick v. Allen, 8 Mass. 273; Huberus, tom. 2, lib. 1, tit. 3, de Conflictu, s. 6. 8 Many of the cases are collected; 2 Kent, Com. 118, &c.; in 4 Cowen, 520; note 3; and in Mr. Metcalf’s notes to his valuable edition of Starkie on Evidence, pt. 2, s. 67, 68, ed. 1830, p. 214-216. See also Bissell v. Briggs, 9 Mass. 462; Borden v. Fitch, 15 Johns. (N. Y.) 121; Green v. Sarmiento, 1 Pet. C. C. 74; Field v. Gibbs, 1 Pet. C. C. 155; Aldrich v. Kinney, 4 Conn. 380; Shumway v. Stillman, 6 Wend. (N. Y.) 447; Hall v. Williams, 6 Pick. (Mass.) (a) The cases cited for this propo- rendered in another country by a court sition are founded upon dicta of early’ of competent jurisdiction is that of English cases now overruled. The the recent English decisions, to wit, true view of the effect of a judgment that they are conclusive of the merits 830 CONFLICT OF LAWS. [s. 608, 609, carried does not seem to be definitely settled. It has been de- clared that the jurisdiction of the court, and its power over the parties and the things in controversy, may be inquired into; and that the judgment may be impeached for fraud. (a) Beyond this no definite lines have as yet been drawn. 247; Starbuck v. Murray, 5 Wend. (N. Y.) 148; Davis v. Packard, 6 Wend. (N. Y.) 827; Buttrick v. Allen, 8 Mass. 273; Pawling v. Bird, 13 Johns. (N. Y.) 192; Hitchcock v. Aicken, 1 Caines (N. Y.) 460; Wharton’s Dig. Judgment, I.; Bigelow’s Dig. Judgment, H.; Johnson’s Dig. Debt, H.; Coxe’s Dig. Judgment; Hoxie v. Wright, 2 Vt. 263; Bellows v. Ingham, 2 Vt. 575; Bar- ney v. Patterson, 6 Har. & J. (Md.) 182. of the cause of action, and of all facts doubtless of which a domestic judg- ment would be conclusive. Godard v. Gray, L. R. 6 Q. B. 189; Bank of Au- stralasia v. Nias, 16 Q. B. 717; Bauk of Australasia v. Harding, 9 C. B. 661; De Cosse Brissac v. Rathbone, 6 H.& N. 301; Castrique rv. Imrie, L. R. 4 H. L. 445; Scott v. Pilkington, 2 Best & S. 11; Vanquelin v. Bouard, 15C. B. N.S. 341; Ricardo v. Garcias, 12 Cl. & F. 868; Doglioni v. Crispin, L. R. 1 H. L. 801. (But see Simpson v. Fogo, 1 Hem. & M. 195, of the case of a perverse disregard, by the foreign court, of the law which ought to govern. And see Liverpool Credit Co. v. Hunter, L. R. 3 Ch. 479, 484.) And the cases make no distinction between judgments in rem and judgments in personam, though the former came to be treated as conclusive long before the settled rule of conclusiveness obtained in re- gard to judgments in personam. Ber- nardi v. Motteux, 2 Doug. 574; Hughes v. Cornelius, 2 Show. 232; Carth. 32; 2 Ld. Raym. 893, 935; The Helena, 4 Ch. Rob. 3. So in this country. Grant v. McLachlin, 4 Johns. (N. Y.) 84; Croudson v. Leonard, 4 Cranch, 434; Dempsey v. Ins. Co. of Penn., 1 Binn. (Penn.) 299, note; Baxter v. New England Ins. Co., 6 Mass. 277. It cannot as yet be said on autho- rity that the effect of a judgment in personam rendered in a foreign coun- try is settled in this country; but it is apprehended that the tendency of the courts is with the later English cases above cited. The view of conclusive- ness was upheld in Lazier v. Westcott, 26 N.Y. 146. Contra Rankin v. God- dard, 54 Me. 28. See also Cummings v. Banks, 2 Barb. (N. Y.) 602; Mon- roe v. Douglas, 4 Sandf. Ch. (N. Y.) 126; Noyes v. Butler, 6 Barb. (N. Y.) 618; Middlesex Bank v. Butman, 29 Me. 19; Taylor v. Barron, 30 N. H. 78; Burnham v. Webster, 1 Woodb. & M. 172; Benton v. Burgot, 10 Serg. & R. (Penn.) 240. A foreign judgment for the plaintiff, as Mr. Baron Parke said in Williams v. Jones, 138 Mees. & W. 628, 6383, raises a binding obligation to pay; binding because the proper authorities have fixed its effect. See Godard »v. Gray, L. R. 6 Q. B. 189, 148; Schibsby v. Westenholz, Id. 155. The effect of a valid judgment, like the effect of a valid contract, should depend upon the law of the land in which it was ren- dered. It is true that just as a foreign contract may be impeached for want of consideration or for fraud, a judgment rendered in a foreign nation may be impeached for want of jurisdiction or for fraud; but if it be admitted that the judgment would be binding where rendered, then like a contract binding where made or performable, no ques- tion should be permitted whether a correct view was taken either of the aw or of the facts on which it was founded. (a) Wood v. Watkinson, 17 Conn. CHAP. xv.] FOREIGN JUDGMENTS, 831 609. Effect of the Constitution. — By the constitution of the United States it is declared that full faith and credit shall be given in each state to the public acts, records, and judicial pro- ceedings of every other state. And congress, in pursuance of the power given them by the constitution in a succeeding clause, have declared that the judgments of state courts shall have the same faith and credit in other states as they have in the state where they are rendered.1(a) They are therefore put upon the same footing as domestic judgments. (6) But this does not pre- vent an inquiry into the jurisdiction of the court in which the original judgment was rendered to pronounce the judgment, nor an inquiry into the right of the state to exercise authority over the parties or the subject-matter, nor an inquiry whether the judgment is founded in and impeachable for a manifest fraud. (¢) The constitution did not mean to confer any new power upon the states, but simply to regulate the effect of their 1 Constitution, art. 8, s. 4; Act of Congress of 26th May, 1790, ¢.11; 3 Story, Constit. c. 29, s. 1297-1807. 500; Welch v. Sykes, 3 Gilm. (IIl.) 197. The prevailing opinion concerning the plea of fraud to a judgment rendered in another state appears to be that jt cannot be pleaded unless it could be pleaded in the sister state itself. Christmas v. Russell, 5 Wall. 290; Bicknell v. Field, 8 Paige (N. Y.) 440; Anderson v. Anderson, 8 Ohio, 108; McRae v. Mattoon, 138 Pick. (Mass.) .58; Sanford v. Sanford, 28 Conn. 6, 28. But see Pearce v. Olney, 20 Conn. 544; Engel v. Scheuerman, 40 Ga. 206; Rogers v. Gwinn, 21 Iowa, 58. And see further Luckenbach v. Anderson, 47 Penn. St. 128; Dobson v. Pearce, 12 N. Y. 156; Granger v. Clark, 22 Me. 180; Boston & W. R. Co. ». Sparhawk, 1 Allen (Mass.) 448; At- kinson v. Allen, 12 Vt. 624; Hammond v. Wilder, 25 Vt. 342; Embury v. Con- ner, 3 Comst. (N. Y.) 522. In Ochsenbein v. Papelier, L. R. 8 Ch. 695, it is held that a plea of fraud in obtaining a judgment is good at law, and hence that equity will not interfere with regard to such a case. (a) Phillips v. Godfrey, 7 Bosw. (N. Y.) 150; McFarland v. White, 13 La. Ann. 394; Rogers v. Rogers, 15 B. Mon. (Ky.) 354. This applies to judgments of the United States courts when relied upon in the state courts. Niblett v. Scott, 4 La. Ann. 246; Barney v. Patterson, 6 H. & J. 182. 4 (2) Without this act the judgments of each state would be regarded as foreign judgments in the courts of every other state. Dorsey v. Maury, 10 Smedes & M. (Miss.) 298; Seevers v. Clement, 28 Md. 426; Buckner v. Fin- ley, 2 Pet. 586; Smith v. Lathrop, 44 Penn. St. 326. (c) Taylor v. Bryden, 8 Johns. (N. Y.) 178. See Cummings v. Banks, 2 Barb. (N. Y.) 602; Davis v. Smith, 5 Ga. 274; Gleason v. Dodd, 4 Met. (Mass.) 833; Ewer v. Coffin, 1 Cush. (Mass.) 23; D’Arcy v. Ketchum, 11 How. 165; Carleton »v. Bickford, 13 Gray (Mass.) 591; Folger v, Colum- bian Ins. Co., 99 Mass. 278. 832 CONFLICT OF LAWS. [s. 609, 610. acknowledged jurisdiction over persons and things within their territory.! It did not make the judgments of other states domes- tic judgments to all intents and purposes, (a) but only gave a general validity, faith, and credit to them as evidence. No exe- cution can issue upon such judgments without a new suit in the tribunals of other states. (6) And they enjoy not the right of priority, or privilege, or lien which they have in the state where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judg- ments.” (¢) 1 See Story, Constit. c. 29, s. 1297-1807, and cases there cited; Hall v. Wil- liams, 6 Pick. (Mass.) 237; Bissell v. Briggs, 9 Mass. 462; Shumway v. Still- man, 6 Wend. (N. Y.) 447; Evans v. Tatem, 9 Serg. & R. (Pa.) 260; Benton v. Burgot, 10 Serg. & R. (Pa.) 240; Harrod v. Barretto, 1 Hall (N. Y.) 155; 2 Hall, 302; Wilson v. Niles, 2 Hall (N. Y.) 358; Hoxie v. Wright, 2 Vt. 263; Bellows v. Ingham, 2 Vt. 575; Aldrich v. Kinney, 4 Conn. 380. 2 McElmoyle v. Cohen, 13 Pet. 312, 328, 329; ante, s. 582 a, note. (a) SeeD’ Arcy v. Ketchum, 11 How. 165. (6) Ante, note to s. 586. (c) SeeWood v. Watkinson, 17 Conn. 500. So if, by the laws and practice of one state, a discharge in bankrupt- cy is a good defence there to a judg- ment recovered after such discharge was obtained, but founded on a claim existing prior to the commencement of the bankruptcy proceedings, such dis- charge is a good defence to an action on such judgment in another state, al- though the rule in the latter state upon judgments recovered in that state might be different. Haggerty v. Am- ory, 7 Allen (Mass.) 458. On the other hand, such discharge would not be a defence, if the rule is the same in the state where the judgment was recovered as it is in the state where it is sought to be enforced; viz., that such a discharge is no bar. Bradford v. Rice, 102 Mass. 472. The clause in the constitution be- fore cited is held to prohibit a state from passing a law that an action shall not be maintained on a judgment recovered in another state, where the original cause of action was then barred by the statute of limitations of the state in-which the judgment was sought to be enforced. Such an act would be unconstitutional and void. Christmas v. Russell, 5 Wall. 290. (For an analogous reason the judg- ment of one state in favor of a defend- ant, though rendered upon a plea of the statute of limitations, is conclu- sive in another. Sweet v. Brackley, 53 Me. 346.) Tt also prevents a de- fendant from showing that the judg- ment was founded in a mistake either of law or fact. Rocco v. Hackett, 2 Bosw. (N. Y.) 579; Hassell v. Hamil- ton, 38 Ala. 280; Milne v. Van Bus- kirk, 9 Iowa, 558. (And this is now the English rule as to judgments strictly foreign. A mistake of the law of its own country is no ground for impeaching a foreign judgment. Scott v. Pilkington, 2 B. & S. 11; Godard v. Gray, Law Rep. 6 Q. B. 139 ; Castrique v. Imrie, Law Rep. 4 H. L. 445.) So, too, such judgments are binding, although proceedings are pending in the state where they were rendered to annul or set aside the same. See Indiana v. Helmer, 21 Iowa, 370; Grover v. Grover, 30 Mo. 400; Gunn v. Howell, 35 Ala. 144; Barringer v. Boyd, 27 Miss. 473; CHAP. xv.] FOREIGN JUDGMENTS. 833 610. Citizenship of Parties to Foreign Judgments. — In the next place as to judgments in personam in suits between citizens, in suits between foreigners, and in suits between citizens and fo- reigners. The common law recognizes no distinction whatever as to the effect of foreign judgments, whether they are between citizens, or between foreigners, or between citizens and foreigners. In all cases they are deemed of equal obligation, whoever are the parties. The cases which have been already cited refer to no such distinction ; but the same rules are indiscriminately applied to all persons. Merchants’ Ins. Co. v. De Wolf, 33 Penn. St. 45. And the like rule pre- vails in England as to suits on foreign judgments. Scott v. Pilkington, 2 B. & 8. 11. It is proper here to notice the effect of the pendency of another suit in a foreign tribunal, upon the same cause of action, and between the same parties. The weight of authority is in favor of the doctrine that the pen- dency of such suit in a tribunal strictly foreign is clearly no cause of abate- ment to a subsequent suit. Russell v. Field, Stuart’s Canada, 558; Maule v. Murray, 7 T. R. 470; Bayley v. Ed- wards, 8 Swanst. 703; Ostell v. Le- page, 10 Eng. Law. & Eq. 255; 5 De Gex & Smale, 95; Cox v. Mitchell, 7 C. B. N.S. 55; Scott v. Seymour, 1 H. & C. 219. So, too, many cases hold that, in this respect, the different American states are so far foreign to each other that the pendency of a prior suit for the same cause in one state is no cause of abatement of a second suit in another. Bowne v. Joy, 9 Johns. (N. Y.) 221; Salmon v. Woot- ton, 9 Dana (Ky.) 423; McJilton v. Love, 13 Ill. 486; Drake v. Brander, 8 Texas, 352. And the Supreme Court of the United States have de- cided that the separate states are fo- reign to each other, except so far as united for national purposes under the constitution. Buckner v. Van Lear, 2 Pet. 586. This, also, may be considered the settled law on the subject. See Seevers v. Clement, 28 Md. 484; Smith v. Lathrop, 44 Penn. St. 326; Hatch v. Spofford, 22 Conn. 485; Goodall v. Marshall, 11 N. H. 99; Cook v. Litchfield, 5 Sandf. (N. Y.) 830. The same has also been held where the prior suit was pending in a court of the United States for a dif- ferent district than one of the state where the second cause is instituted (Walsh v. Durkin, 12 Johns. (N. Y.) 99; Cook v. Litchfield, 5 Sandf. (N. Y.) 330), and vice versa. White v. Whitman, 1 Curtis, C. C. 494; Lyman v. Brown, 2 Id. 559. On the other hand, if the prior suit is pending in- a circuit court for a district situated in the state where the second action is instituted, and that court has jurisdic- tion of the cause, this has been thought good cause of abatement of the second suit. Smith v. Atlantic Mut. Fire Ins. Co., 2 Foster (N. H.) 21. But whatever may be the rule where both actions are actions at law, it is uni- formly agreed that if one is at law and the other in equity, neither is cause of abatement to the other. Colt v. Partridge, 7 Met. (Mass.) 570: Hatch v. Spofford, 22 Conn. 485. And so if the parties are reversed, although both actions are at law. Wadleigh ». Veazie, 3 Sumner, 165. In like man- ner a proceeding in one tribunal in per- sonam, in which property is attached as collateral security to satisfy the judgment, is no bar to a subsequent proceeding in rem against the same 53 834 CONFLICT OF LAWS. [s. 611-613, 611. Foreign Jurists. — We have hitherto been principally con- sidering the doctrines of the common law. But it cannot be affirmed that the same doctrines are generally maintained either by foreign courts or by foreign jurists. Many foreign jurists contend for the doctrine of Vattel, that the judgments of a for- eign competent tribunal are to be held of equal validity in every other country.!. Thus Huberus lays down the rule: ‘ Cuncta negotia et acta, tam in judicio quam extra judicium, sive mortis causa, sive inter vivos, secundum jus certi loci rite celebrata, valent, etiam ubi diversa juris observatio viget, ac ubi sic inita, quemadmodum facta sunt, non valerunt.’* And again: ‘Simi- 1 Henry on Foreign Law, 75, 76. 2 Huberus, tom. 2, lib. 1, tit. 3, de Conflict. Leg. 8. 3. property in a foreign tribunal for the same cause of action. Harmer v. Bell, 7 Moore, P. C. 268; and see Certain Logs of Mahogany, 2 Sumner, 589. See however Taylor v. The Royal Saxon, 1 Wall. jun. 311. The courts also hold that a suit pending in one state by A. against B. is a bar to a suit in another state by a creditor of A. against B., in which B. is sum- moned as his trustee; so far, at least, ‘that B. will not be charged as A.’s trustee, if he is liable on a prior suit pending against him by A. in an- other state. See American Bank ». Rollins, 99 Mass. 318. For a pay- ment on such a trustee process would be no bar to the prior suit in another state. Whipple v. Robbins, 97 Mass. 107. See Merrill v. New England Ins. Co., 103 Mass. 249. But where a state court and the United States court both have jurisdiction in rem, the right to maintain the jurisdiction at- taches to that tribunal which first ex- ercises it, and takes possession of the thing. The Robert Fulton, 1 Paine, C. C. 621. oo For a like reason if an officer of the United States court has attached personal property on mesne process issuing from a United States court having jurisdiction of the parties and the subject-matter, no officer of a state . court can retake the property, on a replevin suit issuing from a state court on behalf of the rightful owner of such property. Freeman v. Howe, 24 How. 450, reversing the same case in 14 Gray, 566. For in America the state and national courts being inde- pendent of each other, neither can impede or arrest any action the other may take, within the limits of its ju- risdiction, for the satisfaction of its judgments and decrees. Where either is in possession of the res sought to be reached, the process of the other must pause until that possession is termi- nated. Amy v. The Supervisors, 11 Wall. 186; and see Riggs v. Johnson County, 6 Wall. 166. Further as to the relation of state and federal courts within the same state, see Pennoyer v. Neff, 95 U. S. 714. Of course a domestic receiver will take choses in action in preference to a plaintiff under a foreign garnishment made after the receiver’s appointment, the property being in the state of the receiver. Osgood v. Maguire, 61 N. Y. 524. But if the garnishment was be- fore the receiver’s appointment, the case would perhaps in some jurisdic- tions be different. Baltimore R. Co. v. May, 25 Ohio St. 847. See ante, s. 400, and note. CHAP. XV.] FOREIGN JUDGMENTS. 835 lem usum habet hee observatio in rebus judicatis. Sententia in aliquo loco pronunciata, vel delicti venia, ab eo, qui jurisdic- tionem illam habet, data ubique habet effectum; nec fas est alterius seipublice magistratibus, reum alibi absolutum veniave donatum, licet absque justa causa persequi, aut iterum permit- tere recusandum, etc. Idem obtinet in sententiis rerum civi- lium.’1_ The same doctrine seems equally well founded in the expressive language of the Roman law. ‘Res judicata pro veri- tate accipitur.’ 2 612. D’Argentré holds the like opinion. ‘Nam de omni per- sonali negotio, judicis ejus cognitionem esse, cui persona subsit, sic, ut quocunque persona abeat, id jus sit, quod ille statuerit.’3 Gaill asserts that any other rule would involve absurdity. ‘Absurdum enim fore, si post sententiam definitivam alia esset ferenda sententia, et processum in infinitum extrahi litemque ex lite oriri debere.’* John Voet maintains a similar opinion in all suits except those respecting immovables. ‘ Licet autem regulariter judex requisitus non cognoscat de justitia sententize per alterum judicem late, nec eam ad examen penitius revo- cet; sed pro justitia ejus ex equitate presumat; tamen, si animadvertat, eam directo contra sui territorii statuta latam esse circa res immobiles in suo territorio sitas, eandem non ex- sequetur.’ 5 618. There are however other foreign jurists who maintain a very different opinion.6 We have already had occasion to take notice of the doctrines of Boullenois upon the right of jurisdic- tion,’ and he applies them in an especial manner to the autho- rity of foreign judgments. In regard to judgments in rem, or partly in rem and partly in personam, he deems the jurisdic- tion to belong exclusively to the tribunals of the place rei site, and consequently that the judgment rendered there ought to lid. s. 6. 2 Dig. 1, 5, 25. 8 D’Argentr. Com. ad Leg. Briton. art. 218; gloss. 6, n. 47, p. 665, ed. 1640; Henry on Foreign Law, p. 74; 1 Boullenois, obs. 25, p. 605. 4 Henry on Foreign Law, p. 74, 75; Gaill, Pract. Obs. lib. 1, obs. 118, n. 11, p- 201; 1 Boullenois, obs. 25, p. 605, 606. ‘There is an error in the reference of Boullenois to Gaill. It should be to obs. 118 instead of 123. 5 J. Voet, ad Pand. 2, 42, 1, n. 41, p. 788. ® See 1 Boullenois, obs. 25, p. 601-650; 3 Burge, Col. & For. Law, pt. 2, e. 24, p. 1050-1060, 1062-1076. 7 Ante, s. 552. 836 CONFLICT OF LAWS. [s. 613-616. be of universal obligation. But in regard to judgments in personal actions he makes the following distinctions. If the foreign judgment is in a suit between natives of the same country in which it is pronounced, and it is rendered by a competent tribunal, in such a case it ought to be executed in every other country without any new inquiry into the merits.? The reason assigned is, that the judgment has emanated from a lawful authority, and has been rendered between persons who are subject to that authority; and consequently the judgment ought not to be submitted to examination or discussion in any other tribunal, which for such purposes must be wholly incom- petent. If the foreign judgment is rendered in a suit between mere strangers, who are foreigners found within the territorial authority of the court rendering it, and the jurisdiction is right- fully exercised over the parties, in such a case the judgment is equally conclusive, and not examinable by any other tribunal. But he thinks that the jurisdiction cannot be rightfully exercised, merely because the foreigners are there, unless they are domi- ciled and have made themselves subject to the laws, or have made some contract there, or some contract to be executed there, which is the subject-matter of the suit. Lastly, if the judgment is rendered in a suit between a native of the country where the judgment is pronounced and a foreigner, in such a case, if the foreigner be the plaintiff, then the judgment ought to be con- clusive and not examinable, whether the foreigner has been suc- cessful or unsuccessful in his claim; for in such a ease the suit is brought before the proper forum, according to the maxim, actor sequitur forum rei, and then standum est in judicio; and the execution of the judgment ought to be everywhere held perfect and entire without any new examination.6 But if the foreigner be the defendant, and he has not entered into any contract in the place where the suit is brought, or into any contract which is to be performed there, and which is the subject-matter of the suit, in such a case the judgment is not conclusive against the defendant.§ 614. Boullenois concludes his remarks upon this subject in the 1 1 Boullenois, obs. 25, p. 618-624, 635, 636. 2 Id. p. 603, 605. ® 1 Boullenois, obs. 25, p. 607, 609. 4 Id. p. 606-610. 5 Id. p. 609. ® Td. p. 610, 617. CHAP. XV.] FOREIGN JUDGMENTS, 837 following manner: ‘ When then’ some of our authors say that fo- reign judgments are not to be executed in France, and that it is necessary to commence a new action, that is true without any exception in all matters touching the realty. It is also true in personal matters when the defendant is a Frenchman who has not contracted in the foreign country, nor promised to pay there, nor submitted himself voluntarily to the foreign jurisdiction ; for in such a case a new action should be brought, saving the right to demand a provisional execution of the foreign judgment. But in the other cases above mentioned the judgment ought to be executed without a new action.’! 615. Ancient French Law.— There was in France an ancient ordinance, in 1629, one article of which expressly declared that judgments rendered in foreign countries, for any cause whatever, should not be executed within the realm, and that subjects against whom they were rendered might contest their rights anew through- out France.? 616. Emerigon says that judgments rendered in foreign coun- tries against Frenchmen are not of the slightest weight in France, and that the causes must be there litigated anew. In support of this statement he quotes the remark of D’Aguesseau, that it is an inviolable maxim that a Frenchman can never be transferred toa foreign court. ‘C'est une maxime inviolable, qu’un Frangais ne peut jamais étre traduit devant un juge étranger.’