Law Library Cornell Law School the gift of Qr....x^ia,^ %J&^...,...Zk^, !ZMheL,a^...^JlL«!(J....^^^:ii^ Date &^;:^.M..i^J.?j.f... Cornell University Library KF 410.L86 Cases on the conflict of laws, seleced f 3 1924 018 828 867 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018828867 CASES ON THE CONFLICT OF LAWS SELECTED FROM DECISIONS OF ENGLISH AND AMERICAN COURTS BY ,, *-\ "' ■ ERNEST G. LORENZEN PH. B., LL. B. (CORNELL), J.U. D. (GOTTINGEN) PROFESSOR OP LAW IN THE GEORGE WASHINGTON UNIVEKSITY AMERICAN CASEBOOK SERIES JAMES BROWN SCOTT GENERAL EDITOR ST. PAUL WEST PUBLISHING COMPANY 1909 COPTBIGHT, 1909, BY WEST PUBLISHING COMPANY (Lob. Coisi'. L.) To JOHN H. WIGMORE as a slight recognition of his great services to scholarship in the law. (ili)* THE AMERICAN CASEBOOK SERIES. For years past the science of law has been taught by lectures, the use of text-books and more recently by the detailed study, in the class-room, of selected cases. Each method has its advocates, but it is generally agreed that the lecture system should be discarded because in it the lecturer does the work and the student is either a willing receptacle or offers a passive resistance. It is not too much to say that the lecture system is doomed. Instruction by the means of text-books as a supplement or sub- stitute for the formal lecture has made its formal entry into the educa- tional world and obtains widely ; but the system is faulty and must pass away as the exclusive means of studying and teaching law. It is an improvement on the formal lecture in that the student works, but if it cannot be said that he works to no purpose, it is a fact that he works from the wrong end. The rule is learned without the reason, or both rule and reason are stated in the abstract as the resultant rather than as the process. If we forget the rule we cannot solve the problem ; if we have learned to solve the problem it is a simple matter to formulate a rule of our own. The text-book method may strengthen the mem- ory; it may not train the mind, nor does it necessarily strengthen it. A text, if it be short, is at best a summary, and a summary presup- poses previous knowledge. If, however, law be considered as a science rather than a collection of arbitrary rules and regulations, it follows that it should be studied as a science. Thus to state the problem is to solve it ; the laboratory method has displaced the lecture, and the text yields to the actual experiment. The law reports are in more senses than one books of experiments, and, by studying the actual case, the student co-operates with the judge and works out the conclusion however complicated the facts or the principles involved. A study of cases arranged his- torically develops the knowledge of the law, and each case is seen to be not an isolated fact but a necessary link in the chain of develop- ment. The study of the case is clearly the most practical method, for the student already does in his undergraduate days what he must do all his life; it is curiously the most theoretical and the most prac- tical. -For a discussion of the case in all its parts develops analysis, the comparison of many cases establishes a general principle, and (V) Vi PKEFAOE. the arrangement and classification of principles dealing with a sub- ject make the law on that subject. In this way training and knowledge, the means and the end of legal study, go hand and hand. The obvious advantages of the study of law by means of selected cases make its universal adoption a mere question of time. The only serious objections made to the case method are that it takes too much time to give a student the requisite knowledge of the sub- ject in this way and that the system loses sight of the difference be- tween the preparation of the student and the lifelong training of the lawyer. Many collections of cases seem open to these objections, for they are so bulky that it is impossible to cover a particular sub- ject with them in the time ordinarily allotted to it in the class. In this way the student discusses only a part of a subject. His knowl- edge is thorough as far as it goes, but it is incomplete and frag- mentary. The knowledge of the subject as a whole is deliberately sacrificed to training in a part of the subject. It would seem axiomatic that the size of the casebook should cor- respond in general to the amount of time at the disposal of instructor and student. As the time element is, in most cases, a nonexpansive quantity, it necessarily follows that, if only a half to two-thirds of the cases in the present collections can be discussed in class, the pres- ent casebooks are a third to a half too long. From a purely practical and economic standpoint it is a mistake to ask students to pay for 1,200 pages when they can only use 600, and it must be remembered that in many schools, and with many students in all schools, the mat- ter of the cost of casebooks is important. Therefore, for purely practical reasons, it is believed that there is a demand for casebooks physically adapted and intended for use as a whole in the class-room. But aside from this, as has been said, the existing plan sacrifices knowledge to training. It is not denied that training is important, nor that for 'a law student, considering the smaH amount of actual knowledge the school can hope to give him in comparison with the vast and daily growing body of the law, it is more important than mere knowledge. It is, however, confidently asserted that knowledge is, after all, not unimportant, and that, in the inevitable compromise between training and knowledge, the present casebooks not only de- vote too little attention relatively to the inculcation of knowledge, but that they sacrifice unnecessarily knowledge to training. It is be- lieved that a greater effort should be made to cover the general prin- ciples of a given subject in the time allotted, even at the expense of a considerable sacrifice of detail. But in this proposed readjustment of the means to the end, the fundamental fact cannot be overlooked that law is a developing science and that its present can only be un- derstood through the medium of its past. It is recognized as im- perative that a sufficient number of cases be given under each topic PREFACE. Vll treated to afford a basis for comparison and discrimination ; to . show the development of the law of the particular topic under discussion; and to afford the mental training for which the case system neces- sarily stands. To take a familiar illustration: If it is proposed to include in a casebook on Criminal Law one case on abortion, one on libel, two on perjury, one on larceny from an office, and if in order to do this it is necessary to limit the number of cases on specific intent to such a degree as to leave too few on this topic to develop it fully and to furnish the student with training, then the subjects of abor- fioii, libel, perjury, and larceny from an office should be wholly omit- ted. The student must needs acquire an adequate knowledge of these subjects, but the training already had in the underlying principles of criminal law will render the acquisition of this knowledge compara- tively easy. The exercise of a wise discretion would treat fundamen- tals thoroughly: principle should not yield to detail. Impressed by the excellence of the case system as a means of legal education, but convinced that no satisfactory adjustment of the con- flict between training and knowledge under existing time restrictions has yet been found, the General Editor takes pleasure in announcing a series of scholarly casebooks, prepared with special reference to the needs and limitations of the class-room, on the fundamental sub- jects of legal education, which, through a judicious rearrangement of emphasis, shall provide adequate training combined with a thor- ough knowledge of the general principles of the subject. The collec- tion will develop the law historically and scientifically; English cases will give the origin and development of the law in England; Ameri- can cases will trace its expansion and modification in America; notes and annotations will suggest phases omitted in the printed case. Cumulative references will be avoided, for the footnote may not hope to rival the digest. The law will thus be presented as an organic growth, and the neces- sary connection between the past and the present will be obvious. The importance and difficulty of the subject as well as the time that can properly be devoted to it will be carefully considered so that each book may be completed within the time allotted to the particular sub- ject. It is equally obvious that some subjects are treated at too great length, and that a less important subject demands briefer treatment. A small book for a small subject. In this way it will be alike possible for teacher and class to com- plete each book instead of skimming it or neglecting whole sections; and more subjects may be elected by the student if presented in short- er form based upon the relative importance of the subject and the time allotted to its mastery. Training and knowledge go hand in hand, and Training and Knowl- edge are the keynotes of the series. VIU PREFACE. If it be granted that all, or nearly all