? Immedi- ately afterwards Emerigon adds that it is the same as to foreign judgments rendered in favor of a foreigner against a foreigner domiciled in France. He then proceeds to remark that it is only in suits between foreigners not domiciled in France that a foreign judgment will be executed in France. The rule equally applies, whether the Frenchman be plaintiff or be defendant in the cause. But, on the other hand, a Frenchman may sustain a suit in the French courts against a foreigner, and the judgment rendered by such foreigner may be executed against his property in France. Emerigon however admits that the rule is not exempt from doubt, 17d. p. 646. Toullier has commented upon and denied the distinctions of Boullenois, as not being well founded in French jurisprudence. 10 Toul- lier, Droit Civ. Frang. c. 6, s. 8, p. 83. 21 Boullenois, obs. 25, p. 646; 2 Kent, Com. 121, 122, note. See 10 Toullier, Droit Civ. Frang. in c. 6, 8. 3, n. 82, 83. § D’Aguesseau, CEuvres, tom. 5, p. 87, 4to ed. 838 CONFLICT OF LAWS. [s. 616-618. and has been much controverted; for the maxim, actor sequitur forum rei, belongs to the law of nations! Vattel affirms the same maxim in explicit terms.? 617. Modern French Law.— The doctrine thus promulgated by Emerigon has continued down to a very recent period.? But by the present Code of France the Ordinance of 1629 seems to be abolished, and foreign judgments are now deemed capable of execution in that country. But the merits of the judgment are examinable; and no distinction seems to be made whether the judgment is in a suit between foreigners, or between Frenchmen, or between a foreigner and a Frenchman; or whether it is in favor of one party or of the other; or whether it is rendered upon default or upon confession, or upon a full trial and contestation of the merits.6 Toullier considers it as now the established ju- risprudence of France, that no foreign judgment can be rendered executory in France, but upon a full cognizance of the cause before the French tribunals, in which all the original grounds of the action are to be debated and considered anew.’ And he adds that the same principle is applied to cases where foreign judg- ments are set up by the defendant by way of bar to a new action. The judgments are equally re-examinable upon the merits.? 618. Rule in other Foreign Countries. —It is difficult to ascer- tain what the prevailing rule is in regard to foreign judgments in some of the other nations of continental Europe; whether they are deemed conclusive evidence, or only prima facie evidence. Holland seems at all times, upon the general principle of reci- 1 Emerigon, Traité des Ass. tom. 1, c. 4, s. 8, n. 2, p. 122,128; 2 Kent, Com. 121, 122, note. The same doctrine is explicitly avowed to be the law of France in many other authorities. See Henry on Foreign Law, Appx. 209. 2 Vattel, b. 2, c. 8, s. 103. 5 Merlin, Répertoire, Jugement, s. 6; Id. Etranger, s. 2-5; Merlin, Ques- tions de Droit, Jugement, s. 14; 2 Kent, Com. 121, 122, note; 10 Toullier, Droit Civ. Frang. c. 6, s. 3, p. 76, 81, 82, 86. * Code de Procédure Civile, art. 546; Code Civil, art. 2123, 2128; 10 Toul- lier, Droit Civ. Frang. c. 6, s. 3, n. 76-78, 84-86. 5 10 Toullier, Droit Civ. Frang. c. 6, s. 8, n. 76-78, 80, 81, 84-86; Pardes- sus, Droit Com. tom. 5, art. 1488; 3 Burge, Col. & For. Law, pt. 2,¢. 24, p. 1048, 1049. § Id. n. 85, 86; 2 Kent, Com. 121, 122, note; Pardessus, Droit Com. tom. 5, art. 1488. 7 10 Toullier, Droit Civ. Frang. c. 6, s. 8, n. 76-86; Merlin, Répertoire, Jugement, s.6; Merlin, Questions de Droit, Jugement, s. 14; Pardessus, Droit Com. tom. 5, art. 1488; 2 Kent, Com. 118-121. CHAP. xv.] FOREIGN JUDGMENTS. 839 procity, to have given great weight to foreign judgments, and in many cases, if not in all cases, to have given to them a weight equal to that given to domestic judgments, wherever the like rule of reciprocity with regard to Dutch judgments has been adopted by the foreign country whose judgment is brought under review. This is certainly a very reasonable rule, and may perhaps hereafter work itself firmly into the structure of international jurisprudence.! 1 Henry on Foreign Law, c. 10, s. 2, p. 75, 76; Id. Appx. :p. 209-214. 840 CONFLICT OF LAWS. [s. 619-621. CHAPTER XVI. PENAL LAWS AND OFFENOES. 619. General Remarks.— We are next led to the considera- tion of the operation of foreign laws in regard to penalties and offences. And this will not require any expanded examination, as the topics are few, and the doctrines maintained by foreign jurists, and by tribunals acting under the common law, involve no intricate inquiries into the peculiar jurisprudence of different nations. 620. Locality of Crimes. — The common law considers crimes as altogether local, and cognizable and punishable exclusively in the country where they are committed.!_ No other nation there- fore has any right to punish them, or is under any obligation to take notice of or to enforce any judgment rendered in such cases by the tribunals having authority to hold jurisdiction within the territory where they are committed.2 Hence it is that a crimi- nal sentence of attainder in the courts of one sovereign, although it there creates a personal disability to sue, does not carry the same disability with the person into other countries. Foreign jurists indeed maintain on this particular point a different opi- nion, holding that the state or condition of a person in the place of his domicil accompanies him everywhere Lord Lough- 1 ¢ Crimes,’ said Lord Chief Justice de Grey, in Rafael v. Verelst, 2 W. Bl. 1058, ‘ are in their nature local, and the jurisdiction of crimes is local.’ 2 Rutherf. Inst. b. 2, c. 9, s. 12; Martens, Law of Nations, b. 3, c. 8, s. 22- 25; Merlin, Répertoire, Souveraineté, s. 5, n. 5,6, p. 379-382; Commonwealth v. Green, 17 Mass. 515, 545-548. ® Ante, s. 91, 92; 1 Hertii Opera, de Collis. Leg. s. 4, n. 8, p. 124, ed. 1787; Id, p. 175, ed. 1716; 1 Boullenois, obs. 4, p. 64, 65. Boullenois states this doctrine in strong terms. ‘A l’égard des statuts qui prononcent une morte civile pour crimes, ou une note d’infamie, l'état de ces misérables se porte par- tout, indépendamment de tout domicile; et cela par un concert et un concours général des nations, ces sortes de peines étant une tache, une plaie incurable, dont le condamné est affligé, et qui l’accompagne en tous lieux. C’est ce que dit D’Argentré.’ 1 Boullenois, obs. 4, p. 64, 65. CHAP. XVI.] PENAL LAWS AND OFFENCES. 841 borough, in declaring the opinion of the court on one occasion, said: ‘Penal laws of foreign countries are strictly local, and affect nothing more than they can reach, and can be seized by virtue of their authority. A fugitive, who passes hither, comes with all his transitory rights. He may recover money held for his use, and stock, obligations, and the like; and cannot be affected in this country by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend.’ Mr. Justice Buller in the same case, on a writ of error, said: * It is a general principle that the penal laws of one country cannot be taken notice of in‘another.’2 The same doc- trine was affirmed by Lord Ellenborough in a subsequent case. And it has been recently promulgated by Lord Brougham in very clear and authoritative terms. ‘The lex loci,’ says he, ‘must needs govern all criminal jurisdiction, from the nature of the thing and the purpose of the jurisdiction.’ # 621. Judicial Opinions. — The same doctrine has been fre- quently recognized in America. On one occasion, where the subject underwent a good deal of discussion, Mr. Chief Justice Marshall, in delivering the opinion of the Supreme Court, said : ‘The courts of no country execute the penal laws of another.’ ® On another occasion, in New York, Mr. Chief Justice Spencer said: ‘ We are required to give effect to a law (of Connecticut) which inflicts a penalty for acquiring a right to a chose in action. The defendant cannot take advantage of, nor expect the court to enforce, the criminal laws of another state. The penal acts of one state can have no operation in another state. They are strictly local, and affect nothing more than they can reach.’ ° (a) 1 Folliott v. Ogden, 1H. Bl. 135. 2 Ogden »v. Folliott, 3 T. R. 733, 784. 8 Wolff ». Oxholm, 6M. & S. 99. 4 Warrender v. Warrender, 9 Bligh, 119, 120. 5 The Antelope, 10 Wheat.. 66, 123. 6 Scoville ». Canfield, 14 Johns. (N. Y.) 338, 340. See also State v. Knight, Taylor (N. C.) 65. (a) See Western Transp. Co. v. Kilderhouse, 87 N. Y. 480; Lemmon v. People, 20 N. Y. 562; Henry v. Sar- geant, 13 N. H. 321. But this doctrine is not to be carried too far. Courts will not enforce penalties imposed by foreign laws, but an illegal act done ‘in a foreign jurisdiction in the ex- ecution of a penal statute may be redressed elsewhere. A citizen of New Hampshire brought an action of trespass in that state against a citizen of Vermont to recover damages for assessing an illegal tax upon the plain- 842 CONFLICT OF LAWS. [s. 621-625. Upon the same ground also the Supreme Court of Massachusetts have held that a person convicted of an infamous offence in one state is not thereby rendered incompetent as a witness in other states.! (a) 622. Lord Kames.—The same doctrine is stated by Lord Kames as the doctrine in Scotland. ‘There is not,’ says he, ‘the same necessity for an extraordinary jurisdiction to punish foreign delinquencies. The proper place for punishment is where the crime is committed. ‘And no society takes concern in any crime but what is hurtful to itself.’ 2 623. Foreign Jurists.— The same doctrine is laid down by Martens as a clear principle of the law of nations. After re- marking that the criminal power of a country is confined to the territory, he adds: ‘By the same principles a sentence which 1 Commonwealth v. Green, 17 Mass. 2 Kames on Equity, b. 3, c. 8, s. 1. tiff, and for issuing a warrant against him on which he was arrested; and the action was sustained. Parker, C.J., observed: ‘It is said that the court will not notice the penal laws or the revenue laws of another state. But this principle is not applicable in this case, nor can it be true to that extent. There is no attempt to en- force the penal or revenue laws of Ver- mont by this action. If there were, this could not be done through the instrumentality of the courts of this state, as for instance if the attempt was to collect a tax assessed in Ver- mont by suit here. Henry ». Sargeant, supra. Although the penal laws of every country are in their nature local, yet an offence may be committed in one sovereignty in violation of the laws of another, and if the offender be afterwards found in the latter state, he may be punished according to the laws thereof, and the fact that he owes ‘ allegiance to another sovereignty is no bar to the indictment. Thus in a late case in New York (Adams ». People, 1 Comst. 173), a citizen of Ohio had there executed a fraudulent paper addressed to citizens of New 515, 540, 541, 546, 547. See also Ersk. Inst. b. 1. tit. 2, p. 23. York, which had been presented to the latter in New York by an innocent agent, and the fraud was there com- pleted. The defendant, being after- wards indicted in New York for the offence, pleaded: that he was a natu- ral-born citizen of Ohio, and owed allegiance to that state, that he had never been within the state of New York, and that the fraudulent paper was executed in Ohio. It was deter- mined this was no answer to the indict- ment.’ See further, note (a) to s. 625. (a) Sims v. Sims, 75 N. Y. 466. Contra: State v. Candler, 3 Hawks, 393; Chase v. Blodgett, 10 N. H. 22. So in a late case in chancery (King of Two Sicilies ». Willcox, 1 Sim. N.S. 801), a foreigner in England was not allowed to withhold certain documents (whose production was sought by a bill of discovery) upon the plea that their contents would ren- der him liable to the penal laws of his own country; they having no such effect in England, and the courts of the latter country having no regard to the penal laws of a foreign state. But this is doubtful law. United States v. McRae, L. R. 8 Ch. 79, 85. CHAP. XVI.] PENAL LAWS AND OFFENCES. 843 attacks the honor, rights, or property of a criminal cannot ex- tend beyond the courts of the territory of the sovereign who has pronounced it. So that he who has been declared infamous is infamous in fact, but not in law. And the confiscation of his property cannot affect his property situate in a foreign country. To deprive him of his honor and property judicially there also would be to punish him a second time for the same offence.’ ! 624, Pardessus has affirmed a similar principle. ‘In all the states of Christendom,’ says he, ‘ by a sort of general consent and uniformity of practice, the prosecution and punishment of penal offences are left to the tribunals of the country where they are committed. The principle of the French legislation, that the laws of police and bail are obligatory upon all who are within the territory, is a principle of common right in all nations.’? Bouhier also admits the locality, or, as he terms it, the reality, of penal laws ; and of course he limits their operation to the terri- tory of the sovereignty within which they are committed.’ (a) 625. On the other hand, Hertius and Paul Voet seem to main- tain a different doctrine, holding that crimes committed in one state may, if the criminal is found in another state, be upon de- mand punished there. Paul Voet says: ‘Statutum personale ubique locorum personam comitatur, etc., etiam in ordine ad penam a cive petendam, si pena civibus sit imposita.’® And he, as well as some others of the foreign jurists, enters into elabo- rate discussions of the question, whether if a foreign fugitive 1 Martens, Summary of the Law of Nations, b. 3, c. 3, s. 24, 25. ’ 2 Pardessus, Droit Com. tom. 5, art. 1467. See also Merlin, Répertoire, Souveraineté, s. 5, n. 5, 6, p. 879-882. 8 Bouhier, Cout. de Bourg. c. 34, p. 588. See also Matthei Com. ad Pand. 48, 20, s. 17, 18, 20. Mr. Hallam has remarked: ‘The death of Ser- vetus has perhaps as many circumstances of aggravation as any execution for heresy that ever took place. One of these, and among the most striking, is, that he was not the subject of Geneva, nor domiciled in the city, nor had the Christianissima Restitutio been published there, but at Vienne. According to our laws, and those, I believe, of most civilized nations, he was not answera- ble to the tribunals of the republic.’ Hallam’s Introduction to the Literature of Europe, vol. 2 (Lond. ed. 1839), ¢. 2, s. 27, p. 109. 4 1 Hertii Opera, de Collis. Leg. s. 4, n. 18-21, p. 180-182, ed. 1737; Id. p. 185-188, ed. 1716. ‘ 5 P. Voet, de Stat. s. 4, c. 2, nu. 6, p. 123, ed. 1715; Id. p. 188, ed. 1661. See Id. s. 11, c. 1, n. 4, 5, p. 294-296, ed. 1715; Id. p. 355-360, ed. 1761. (a) See Lemmon v. People, 20 N. Y. 562. 844 CONFLICT OF LAWS. [s. 625, 626. criminal is arrested in another country, he is to be punished ac- cording to the law of his domicil, or according to the law of the place where the offence was committed If any nation should suffer its own courts to entertain jurisdiction of offences com- mitted by foreigners in foreign countries, the rule of Bartolus would seem to furnish the true answer. ‘ Delicta puniuntur juxta mores loci commissi delicti, et non loci, ubi de crimine cog- noscitur.’? (a) 1 See 1 Hertii Opera, de Collis. Leg. s. 4, n. 19-21, p. 181, 182, ed. 1737; Id. p. 185-188, ed. 1716; P. Voet, de Stat. s. 11, c. 1, s. 1, 4,5, p. 291-297, ed. 1715; Id. p. 335-860, ed. 1661. 2 Henry on Foreign Law, p. 47. I quote the passage as I find it in Henry. Upon examining Bartolus in the place apparently intended to be cited by Mr. Henry (Bartolus, Com. ad Cod. 1,1, 1, n. 20, 21; Id. n. 44; Id. n. 47, tom. 7, p. 4, ed. 1602), I have not been able to find any such language used by Bartolus. Martens deems it clear that a sovereign in whose dominions a criminal has sought refuge may, if he chooses, punish him for the offence, though com- mitted in a foreign country; though he admits that the more common usage in modern times is to remand the criminal to the country where the crime was committed. Martens, Law of Nations, b. 3, c. 8, s. 22, 28. See also Vattel, b. 2, c. 2, s. 76; Grotius, de Jure Belli et Pac. b. 2, c. 21, s. 2-5; Burlemaqui, pt. 4, c. 3,8. 24-26. See Lord Brougham’s opinion in Warrender v. Warren- der, 9 Bligh, 118-120. (a) It is well settled that common- law torts, and probably statutory torts not in derogation of any settled rule of the common law, may be redressed as well in the courts of other states as in those of the state in which the wrong was committed. Le Forest v. Tolman, 117 Mass. 109; Needham v. Grand Trunk Ry. Co., 88 Vt. 294; Stout v. Wood, 1 Blackf. (Ind.) 71; General Steam Nav. Co. v. Guillou, 11 Mees. & W. 877; Phillips v. Eyre, L. R. 4 Q. B. 225, 239; L. R.6Q.B.1. See Pittsburgh Ry. Co. v. Lewis, 33 Ohio St. 196; Selma R. Co. ». Lacey, 49 Ga. 106; The Halley, L. R. 2 P. C. 193 (reversing L. R. 2 Adm. 38). Recent decisions, proceeding upon a supposed distinction between statutory rights in derogation of the common law and general common-law rights, have refused to go further and to re- cognize rights growing out of foreign statutory law where that is inconsist- ent with the unwritten law. Richard- son v. New York Cent. R. Co., 98 Mass. 85; Buckles v. Ellers, 72 Ind. 221; Anderson v. Milwaukee Ry. Co., 37 Wis. 321; Bettys v. Milwaukee Ry. Co., Id. 323 (a case of penalty) ; Wood- ard v. Michigan Southern R. Co., 10 Ohio St. 121; McCarthy v. Chicago R. Co., 18 Kans. 46; Pickering v. Fisk, 6 Vt. 102; Probate Court v. Hibbard, 44 Vt. 597. And see The Halley, L. R. 2 P.C. 193. Three of these cases, Richardson v. New York Cent. R. Co., Woodard v. Michigan Southern R. Co., and McCarthy v. Chicago R. Co., might have been decided on the ground that the suit had been instituted by the wrong party. The suits were brought for the death of the plaintiffs intes- tate, and the plaintiff was administra- tor under the law of the forum alone. It would seem doubtful in principle if any administrator not qualified under the law of the state in which the wrong was committed could sue. But this technical objection has not been al- CHAP. XVI.] PENAL LAWS AND OFFENCES. 845 626. Extradition of Fugitives from Justice. —There is another point which has been a good deal discussed of late; and that is, lowed to prevail in other cases. Leo- nard v. Columbia Nay. Co., 84 N. Y. 48; Dennick v. Central R. Co., 103 U.S. 11. The Vermont cases cited were actions upon ‘official bonds, which it was held would not be enforced out of the state in which they were executed. The distinction between statutory and common-law rights above alluded to (see particularly Richardson v. New York Cent. R. Co., referring to lan- guage of Mr. Justice Denio in Whit- ford v. Panama R. Co., 23 N. Y. 465) has little to commend it, and the Su- preme Court of the United States in Dennick v. Central R. Co., supra, dis- regarded and exploded it. In the absence of some plainly prohibitory law the case can hardly be rested upon the ground that the existence of such rights is so opposed to the policy or law of a state that it ought to be repudiated. The New York courts, after much discussion of the subject, have lately fallen in with the better view, so far at least as to permit an action based upon the foreign law (for death caused by negligence in another state) where the foreign statute is like the domestic. Leonard v. Columbia Nav. Co., 84 N. Y. 48. See also Mc- Donald v. Mallory, 77 N. Y. 546. The Vermont courts also give redress. Needham v. Grand Trunk R. Co., 38 Vt. 294. See also Boyd v. Clark, 13 Rep. 40. The true doctrine, as declared by the Supreme Court of theUnited States, proceeds upon the broad ground of the right of action given by the law of the foreizn state; whether the domestic law provides for redress in like cases should in principle be immaterial, so long as the right is a reasonable one and not opposed to the interests of the state. How immaterial is the existence of @ law of the forum like that of the foreign state is seen in the rule every- where laid down in this country, that the plaintiff’s case must stand, if at all, upon the existence of the supposed foreign law. The mere fact that a statute exists in the state of the forum which would entitle him to redress if the offence had been committed there, will not justify an action. Le Forest v. Tolman, 117 Mass. 109; Crowley v. Panama R. Co., 80 Barb. 99; Beach v. Bay State Co., Id. 4383; Whitford v. Panama R. Co., 3 Bosw. 67; 23 N.Y. 465; Needham v.Grand Trunk Ry.Co., 38 Vt. 294; Carpenter v. Grand Trunk Ry. Co., 72 Me. 388. See Hall v. De Cuir, 95 U. 8.485. But see Scott v. Seymour, 1 Hurl. & C. 219, infra. In Le Forest v. Tolman, supra, this doctrine was applied to the case of one suing in Massachusetts for an injury received in New Hampshire by the bite of a dog owned and kept by the defendant in Massachusetts. It was held, in accordance with the common- law rule, that, in the absence of evi- dence that the dog was kept scienter of a disposition to bite people, the plain- tiff could not recover; Popplewell v. Pierce, 10 Cush. (Mass.) 509, and Pressey v. Wirth, 3 Allen (Mass.) 191, being cited as common-law autho- rity. The court declined to apply a domestic statute providing that the owner or keeper of a dog should for- feit to any one injured by it double the amount of the damage sustained. In Hahnemannian Ins. Co. v. Beebe, 48 Ill. 87, it was left a question whe- ther a foreign corporation could sue in the domestic courts for libel. If the foreign law has for its object the imposition of punishment, thén only the courts of the injured sove- reignty should inflict the punishment. Bettys v. Milwaukee Ry. Co.,37 Wis. 323; First National Bank v. Price, 33 Md. 487. And see The Halley, L. R. 846 CONFLICT OF LAWS. [s. 626-628; whether a nation is bound to surrender up fugitives from justice who escape into its territories and seek there an asylum from pun- ishment. The practice has, beyond question, prevailed as a mat- ter of comity, and sometimes of treaty, between some neighboring states, and sometimes also between distant states having much intercourse with each other! Paul Voet remarks that under the Roman Empire this right of having a criminal remitted for trial to the proper forum criminis was unquestionable. It resulted from the very nature of the universal dominion of the Roman laws. ‘Jure tamen civili notandum, remissionibus locum fuisse de necessitate, ut reus ad locum, ubi deliquit, sic petente judice, fuerit mittendus, quod omnes judices uni subessent imperatori. Et omnes provincia Romane unit essent accessorie, non princi- paliter.’? But he remarks that, according to the customs of al- most all Christendom, except Saxony, the remitter of criminals, except in cases of humanity, is not admitted; and, when done, it is to be upon letters rogatory, so that there may be no preju- dice to the local jurisdiction. ‘ Moribus nihilominus (non tamen Saxonicis) totius fere Christianismi, nisi ex humanitate, non sunt admisse remissiones. Quo casu, remittenti magistratui cavendum per litteras revergoriales, ne actus jurisdictioni remittentis ullum pariat prejudicium. Id quod etiam in nostris Provinciis Unitis est receptum.’® And he adds, ‘neque enim Provincie Faederate uni supremo parent ;’* a remark strictly applicable to the Ameri- 1 See Vattel, b. 2, c. 6, 8. 76. 2 P. Voet, de Stat. s. 11, ¢. 1, n. 6, p. 297, ed. 1715; Id. p. 858, ed. 1661. 8 Thid. 4 Ibid. See also Matthzi Com. de Criminibus, Dig. 48, 14, 1, s. 3. 2 P. C. 198, where it was held that liability imposed by foreign law upon the owners of a vessel for misconduct of a pilot they were compelled to em- ploy would not be enforced in England. ‘The English court,’ said Selwyn, L.J., in this case, ‘admits the proof of the foreign law as part of the cir- cumstances attending the execution of the contract, or as one of the facts upon which the existence of the tort or the right to damages may depend, and it then applies and enforces its own law so far as it is applicable to the case thus established.’ But an English court will not give a remedy in da- mages ‘in respect of an act which according to its own principles im- poses no liability on the person from whom the damages are claimed.’ See Phillips v. Eyre, L. R. 6 Q. B. 1, 28, 29 On the other hand, it has been in- timated that if an action would lie by the English law for a particular wrong, the English courts will give redress for it, though it was commit- ted in a country by the laws of which no redress would be granted, suppos- ing the parties were both British sub- CHAP. XVI] PENAL LAWS AND OFFENCES. 847 can states. It is manifest that he treats it purely as a matter of comity, and not of national duty. 627. It has however been treated by other distinguished jurists asa strict right, and as constituting a part of the law and usage of nations, that offenders charged with a high crime, who have fled from the country in which the crime has been committed, should be delivered up and sent back for trial by the sovereign of the country where they.are found, Vattel manifestly contemplates the subject in this latter view, contending that it is the duty of the government where the criminal is, to deliver him up, or to punish him ; and if it refuses so to do, then it becomes responsi- ble as in some measure an accomplice in the crime.! This opinion is also maintained with great vigor by Grotius, by Heineccius, by Burlemaqui, and by Rutherforth.2~ There is no inconsiderable weight of common-law authority on the same side; and Mr. Chancellor Kent has adopted the doctrine in a case which called directly for its decision.® 628. On the other hand, Puffendorf explicitly denies it as a matter of right. Martens is manifestly of the same opinion, con- ‘tending that, with respect to crimes committed out of his territo- 1 Vatitel, b. 2, c. 6, s. 76. 2 Grotius de Jure Belli et Pacis, c. 21, s. 2-5; Heineccii Preelect. in Grot. h. t.; Burlemaqui, pt. 4, c. 3, s. 23-29, p. 258, 259, ed. 1763; Rutherf. Inst. b. 2, ¢. 9, s. 12. 8 In re Washburn, 4 Johns. Ch. (N. Y.) 106; 1 Kent, Com. 36; Rex v. Hutchinson, 3 Keble, 785; Rex v. Kimberley, 2 Str. 848; East India Co. v. Campbell, 1 Ves. sen..246; Mure v. Kaye, 4 Taunt. 84, per Heath, J.; Wynne’s Eunomus, dialog. 8, 67; Lundy’s Case, 2 Vent. 314; Rex v. Ball, 1 Amer. Jurist, 287. 4 For this reference to Puffendorf’s opinion, I must rely on Burlemaqui (pt. 4, ¢. 8, s, 28, 24), not having been able to find it in his treatise on the Law of Nations. The only reference to the point which I have met with in that work is in b. 8, c. 3, 8. 23, 24. jects. Scott v. Seymour, 1 Hurl. & C. 219, Wightman, J. speaking for him- self only. See Phillips v. Eyre, L. R. 4Q. B. 225, 240; L.R. 6 Q. B. 1, 28, 29. It may be added that if the statutes of one state create, contrary to the common law, a personal liability on the part of a stockholder in a corpora- tion for the debts of the company, and prescribe a remedy, as by bill in equity, the courts of another state will not give a different. remedy, even if the very remedy itself could be enforced beyond the state which created it. Erickson v. Nesmith, 15 Gray (Mass.) 221; s. c. 4 Allen (Mass.) 233; 46 N. H. 871. A provision of this sort may or may not be penal; if it is to be deemed penal, then it will not be enforced in other states. First National Bank v. [s. 628. 848 CONFLICT OF LAWS. ries, no sovereign is obliged to punish the criminal who seeks shelter in his dominions, or to execute a sentence pronounced against his person or his property! Lord Coke expressly main- tains that the sovereign is not bound to surrender up fugitive criminals from other countries who have sought a shelter in his dominions. Mr. Chief Justice Tilghman has adhered to the same doctrine in a very elaborate judgment. The reasoning of Mr. Chief Justice Parker, in a leading case,‘ leads to a similar con- clusion ; and it stands indirectly confirmed by the opinion of a majority of the judges of the Supreme Court of the United States in a very recent case of the deepest interest.® (a) 1’ Martens, Law of Nations, b. 3, ¢. 3, s. 23. 2 3 Co. Inst. 180. ® Commonwealth v. Deacon, 10 Serg. & R. (Pa.) 125; 3 Story, Const. s. 1802. See also Merlin, Répertoire, Souveraineté, s. 5, n. 5, 6, p. 379-382. 4 Commonwealth v. Green, 17 Mass. 515, 540, 541, 546-548. 5 Holmes v. Jennison, 14 Pet. 540. Mr. Justice Barbour maintained the same opinion in the case of Jose Ferreira dos Santos, 2 Brock. C. C. 493. Most of the reasoning on each side will be found very fully collected in the case of In re Washburn, 4 Johns. Ch. (N. Y.) 106; that of Commonwealth v. Deacon, 10 Serg. & R. (Pa.) 125; Holmes v. Jennison, 14 Pet. 540-598; and that of Rex v. Ball, 1 Amer. Jurist, 297. The latter case is the decision of Mr. Chief Justice Reid of Canada. See also 1 Amer. State Papers, 175; Commonwealth v. De Longchamps, 1 Dall. 111, 115; United States v. Davis, 2 Sumner, 482, 486. The subject respecting the restitution by our government or extradition of fugitives from justice from a foreign country has been brought at various times before our government. The various cases, and the opinions of the law officers, will be found collected in the executive documents, House of Rep. No. 199, 26th Congress, 1st Session, 1840; Report of Secretary of State, of May, 1840. Mr. Wirt, in his able opinions as Attorney-General, denies the right and duty. Price, 33 Md. 487. The great difficulty cretion between the executives of the is in determining whether the statute isof a penal nature. See the case just cited, which contains a review of the authorities. (4) The question of surrendering fugitives from justice from the pro- vinces bordering upon the different American states is one that for many years, while no treaty powers existed upon the subject, became of the greatest importance. It was at first attempted to induce the national go- vernment to act in the matter. But this it uniformly declined to do. It therefore became matter of mere dis- conterminous states, to be settled in each particular instance according to circumstances. It was never supposed, until the decision in the case of Holmes, that the general government, while declining to act of itself, and while no legislative provisions upon the subject existed whereby it was required to act, or could afford any adequate redress, would presume to interpose any obsta- cle in the way of the states disposing of such escaped offenders in any way they might deem proper. But while all this was conceded by the Supreme Court at Washington, and while it was CHAP. XVL] conceded that it was entirely compe- tent for the states, under their general powers, to regulate their own police, to ‘remove from their territory every description of offenders who in the judgment of the legislature are dan- gerous to the peace of the state,’ — it seemed to the government that the fact of expelling a murderer or robber, in such a direction and in such a man- ner as to secure his apprehension and ‘punishment in the province from which he escaped, and where he had been guilty of the offence, amounted to ‘ en- tering into an agreement or compact 64 PENAL LAWS AND OFFENCES. 849 with a foreign power.’ It is certain that this practice, which existed for many years by a kind of courtesy be- tween the governors of the contermi- nous provinces and states, was never supposed to infringe upon this or any other provision of the United States constitution, or to interfere in any de- gree with the international relations of the two countries, until after the de- cisions in the case of Holmes. Since that the question has been regarded as one exclusively under the control of the national sovereignty. 850 CONFLICT OF LAWS. [s. 629-630 8, CHAPTER XVII. EVIDENCE AND PROOFS. 629. Competency of Witnesses. — Proof of Writings. — We come, in the last place, to the consideration of the operation of foreign laws in relation to evidence and proofs, -And here, indepen- dently of other more complicated questions, two of a very general nature may arise. In the first place, what rule is to prevail as to the competency or incompetency of witnesses? Is the rule of the law of the country where the transaction, to which the suit relates, had its origin, to govern, or the law of the country where the suit is brought? In the next place, what is the rule which is to prevail in the proof of written instruments? In other words, in what manner are contracts, instruments, or other acts made or done in other countries to be proved? Is it sufficient to prove them in the manner and by the solemnities and proofs which are deemed sufficient by the law of the place where the contracts, in- struments, or other acts were executed? Or it is necessary to prove them in the manner and according to the law of the place where the action or other judicial proceeding is instituted ? 630. Instances. — Various cases may be put to illustrate these questions. A contract or other instrument is executed and re- corded before a notary public in a foreign country, in which by law a copy of the contract or other instrument certified by him is sufficient to establish its existence and genuineness; would that certificate be admissible in the courts of common law of England or America to establish the same facts?! Again, per- sons who are interested, and even parties in the very suit, are in some foreign countries admissible witnesses to prove contracts, instruments, and other acts, material to the merits of the suit; would they be admissible as witnesses in suits brought in the i See Mascardus, de Probat. vol. 2, conclus, 927, n. 4-8, p. 336 (455, ed. 1). CHAP, XVII] EVIDENCE AND PROOFS. 851 courts of common law in England and America to prove the like facts in relation to contracts, instruments, or other acts, made or done in such foreign countries, material to the suit? These are questions more easily put than satisfactorily answered upon prin- ciples of international jurisprudence. 630 a. Presumptions. — Similar considerations may arise in re- spect to the rules as to presumptions de facto and de jure, which may be different in different countries. Thus for example the title to movable property may depend upon the question of sur- vivorship of one of two persons, who both died under the like circumstances ; as for example on board a ship which foundered at sea, or was totally lost with all her crew by shipwreck. Now different countries may, and probably do, adopt different pre- sumptions as to the survivorship in such calamitous circumstances, founded upon considerations of the age, or sex, or other natural or even artificial grounds of bélief or presumption! What rule, then, is to be adopted ? The law of the place of domicil of the parties, or the law of the forum where the suit is instituted? On one occasion, when a question of this very nature was before him, a late learned judge, Sir William Grant, said: ‘ There are many instances in which principles of law have been adopted from the civilians by our English courts of justice ; but none, that I know of, in which they have adopted presumptions of fact from the rules of the civil law.’ 2 630 6. Immovables. — Testaments of Movables, — There are cer- tain rules of evidence which may be affirmed to be generally, if not universally, recognized. Thus in relation to immovable property, inasmuch as the rights and titles thereto are generally admitted to be governed by the law of the situs, and as suits and controversies touching the same ex directo properly belong to the forum of the situs, and not elsewhere, it would seem a just and natural, if not an irresistible, conclusion, that the law of evi- dence of the situs touching such rights, titles, suits, and contro- versies must and ought exclusively to govern in all such cases.? So in cases relating to the due execution of wills and testaments 1 See Fearne’s Posthum. Works, 38; The Case of Gen. Stanwix and Daughter; Code Civil of France, art. 720-722; 4 Burge, Col. & For. Law, pt. 1, ¢. 8, 8. 5, p. 152, 158. 2 Mason v. Mason, 1 Meriv. 308, 312. 8 See Tulloch v. Hartley, 1 Y. & C. Ch. 114, 115. 852 CONFLICT OF LAWS. [s. 630 6-632 a, of immovables, the proofs must and ought to be according to the law of the situs. So in respect to the due execution of wills and testaments of movables, as they are governed by the law of the domicil of the testator, the proofs must and ought to be according to the law of his domicil. By the present law of England, a will or testament of movable property, in order to be valid, must be: executed in the presence of two witnesses. If, then, an English- man, domiciled in England, should make his will in England, in the presence of one witness only, that will could not be admitted to proof in Scotland to govern movable property situate there. The like rule would apply to a case where the will was executed in the presence of two witnesses, both or either of whom were in- competent by the law of England, although competent by the law of Scotland. 631. Essentials of Contracts. — Similar principles may well be applied to many other cases. There are certain formalities of proof which are required by the laws of foreign countries in regard to contracts, instruments, and other acts, which are indispensable to their validity there ; and these are therefore held to be of univer- sal obligation, and must be duly proved in every foreign tribunal in which they are in litigation, before any right can be founded on them.? An illustration of this doctrine may be drawn from the known rule of the common law, that a bill of exchange upon its dishonor must be protested before a notary; and if not proved to be so protested, no remedy can be had against the drawer or indorsers.2 Another illustration may be drawn from the registration of deeds and other instruments which cannot be given in evidence unless proved to be duly registered according to the lex loci rei site. Another illustration may be drawn from cases of contract under the statute of frauds, which must be in writing, and must state a good consideration, in order to be valid in point of legal obligation or evidence. Another illustration may be drawn from the known doctrine as to stamps, by which it is held that no instrument can be given in evidence unless it is properly stamped. In all these cases the proper proofs must 1 Yates v. Thomson, 3 Cl. & F. 544, 576, 577. 2 See Trasher v. Everhart, 3 Gill & J. (Md.) 234, 242; ante, s. 260-263. ® See Bryden v. Taylor, 2 Harr. & J. (Md.) 396; aute, s. 260 a, 360, 361; Wilcox v. Hunt, 18 Pet. 378. 4 Ante, s. 262, 262 a. 5 Ante, s. 260. CHAP. XVII] EVIDENCE AND PROOFS. 853 doubtless be given in conformity with the local law.! And if the proofs are given in the mode which the local law requires, there is some difficulty in asserting that such proofs ought not to be deemed everywhere a full authentication of the instrument.? 632. Foreign Jurists.— Boullenois divides the formalities of acts into several classes: those which are required before the act (que requiruntur ante factum); those which are required at the time of the act (que requiruntur in facto) ; and those which are required afterwards (que requiruntur ex post facto).2 But a more important distinction in his distribution is of the formali- ties at the time of the act, which he denominates the formalities of proof (formalités probantes), and those which are substantial and intrinsic formalities. Among the former he includes those which respect the number of witnesses who are to witness the execution of the act, their age and quality and residence, and the date and place of the act. And here he holds that, as to the formalities of proof, the maxim applies: ‘ Solemnitates testimoni- ales non sunt in potestate contrahentium, sed in potestate juris.® Solemnitates sumende sunt ex consuetudine loci, in quo res et actus geritur.’ ® 632 a. Mascardus holds a similar opinion; and says that an act executed before a notary in any place, if duly executed ac- cording to the law of that place, and valid as a notarial act, ought to be held of the same obligation and validity in every other place. ‘Unde jus probationis, ortum a principio, non tolli- tur mutatione loci.’? Paul Voet appears to entertain a different opinion; and he puts the case, whether, if an instrument were executed in one place before a notary, who by the lex lociis com- petent for that purpose, the validity or force of that instrument would extend to another place where the notary would be deemed incompetent, so that he could not there give public authenticity to the instrument. ‘Quid si tamen in uno loco factum sit instru- mentum coram notario, qui ibidem est habilis, an extendetur vis illius instrumenti ad alium locum, ubi censetur inhabilis, sic ut 1 Ante, s. 260, 260 a, 360, 361, 363-373. : 2 See Ersk. Inst. b. 8, tit. 2, s. 39, 40. 8 1 Boullenois, obs. 23, p. 491. 4 Id. p. 492, 498, 506, &c. 5 Id. p. 492, 493; ante, s. 260. 6 Ibid. » 7 Mascard. de Probat. Conclus. 927, tom. 2, p. 386, 337 (454, 455, ed. 1781), n. 4-14; ante, s. 2604. 854 CONFLICT OF LAWS. [s. 632a-634 a, publicum ibidem nequeat facere instrumentum.’! After giving the opinions of several jurists in the affirmative, he proceeds to give his own to this effect; that it is not so much a question of solemnities as of the efficacy of proof, which, although it may be sufficient in one place, may not be so everywhere; and that the tribunal of one country cannot give such validity and force to any instrument as that it shall have operation elsewhere.” 633. Paul Voet also in another place, speaking upon the sub- ject of the operation of the lex fori, as to the modes of proceed- ing in suits, uses the following language. ‘Side probationibus, et quidem testibus; sic eas adhibebit, sic examinabit hosce, prout exigit forum judicis, ubi producuntur. Si de instrumentis; sic exhibenda, sic edenda, ut fert loci statutum, ubi exhibentur, vel eduntur.’ The generality of these expressions must lead us to the conclusion that he was of opinion that the modes of proof and the law of evidence of the lex fori ought to regu- late the proceedings in all suits, whether these suits arose from foreign contracts, or instruments, or other acts, or not. But per- haps he may have intended to give them a more limited applica- tion.* 1 P. Voet, de Stat. s. 10, ¢. 1, n. 11, p. 287, 288, ed. 1715; Id. p. 347, ed. 1661. 2 Tbid. His language is: Quid si tamen in uno loco factum sit instrumen- tum coram notario, qui ibidem est habilis, an extendetur vis illius instrumenti, ad alium locum, ubi censetur inhabilis, sic ut publicum ibidem nequeat facere instrumentum? Sunt qui id adfirmant. Quasi loci consuetudo, dans robur scripture, etiam obtineat extra territorium. Sunt qui id ideo adfirmant, quod non tam de habilitate et inhabilitate notarii laboremus, quam de solemnibus. Quod si verum foret, res extra dubitationis aleam esset collocata. Verum, ut quod res est dicam existumem hic agi, non tam de solemnibus, quam probandi efficacia ; que licet in uno loco sufficiens, non tamen ubique locorum; quod judex unius territorii nequeat vires tribuere instrumento, ut alibi quid opere- tur. Hinc etiam mandatum ad lites, coram notario et testibus hic sufficieuter factum, non tamen erit validum in Geldrie partibus, ubi notarii non admittun- tur, ut coram lege loci, hic confectum esse oporteat, quo in Geldria sortiatur effectum. Quemadmodum enim personam non subditam, non potest quis alibi inhabilitare; ita nec personam subditam potest alibi facere habilem. 3 P. Voet, de Stat. s. 10, c. 1, n. 9,10, p. 287, ed. 1715; Id. p. 347, ed. 1661. 4 Erskine, in his Institutes, says that in suits in Scotland with foreigners upon obligations made in a foreign country, they may prove payment or ex- tinguishment lege loci. If for instance the law of the foreign country allows the payment of a debt constituted by writing to be proved by witnesses, that manner of proof will also be allowed by the Scottish courts as sufficient for extinguishing such debt, although by the Scottish law obligations formed by writing are not extinguishable by parol evidence. Ersk. Inst. c. 8, tit. 5, EVIDENCE AND PROOFS. CHAP. XVII] 855 634. Bouhier states a case where a suit was brought in France by an Englishman against another person for money supposed to be lent by him to the latter; and he offered proof thereof by wit- nesses. It was objected that, by the Ordinance of Moulins (art. 54), such parol proof was inadmissible. But the court admitted it upon the ground that the law of England, where the contract was made, admitted such parol proof, and therefore it was admis- sible in a controversy on the contract in France. Bouhier holds the decision to be correct, if the contract was made, as he sup- poses it to have been, in England! 634 a. General Principles. — Upon this subject it is not per- haps possible to lay down any rules which ought to be, or even which can be, applied to all cases of evidence. Generally speak- ing, it seems true that neither the lex loci contractus nor the lex loci domicilii is applicable to the course of procedure; but the course of procedure ought to be according to the law of the forum where the suit is instituted.2?(@) And perhaps it may s.7. This seems a mixed case of the law of the place governing as to the discharge of contracts, and also of the mode of proof of the discharge. 11 Bouhier, Cout. de Bourg. c. 21, s. 205, p. 415. See also Strykius, tom. 2, diss. 1, c. 3, s. 18-25, p. 21, 27. 2 See Yates v. Thomson, 3 Cl. & F. 577, 580; Don v. Lippmann, 5 Cl. & F. _ 114-16. (a) See Bain v. Whitehaven R. Gott v. Dinsmore, be bound by it. Co., 8 H. L. C. 1, 19; Downer v. Chesebrough, 36 Conn. 39; Fant v. Miller, 17 Gratt. (Va.) 47; Bristow v. Sequeville, 5 Ex. 275. The courts of one country are not bound to pur- sue the laws of another country hay- ing sole reference to the mode of giving a remedy in a particular case. Gott v. Dinsmore, 111 Mass. 45. Thus a foreign statute authorized the forma- tion of joint-stock companies without conferring the immunities of corpora- tions upon them, and provided that suits against them should be prosecuted in the first instance against the com- pany, and that only after judgment and return of execution unsatisfied against the same should suits be brought against the members. But this was treated as a matter of local law only; and the court refused to supra. The important distinction between facts and the evidence by which facts are proved is enforced in a recent Eng- lish case. The Gaetano, 7 P. D. 137. This was an action on a bottomry bond, in which the question arose whether the master of an Italian ship, who had borrowed money in Fayal on the credit of the ship and cargo to make repairs, ought first to have com- municated with the English owners of the cargo. Brett, L.J., said: ‘Now it is alleged that this rule [the English rule exempting the owners from liabi- lity because of the master’s failure to communicate with them] must bind the plaintiffs, although the ship is an Italian ship, because it was said that the matter to be proved was whether there was a necessity which gave the 856 CONFLICT OF LAWS. [s. 634 a, be stated, as a general truth, that the admission of evidence and the rules of evidence are rather matters of procedure than - matters attaching to the rights and titles of parties under con- tracts, deeds, and other instruments; and therefore they are to be governed by the law of the country where the court sits. But, then (as has been well observed by an eminent judge), in all questions of international jurisprudence it is easy to say how things are here and there, when there is very great difference be- captain a right to hypothecate the cargo in this way, and that, inasmuch as that is a matter of procedure, it is to be governed according to the law of the forum. That raises the question whether this is a matter of procedure. It is said it is, because it is a matter of evidence. Now the manner of prov- ing the facts is matter of evidence, and, to my mind, is matter of pro- cedure; but facts to be proved are not matters of procedure; they are the mat- ter with which procedure has to deal.’ An illustration may be seen in the case of Hoadley v. Northern Transp. Co., 115 Mass. 804. A contract for the shipment of goods had been made in Illinois with the defendants as com- mon carriers, who gave the plaintiff shipper a bill of lading containing an exemption clause, within which the loss occurred. By the law of Illinois the clause referred to was without force unless there was express evidence of the shipper’s assent to it; but the suit was brought in Massachusetts, where the acceptance of the bill of lading is itself sufficient evidence of assent. The real question was whether the plaintiff had assented; and the mode of proof was of course to be de- termined by the lex fori. The result was to receive the bill of lading, with- out requiring the express evidence pre- scribed by the law of Illinois. On the other hand, an incorrect decision appears to have been made, though the result was not affected, in the similar case of Michigan Cent. R. Co. v. Boyd, 91 Il. 268. In this connection should be no- ticed the language of Lord Brougham, in Bain v. Whitehaven Ry. Co., 3 H. L. C. 1, 19, where he says: ‘ Whether a witness is competent or not, whether a certain matter requires to be proved by writing or not, whether certain evi- dence proves a certain fact or not, that is to be determined by the law of the country where the question arises.’ See also Yates v. Thompson, 8 Cl. & F. 544. Taking this to be correct, the case of Koster v. Merritt, 82 Conn. 246, appears to have been wrongly de- cided. There the law of New York was applied to a sale made in that State, to wit, that retention of possession by the vendor, with certain other facts, was not conclusive of fraud, as it would have been by the lex fori. The case of Dunn v. Welsh, 62 Ga. 241, must also be considered as wrong. In that case parol evidence to explain a blank indorsement was excluded, on the ground that it would not have been admissible where the indorsement was made, though such evidence was ad- missible lege fori. If a foreign document would be void in the country in which it was executed for a want of certain forma- lities, as for the want of a stamp, it will be void everywhere else; but if it be only declared inadmissible in evi- dence, it may still be received in other countries if proper according to the lex fori. Fant v. Miller, 17 Gratt. (Va.) 47; Bristow v. Sequeville, 5 Ex. 275; Alves v. Hodgson, 7 T. R. 241. CHAP. XVIL] EVIDENCE AND PROOFS. 857 tween the points ; but when we come to the confines, and when one province runs into the other, then arises the difficulty, and then we get inter apices juris! There may be cases which at 1 Lord Brougham, in Yates v. Thomson, 3 Cl. & F. 577, 580. Lord ‘Brougham on this occasion said (it being a case where a question arose in Scotland upon the interpretation of a will made in England): ‘It is on all hands admitted that the whole distribution of Mr. Yates’s personal estate must be governed by the law of England, where he had his domicil through life, and at the time of his decease, and at the dates of all the instruments exe- cuted by him. Had he died intestate, the English statute of distributions, and not the Scotch law of succession in movables, would have regulated the whole course of the administration. His written declarations must therefore be taken with respect to the English law. I think it follows from hence, that those declarations of intention touching that property must be construed as we should construe them here by our principles of legal interpretation. Great embarrassment may no doubt arise from calling upon a Scotch court to apply the principles of English law to such questions, many of those principles being among the most nice and difficult known in our jurisprudence. The Court of Ses- sion may for example be required to decide whether an executory devise is void as being too remote, and to apply, for the purpose of ascertaining that question, the criterion of the gift passing or not passing what would be an estate in the realty, although in the language of Scotch law there is no such expression as executory devise, and within the knowledge of Scotch lawyers no such thing as an executory estate tail. Nevertheless this is a difficulty which must of necessity be grappled with, because in no other way can the English law be applied to personal property situated locally within the jurisdiction of the Scottish forum; and the rule which requires the law of the domicil to govern succession to such property could in no other way be applied and followed out. Nor am I aware that any distinction in this respect has ever been taken be- tween testamentary succession and succession ab intestato, or that it has been held, either here or in Scotland, that the court’s right to regard the foreign law was excluded, wherever a foreign instrument had been executed. It is therefore my opinion that in this, as in other cases of the like description, the Scotch court must inquire of the foreign law as a matter of fact, and examine such evidence as will show how in England such instruments would be dealt with as to construction. I give this as my opinion upon principle, for I am not aware of the question ever having received judicial determination in either country. But here I think the importing of the foreign code (sometimes incorrectly called the comitas) must stop. What evidence the courts of another country would receive, and what reject, is a question into which I cannot at all see the necessity of the courts of any one country entering. Those principles which regulate the admission of evidence are the rules by which the courts of every country guide themselves in all their inquiries. The truth with respect to men’s actions, which form the subject-matter of their inquiry, is to be ascertained according to a certain definite course of proceeding, and certain rules have established that in pursuing this investi- gation some things shall be heard from witnesses, others not listened to; some instruments shall be inspected by the judge, others kept from his eye. This must evidently be the same course, and governed by the same rules, whatever be the subject-matter of investigation. Nor can it make any difference 858 CONFLICT OF LAWS. [s. 634 a—635. once partake of the nature of the law of evidence and also of the substance of the weightier matters of international jurispru- dence.! (a) whether the facts concerning which the discussion arises happened at home or abroad; whether they related to a foreigner domiciled abroad, or a native living and dying at home. As well might it be contended that another mode of trial should be adopted, as that another law of evidence should be admitted in such cases. Who would argue that in a question like the present the Court of Session should try.the point of fact by a jury according to the Eng- lish procedure, or should follow the course of our depositions or interrogatories + in courts of equity, because the testator was a domiciled Englishman, and because those methods of trial would be applied to his case were the question raised here? The answer is, that the question arises in the Court of Session, and must be dealt with by the rules which regulate inquiry there. Now the law of evidence is among the chief’ of these rules; nor let it be said that there is any inconsistency in applying the English rules of construction: and the Scotch ones of evidence to the same matter, in investigating facts by one law and intention by another. The difference is manifest between the two inquiries; for a person’s meaning can only be gathered from assuming that he intended to use words in the sense affixed to them by the law of the country he belonged to at the time of framing his instrument. Accordingly, where the question is, what a person intended by an instrument relating to the conveyance of real estate situated in a foreign country, and where the lex loci rei sit must govern, we decide upon his meaning by that law, and not by the law of the country where the deed was executed, because we consider him to have had that foreign law in his contemplation. The will of April, 1828, has not been admitted to probate here; it has not even been offered for proof, so that there isno sentence of any court of competent jurisdiction upon it either way. But in England it would never be received in evidence nor seen by any court; neither would it have been seen if it had been proved ever so formally. Our law holds the probate as the only evidence of a will of personalty, or of the appointment of executors, in short, of any disposition which a testator may make, unless it regards his real estate. Can it be said that the Scotch court is bound by this rule of evidence, which though founded upon views of conve- nience, and, for anything I know, well devised, is yet one which must be allowed to be exceedingly technical, and which would exclude from the view of the court a subsequent will clearly revoking the one admitted to probate? The English courts would never look at this will, although proof might be ten- dered that it had come to the knowledge of the party on the eve of the trial. A delay might be granted to enable him to obtain arevocation of the probate of the former will. It is absurd to contend that the Court of Session shall admit all this technicality of procedure into its course of judicature as often as a question arises upon the succession of a person domiciled in England. Again, there are certain rules just as strict, and many of them not less technical, go- verning the admission of parol evidence with us. Can it be contended that, as often as an English succession comes in question before the Scotch court, witnesses are to be admitted or rejected upon the practice of the English 1 Yates v. Thomson, 8 Cl. & F. 577, 580. (a) And see Pickering v. Fisk, 6 Vt. 108, Phelps, J. CHAP. XVII.] EVIDENCE AND PROOFS. 859 635. Competency of Witnesses.— There are very few traces to be found in the reports of the common law, of any established doctrines on this subject. We have already seen, in regard to witnesses generally, that their competency is governed in com- mon cases by the lex fori. But suppose the only witness to a contract, written or verbal, was incompetent on account of inte- courts; nay, that examination and cross-examination are to proceed upon those rules of our practice, supposing them to be (as they may possibly be) quite different from the Scotch rules? This would be manifestly a source of such inconvenience as no court ever could get over. Among other embarrassments equally inextricable there would be this, that a host of English lawyers must always be in attendance on the Scotch courts, ready to give evidence, at a moment’s notice, of what the English rules of practice are touching the re- ception or refusal of testimony, and the manner of obtaining it; for those questions which, by the supposition, are questions of mere fact in the Scotch courts, must arise unexpectedly during each trial, and must be disposed of on the spot in order that the trial may proceed. The case which I should however put as quite decisive of this matter comes nearer than any other to the one at bar, and it may with equal advantage to the elucidation of the argument be put as arising both in an English and in a Scotch court. By our English rules of evidence no instrument proves itself unless it be thirty years old or is an office copy, authorized by law to be given by the proper officer, or is the London Gazette, or is by some special act made evidence, or is an original record of a court under its seal, or an exemplification under seal, which is quasi a record. By the Scotch law all instruments prepared and witnessed according to the provisions of the act of 1681 are probative writs, and may be given in evidence without any proof. Now suppose a will of personalty, or any other instrument relating to personal property, attested by two witnesses and executed in England according to the provisions of the Scotch act, as ten- dered in evidence before the Court of Session; it surely never will be con- tended that the learned judges, on being satisfied that the question relates to English personal succession, ought straightway to examine what is the Eng- lish law of evidence, and to require the attendance of one or other of the sub- scribing witnesses where the instrument is admissible by the Scotch law as’ probative. Of this I can have no doubt. But suppose the question to arise in England, and that a deed is executed in Scotland according to the act of 1681 by one domiciled here, would any court here receive it as proving itself, being only a year old, without calling the attesting witnesses; it would have a strange effect to hear the circumstance of there being two subscribing witnesses to the instrument, which makes it prove itself in the Parliament House of Edin- burgh, urged in Westminster Hall as the ground of its admission without any parol testimony. The court would inevitably answer, ‘‘ two witnesses, — then because there are witnesses it cannot be admitted, but they must one or other of them be called to prove it.’? ‘The very thing that makes the instrument prove itself in Scotland, makes it in England necessary to be proved by wit- nesses. Ihave therefore no doubt whatever that the rules of evidence form no part of the foreign law, according to which you are to proceed in disposing of English questions arising in Scotch courts.’ 1 Ante, s. 621-623. 860 CONFLICT OF LAWS. [s. 635-635 «, rest by the common law, but competent by the law of the place of the contract; in a suit in a tribunal of the common Jaw on the contract, ought his testimony to be rejected? Again, suppose that the books of account of merchants, which (as is well know)? are by the laws of some states admissible, and by those of other states inadmissible, as evidence, are offered in the forum of the latter to establish debts contracted in the former; ought they to be rejected ? 2 635 a. Cases, vice versa, may easily be put which will present questions quite as embarrassing. Thus for example let us suppose the case of a crime committed on board an American ship on the high seas by a white man, or upon a white man, and the principal witnesses of the offence are black men, either free or slaves; and suppose (as is or may be the fact) that in the slaveholding states black men are competent witnesses only in cases in which black men are parties, and not in cases where white men are parties; and that in the non-slaveholding states black men are in all cases competent witnesses. If the offender is apprehended and tried for that offence before a court of the United States in a slave- holding state, would the black men be witnesses or.not? If not there, would they be witnesses in the case if the trial were ina non-slaveholding state? In other words, will the rules of evidence in such a case, in the courts of the United States, depend upon the rules of evidence in the state where the trial is had? If not, then what rules of evidence are to prevail? The answer in the present state of our law cannot be given with entire confidence as to its accuracy and universality of adoption. 685 6. Remarks of Lord Brougham. — Lord Brougham, in are- cent case where the question was much considered, both as to the law of procedure and the rules of evidence on foreign contracts, sued in another country, used the following language: ‘ No one will contend, in terms, that the foreign rules of evidence should 1 See Pothier on Oblig. pt. 4, c. 1, art, 2,8. 4, n. 719; Cogswell v. Dolli- ver, 2 Mass. 217; 1 Stark. Ev. pt. 2, s. 180, 181; Strykius, tom. 7, diss. 1, c. 4, 8. 5. 2 Upon this very point foreign jurists have delivered opposite opinions as appears from Hertius, who however abstains from giving any opinion on the subject. 1 Hertii Opera, de Collis. Leg. s. 4, n. 68, p. 152, ed. 1787; Id. p. 214, ed. 1716; 4 Burge, Col. & For. Law, pt. 2, c. 8, s. 5, p. 153. Paul Voet thinks they are to be deemed prima facie evidence, but not conclusive. P. Voet, de Stat. s. 5, c. 2, n. 9, p 160, ed. 1715; Id. p. 188, ed. 1661. CHAP. XVII] EVIDENCE AND PROOFS. 861 guide us in such cases ; and yet it is not so easy to avoid that prin- ciple in practice, if you once admit that, though the remedy is to be enforced in one country, it is to be enforced according to the laws which govern another country. Look to the rules of evidence, for example. In Scotland some instruments are probative ; in England, until after the lapse of thirty years, they do not prove themselves. In some countries forty years are required for such a purpose ; in others thirty are sufficient. How, then, is the law to be ascertained which is to govern the particular case? In one court there must be a previous issue of fact ; in another there need be no such issue. In the latter, then, the case must be given up as a question of evidence. Then come to the law. The question whether a parol agreement is to be given up, or can be enforced, must be tried by the law of the country in which the law is set in motion to enforce the agreement. Again, whether payment is to be presumed or not must depend on the law of that country, and so must all questions of the admissibility of evidence, and that clearly brings us home to the question on the statute of limi- tations. Until the act of Lord Tenterden, a parol agreement or promise was sufficient to take the case out of the statute of limi- ‘tations ; but that has never been the case in Scotland. It is not contended here that the practice of England is applicable to Scot- land, but these are illustrations of the inconvenience of applying one set of rules of law to an instrument which is to be enforced by a law of a different kind.’ ? 635 ¢. Notarial Instruments. —In many foreign countries origi- nal contracts, deeds, conveyances, and other solemn instruments are often written in the public books of notaries public, and exe- cuted and registered and kept there, and are not allowed to be given out to the parties; but certified copies only thereof are de- livered to the parties, and these copies are deemed in such coun- tries admissible evidence in all suits to establish and prove such original papers and documents. The question has arisen in Eng- land whether such copies, so certified, are admissible, either as original or as secondary evidence in suits pending in the English courts. It has been held that they are not, at least not without proof that they were made at the time of entering and registering the original paper, and in the presence of the parties, although 1 Don v. Lippmann, 5 Cl. & F. 15, 17. 862 CONFLICT OF LAWS. [s. 635 c-637, they were admissible in the country where the originals were exe- cuted. The ground of this decision seems to have been, that the rules of evidence of the foreign country were not to be followed, but the rules of evidence of England; and by the law of England copies of original documents were not admissible under such cir- cumstances, unless proved by some witness who had compared them with the original as in common cases.1_ So upon the like ground it has been held that copies of a judgment of the Supreme Court of Jamaica, signed by the clerk thereof, are not admissible evidence in a suit in England, although such copies would be admissible in Jamaica.” 635 d. Case in Louisiana.— By the old law of Louisiana, in case the party formally disavowed his signature to an instrument, proof thereof was required to be made by experts.2 In a case where a written paper or receipt was executed in the state of Mississippi, and a suit brought thereon in Louisiana, and the sig- nature was disavowed, the question arose whether the proof of the signature in such a case was to be made by experts, or might be made by witnesses, as was the law of Mississippi. The court on that occasion said : ‘In treating of the third and last question,’ that is, the question now under consideration, ‘it is proper to observe that we believe it to be admitted as a principle in all tribunals, that the lex loci, or law of the country where the con- tract is made, ought to govern in suits commenced in any other country on such contracts ; and it does appear by a law of the partidas, that this principle extends even to the proof of the con- tract expressed in general terms, which might perhaps be applied to the mode of proving facts as well as to the amount of evidence necessary to their verification. But it is unnecessary to deter- mine this point absolutely in the present case, because there is sufficient found in the determination of the first and second ques- tions on- which to decide against the opinion of the judge of the 1 Brown v. Thornton, 6 A. & E. 185. 2 Appleton v. Lord Braybrook, 6 M. & 8. 34; Black v. Lord Braybrook, 6 M. & 8. 39. In a recent case Vice-Chancellor Bruce held that a copy of a deed of real estate in Jamaica, taken from the registry in Jamaica, in which it is required to be recorded, was good evidence in chancery in England, in a suit where it was pertinent, although it was a copy of a copy, i.e., of the registered deed, because it would be admissible in evidence in Jamaica. Tulloch v. Hart- ley, 1 Y. & C. Ch. 114, 115. 8 Code of Louisiana, 1809, art. 226. CHAP. XVIL] EVIDENCE AND PROOFS. 863 District Court.’! From this language it would seem to have been the inclination of the court to admit the evidence. 636. Testaments of Movables. —In regard to wills of personal property made in a foreign country, it would seem to be almost a matter of necessity to admit the same evidence to establish their validity and authenticity abroad as would establish them in the domicil of the testator; for otherwise the general rule, that personal property shall pass everywhere by a will made accord- ing to the law of the place of the testator’s domicil, might be sapped to its very foundation if the law of evidence in any coun- try where such property was situate was not precisely the same as in the place of his domicil. And therefore parol evidence has been admitted in courts of common law to prove the manner in which the will is made and proved in the place of the testator’s domicil in order to lay a suitable foundation to establish the will elsewhere.” 637. Foreign Liens. — Passing from this most embarrassing, and as yet in a great measure unsettled class of questions, let us consider in what manner courts of justice arrive at the know- ledge of foreign laws. Are they to be judicially taken notice of? Or are they to be proved as matters of fact? The established doctrine now is, that no court takes judicial notice of the laws of a foreign country, but they must be proved as facts.’ (a) 1 Clark v. Cochran, 3 Mart. (La.) 358, 361, 862. See also Wilcox v. Hunt, 18 Pet. 378. 2 De Sobry v. De Laistre, 2 Harr. & J. (Md.) 191, 195. See Yates v. Thom- son, 3 C]. & F. 544, 574. 8 See Mostyn v. Fabrigas, Cowp. 175; Male v. Roberts, 3 Esp. 163; Dou- glas v. Brown, 2 Dow & C. 171; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193; Trasher v. Everhart, 3 Gill & J. (Md.) 234; Brackett ». Norton, 4 Conn. 517; Talbot v. Seeman, 1 Cranch, 88; Church v. Hubbart, 2 Cranch, 187, 286, 937; Andrews v. Herriott, 4 Cowen (N. Y.) 515, 516, note; Stark. Ev. pt. 2, 8. 88; Id. s. 92; Id. pt. 4, p. 569; Consequa v. Willings, Pet. C. C. 229; Legg v. Legg, 8 Mass. 99; Hosford v. Nichols, 1 Paige (N. Y.) 220. (a) Presumption concerning Foreign Law. — No principle in the law is more frequently affirmed than that stated in the text, that foreign laws are to be proved as facts. Whelan »v. Kinsley, 26 Ohio St. 181; Evans v. Reynolds, 82 Ohio St. 163; Railway Co. »v. Lewis, 33 Ohio St. 196; Niagara Bank v. Baker, 15 Ohio St. 68; Stanglein v. State, 17 Ohio St. 453; Smith v. Bar- tram, 11 Ohio St. 690; Champion »v. Wilson, 64 Ga. 184; Roots v. Merri- wether, 8 Bush (Ky.) 397; Syme v. Stewart, 17 La. An. 73; Pecquet ». Pec- quet, Id. 204; Leake v. Bergen, 27 N.J. Eq. 360; Hull v. Augustine, 23 Wis. 383; Kline v. Baker, 99 Mass. 253; Murphy v. Collins, 121 Mass. 6; Meyer 864 CONFLICT OF LAWS. [s. 638. 638. Funetion of Court and Jury. —But it may be asked. whether they are to be proved as facts to the jury, if the case is v. McCabe, 73 Mo. 236; Charlotte v. Chouteau, 25 Mo. 465; Cubbedge »v. Napier, 62 Ala. 518; Baltimore R. Co. v. Glenn, 28 Md. 287.: The prin- ciple is a thoroughly sound one, and ought to have been applied in many cases where it was disregarded or over- looked. It should not of course be strictly applied in all cases. Presump- tion has a proper place within limits in regard to foreign laws. Thus it could not be necessary to give evidence that in a foreign country breach of contract, battery, conversion, or da- mage caused by fraud or negligence would give a right of action. See for example Whitford v. Panama R. Co., 23 N. Y. 465; Langdon v. Young, 33 Vt. 186; McDonald v. Mallory, 77 N. Y. 546; Leonard v. Columbia Nav. Co., 84 N. ¥. 48; Smith v. Bull, 17 Wend. (N. Y.) 828; Lewis v. Woodfolk, 2 Baxter (Tenn.) 25. It could not be necessary to give evidence to support the right of recovery in England or in any of the states of the Union by the holder of a negotiable promissory note against an indorser who had been no- tified of the dishonor of the paper by the maker at its maturity, or on the other hand that there could be no re- covery against the indorser without notice of such dishonor. So also be- tween immediate parties to a promis- sory note, it may well be presumed that the foreign law would allow the defence of failure of consideration. Roots v. Merriwether, 8 Bush (Ky.) 897. So again it would be a reasonable pre- sumption that protest of a promissory note would be unnecessary. Dunn ». Adams, 1 Ala. 527. The presumption arises on grounds of probability, growing out of the fact that the law is known to be widespread and uniform. Nothing short of this should be sufficient to turn the burden of proof upon him who would deny the existence of such law. There is no ground in principle for raising pre- sumption upon a single fact, declaring for instance that because a law exists in the state of the forum it will be presumed in the absence of proof to exist in another state or country, or (what is the same thing) that if evi- dence of the foreign law is not shown, the domestic law will be applied. And yet language to this effect is constantly used in the books. Monroe v. Douglass, 5 N. Y. 447; Savage v. O’ Neil, 44 N.Y. 298; Chapin v. Dobson, 78 N. Y. 74; Harris v. White, 81 N. Y. 532; Hynes v. McDermott, 82 N. Y. 41; Chase v. Alliance Ins. Co., 9 Allen (Mass.) 311; Ely v. James, 123 Mass. 36; Rauv. Von Zedlitz, 132 Mass. 164, 170; Pauska v. Daus, 31 Tex. 67; Bonds v. Foster, 86 Tex. 68; Johnson v. Johnson, 30 Mo. 72; Desnoyer v. McDonald,4 Minn. 515; Leake v. Bergen, 27 N. J. Eq. 360; Haden v. Ivey, 51 Ala. 381; Ro- binson v. Dauchy, 3 Barb. (N. Y) 20; Syme v. Stewart, 17 La. An. 73; Smoot v. Russell, 1 Mart. N.S. (La.) 5238; Allen v. Watson, 2 Hill (S. Car.) 319; Carpenter v. Grand Trunk Ry. Co., 72 Me. 388; Roots v. Merriwether, 8 Bush, 397; Hickman v. Alpaugh, 21 Cal. 225; Hill v. Grigsby, 32 Cal. 55; Norris v. Harris, 15 Cal. 226, 252; Bemis v. Mc- Kenzie, 13 Fla. 553; Flato v. Mulhall, 72 Mo. 522; Morrissey v. Wiggins Ferry Co., 47 Mo. 521; Lewis v. Wood- folk, 2 Baxter (Tenn.) 25; Shaw ». Wood, 8 Ind. 518; Blystone v. Burgett, 10 Ind. 28. The last two cases are overruled by Smith v. Muncie Bank, 29 Ind. 158. Many of these cases may ‘have been correctly decided (some of them clearly were not), notwithstand- ing the form in which the rule of pre- sumption is stated, for the law in question may have been uniform and general in other states or countries; but the presumption should have been CHAP. XVII] EVIDENCE AND PROOFS. 865 atrial at the common law, or as facts to the court? It would seem as facts to the latter; for all matters of law are properly based on that fact, and not on the fact of its existence in the state of the forum. That alone could create no probability of its existence elsewhere. For a court to say that merely because a law prevails in New York (and not generally) it probably prevails in Eng- land, is to say what is not true; if it be not widespread and uniform, it is quite as probable that it does not prevail there. This criticism will apply to cases (among others) in which it has been held on a question of interest growing out of a foreign contract that, in the absence of agreement or of evidence concerning the rate in the country of the contract, it will be presumed that the rate there is the same as that allowed in the country of the forum; for though allowance of interest is general enough, nothing is less uni- form than rates thereof. The existence of such a presumption as that referred to has however often been declared. Leavenworth v. Brockway, 2 Hill (N. Y.) 201; Forsyth v. Baxter, 2 Scam. (IlL.) 9; Pauska v. Daus, 31 Tex. 67 (statute); Desnoyer v. McDonald, 4 Minn. 515; Cooper v, Reaney, Id. 528; Brown v. Gracey, Dowl. & R. N. P. 41, note. See Hall v. Kimball, 58 Ill. 58. But in none of these cases is there any satisfactory consideration of the sub- ject. Acontrary, and, it is conceived, correct, decision was rendered in Pea- cock v. Banks, Minor (Ala.) 387. Nothing was there said on the subject of pyesumption. The true rule also appears in Smith v, Muncie Bank, 29 Ind. 158; Engler v. Ellis, 16 Ind. 475; Buckinghouse v. Gregg, 19 Ind. 401; Greenwade v. Greenwade, 3 Dana (Ky.) 495. It may have been proper in the nisi prius case of Brown v. Gra- cey, supra, to declare that the law of Scotland as to interest would be treated as the same as that of England in the absence of evidence; that rule may have been in keeping with the prin- ciple of presumption. (See however Male v. Roberts, 3 Esp. 163, where Lord Eldon refused to presume that the law of Scotland was the same as that of England in respect of a defence of infancy to an action for money paid to the defendant’s use to obtain his release from imprisonment for debt.) But it is quite another thing to say that rates of interest in a sister state of the Union will be considered the same as at home unless evidence is adduced to the contrary. The difference be- tween rates of interest in the eastern and the western states, for instance, is well known; dnd the rates in states near each other often vary. It is no justification of presumption in favor of the domestic law in such cases that the domestic law must be applied because the court has no other on which to act, as was said in Allen v. Watson, 2 Hill, 8. Car. 319; and see Harris v. Allnutt, 12 La. 465; Nor- ris v. Harris, 15 Cal. 226; for that as- sumes that the court must act at all events. It is no more required of the court to act upon failure of proof of a fact of that kind than of any other. If the party on whom rests the burden of proof fails to produce satisfactory evidence concerning the rate of inte- rest, he should not be allowed interest. The court cannot know what to award him, and it has no right to act in the dark more than in other cases. It is enough that judgment for the princi- pal sum can be rendered; so far the plaintiff comes within proper pre- sumption. With regard to damages for breach of contract, the same principle should prevail; the plaintiff, in the absence of evidence of any rule of law upon the, subject, may well call upon the jury or judge to give him reasonable damages, 55 866 CONFLICT OF LAWS. [s. 638. referable to the court, and the object of the proof of foreign laws is to enable the court to instruct the jury what, in point of law, not so much because that would be the rule in a case arising in the jurisdic- tion of the forum as because in all probability that would be the rule in the foreign state. Indeed if the fact is not improbable in the particular case, it may safely be presumed that the common law pre- vails in another state, excepting states that were adopted into the Union with another system of law already in ex- istence, as in the case of Florida, Louis- jana, and Texas. Norris v. Harris, 15 Cal. 226, 252; Roethke v. Philip Best Brewing Co., 33 Mich. 340; Web- ber v. Donnelly, Id. 469; Winslow ». Brown, 7 R. I. 95; Stout v. Wood, 1 Blackf. 71; Titus v. Scantling, 4 Blackf. 89; Smith v. Peterson, 63 Ind. 248; Lichtenberger v. Graham, 50 Ind. 288; Trimble v. Trimble, 2 Ind. 76; Smith v. Muncie Bank, 29 Ind. 158; Johnson v. Chambers, 12 Ind. 102; Crake v. Crake, 18 Ind. 156; Southwestern R. Co. v. Webb, 48 Ala. 585; Brown v. Camden R. Co., 88 Penn. St. 316; Klinck v. Price, 4 W. Va. 4; McDougald v. Carey, 38 Ala. 820; Cubbedge v. Napier, 62 Ala. 518; Meyer v. McCabe, 73 Mo. 236; Carpenter v. Grand Trunk Ry. Co., 72 Me. 388. See Du Val v. Marshall, 80 Ark. 230. Thus with regard to defamatory lan- guage it is presumed that the common law prevails in a sister state. Stout v. Ward, supra. So with regard to the validity of submitting differences to arbitration, whether oral or written, sealed or not sealed. Titus v. Scant- ling, supra. So also it is presumed, in absence of evidence, that the succes- sion to a trust estate upon the death of the trustee of an express trust is governed in another state by the com- mon-law rule. McDougald v. Cary, 38 Ala. 320. Also the like presump- tion concerning the liability of a com- mon carrier for failing to deliver goods. Southwestern R. Co. v. Webb, 48 Ala, 585; Brown v. Camden R. Co., 83 Penn. St. 316. So of the effect of part pay- ment by one joint debtor for his per- sonal discharge merely. Winslow », Brown, 7 R. 1.95. So of the right at common law to sell liquor. Roethke v. Philip Best Brewing Co., 83 Mich. 340; Webber v. Donnelly, Id. 469. And the law merchant is presumed to exist in another state. Dunn v. Adams, 1 Ala. 527. And this even in Louisiana, in a suit upon a foreign bill of ex- change with regard to demand and protest. Donegan v. Wood, 49 Ala. 242. The law applied in these cases, it will be observed, is not the lex fori, but the general and uniform rule of the common law or the law merchant, presumably the true law because of probability. But the presumption of the exist- ence of the common law even in states where it has always had an existence should be taken within limits, as has already been intimated. It should be applied only when based on proba- bility; it should never, it is conceived, be applied as it was in Alford v. Baker, 53 Ind. 279, where it was held that it must be presumed that the common law as it existed before the stat. of Anne, rather than the law merchant, prevailed in a sister state in a question of liability on a promissory note. Nor should it be applied where it is proba- ble that it has been abolished, or rather where the presumption of its ae is not strong, as in the case of the common-law rule that a wife’s person- alty vests on marriage iu her husband. Proof of the existence of that rule should clearly be required, though there is authority to the contrary. Smith v. Peterson, 63 Ind. 243; Lich- tenberger v. Graham, 50 Ind. 288; Meyer v. McCabe, 73 Mo. 236. Pre- CHAP. XVII.] EVIDENCE AND PROOFS, 867 is the result of the foreign law to be applied to the matters in controversy before them. The sumption of the existence of the com- _mon law is not, it is conceived, an atbitrary rule of law, but like presump- tion in other cases; it should be raised if the facts make it reasonable, other- wise not. It would seem doubtful also in principle whether a court could act where the common law to be applied was itself unsettled. But courts have in such cases assumed to determine the law to be applied. Crake v. Crake, 18 Ind. 156. And see Chase v. Alli- ance Ins. Co., 9 Allen, 311, where the doctrine of the English courts upon a question of a Scotch contract was re- ‘jected, though there was no clear evi- dence of the Scotch law. See also National Bank v. Green, 33 Iowa, 140. In some cases the courts have gone a great length in refusing to yield to presumption. Thus in Thompson v. Ketcham, 8 Johns. (N .Y.) 189, Kent, C.J., speaking for the court in a suit upon a promissory note governed by the law of Jamaica, refused to presume that infancy would be a good defence to the action by that law; following Male v. Roberts, 3 Esp. 163, already referred to, where Lord Eldon refused to enter- tain a like presumption concerning the law of Scotland. It is not to be sup- posed that these cases would be fol- lowed on a question of the common law of England; though it should not be overlooked that the defence of infancy in some of its particulars is by no means agreed. In Gilbreath v. Bunce, 65 Mo. 349, it may be noticed, the court refused to receive evidence of a foreign law giving majority to one who by the lex fori would be an infant, a doubtful decision. On the other hand presumption has sometimes been raised that statutory law prevails in another state like that of the forum, or (what is much the same thing) that in the absence of court are therefore to decide evidence of the foreign law a domestic statute may be applied to the question in hand. Norris v. Harris, 15 Cal. 226, 252; Hickman v. Alpaugh, 21 Cal. 225; Hill v. Wilker, 41 Ga. 449. And see the doubts in McCulloch v. Norwood, 58 N. Y. 562; Harris »v. White, 81 N. Y. 582; Wilcox Co. v. Green, 72 N. Y.17. This view of presumption has however generally been repudiated. Thus no presump- tion is raised from the lex fori of the existence, in another state, of law au- thorizing actions for damage for the death of near kindred caused by neg- ligence. McDonald v. Mallory, 77 N. Y. 546; Whitford v. Panama R. Co., 23 N. ¥. 465; Leonard v. Colum- bia Nav. Co., 84 N. Y. 48. Nor will any presumption be raised of the ex- istence in another state of usury or penal laws. Cutler v. Wright, 22 N.Y. 472; Leake v. Bergen, 27 N. J. Eq. 860; Campion v. Kille, 15 N. J. Eq. 476; Stark Bank v. Pottery Co., 34 Vt. 144; Flanagan v. Packard, 41 Vt. 561; Hull v. Augustine, 23 Wis. 883. Nor of the existence of statute making wa- gers on horse-racing illegal. Harris v. White, 81 N. Y. 5382. And generally that presumption is not raised concern- ing the existence of statute law abroad, see Doe d. Holman v. Collins, 1 Ind. 24; Johnson v. Chambers, 12 Ind. 102; Ellis v. Maxson, 19 Mich. 186; Great Western Ry. Co. v. Miller, Id. 805; Kling v. Fries, 33 Mich. 275; Flato v. Mulhall, 72 Mo. 522; Mur- phy v. Collins, 121 Mass. 6; Abell v. Douglass, 4 Denio (N. Y.) 305. But it appears to be too sweeping to deny presumption altogether in regard to foreign statutory law. The exist- ence of the Sunday law may well be presumed in the various states. Hill v. Wilker, 41 Ga.449. So it may pro- perly be presumed that registration laws exist in all the states, that con- 868 CONFLICT OF LAWS. [s. 638, 639. what is the proper evidence of the laws of a foreign country ; and, when evidence is given of those laws, the court are to judge of their applicability, when proved, to the case in hand.! (a) 1 De Sobry v. De Laistre, 2 Harr. & J. (Md.) 193, 219. But see Brackett xv. Norton, 4 Conn. 517. In Trasher v. Everhart, 3 Gill & J. (Md.) 234, 242, the court said: ‘ It is in general true that foreign laws are facts which are to be found by the jury. But this general rule is not applicable to a case in which foreign laws are introduced for the purpose of enabling the court to determine whether a written instrument is evidence. veyances of land must be in writing, and that verbal leases of land for a period exceeding three years will not be enforced. And so of such other statutes and parts of statutes as are known to be sufficiently uniform and general; such perhaps as some of the fundamental principles of the statutes making void conveyances in fraud of debtors. See Hickman v. Alpaugh, 21 Cal. 225. An exception in regard to the ne- cessity of proving the foreign law is said to exist where that law was once the law of the forum, as in the case of a question arising in Louisiana of the law of Spain. Pecquet v. Peequet, 17 La. An. 204, 227; Malpica v. McKown, 1 La. 254; Arayo v. Currell, Id. 532. In the two cases from 1 La. ‘ the law of the place of the contract (Mexico), which was the Spanish law, had been the prevailing law of Louisiana, and the court therefore had judicial know- ledge of the law of Spain.’ In Berlu- chaux v. Berluchaux, 7 La. 539, the court say: ‘ Although the Spanish law has no longer any force in the state of Louisiana since the repealing act of 1828, yet having been considered pre- viously the law of this country, so far as it was not abrogated or altered by statutory enactments, we may still, without violation of the rule which re- quires foreign laws to be proved as facts, assume some knowledge of it.’ According to this doctrine it would for example be proper to assume in West Virginia, in the absence of proof, that a statute re-enacted in that state from Virginia still prevailed in Virginia. In such the evidence The same presumption indeed would probably arise with regard to a statute enacted in Michigan from the laws of New York. Perhaps it might also be presumed that a rule of the common law in West Virginia derived from Virginia still prevailed in the latter state. So too it may be presumed that a law of Massachusetts which prevailed before the separation of the state of Maine prevails still in Maine. See Ely v. James, 123 Mass. 36. The objection to presumption arising from the domestic law has of course no application to the question of the construction to be put upon a foreign law actually proved. The best evidence of the meaning of such law is the construction put upon it by the courts of the foreign state. Niagara Bank v. Baker, 15 Ohio St. 68; Leo- nard v. Columbia Nav. Co., 81 N. Y. 48; Jessup v. Carnegie, 80 N. Y. 441; Hunt v. Hunt, 72 N. Y. 218; Grant». Clay Coal Co., 80 Penn. St. 208; Stev- enson v. Payne, 109 Mass. 378; Botan- ico Medical College 7. Atchinson, 41 Miss. 188. See Ames v. McCamber, 124 Mass. 85. But see National Bank v. Green, 33 Iowa, 140. But if no such evidence is at hand, the domestic tri- bunal may well apply to it the con- struction which has already been applied in the state to the same lan- guage, unless indeed there was some- thing special and peculiar in the circumstances of the domestic law. Smith v. Bartram, 11 Ohio St. 690; Niagara Bank v. Baker, supra; Hall v. Pillow, 31 Ark. 32. (a) See Donegan v. Wood, 49 Ala. CHAP. XVII] EVIDENCE AND PROOFS. 869 639. Proof of Foreign Laws. — As to the manner of proof, this must vary according to circumstances. The general princi- always goes in the first instance to the court, which, if the evidence be clear and uncontradicted, may and ought to decide what the foreign law is, and according to its determination on that subject admit or reject the instra- ment of writing as evidence to the jury. It is offered to the court to deter- mine a question of law, —the admissibility or inadmissibility of certain evi- dence to the jury. It is true that if what the foreign law is be a matter of doubt, the court may decline deciding it, and may inform the jury that if they believe the foreign law, attempted to be proved, exists as alleged, then they ougat to receive the instrument in evidence. On the contrary, if they should believe that such is not the foreign law, they should reject the instru- ment as evidence. Is not foreign law offered in all cases to instruct the court in matters of law material to the point in issue? Can the court properly leave it to the jury to find out what the law is, and apply it to the case? Lord Mansfield, in Mostyn v. Fabrigas, Cowp. 174, said: ‘* The way of knowing foreign laws is by admitting them to be proved as facts; and the court must assist the jury in ascertaining what the law is. In the absence of other proof, the court will treat the foreign law as being like our law as to labilities on contracts and interest.’’?’ Leavenworth v. Brockway, 2 Hill (N. ¥.) 201. 242; Cecil Bank v. Barry, 20 Md. 287; Kline v. Baker, 99 Mass. 253; Robinson v. Dauchy, 3 Barb. (N. Y.) 20. But when the evidence‘consists of the parol testimony of experts as to the existence or prevailing construction of a statute, or as to any point of un- written law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony. Kline v. Baker, 99 Mass. 255; Holman »v. King, 7 Met. (Mass.) 384; Dyer v. Smith, 12 Conn. 384; Moore v. Gwynn, 5 Ired. (N. C.) 187; Ingraham v. Hart, 11 Ohio, 255. But the qualification of the experts, and all questions of competency of evidence, must be passed upon by the court; and when the evidence admitted consists entirely of a written document, statute, or judicial opinion, the ques- tion of its construction and effect is for the court alone. Kline v. Baker, 99 Mass. 255; Church v. Hubbart, 2 Cranch, 187; Di Sora v. Phillipps, 10 H. L. C. 624; Bremer v. Freeman, 10 Moore, P. C. 306; People v. Lambert, 5 Mich. 349; State v. Jackson, 2 Dev. (N. C.) 568; Owen v. Boyle, 15 Me. 147. In a late English case (Di Sora v. Phillips 10 H. L. C. 624) before the House of Lords it was held that when a contract is made in a foreign country and in a foreign language, an English court, having to construe it, must first obtain a translation of the instrument; secondly, an explanation of the terms of art, if any, used in it; thirdly, evi- dence of the foreign law applicable to it; and fourthly, evidence of any pecu- liar rules of construction which may exist in that law; and must then itself interpret the instrument on ordinary principles of construction. And the construction must be a matter of judg- ment on the part of the judge; it is not a question of fact to be proved by the mouth of witnesses. United States v. McRae, L. R. 3 Ch. 79, 86. The construction of a contract is noth- ing more than the gathering of the intention of the parties to it from the words used. If the law applicable to the case has ascribed a peculiar mean- ing to particular words, the parties using them must be bound by that [s. 639-641. 870 CONFLICT OF LAWS. ple is, that the best testimony or proof shall be produced which the nature of the thing admits of; or, in other words, that no testimony shall be received which presupposes better testimony behind, and attainable by the party who offers it. This rule applies to the proof of foreign laws, as well as of other facts. But to require proof of such laws by such a.species of testimony as the institutions and usages of the foreign country do not ad- mit of, would be unjust and unreasonable. In this, as in all other cases, no testimony is required, which can be shown to be unattainable. (a) 640. Written Laws. — Generally speaking, authenticated co- pies of the written laws, or of other public instruments of a 1 Church v. Hubbart, 2 Cranch, 237. meaning; butif there is no established sense, the intention must be collected in the ordinary manner from the lan- guage employed; and therefore the meaning of a foreign instrument (cleared of the difficulty of technical terms) cannot be a fact to be proved; it is at the utmost merely a probable opinion of the witnesses as to the con- struction which would be likely to be put upon it by the foreign tribunal. And if a judge is implicitly to receive the opinion of the witnesses, or of the majority of them, they in fact perform his office, and construe the instrument for him. The office of construction of any written instrument, whether fo- reign or domestic, brought into con- troversy before an English tribunal, properly belongs to the judge. In the course of the trial in the Sussex Peer- age Case, 11 Cl. & F. 115, Lord Brougham, speaking in the House of Lords to the question of the right of a particular witness (whose testimony concerning certain foreign law was offered) to look into a book of the law in testifying, said in approval that ‘the House has not organs to know and to deal with the text of the foreign law, and therefore requires the assist- ance of a lawyer who knows how to interpret it.’ It is not however to be inferred from this that the court has not the independent right to examine the text of the foreign law itself, es- pecially if skilled witnesses are not offered to speak to its terms or inter- pretation. See United States v. Mc- Rae, L. R. 3 Ch. 79, 86; Nelson v. Bridport, § Beav. 527; Lindo »v. Beli- sario, 1 Hagg. Con. 216; Dalrymple v. Dalrymple, 2 Hagg. Con. 54; Bremer v. Freeman, 10 Moore, P. C. 306; Di Sora v. Phillipps, 10 H. L. Cas. 641. Lord Brougham’s meaning simply is that upon a question of doubtful in- terpretation of foreign written law the testimony of skilled witnesses, when offered, should be received along with the text. ; (a) See Isabella v. Pecot, 2 La. Ann. 391. The books of reports of another state are admissible evidence of thelaw. Ames v. McCamber, 124 Mass. 85. A witness appearing as an expert in fo- reign law may state the law without producing it in print. Or he may pro- duce a copy of the statutes of the foreign state, referring to them to refresh his memory. Barrowsv. Downs, 9 R.I. 446; Sussex Peerage Case, supra. The fo- reign law may be proved by any per- son, though not a lawyer or not having filled public office, who has been ina position to render it probable that he would make himself acquainted with it. American Ins. Co. v. Rosenagle, 77 Penn. St. 507. CHAP. XVII.] EVIDENCE AND PROOFS. 871 foreign government, are expected to be produced. For it is not to be presumed that any civilized nation will refuse to give such copies, duly authenticated, which are usual and necessary for the purpose of administering justice in other countries. It can- not be presumed that an.application to a foreign government to authenticate its own edict or law will be refused; but the fact of such a refusal must, if relied on, be proved. But if such refusal is proved, then inferior proofs may be admissible. Where our own government has promulgated any foreign law or ordinance of a public nature as authentic, that may of itself be sufficient evidence of the actual existence and terms of such law or ordinance.? 641. Usual Mode of Authentication. —In general, foreign laws are required to be verified by the sanction of an oath, unless they can be verified by some other high authority, such as the law respects not less than it respects the oath of an individual.? The usual mode of authenticating foreign laws (as it is of au- thenticating foreign judgments) is by an exemplification of a copy under the great seal of a state; or by a copy proved-to be a true copy by a witness, who has examined and compared it with the original; or by the certificate of an officer properly authorized by law to give the copy ; which certificate must itself also be duly authenticated.* (a) 1 Church v. Hubbart, 2 Cranch, 237, 288. 2 Talbot v. Seeman, 1 Cranch, 39. 8 Church v. Hubbart, 2.Cranch, 237; Brackett v. Norton, 4 Conn. 517; Hempstead v. Reed, 6 Conn: 480; Dyer v. Smith, 12 Conn. 384. 4 Church v, Hubbart, 2 Cranch, 238; Packard v. Hill, 2 Wend. (N. Y.) 411; Lincoln v. Battelle, 6 Wend. (N. Y.) 475. (a2) In many American states, by express statutory enactment, printed copies of the statutes of any other state, purporting to be published by autho- ‘tity, are admitted as prima facie evi- dence of such laws. Maine Rev. Stat. c. 188, s. 47; Conn. Rev. Stat. ce. 10, s. 181; Comparet v. Jernegan, 5 Blackf. (Ill.) 375. And in some states this practice prevails, even without the authority of a special statute (Emery v. Berry, 8 Foster (N. H.) 486, and cases cited; Barkman v. Hopkins, 6 ‘English (Ark.) 157; Lord v. Staples, 8 Foster (N. H.) 449), while in others it has been held that, independent of such provision, foreign written laws can be proved only by an exempli- fication properly certified, and the printed statute-books of such state are not admissible. Packard v. Hill, 2 Wend. (N. Y.) 411; Chanoine v. Fowler, 8 Wend. (N. Y.) 173; Church vy. Hubbart, 2 Cranch, 236; State »v. Twitty, 2 Hawks (N.C.) 441; Bailey v. McDowell, 2 Harring. (Del.) 34; Van Buskirk v. Muloch, 8 Harrison (N. J.) 184; Brackett v. Norton, 4 Conn. 517; 872 [s. 642-645, CONFLICT OF LAWS. 642. Unwritten Laws. — But foreign unwritten laws, customs, and usages may be proved, and indeed must ordinarily be proved, by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed in the laws, customs, and usages, under oath.1(a@) Sometimes however certificates of persons in high authority have been allowed as evidence without other proof.? (6) 643. Public Seal. — It seems that the public seal of a foreign sovereign, affixed to a writing purporting to be a written edict or law or judgment, is of itself the highest evidence of its au- thority, and the courts of other countries will judicially take notice of such public seal, which is therefore considered as proy- ing itself*? (¢) But the seal of a foreign court does not prove 1 Church v. Hubbart, 2 Cranch, 237; Dalrymple v. Dalrymple, 2 Hagg. Appx. p. 15-144; Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 520; Mostyn ». Fabrigas, Cowp. 174. 2 In re Dormoy, 3 Hagg. Ecc. 767, 769; Rex v. Picton, 830 Howell’s State Trials, 515-573; The Diana, 1 Dods. 95, 101, 102. 8 Lincoln v. Battelle, 6 Wend. (N. -Y.) 475; Griswold v. Pitcairn, 2 Conn. 85; Church v. Hubbart, 2 Cranch, 238, 239; Anon., 7 Mod. 66; United States v. Johns, 4 Dall. 416; Appleton v. Lord Braybrook, 6 M. & S. 84; Black v. Lord Braybrook, 6 M. & 8. 39. Hempstead v. Reed, 6 Conn. 480. But in a case decided by the Supreme Court of the United States, a copy of the Civil Code of France, purporting to be printed at the royal press, Paris, and received in the course of our in- ternational exchange, with the indorse- ment ‘Le Garde des Sceaux de France & la Cour Supréme des Etats Unis,’ was held admissible as evidence of the law of France. Ennis v. Smith, 14 How. 400. (a) See American Ins. Co. v. Rose- nagle, 77 Penn. St. 507; Regina v. Povey, 14 Eng. Law & Eq. 549; Kenny v. Clarkson, 1 Johns. (N. Y.) 385, 894; Hosford v. Nichols, 1 Paige (N. Y.) 220; Isabella v. Pecot, 2 La. Ann. 391; De Bode’s Case, 8 Q. B. 208. The knowledge required of the witness must, it seems, have been acquired by actual experience in the foreign country, and not by mere theoretical in- struction in a foreign university. Bris- tow v. Sequeville, 5 Exch. 275. But it is not indispensable, as we have seen (note (a) p. 870), that the witness him- self should have been a practising law- yer, if he is possessed of sufficient in- formation on the subject. American Ins. Co. v. Rosenagle, supra; Vander Donckt v. Thellusson, 8 C. B. 812; Hall v. Costello, 48 N. H. 176; Pick- ard v. Bailey, 26 N. H. 152. (6) And it has been thought that the peculiar relation in which the American states stand to the common law of England might require some modification of the rule first above laid down. Carnegie v. Morrison, 2 Met. (Mass.) 404, Shaw, C.J. And in Louisiana it has been held that the courts of that state would not require proof of the common law, but would gather it from the most authentic books and treatises on that subject. Young v. Templeton, 4 La. Ann. 254. (c) Soin America the ‘seal of one CHAP. XVIL] EVIDENCE AND PROOFS. 873 itself, and therefore it must be established as such by competent testimony. There is an exception to this rule in favor of courts of admiralty, which being courts of the law of nations, the courts of other countries will judicially take notice of their seal without positive proof of its authenticity.? 644. Regulations in the United States as between the States, — The mode by which the laws, records, and judgments of the different states composing the American Union are to be veri- fied has been prescribed by congress, pursuant to an authority given in.the constitution of the United States. It is therefore wholly unnecessary to dwell upon this subject, as these regula- tions are properly a part of our own municipal law, and do not strictly belong to a treatise on international law.? (a) 645. Conclusion.— And here these Commentaries on this in- teresting branch of public law are brought to a close. It will occur to the learned reader, upon a general survey of the sub- ject, that many questions are still left in a distressing state of uncertainty as to the true principles which ought to regulate and decide them. Different nations entertain different doctrines and different usages in regard to them. The jurists of different countries hold opinions opposite to each other, as to some of the fundamental principles which ought to have a universal opera- tion; and the jurists of the same nation are sometimes as ill 1 Stark. Ev. pt. 2, s.92; Delafield v. Hand, 3 Johns. (N. Y.) 810; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 198; Henry v. Adey, 8 East, 221; Andrews v. Herriott, 4 Cowen (N. Y.) 526, note. 2 See Yeaton v. Fry, 5 Cranch, 335; Thompson v. Stewart, 8 Conn. 171. 8 See on this subject the act of congress of 26th of May, 1790, c. 11, and the act of congress of the 27th of March, 1804, c. 56; 3 Story Const. s. 1297- 1307; Andrews v. Herriott, 4 Cowen (N. Y.) 526, 527, note. state affixed to an act of the legislature proves itself, and imports absolute ve- rity in the courts of another state; but such seal must be a seal valid at com- mon law, and not merely an impression on’paper, which in some states is made avalid seal for some purposes. Coit », Millikin, 1 Denio (N. Y.) 876. And see Bank of Rochester v. Gray, 2 Hill (N, Y.) 227; Farmers’ Bank ». Haight, 8 Hill (N. Y.) 493; Watson ve Walker, 8 Foster (N. H.) 471. (a) But the acts of congress on this subject have been held not to apply to the United States courts; and there- fore the records of a district court of the United States may be proved in a state court, simply by a copy under the seal of the court without further attes- tation. See Adams v. Way, 33 Conn. 419; Williams v. Wilkes, 14 Penn. St. 228. s 874 CONFLICT OF LAWS. [s. 645, agreed among themselves. Still however with all these deduc- tions, it is manifest that many approximations have been already made towards the establishment of a general system of interna- tional jurisprudence, which shall elevate the policy, subserve the interests, and promote the common convenience of all na- tions. We may thus indulge the hope that at no distant period the comity of nations will be but another name for the justice of nations, and that the noble boast of the great Roman orator may be in some measure realized: ‘Non erit alia lex Roma, alia Athenis, alia nunc, alia posthac; sed et omnes gentes et omni tempore una lex, et sempiterna, et immortalis, continebit.’ 1 1 Cicero, Fragm. de Repub. INDEX. [THE FIGURES REFER TO THE PAGES.] A. ABANDONMENT, mere, does not destroy domicil ACCEPTANCES, of different obligation in — and ae tags . 446, 478, 479 by what law governed ACCESSORY, to commission. of crime in — State ACTIONS, real, in the Roman law, what . 5 ho concurrent, before different foreign tribunals personal... ew wo gw ee ee we mixed . where brought by the Roman law division of, by Boullenois ACTS done, validity of, depends on lex loci ADMINISTRATION, principal and ancillary, liability on bonds double case where property is in England, and husband and wife die, he not having reduced it to possession . ADMINISTRATORS AND EXECUTORS, who correspond to, under the Roman law . their title good, all the world over, according to I Lord Kames their title does not extend beyond their territory . . 84, 99, 167 PAGE . Sha 356 . 749 . 8382¢ 749 . « 749 . 150-753 769 716d . 125 @ 711 712 713 no suit can be brought by or against them, in virtue of foreign letters ancillary, funds collected by, to what debts appropriated collecting debts in another State, liable de son tort . 717-732 717-727 722 whether liable for assets received abroad and brought into such State foreign, voluntary payment to, when 2 a valid discharge where they remit property to pay legacies. may sue in their own names, for personal property reduced into possession : may sue in their own names upon negotiable notes ancillary, are subordinate where property of the deceased is in transitu at his dexth, , . . 727 732, 733 a 732, 734 . 735, 735 ¢ 736 » . 736 . 7387, 738 876 INDEX, ADMINISTRATORS AND EXECUTORS, — continued. PAGE case of stage-coaches in different States, &c., belonging to the deceased . . fds Ga neersk) Gs ey oe a SOO ancillary, force of judgment against eae ee ee, oe 780 F808 where real securities are converted into personal assets . . . 741 what law is to govern the priority of debts and the marshalling of assets . . : j 742-745 which estate shall be charged with debts ote ds 685-687, 746, 747 consideration of the American law upon questions between pria- cipal and ancillary administrators . . . . . . . . . . 40a ADMIRALTY, COURT OF, judgments of,inrem . . ..... . 818 the effect of itsseal. . . . . . . . . 872 ADOPTION .... . 2. . . 1480 ADVANCES, MUTUAL, iy dieshants of different somites . ee. 882 AGENT, FOREIGN, contracts madeby . . . . . .. . . ~~ 883, 885 ALIEN, dowable according to the lex rei site . . . ..... =. =. 630 ALIMONY. .. . Se a RE GMS SES eae eR) Se 5 B18 ALLEGIANCE, blr iad RDA. He aa ph BS! Fe Te sa os Sh CS “ap OD local swhat<3 <5, soca ue ek ee a ea ee ee AMBASSADORS, retain their domicil . . fe ee te BE ANCILLARY ADMINISTRATORS. (See inicnemaoney: / ANTENUPTIAL OFFSPRING, their limitation by the Scotch law. . . 112 APPOINTMENT, powerof. . . PB Kok eo ae ee! CODD ARREST, when it belongs to the eae: edie 280% » . . « 784-786 ASSETS, DOMESTIC, how affected by foreign sdiwiindatealtiona . . . 718-722 ASSIGNEE OF DEBT, when he may sue in a foreign country in his own name, ornot . . . . . 501, 558, 559, 561, 578, 779, 782 ASSIGNEES OF BANKRUPT, whether they can sue in their own names inaforeigncountry ... . . . « 573, 579, 782 ASSIGNMENT OF DEBTS, by what law srveeeed . « . 558-561, 779-784 notice of, when necessary to debtor 555, 558, 561, 779, 782 ASSIGNMENTS, of foreign liabilities, right to sue upon. . . . . . 501-505 of an Trish judgment... . . . . 501, 782 general, under bankrupt and insolvent — effect of . 565-588 (See Bankrupt Laws.) by'martiage 2 ww ee we a es « ee eG we aw BET for benefit of creditors. . » ee B48 operation upon property in different States . . w . 2548 a how far delivery important . . 2.» 548 priority between assignments and attachments . ee + 561 ATTACHMENT, before notice of an ss aun B Gousde chev tee Wee ae, ODO of chose inaction . . . fy eae we ie at Ee ATTAINDER, disability from . . . . . 840 AUTHENTICATIONS of contracts ‘este fe osetia to sth be loci . . 848, 851, 861 INDEX. 877 B. ‘ PAGE BALANCES between merchants of different countries . . . . . . . 382 BANK STOCK, its locality. ©. 2. 2... . 54D BANKRUPT LAWS, FOREIGN discharges under. . . 2 1 1 ww 1 ew ws. 4825 486.0 assignments under. oe el eae 2 DOB whether they have a universal operation | ae . . + 565, 566 opposite opinions of English and American courts eee eo , 565 reasoning of the English courts in favor of their universality 565-570 authorities in support of the English doctrme . . . . . 569,570 opinion of Lord Eldon . . eed DD propositions established in the English doctrine woe ws eo 2 BE reasoning of the American courts against their universality 573-576 contrary doctrine held in France and Holland. . . . . . . 576 where confirmatory conveyance by bankrupt to his assignees . . 577 whether they operate a transfer of personal property in this country . . soe ee ew ww we ~~ «578-589 priority of domestic creditors ao » . 570-583 case of bankrupt partners resident in different countries ee 4 BBO distinction between, and State insolvent laws . . . 487 the latter bind a residents and such as submit to the juris. diction <° . Lo ge we a a Sow sw = 493 BENEFIT OF INVENTORY, ‘with, oe aoe ee wee Se 0 “BIENS,” its meaning with the civilians. . . . . . 12, 18 note, 242, 533 BILL OF LADING,— contract of what place . . . . 385 BILLS OF EXCHANGE, with blanks to be filled in a oo Sarat . B94. damages upon. . . ee. . 438-450 when payable and indotsed i in different countries 446 how governed as to the incidents of payment . 492, 505, 506 their protest, by what law governed . . 505, 506 notice of protest, by what law governed . . . 505 (See NecotiaBie InstRUMENTS.) BIRTHPLACE, how it affects domicl . . . ...... 264. «4 citizenship . . .... » . 55 BLOOD RELATIONS, marriage between. . . ... . 188, 192, 194 “BONA,” its meaning with the civilians . . . . . . 1... . + 588 BONDS, HERITABLE, what is Scotch law. . . . 518 whether payable out of the real. or "personal es- tate. . . - oe ws. . 685, 686, 747 BOULLENOIS, Mr. Henry has borrowed foci. oop a Seo 1% 799, note 3 his principles as to territorial jurisdiction . >... . Ql capacity of persons . . . . « «. 79, 80 foreign contracts . . . . . . . . 828 foreign judgments . . . . . 885, 836 BRIDGE SHARES, theirlocality . . . . ol! Etter ater ee DED BURDEN OF PROOF, as to a.change of. fomial dy Tish th gains We reins ts HOS 878 INDEX. Cc. ‘ PAGE CANAL SHARHS, their locality . . 2... 1... we ee e548 CAPACITY OF PERSONS .. «1 + + « 67-183 laws regulating, treated by the civilians ¢ as personal . eo oe 67 laws regulating, of twosorts . . . . ........ 68 universal, what . . . . 1... ew es 68 special what. . . 1... 1. we «(68 determined by the original domicil . . . . 1... (68 disagreeing opinions of the foreignjurists . . . . . . 69-84 as to minority and majority. . . goes 70, 77, 92 distinctions as to, between movebles anil ene 71-74, 518, 514, 515 where achange of domicile . . ..... 2... . 7-84 opinions of Boullenois and Merlin . . . ...... 79,80 Huberus . 2. 2. 1 1 ww ee ee ew ee 888K best established doctrines . . . . 84-169 acts done in the place of domicil to be jaded of by ‘the laws there . . . » + 84 to contract, by what law ‘determined . i - « 1700 capacity of the domicil is deemed to exist erenyere, the domi- cil being unchanged . . .} oe 4 . + « . 85-88 modern law of France on this point . : pele . 88 the domicil being changed, the capacity is changed ie ee a 89 distinction noticed on this point. . . . » . ss 90, 91 reasons of the civilians on fixing the age of majority ee @ oe 88 no universal rules on this subject . . . » s+ + 93-96 opinions of the Supreme Court of Louisiana examined . . . 95-100 English rule as to capacity tomarry . . . . . + « «101-106 case of British minor intermarrying in France » . . « . 103-106 law of actual domicil of universal obligation . . . . . . . 106 different opinions of the foreign jurists . . . + « « «106-110 general principles in England as to capacity to marry . . . 110-118 in the American courts . . . . . .. . 114 disabilities from ae in Continental Europe. . . 115 infancy. 6 wb OS 115, “116, 172 outlawry, &., in England bos ps « « LY from illegitimacy, according to the foreign jurist 117-152 causa professionis, as of roouks a . . 152 slavery. . ae _ 158, 155, 173 idiocy, insanity, and prodigality . as . . 169-174 ubiquity of the law of domicil denied by the Scotch cours. . 167 rules established in England and America . . 2. . . . «170-174 whether sentences touching, are conclusive . . . . . . 817-819 CATHOLICS, their views on divorcees. . 2. 2. 1. - 1. 1... M81 CESSIO BONORUM, what... ... ee ee ce BR CHANCERY, its jurisdiction over foreign lands i persons . . . 757-759 does not act directly upon foreign lands . . . . . . . 759 CHARGES on lands, how tobe bome. . . . . . « « . . 518, 685, 686 INDEX, 879 PAGE CHARITIES for foreign purposes, when valid . . . . . . . . 666 CHILDREN, domicilof . ... ate - 48, and notes a, ¢ CHOSES IN ACTION, not caine ey fhe common law. . . 499-505, 519 due by foreign debtors, assignment of . . ; . . 555, 557 assignment of, according to the law of the owner’s domicil . » 558 how far liable to process of foreign attachment . . . . . 562a CITATIONS VIIS ET MODIS, a what law their ae is deter- mined . . - . . 760, 761, 793 jurisdiction given ty DW Roe oe we we mw we ow 60; FEI CITIZENS, whoare. . . BS BEGG ANE. ae fet tee mak ee Sas. BB jurisdiction over. © 2 ww... CIVIL DEATH, disability from. . . 2... 2... DL, . 840 CIVILIANS use the term, mired questions . . Fd ee 10, note 1 their discussions of the conflict of laws a6 BG 8 10 their division of statutes. . . . ........,. 42 object inusing their works . . 2. 2... ... OY their systems on the conflict of laws . . . . . . 0+...) Q their views as to the capacity of persons . . . .. . . 67 as to fixing the age of es ee a 93, 95 on foreign contracts . . ate Ce! a "316-393 COHABITATION, illicit, foreign contracts for. . . 2... . . 840 COIN, contracts payablein . . . 436 COLLISION of ships of different nitions on ihe high & seas, ata fled is sie govern in a case of a conflict of laws . . . . . 588, 599 COMITY OF NATIONS, its relation to questions of conflict of laws . . 28 question as to the pepe of this ene ‘ » oe ee 82-85 aproper phrase . . . RR ey we BO not the comity of courts. . . 35 attempt to explain the extent of comity, and of strict ‘obligation 36 a as to the extra-territorial force of laws . . . . . . 82-35, 374 astobankruptlaws . 2. 2. 1... 1 1 ww. . 498, 494, 575 what it allows,as to movables. . . ..... =. . 646, 647 COMMERCIAL AGENTS, their domicil . . fhe Boe nae ie BF COMMERCIAL CONTRACTS, their setsetreetatiten: - oe ew) 878, 874 COMMON LAW, the Roman law socalled. . . . 2... 2... «2 COMMUNITY, LAW OF, what . . oe pig 229), 930 to what property applied soe ee «244-950 general result . . oh te eR ws oe we, BO) whether real or personal . ; 259-261 does not attach to immovables under the commonlaw. . ....... . =. 684 COMPENSATION by the Romanlaw. . . . 792 COMPETENCY OF A WITNESS, snrviete of an caieron: crime in another State . . . . . 840-842 CONFLICT OF LAWS, supposed by Huberus not to occur often under the Romans... . be ies te 2 traces of, in the Digest . . 1. 1. 1 1 ee ew ee '3, note 2 880 INDEX. CONFLICT OF LAWS, — continued. PAGE importance of rules relating to. . . 1. 1. 1 we ss 56,7 examples of questionsof . 2 1 1 1 1 ee ee ee OG questions of, of frequent occurrence . . . . . . . . ss 7,8 interesting to the United States . . . oy ee tors not systematically treated by writers of the common law erie, in CEO little cultivated in England. . . . .... =. . . 10, noted minutely discussed by the civiliaus . . . . .... . 10,11 general maxims of soe ee ee) 21-85 who is to determine what law shall govern . @ Ae ae ie Se we 2b 86 the power given to the courts in France early . . be ae as ape in England and Aimedon go ae 9B difficult to ascertain the proper aria to govern cases of . 26-29 variety of laws . . . : GR a Saeco Ge. cat SR RODE. system of the civilians, as oe pny ns a ea eke governed much by the comity of nations... . » «28-85 not by the comity of courts . . . . . . . 85 the axioms of Huberus . . . . 1... 1 ee ee QD Herting ¢ 2 aoe @ «ee ew oe we eck a 80 Huberus undervalued ... 2. 2... 1. 31 domestic laws prevail over foreign . . . . . 470, 471, "479, 474 CONSANGUINITY, same, whether through legitimate chainornot . ... . 194d CONSENSUAL CONTRACT, marriageis . 2. 2... 1. ww. e185 CONSULS, their domicil, what . . . . fie ee % ee oe a BT CONTRABAND OF WAR, contractstocover . . ...... . 849 CONTRACTS, to be governed by the law where made . ...... 96 their validity wy tee oe By aoe ae we BTS texts of the civil law touching . eas) Atel ae Ge a! ec ays 2818 these texts discussed . 2 2 2. ww ww.) 816-819 opinions of the civilians. . . . . . . 1... . ©6816-3938 rules of Boullenois . . i ee pO woe eo ee ee B88 doctrines of the common law ons tee ag! an ek . . 824 their validity governed by the lex loci oe eartta! caah U's 395-339, 471 exceptions tothisrule . . . ek ¥ 827-841, 475 where injurious to the interests of a uation . ge eon ioe Ue 327, 3830 in evasion of the revenue laws of a foreign country . . . . . 331 growing out of illegal transactions . . . . . . . . 881, 334 smuggling . . 334, 335 whether affected by mere knowledge of the legal argos | 335, 336 foreign revenue laws not regarded | ce - . «4 « 888 against morals or public rights tee Ne as @ wg S40 opposed to national policy . . 2s . . 84 how affected by proofs required by lex loci . . 8 345-351, 448, 449 requisite of stamps . ‘ 345~448, 852 under the Statute of Frands, thelr validity sheaedl : 349, 350, 851 parol, their validity abroad... . . . 849, 351, note 1, 855 their nature, obligation, and interpretation soe oe ew «849, 850 their nature, what and how governed . . . . . . . 851, 856 illustration in cases of warranty... . . 1 ew we BBD INDEX. 881 CONTRACTS, — continued. siee their obligation, what, and how governed . . . . . 356, 362 misinterpretation of foreign laws . . . oe a ee 80) their interpretation, what, and how r governed so... ©6863-3874 affected by usage . . Be Fae Ge hey Sd oe, BOOS meaning of term’ month wall sense soe ew ew we 865, 366 of transient persons, how governed . . » » + « 869, 370 of marriage and settlement, their interpretation «oe ss 872, 378 of commerce, their interpretation. . . soe we es 878, 874 governed by the law of place of performance tet tbe ies 376 where mutual advances and balances . . . . 1... 382 made by an agent abroad... » . . 883 incidents to contracts, what are, by what rule governed » 2. 496 when obligation personal . . . . . 1. 1. . 498 when obligation real. 2. 2. 2. 1. 1. 1... ee. 498 with merchants abroad . . soe wow @ @ 885 where loan and security are in different States * . 3892 bills of exchange with blanks to be filled in a foreign country | . 3894 where principal and sureties are in different States . . . 894 rules as to interest, (See INTEREST.) . . . .... " 395-404 damagesexdelicto . . . . ... 1... . 484 different currencies . . . . . . . . . 495-438 case of mixed money . . fe we gg 488 negotiable instruments and damages thereupon ‘ - . 438-451 different parties should not be subject to different rule of damages . . . 425, notes payable and indorsed in different coun- tries. . we it . 446 conflicting opinions of New York and Massachusetts ee "449, 450 their effects depend upon the lexloci. . . . . . . . . . 451 as in the case of liens . . ef eh ea ee Sab ae ge a AD) priority of foreign liens not nn a 451-474 debts are payable everywhere . « fo ity Be ee kee oe SEG their discharge depends upon the lex loci see ee «476-479 (See DiscHarezs.) all their consequences do not accompany them. . . . .. . 480 impairing the obligation of . . . 2... 1... 1... 487 principles as to negotiable instruments . . ee 6 © 498-506 (See NuGortiaBLE InstRUMENTS.) respecting personal property have no situs. . . 507-509 respecting real property are governed by the lex rei sitee . 510-532 conflicting opinions of foreign jurists upon this point . . 514-530 how dissolved, when by lex loci contractus. . . . . . 494-498 when by lex reisite . . . 2... 1. ee. 498 jurisdiction over and remedies upon . 4». . . . « « 750-792 (See JURISDICTION ; saat evidence and proofsof . . se ee ew = 850-864 (See Evivence. ) CORPORATIONS, FOREIGN, when they may sue in our courts 779, 780 4, c,d by what law their contracts governed . . . 2.» la meetings of shareholders, &. . . . . . «+ « + « 182, note 56 882 INDEX, s PAGE COVERTURE, governed by thelexloci . . . . «2. ee ess 188 CREDITORS, priority of domestic, over foreign assignees . . . . 579, 580 distribution of effects of debtor among, by what rules gov- erned . . . 6 «455-459 CRIMES, are local and explasinely punishable where pomunitied » « 840-843 different doctrine of Hertius and Paul Voet . . . . . . . 843 CRIMINALS, FUGITIVE, whether a nation is bound to surrender them up. ‘ - » + «845-847 CURATOR, who be the Bama ie be ew ew a oe e ot we we 608 CURRENCIES, questions arising from different . . . . . . . 425-432 case of mimed money . . . «1 we ew ww ee 488 D. DAMAGES, incasesexdelicto . . . 2. 1... ee ee ee ee 44 on negotiable instruments . . ie = & s & & @ 438-450 DAYS OF GRACE, by what law etermined bo seo a ar we Ja ae 498, 1506 DEBTS, when payable everywhere . . . . ... . 1. «476,797 have no situs-and follow the person. . . . . . . 507, 509, 559 are treated as movables. . . . 507, 509, 559 charged on real property are treated as immovables — ows ce aes bO assignment of, how and when valid . . . . « 555-561 are transferred by the law of the creditor’s ‘domicil . . . . 559, 561 when discharged by payment to foreign administrators we a HOE upon what estate charged . . 1. 2... ew 746 what law determines their priority. . . . . . . . 742-746 when an extinguishment of got Ap Wet 801-807 (See Lrurtations.) DECLARATIONS, oral or vee of ae whose domicil is in question, evidence of intention . . . 5 - . 46, note DEFENCES (See Discuarczs. . DELIVERY, where necessary tocompleteasale . . . . .. .. . 548 foreign transfer without, invalid, when . . . . . . 548-552 DISCHARGES AND DEFENCES, in the das of the contract, good elsewhere. . . : ? » ee +. 476-479, 792 exception to this rule ee ee ee ee 478 from matters ex post facto . . . . . 1. ee YD from bankrupt and insolvent law . . . . . . 1... 482 (See Banxrurt Laws.) where extinguishment of debt . . . . . . . . . «482 from the Roman Cessio Bonorum . . ee ES 482 how affected by the character of the parties . ee " 484-493 Constitution of the United States . . . 487 in a place where the contract was not made. . . . . 488, 493 when by the lex loci contractus . . . . . . . 493-494, 853 when by the lex reisite .. 2. 2... 1... . 495, 498 of indorsers, how governed . . sw 1 ww ww.) 489-492 limitations upon theireffects . 2... 1...) 494-495 INDEX. 883 DISCHARGES AND DEFENCES, — continued. PAGE their dependence upon the comity of nations ie oe » « £94 by voluntary payment to a foreign administrator oe we a TOF DISCUSSION, right of, whatitis . . . aid Gh 38: Rp uae Sp ag ape 14D effect of, in a case of conflict of laws 4 . . 452 DISSOLUTION OF CONTRACTS, © may be by lex loci contractus . . . . . . . . 498, 494, 853 also by lex rei site. . . soe ee ew we ew 495-498 DISTRIBUTION AND SUCCESSION. (See Succussion.) . . 677-692 DISTRIBUTION of effects of bankrupt in cases of conflicting rights of creditors . . . . . 454, 474, 581, 587 of personal property, by what rules governed . . . . 677-680, 722-727 of real property, by “what rales governed . » . « 681-684 DIVORCES, regularly obtained, a complete dissolution of marriage . . . 275 jurisdiction to give validity throughout the Union . . . 3084 difficult to lay down rules touching . . . . . .. . . 276 how obtained in England . . . . . 2... . . « 276 Scotland . 2. 4. ee ee ew « 276 France: 3 2 a 4 @ » @ © % » eo » » 276 America: 2 a oe ee 6 eo we & » & O76 license of the civillaw . . ca © a w 6 » (276 embarrassing questions under this head . t @ we we @ 207 how affected by the national character of parties . . . 277, 278 presence in Scotland. . . . . 278-280, 284, 285 diversities of foreign lawsas to. . . . . ..... . 281 views of Catholics . . 2. 2. 1. 1. we 1 we ww 281 Protestants . . «we & & 282" not systematically treated by ‘the continental jurists oe « & 282 under the French law, discussed by Merlm. . . . . . . 283 best discussed by English and Scotch courts . . . . . . 284 between parties not domiciled in Scotland . . . . . 284, 285 Scotch doctrine not recognized in England . - 6 6 + © 285, 287 the animus manendi necessary to give eer ae a a, 28F marriage after Scotch divorcee . . i ie Boa we we we 8S questions discussed by the Scotch courts » + ee + © 289, 290 reasoning of the Scotch courts. . . . . . . . . 290-292 not sanctioned in England ee ee ee ae English marriages not dissoluble in Scotland . 1 + . 292, 710 whether governed by the lex loci of nee . . . . 289-296 how treated in Massachusetts. . . iN es ay ey By, Sh OG) regulated there by the actual domicl. | 2 1. we es 806 also in New York . . 309 prohibition against: marriage after ; penal disability ; no extra- territorial force... hi? properly grantable only where pasties domiciled at the time ‘the cause occurs . . 314 ex parte decrees of divorce of 1 no a however obtained, or upon whatever grounds . . . . -¥#: es DOMESTIC CREDITORS, their priority over foreign assignees. . 579, 580 884. INDEX, DOMICIL, what. . ... BOR BD BOE ee PR ee GR oye, “AOEGB _ in the Roman Tine. ie 8 shew ew we we oe eae SL defined by the French jurists a i & we wow a aw 8D residence and intent to remain constitute oe Hg ke wm OB: rules fordeterminmg . . . . «©... + ww ss 47, 52 the place of birth . . 1 1 ww ee ee ee eee ofanillegitimate child . . ........... 48 of minors.-. . See wah ee, SR a ace Ge 148 ofwidows «© =. @ * ee * @ ae we wwe he we ow BO where a person lives . 2. 2. 1 we ee ew ee OD removal with intent toreside . . . ........ 450 where a married man’s family lives . . . . ..... OL ofanunmarried man . . . . . 1. 7 ew ee eee OBB residence must be voluntary. . . . . i ee cee. Gar se a — ADS: mere intention, without removal and vice versa . . . . . 58 once acquired, remains . . ie a 18 principles in respect to residence i in | different countries . . 55-66 (See Natiowat Domicr.) how it affects the capacity of persons . . 67, 75-93, 106, 155-168 (See Capacity or PErsons.) how it affects marriage. (See Mannisce.) the incidents of marriage. (See Marriacz —1ts Incments.) matrimonial, what. 2. 1. 1 we ee ew we) RG1-274 commercial, or trade, what . . . . . . eh) CAI, note of owner governs personal property . . . . . . . 584-541 its transfer . . » oe « + 542, 558-561 of testator governs wills of personal property, . ee = © 641-648 (See Wits.) of intestate governs the successions to personal prop- erty .. . + « « 677, 678, 679, 680 Bie Svoceastos.) of the ward limits the power of the guardian over his per- . SOM, GS ce a, ae Set ee Gye. Se es be ee JOOEETOL DOWER, determined by the lex reisite . . . . . . . + +... 680 DRAWER, according to whatlawliable. . . 2. 2... ww ee 491" . E. EFFECTS OF CONTRACTS, depend upon thelexloci . . . .. . 451 ENEMY’S PROPERTY, contracts to cover . . . . . . 841 EVIDENCE AND PROOFS, formalities of the lex loci ae . 345-350, 448, 850 of foreign instruments . . & Wow ove, 1800 of instruments executed before a foreign notary . ee es 850 where persons interested and parties are competent witnesses ADTOAM (5. cae < as ei csi: Gi ee we Re Wie SE Be! Ge @ oe ee 800 INDEX. 885 HYIDENCE AND PROOFS — continued. sien what formalities of universal obligation . . . » . . 852 in cases of foreign protest, eae of deeds, Statute of Frauds, and stamps. . . . . . . 852, 856, note merchants’ books, when evidonas or not 2 oe ew ..)) 6855-861 distinction between facts, and evidence by which facts are proved. . oe ee es oe Bbw where parol proof i is ; admissible o or not x * » « 855 few traces on subject of foreign evidence in the reports . . . 859 of foreign wills and personal property . 4 - . . 863 foreign laws must be proved as facts to ‘the court 863, 864, 869, note must be the best the nature of the case will admit 869, 870, 870 a of foreign written laws . . . . . . . . . 870, 871, 87la@ of foreign unwritten laws . . +. . 872, 872 a, 6 by means of the seal of a foreign eoveneigt, of a Court of Admiralty, &. . . . . . 872, 873, note of the laws, records,, and judgments of the different States of the United States . . ..... 873 EXCHANGE, rate of, on foreign contracts . . . . =. “494-498, 499, os 1 EXCOMMUNICATION, how it affects the capacity . . . . . . 117,178 EXECUTIONS, form of, belongs to the remedy. . . . . . ~~ 787,788 effect of change of domicil . . . » a « ofl4a EXECUTORS, authority of, conferred by will, not hy Brohate Court . . .Ul4a EXECUTORS, FOREIGN, case of note indorsed by. . . . . . 504, 736 not recognized until after filing copy of probate of will . . . 676 ‘(See ADMINISTRATORS.) exemption laws relate to remedy . . . . . 2 2 . 1984 EXTRA-TERRITORIAL FORCE OF LAWS... 8, 22-25, 168, 375 depends upon comity . . soe ee ee ew) 81-89, 375 on what grounds supported . es tes eeu cue ceterctsrr Sevres We! EXUERE PATRIAM, right of English subjects . . . . . . . . . 648 F, FIXTURES, belong tothe realty . 2. 2. 1. 2. 7 1 ee ee ee BAL FOREIGN ADMINISTRATIONS .... see 6 «© 710-747 (See Apunwisreatons.) FOREIGN CONTRACTS. (See Cowrracts.) FOREIGN JUDGMENTS. (See Jupements.) . . . . . . . 808-839 FOREIGN LAW (See Conriict or Laws.) FOREIGN LAWS, have no extra-territorial vie pene i te, B59 ignoranceof. . .. . . . . 96, 369 misinterpretation of . . i ee ee He ay ce 3888 must be proved to the court : asfacts . . . . . » . 863-868 against morality and State policy . . . . . . . « 888, 581 886 INDEX, PAGE FOREIGN REVENUE LAWS, contracts inevasionof . . . - 3881, 389 notregarded . . . . . « ~ « . 888 FOREIGNERS, Jurisdiction over .. caw « 56, 757 FORMS AND SOLEMNITIES OF INSTRUMENTS, governed by lexloci . . . . . 845, 349, 350, 448 FRAUD, judgment may be impeached for . . . » + « « 820, 829 FRAUDS, STATUTE OF, contracts under, their validity abroad 349, 350, 607, 852, 860, 861 FUGITIVES, whether nations are bound to surrender up . . . . 845, 847 how dealt with in American States . . . . . . . . 18484 G. GARNISHMENT, writ of, when judgment on, binding on third persons. . 765 GRACE, DAYS OF, by what law governed . . . . . . . . = 492,506 GUARANTEES, according to what law liable . . . ... . .-. . . 859 GUARDIANS, who by the Roman law . . - . 693 authority over the person of a ward confined to the place of his domicil. . . . . . «694-701, 702 e, 818 authority does not extend to foreign immovable property 700, 701 whether they may change the national domicil of the ward . 702 have no absolute rights in foreign jurisdiction . . . . .697 a H HEIRS, under the Roman Law, who . . . . 710,711 can take immovable property ‘only es the lex rei site . . =e Mlb natural son heir to father, when - . . .6784 “HEIRS OF THE BODY,” &c., how to be construed abroad . . 371, 684 HENRY, Mr., has borrowed, without ee from Boulle- nois. . . eo) ee an te AG HERITABLE BONDS, in Scotland, whit bP se . . 518 whether a out of the real or ” personal estate . . 4 + . 685, 686, 747 HORNING, what by the Scotch law . . 2 Garo ee od oe OO case of judgment after, without actual notice » + ss 761-765 HUBERUS, his three axioms . ny BE oath he ible hal Ser seh, cass aes. Mee authorities approving his axioms. . . . . . . 1...) 88 undervalued . . . ae Sut Ao tuall HUSBAND AND WIFE, capacities of, by what law aoverncd » . . 67-84 effect of change of domicil of. . . . . 76,77, 87 HYPOTHECATION, by what law regulated . 2... 1... . 485 when it has priority ornot . . . . . . . 459, 474 when it adheres to property. . . . . . . 569, 563 when governed by lex fori 5% oe ee 798 (See Lien.) INDEX. 887 I TDIOCY, capacity incaseof . . . é wee we 169, 174 IGNORANCE of the laws of a pote es its unenysniags . . . 96, 369 ILLEGAL CONTRACTS cannot create, ee or oe good cause ofaction . . . » 2 oe 8400 ILLEGITIMATE CHILDREN, their donieil . 28 Oe isl ae AT how affected by the after marriage of their paved .. 119-174 their disabilities according to foreign pee as « » 118,179 cannot make a willin Scotland. . . som a a = = G4 ILLICIT COHABITATION, foreign contracts for . ..... . =. 840 IMMOVABLES, capacity of personsasto . . . . . . . . . 71-74, 514 heritable bondsare . 2. 1 1 1. 1... 58, 541 ground rents are . . » . 541 what are to be deemed, is determined ‘by the lex rei site . - . . 589, 541, 629 foreign, whether governed by the law of the matrimonial domicil . . » . . . «680, 681 wills of, governed by the lex rei site - + ss. 653-676 (See Wit1s.) succession to, governed by the lex reisite. . . . . . 681 (See Succusston.) authority of a foreign guardian does not extendto . . . 701 (See Rzat Property.) IMPRISONMENT, when it belongs to remedies . . . . . . . 784-787 INCEST, how it affects marriage. . . . . . « . 110, 188-197 by the law of nature ~ ee es + = ©188-195 by the positive law . . - . 195 what constitutes incest determined by the law of each State for itself . . Salat aan bp ae OD) cannot be cured by celebrating 1 marriage ‘abroad j ome INCIDENTS TO CONTRACTS, whatare ... oe) ag. ee we AL, INDORSEE, FOREIGN, right of action in hisown name . . . . 499-505 INDORSEMENT by a foreign executor . . ©. . . . «ws « 504 INDORSERS, according to what law liable . . . . . . . . 859, 489-492 must be charged according to lex loci . . . a om ie AQT INFAMY, how it affects capacity . . . ... ss. 116, 117, 173, 840 INFANCY, when a discharge . . eee le ee ok we ho ee INFANTS, their domicil, (See Mieaath ot : a AG when bound by contracts made in foreign countries : 95, 106, 107 INHABITANT, what « 2 2 « » # © & = 2» @ & & be @ » « OTE INJURIES toimmovables . . .. .. +. ee ee ee + U1, 7726 INSANITY, capacity in caseof . . . oes . 169 INSTRUMENTS, forms and solemnities of, by otis tic | - 845, 350, 449 INSURANCE STOCK, itslocality . . . -.... 4 ss +. 542 888 INDEX. PAGE INTERNATIONAL LAW, maxims of, (See Maxtus.). . + . . + 21-88 comity of nations . . . . ss . « « 28-38 the axioms of Huberus . ....... = «99 its foundations . . . ea tae! aig Geka, 2333 (See ConELict oF Laws.) INTEREST, is to be according to the law of the place of performance of contract... . . . 883 a, 395-398, 422, 423 when usurious or not . ‘ oe soe we 423 distinction as to, put by Boullenois » . 1... 404, 405 governed by thelexloci . . . . «. «we ss = 405, 423 embarrassing casesasto. . . . . « «ee « = 406, 407 double meaning of lex loci . . . ee ie it ete! oo 08 general rules affecting foreign contracts oe 422-424 INTERPRETATION OF FOREIGN CONTRACTS, flit aad how governed . . woe ee ee «868-875 INTERPRETATION OF FOREIGN WILLS . . 661-676, 686, 690, 691 INTESTATE, succession and distribution of his property . . . . 677-691 (See Succzssion.) IN TRANSITU property, by what law governed . . . . . . '. 787-789 INVENTORY, BENEFIT OF, what . ........ 2... 710 IRISH JUDGMENT, assignmentof ........ =.=. =. 501, 782 J. JEWS, singularity of their usages 2 1 1. 1 1 we we ee 198 JUDGMENT, IRISH, assignmentof . . . . a) bp ee ca ‘501, 782 JUDGMENTS, FOREIGN, of what force wher “different administra- tims . . . : woe we) 789, 741 form of, belongs to ‘the cemedy. See ee ae ee ee . . 787 various questions arising under. oe , 808, 832 ¢ of a competent tribunal valid according ‘to Vattel every- where. : . . . « » 809, 884 courts must have jurisdiction over the cause Sand parties . 809-812 are conclusive upon immovables . . . . . . . . 812, 818, 819 movables within their jurisdiction . . 813, 817 waelher conclusive upon incidental pomts . . . . . 817, 8174 in questions of capacity aoe . 2. . 818 in cases of marriage and divoree . 819, 820 (See Divorcy — Marriacs. ) may be impeached for fraud . . . . . « 820, 829, 880 @ when sought to be enforced and when set up in bar, distinction between these cases. . . 2 . . 821, 822 distinction of Lord Kames between suits * sustaining and dis- missing claims . . . » ee 6 824, 825 this distinction not recognized i in the ¢ common law soe ew we 825 when sought to be enforced, whether conclusive . . . . 825-828 held conclusive by Nottingham, Hardwicke, Kenyon, &c. . 825-828 held examinable by Mansfield, Eyre, Buller, &. . . . . . . 827 INDEX, 889 JUDGMENTS, FOREIGN — continued. ae inclination of English courts to maintain their conclusiveness . 827 reasoning in favor of their conclusiveness . . . . . . 828, 829 held examinable in America. <# ee & ao 880; 880 of different States of the United States 2 ee + 6822, 829 a, 831 no distinction in the common law whether between citizens or foreigners . . age EE a Sh to de ge 888 doctrines of the foreign courts and jurists se ee ew 4 884-839 doctrines of Boullenois . . . woe ew ee). © 835-837 could not formerly be enforced in France 2 oe ew es 887, 838 now examinable in France . . . «1. 1 1 we ee ss 888 their validity in Holland. . . 838, 839 or decree appointing tutor to minor not impeach collaterally by debtor of minor. . 2. 2 1 we we .. 819¢@ how far operate inrem . . sa ; 812. a, 814 a, 816 @ establishing pedigree binds all persons ee BS bb eg BDe@ not merger of cause of action in es ee em ww ow “B2Oe secus among sister states. . woe ee wwe BRB JURISDICTION, over parties in cases of Bivorcas "(See Drvogrce.) where actions must be brought by the Roman law . . . 750-753 by the common law. . . 758, 754 depends upon the person or thing sis within the territory . . 754 over persous 5 ww ee ee 754~765 citizens at home. . . . - . - se es ee ee) 754, 755 citizens abroad 2 ww we ee ee ew 8G ‘ yesident foreigners . 2. 2 ee ee ee ee ee 186 over corporations . . . . . + « + « 178, note refused by some nations over foreigners . » 2. + 756, 757 over foreigners within territory, applies to suits purely personal 757 of chancery over foreign lands and persons... . . = 757-759 does not act directly upon foreign lands . . 759-760 by citations viis et modis, posting, horning, &. . . . . . . 760 where judgment after horning and no actual notice of the suit 761-764 where property of non-residents is attached . . 2 # 9 WO5 possessed by every nation over property within its teniory 766, 768 exclusive over immovable property . .. . . . 768-772 how treated by Boullenois . . . 1. 1 1. 7 ee ee + 769 by Vatiel 2 0 ke we ee eee ew ew TD by the common law . . dp ee EL. over the cause and parties, necessary to Srey judgment . 809-812 (See Jupcments.). . ... +... 8098 JURISDICTION, TERRITORIAL... ....+ eee es Ql principles of Boullenoisasto . . . . . - + + + + + 21,22 K. ee LORD, his views on the title of administrators. . . . . . . 712 his distinction as to foreign judgments . . . . 824, 825 KNOWLEDGE of the illegal purpose of a contrach . . . + - 335, 336 of foreign laws . . . SS ee REAL 96, 369, 370 890 INDEX, L. PAGE LAWS, variances of, among different nations. . . ae as Ay OE -96 LAW OF NATIONS, not recognized by the nations of of antigay oo 25 this accounted for by Huberus . . peor ols ass 2 its gradual rise . : oo ee ee eR de, 185 its importance in the present times PR Aen OP as ER 6,7 conflict of laws an important branch of . . . . 9 LAWS, FOREIGN, ignorance of . . . oe ee ew ew ss 696, 869, 870 misinterpretation of | ee 24 4 ee & o 6. 368 must be proved as facts to the court . . . . 863, 864 LEASEHOLDS of chattel interests in land classed as immovables . . . 629¢ LEGACIES, how interpreted . . . . . . . . . . . 480-436, 660-676 in what currency payable . . . . . . . 480-436 LEGITIMACY, determined by the lex loci of the marriage 112, 1738, 174, 181 note 1 LEGITIMATION . . . . 118 note 2, 121 note 3, 126 note 2, 188 a, 142 a LETTER OF CREDIT ABROAD, by what law governed . .. . . 8388 LEVITICAL DEGREES, recognized by the English Statute . . . . . 194 LEX FOR]. (See Remupres.) . 2. 2. 1. 6 ee ee ee ee) 789-794 LEX LOCI, traces of, in the Roman Digest. . . . . . 8, note 2 "(See ConFLIcT oF Laws — Contracts.) LIENS, when regulated by thelexloci . 2... 1... eee 489 foreign cannot have priority . . ....... . . 459-479 when they adhere to the property. . . . . . . . . . 562-564 when regulated by the lex fori. . . oe ee wee ae 798 LIMITATIONS, STATUTES OF, belong to hanes ote ee hae a ee, 98 their object and policy . . ~ . 794 suits by foreigners must be brought within the time prescribed by them . . soe we ee 794, 796 objections of the foreign jurists to this rule” ee ew ee) 796-801 extinguish the right of action . . . Ae Marek ah he IOS when they extinguish the claim . . » + + 798-805 where title to property has become final by possession, and there is a removal to another jurisdiction, with a longer pro- SOMPWODS cee aac: ok eee we ey Be WO ee, BOL LIQUOR CONTRACTS. .... . . . . 8404, 341 ¢ LIVERMORE, Mr., bis Dissertations on ena of Laws . . 11, notel LIVINGSTON, Dr., his Dissertation on Marriage with a Wife’s Sister . . 194 LOAN AND SECURITY, when in different States . . . . . . . . 892 LOCALITY OF BANK STOCK, &. ........2..4.. 542 LOCALITY OF TRIALS, distinctiosasto . . .... 2.2... 772 LOTTERY: CONTRACTS: 4, «6 a 40% woe ee wae a) Bebo LUNATIOS, their capacity 2. 2. 2. 1 ee eee ee «178, 174 Gomicwof ee ee ee ew 48 c, 115, note 4 INDEX. 891 M, PAGE MAJORITY, age at which attained . . a ae . . 68, note 2 whether that of the denial prevails ea % 71, TH, 91, 93, 95 reasons of the civilians on fixing age of . . . . 93, 94 casesin Louisiamaasto . . . . . . . 1... . 95-100 determined by the lexloci . . . sa cw @ 270 MARRIAGE, distinction between the ceremony ‘alt the union in eal 215 a English rule as to capacity for. 2... ~ «6 «. « . 101-106 of British minors in France. . . soe ew ew ee «)©6108, 104 principles in England as to capacity ior oe % ee we @ T1914 American courts . . ...... . 114,115 of parents of illegitimates in Scotland . 112, 118 governed by the lex loci. . . . 109, 113, 170, 172, 7 3, 187, 292 how affected by incess . . . . . « . 111, 188-197 afavored contract. . . . 1 1. 1 ew we we we we 184 a consensual contract. . . Wheto Ween Siew ah y2 ee. 3185; 186 a matter of municipal regulation Sow Gooae) A me cao ak ABD, BF of priests and nuns. oe ee © 152,158 @ essentials must conform to law of doniel . . « « . 215, 220, note three exceptions to the rule that the lex loci governs . . 188-201 (ist) in cases of incest and polygamy . . . . . . . 188-196 between kindred prohibited . . . « 188-196 (2d) when prohibited by positive law ‘through policy ee « 4 197 (3d) when celebrated in desert or barbarous countries accord- ing to the law ofdomicil . . . . . . . 1 we ws. 198 this exception based upon necessity . . . . . ~~. . 199, 200 at the Cape of Good Hope . . . . eR at Ae oe ah ay LOD of British subjects in foreign settlements olay hae. Sg sgh aa sa 200 grounds of the rule that the lex loci governs . . . . . . . 201 the rule supported by the foreign jurists . . . . . 201, 202-205 in a foreign country, between persons of another country . 205-207 Scotch, by parties domiciled in England . . . . . . 207-215. _ after divorceein Scotland . . 2... 1. 1 ww ss 207-215 legislative right to dissolve . . . . oe ee ee 275 contracts and settlements, their interpretation ere ae ery settlements, efféct of . . . a> as arog 266 a, 267 transfers personal property all the world over. . . . . 581, 582 whether sentences confirming, are universally conclusive . . . 818 MARRIAGE— INCIDENTS TO, . ...... 1. « « 227-274 diversified regulations asto. . . . . . 1. ss + 227-229 mainly discussed by Froland . . . . 1... 2 ee es 227 as regulated by the French Code . . . . 229, 230 the law of community . . 229, 230, 245-249, "953-261, 268, note 3 under the English law . . ‘ . . 282 how the capacity of wife is affected by thedomicl . . . . . 934 how the capacity of the wife is affected y ee of domicil . 285 opinions of the foreign jurists . . . « 285-238 as to the property of husband and wie... 1 uo ee «240 (1st) where there is no change of domicl . . . . . . 240-250 892 INDEX. MARRIAGE —- INCIDENTS TO — continued. PAGE general result of the reasoning. . soe aw we 6 4 « 250, 95T (2d) where a change has taken place ee ee ee eee diversity of opinion . . . . « 252-257 no question has arisen before the English courts 0 on this point . 258 opinion of the court of Louisiana. . . . . «© . + « 259-265 tacit contract as to matrimonial domicil . . . . . . . 260-270 general propositions as to the incidents of marriage . . . 267-270 matrimonial domicil, what . . - . 270-274 how far regulates rights and duties springing from the relation » 259 where intention of an instant removal . . . . . . 278, 274 case of arunaway marriage . . bop we woe we O78 MARSHALLING ASSETS, by what law iad woe ee we 749-745 MASTER OF SHIP, authority of. . . . . . . 886, 387, note 2, 3904 MATRIMONIAL DOMICILE, what. . . toe ee ee 270-274 whether it governs immovables abroad . oe ee «6 ~~ 680, 681 MAXIMS OF INTERNATIONAL JURISPRUDENCE ... . 21-36 (ist) every nation has exclusive ee within its own territory . . Se ale a ce aL principles of Boullenois under this r maxim . ... . . 21,22 (2d) no nation can affect propery or persons out of its terri- tory .. Low oe Seow ae le we be RRS exception to the 9: maxim . . - ee 28 (8d) the force of the laws of one country i in anger depends upon the laws of the latter . . . . 1. . 1... . 25,174 (See Conriict oF Laws.) where the law is silent, who is to determine in cases of the con- ‘ flichof laws « 4 6 2 es @ 2 & w @ © @ x wa 25 MERCHANTS, FOREIGN, contracts with . . . . : . . . 892, 393 MERCHANTS’ BOOK, when evidence or not in foreign courts . . 861, 862 MERGER, of cause of action by foreign judgment. . . . . . . . 8234 by judgment in different American States . . . . . . . 828a@ MINORITY, whether that of the domicil governs universally . 71, 75, 76, 78, 91-93, 95, 96 reasoning of the civilians . . . 1. 1. 6 ew ew we 994 cases in Louisiana as to . . soe oe we es 95-100 disabilities from, in Continental Europe ee we & « ~@ TIS 11C determined by the lex lociin what cases. . . . . . 170-178 exceptions tothisrule . . . 1... 2 ee ew ee Th MINORS, their domicil . . ; ie a) SE Whee Sa Geb AVSB2 British intermarrying { in France woe we we e © © 108-106 who, by the Romanlaw. . . sa © a 693 their capacity. (See Capacity oF ? Persons — Minority.) when bound by contracts in a foreign country, ornot . . 94-96, 106-108 change of domicil . . . . +. « 708, 708 ¢ MISINTERPRETATION OF FOREIGN “LAWS, “effect of . . 362, 368 MIXED ACTIONS, what... 2 1... 1. .) 749, 758, 754, 771 INDEX. 893 MIXED LAWS, what... .........4, 538, 592-594 MIXED MONEY, case respecting. . . » . « « 483, note 2, 438, 439 MIXED QUESTIONS, a term of the oiinne soe ee « « 10, note 1 MOBILIA SEQUUNTUR PERSONAM, discussion of maxim. . . 543¢@ MONEY, FOREIGN, depreciation, how payment to be made in . 425, 426, 439 MONTH, has different meanings. . . . . ......... . 865 MORALS, contractsagainst . . 2... 1 ww we ee we) 840, 841 MORTGAGES, by what law governed . . sea a ew « 6092 are personal assets in Massachusetts _ eo ce. ae Ea! fed MOVABLES, capacity of personsas to . . soe oe ew ws . 71-75, 514 whether governed by the lex rei site soe ew ew ee) 514-532 whether laws relating to, are personal or real. . . . 584-536 follow the person of the owner . . . .. . . . 885-587 what, when annexed to immovables . . ry 7 not affected by foreign laws except through comity eg . 647 foreign judgments are conclusive upon, when within their juris- diction. 2. 2... we ee ee ee ee) 818-815 (See PersonaL Propzrty.) MUTUAL ADVANCES AND BALANCES, between merchants of dif- ‘ferentcountries . . . . . . : ROR ae Vee Ze 3g 88 N, NATIONAL DOMICIL. (See sausage principles asto. . . coe ew ew ew oe 655-66 persons barn in a country are éitizens eee € o sw ae 86 reasonable qualification of thisrule . . . . i & « = BG foreigners resident for permanent purposes are citizens i & 4 «@ 56 when foreign domicil%s abandoned for native . .... . 56 of ambassadors and — ministers . . . 1) ) we e 57 of consuls .. . ee ee ee I ee ee MOE of children born upon Prien 8m nee cian ted FR 57 of three sorts . . ie ap aE 57 of a ward, whether guardian may change él oe hs 702-709 NATIONS, LAW OF. (See Law or Nations.) NATURALIA OF CONTRACTS, what .. . . . . 350-354, 356 NA@URE OF CONTRACTS, what, and how pavernids . . « . 850-356 NEGOTIABLE INSTRUMENTS, damages upon . . .. . . 488-450 payable and indorsed in different countries. . . . . . 446, 447 made payable generally . . 2 ee 447 conflicting opinions in New York ai Massachusetts . « 446-450 discharges and defences upon . . . OM Gove Fe ae ae AB made and transferred in different countries . eee es 494-505 foreign indorsee’s right of action in hisown name . . . 494-505 , when indorsed by foreign executor . . . .. . . . 504, 505 not mere chosesinaction . . 6 2. 1. ee ee ew ew ee BOK 894 INDEX. NEGOTIABLE INSTRUMENTS — continued. PAGR days of grace upon. . » ee + 492, 506 foreign administrator may sue in n his o ownname .... .. 736 NEUTRALITY, contracts inconsistent with. . . . . 2 e+: 341, 342 NON-RESIDENTS, laws asto. . . eR OE Ve a BA OB jurisdiction over and jndgmenta against . woe ee ee © 761-765 NOTARIAL INSTRUMENTS, admissibility of . . . » ee + . 6856 NOTARY PUBLIC, efficacy of his certificate in a foreign eniaie . 850, 853 NOTICE OF ASSIGNMENT, when necessary . . . . . 555, 556 NOTICE OF PROTEST OF BILLS, by what law arena . ee 6 505 NUPTIAL CONTRACTS governed by lexloci . . . . 115, 116, 372, 373 os O. OBLIGATION OF CONTRACTS, what and how governtd . . . 356-362 personal, what . . . . . . 784-787 OFFENCES. (See Pznwan Laws.) OUTLAWRY IN ENGLAND, how it affects the capacity . . .. . 117 P. PARAPHERNAL PROPERTY, what... ........ . 229 PAROL CONTRACTS, their validity abroad . . . » . . « 849, 350 PAROL PROOF, case of in France . . . 855 PARTNERSHIPS IN COMMANDITE, effect of, on sine in a foci countries . . 450 PATERNAL POWER of the aici aii ~ 4 pe OR eS 97, 634 laws of, whether real or personal . . . . 635-640 doctrines of Merlin... . . 637-639 how far it affects real property of children i in foreign countries . . . . . 635-640 as to consent to marriage of children in foreign countries . . ........ . 115,116 PAYMENT, how and whatisgood . . . 1... 1 1 1. 726-734 inwhatcurrency . .- . 2... 1 ee ee we) 495-436 when at par value . . . oe «= 425-436 PENAL DISQUALIFICATIONS, not jenarded in vforict counties 173, 840- 843 PENAL LAWS AND OFFENCES, crimes are local and exclusively punishable where committed 840-843 not regarded by courts of foreign State . . . . . . . . 842a different doctrine held by Hertius and P. Voet . . . . 843, 844 whether a nation is bound to surrender up fugitives from jus- tice. . . ee « = 845-849 competency of a " witness ponvioted of an 1 infamous crime in an- other Stale gos 4 2 we a eK ee ewe ee we BAD reality of penal laws. 2 2. 1 1 1 ew we we ew ee 848 \ INDEX. 895 PAGE PENALTY, imposed by foreign law, courts will not enforce. . . . . .84la _Judgment for, not ground of action of debt . . . . . 788a, 831 PERFORMANCE, PLACE OF, whenitslaw governs. . . . . . . 376 PERSONAL ACTIONS, what. . . . + +. « 748, 754, 769, 770 PERSONAL LAWS, existed among Ganiay nations from the earliest times. . ; - 1 ss . 8, noted how they affect ‘the person i Sok wos oa we 6%, 68 what... - » » » 588, 592, 593 whether they can in operate extra-tervitorially - . W11-773 PERSONAL OBLIGATION OF CONTRACTS, what and how gov- ermmed . sw - . . + 859, 360, 784-787 PERSONAL PROPERTY, is governed by the law of the domicil of the owner . . 534-541 reasons and origin of this rule. . 586-539 when it loses its character by being fixed to the realty . . 541, 542 may be transferred by the law of the domicil of the owner . 542, 548, 558-562 exceptions to thisrule . soe ew we 6 © 542-548 valid transfer of, by the law of the situs RS Sec ie cade ge OAT. delivery necessary to complete a sale in Louisiana a as > 549 in Massachusetts 552 note 1, 554 invalidity of foreign transfer without delivery, against cred- itors. . woe ee we ee we we 648-555 this doctrine questioned yg oe we = “DER case of transfer at sea held valid without delivery ee «ey B53 case of transfers by partners in different places. . . 554 whether the lex rei sites of the place of transfer: should prevail 554 where attachment before assignment . . . . . . . 561, 562 subject to what liens, &c. . + . 562-565 assignments under bankrupt and insolvent laws eee ee 565 (See Banxrurt Laws.) transferred by marriage all the world over . . . . . 581, 582 will of, governed by the law of the testator’s domicil. . 641-648 (See Wix1s.) succession to, governed by the law of the intestate’s domi- Gil ap ae Se Re ee ee ee 8077080 (See Succession.) the primary fund for the saat of debts in Holland and England . . 2 oe ee 746, 747 how, when reduced into possession by a foreign executor . . 735 (See MovaBuezs.) PERSONALTY, reasons for using this word 2 2. 2 1 1 ewe ee 20 PERSONS, jurisdiction over, (See JuRIspicTIon.). . . . . - - 754-765 PLACE, of performance . . . ee we wy we le Bbw POLICY, NATIONAL, contracts or 4 woe ew ew we. 841-844 POLYGAMY, forbidden by Christianity . . . . « 188, 189 note makes an exception as to the validity “of marriages by lex loci. 1 2 ee ee ee te we ee «189, note 8 896 INDEX, PAGE POSTING, notice by, local in its effects . . . . +» «+» 6 ss | F61 POWER, of appointment . . . . i SEs ee RE Sige Gay ta ee SOO PRESCRIPTION. (See Limitations. ) PRESENCE, gives jurisdiction to the Scotch laws in cases of divorcee 978-280, 285, 290-292 PRESUMPTION, concerning foreign law. . . . . . - « « s + . 868 (See Divorczs.) PRINCIPLES AND SURETIES, when in different States . . . 394 PRIORITY AND PRIVILEGE of foreign liens, how and when ‘ae lowed. . . » oe a. «452-470 of domestic creditors over ‘foreign assignees » . « « 879, 880: of creditors under administrations, by what law determined 742-746 conflict of, between foreign and domestic creditors. . . 455-458 when determined by the lex fori . . . we ce ae 998) PRIVILEGES AND PRIORITIES, what is the rule aati ig different in different countries . . . .. . 451-475 as to real estate or immovables. . . . . . . . . 451-475 as to personal estate ormovables . . . . . . . . © 455-475 (See Lizy.) PROCESS, belongs to remedies . . . . . 1... we ee) 784, 785 (See RemEpizs.) PRODIGALITY, how it affects the capacity . . . . . . . ~ « 169-175 PROMISSORY NOTES, (See NecotiaBizs [nstRUMENTS.) 438-450, 499-506 PROOFS, FOREIGN. (See Eviprence.) PROPERTY IN TRANSITU, by what law governed . . . . . 562, 563 PROSTITUTION, foreign contracts for . . . 340 PROTEST OF BILLS OF EXCHANGE, how made, atl a ts whatlaw. . . a 5 . . . . 505, 852 PROTESTANTS, their views on Givanes, 8) ee ee he eo ee, ie 98D PUBERTY, age of, by the Romanlaw. . . . . 1. 1 1 ew we ee 698 PUPILS, who by the Roman law 2... 1 we ee ee we 698 R. RATE OF EXCHANGE, on foreign contracts. . . . . . . . 425, 4298 RATIFICATION. . 2. 2 ww 1 ew ee eee ew) 885, 886 REAL ACTIONS, what. . . . 1... 1 1 ww ws . 749, 769, 770 REAL LAWS, what... . » +... 588, 592, 598 REAL PROPERTY, governed by the tee rei stn . .« 510-518, 591-598, 639 so contracts respecting . . . » 510-532 contracts respecting, how dissolved and extinguished . . 494-498 what is real property, according to Pothier. . . . . . . . 517 does not pass under foreign bankrupt laws. . . . . . 599 capacity to take or transfer, governed by the lex rei sites . 599-606 INDEX, REAL PROPERTY — continued. where actions must be brought (See JuRISDICTION.) are governed by the lex fori eos reasons of thisrule . . . ik 6 this rule recognized by the civilians . questions as to what belongs to what persons may sue . . where assignment of an Irish jndgment . where a scrawl has the force of a seal the mode of process belongs to where the contract creates no personal obligation ‘ when a party is liable to arrest . form of judgments and executions belongs to . set-off, liens, priorities, &c., belong to 57 897 PAGE foreign jurists divided upon this point o's . 581-606 capacity, according to some, determined by the domicil of the party . 601 forms of transfer determined by the lex rei sites . . 607 foreign jurists divided on this point . ; . 607-625 testaments of, according to some, governed by the domicil of the testator » . 610-685 the extent of the interest transferred governed by the lex rei sitee i 626-629 restrictions upon transfer also : aN doctrines of the common and civil law alike on this point . . . 626 what, determined by the lex rei site . . « 629, 680 acquired by operation of law, only according to the lex rei site 630, 631 under the common law, not affected by the law of community. . 634 difficulties of the civilians on this subject 639 wills of, governed by the lex rei sitz . 651 (See WIL1s.) . succession to, governed by the lex rei site: . 681-683 (See Succession.) not subject to the authority of a foreign gout . 701 trespasses to, are deemed local . é ee we Ae a different doctrine once held . a ew oe 77 jurisdiction over, exclusive . ‘ . « 766-773 foreign judgments are conclusive upon é 812 (See IMMovaBLes. ) REAL SECURITIES, how administered when converted into personal. assets . ; ae . 741, 742 REALTY, reasons for using this word . eo we 19 of penal laws ; » . . 8483 RE-EXCHANGE, by what law evened , : - . 425-428 REGISTRATION, necessary to make certain instrumerits evidence . . . 852 REMEDIES, are part of the consequences of contracts . ee. . 481 classed into three sorts i « . 749 by actions real, personal, and mixed in the Roman law . » . 449 772, 778, 855 a » . 773-775 s+ 6-779 s « WY 779-784 » » « 782 + + » 784 soe . 784 » . 785, 786 . . 786, 787 » . 787 792, 798 898 INDEX. REMEDIES — continued. Statutes of Limitation belong to . Statutes of Frauds belong to REMOVAL, with intent to reside, how it affects dowiel . RESIDENCE, definition of, as used in statutes . its importance in determining domicil must be voluntary . once acquired remains of corporations. . principles as to, in different countries gives jurisdiction to the Scotch courts in cases ‘of divorce : (See Divonczs.) REVENDICATION, right of, what REVENUE LAWS, not regarded ROMAN LAW, called the common she : as to domicil RUNAWAY MARRIAGE, case ‘af Ss. SALE, contract of, what law governs validity of . SCOTCH DIVORCES of English marriages how obtained (See Divonors. ) SCOTCH HERITABLE BONDS, what whether payable out of the real or personal elsif SCOTCH MARRIAGES, by parties domiciled in England . SCRAWL, where it has the force of a seal . a SEAL, of a sovereign, Court of Admiralty, &., its effect 5 SECURITY AND LOAN, when in different States . SFNATUS-CONSULTUM VELLEIANUM, what it is whether it is a real or a personal statute . ‘SET-OFF, what will constitute, in foreign country . belongs to the remedy (See ComPENSATION) ‘SETTLEMENT under poor-laws . ‘ SETTLEMENTS, MARRIAGE, their en SHIPMASTERS, how far bound by foreign law . SISTER-IN-LAW, marriage with . o. % Dr. Livingston’s Dissertation as to. . SLAVERY, how it affects the capacity SLAVE-TRADE, foreign, contracts to carry on SMUGGLING, contracts for . SOVEREIGN, FOREIGN, may sue in our sai FOREIGN, contracts in evasion el : PAGE 793, 794 1944 47-54 . o7e¢ ‘Ly, note . 55-57 284-293 . « 563 331, 338 338 ll 41 273 892 b 207-218, 284, 292 : ; 276 513 685-687, 747, 748 207-215 784 ‘ 872 392, 393 17-19, 80, 592 . 17-19, 592 . 476, note 4 792, 793 . 68, note 058 372 . 387, note 2 oar LDS "194, note 3 1538-178 . . 842 334, 335 . 780, 780 a INDEX, SOVEREIGNTY of a nation over its own subjects within its own territory SPECIAL LAWS, as to the capacity of persons, seh STAMPS, how they affect foreign contracts - 23, 24, 109, 110 899 PAGE 25 ave ow ° 68 846, 448, 852 STATUTE OF FRAUDS, contracts under, their validity abroad 349, 351 note 1, -STATUTES, divisions of, ae the civilians . what ; personal, what 3 real, what ’ mixed, what. . distinction between ‘personal ‘and real Senatus-consultum Velleianum . . distinction between local and personal STATUTES OF LIMITATIONS. (See Lrurrations.) STOCK, in banks, canals, &c., its locality . STOPPAGE IN TRANSITU, right of, how it adheres ” peer. 607, 852 » . i114 18, 533 "13, 533, 637, 684 . . 18, 533 14, 20, 637 19, 592 510 542 562 SUBJECTS, wherever they may soak bound ra the laws of their coun- try who are SUCCESSION AND DISTRIBUTION, . 28-25, 109, 110: 756 of personal property oat by the law of the domicil of the intestate . reason of this rule . : of immovable property governed by the lex t rei sitee meaning of the word “ heirs,” &c., how determined . embarrassing questions arising under , where intestate, domiciled in England, left real ‘estate in Scotland . SURETIES, according to what law liable : ‘ SURETIES AND PRINCIPALS, when in different States TAXATION of resident or inhabitant . . - TENDER AND REFUSAL, when a discharge TERRITORIAL JURISDICTION principles of Boullenois as to Se hese TERRITORY, force of the laws of a nation outof. . . this force depends upon comity . : power of administrator does not extend beyond jurisdiction depends upon TESTAMENTARY HETR, by the Roman law, sin 4 TESTAMENTS. (See Wits.) . 677-680, 691 @, 722-732 727-732 681-684 . . 684 685-692 686 “389, 360 812 61, note 477, 478 ow « 1 « . 21, 22 - 8, 22-25, 168 81-39, 374, 424 713 754 710 900 INDEX. PAGE TORTS, committed abroad, redressed by anycourt. . . . . . . » 844a statutory and common law, discussion concernmg . .. . . 844a on board foreign vessels, by what law governed in case of a con- flict of laws... Se de we oe pene COBO) (See Cozistons.) TRANSFER of foreign liabilities, right to sue upon... - 499-506 of personal property. (See Pzrsonau Property.) under the bankrupt laws. (See Bankrupt Laws.) TRANSIENT PERSONS, contractsof . . . . ... + . . 9869, 370 TRIALS, locality of, distinctionsasto. . . 1. 1 1 ee ee ee 771 TRUSTS under foreign wills . 2. 1. we ee et ww we ee we) «6FBLG TURNPIKE SHARES, their locality 2. . 1 2... 1 © we ew + 548 TUTOR, who by the Roman law. . . 1 1 we te we ew ww 698 Uz UNCLE AND NIECE BY BLOOD, marriage between . . . . .. « 198 UNIVERSAL LAWS, not recognized by nations of eee oA as to the capacity of persons, what . . oe » » 67, 68 USAGE, how it affects contracts. 2. 2. 1. 1 1 ee ee we wee 86K USANCE, its meaning in different countries . . . . . . . «= 865 USURY .... 2 ee 4 899, 402 UTAH, matriage valid i: fis be of, invalid i in ipl. ose we W8e Vv. VALIDITY OF CONTRACTS, what . . ..... .. . 825,816 governed by the lexloci . . . see «+ 826, 827, 471 (See Contracts.) VALUE OF MONEY IN CONTRACTS, by what rule ascertained . . 425 VENIA ATATIS, meaningof .......... =. =. . 82, noted VIIS ET MODIS, citations, what they are. . . . . 1... + ~ . 760 Ww. WARD. (See Guarpians.) WARRANTY, affects the nature of acontract . . . . . . 1. 1 es 855 WIDOWS, their domicil ans 50 WILLS AND TESTAMENTS, sesiine i ‘te ae of the dette domicil pass personal property, wherever situate . . 641-657 Sir J. Nicholl’s exception to this rule in the case of English subjects abroad . . » . . 643, 644 INDEX. 901 WILLS AND TESTAMENTS — continued. PAGE this rule established in America . 2... 1. +. 644 Scotland . . . oe we me a BES amoung the foreign jurists arr. ih 45 645 as laid down by Vattel oo a ae "646, 647 where change of domicil after making the will. . . . 648, 649 interpretation of foreign . . . . . 661-676, 686, 691 of immovable property governed by the lex rei site . . 600-620, 651-660 distinctions of the foreign jurists on this head . . . . 653-659 the Scotch law in coincidence with the commonlaw. . . 659 when interrupted according to local rules. . . . » 684 of personal property, by what evidence established . . . . 863 construction governed by law ofdomicil . . .. . . 691 WITNESS, competency of, when convicted of an infamous crime in i State . . aa ew = Bal when competent abroad and incompetent here . eos ee + + B50 University Press, Cambridge: John Wilson and Son. why Biya) patty ih asi Bh ah Neds ieee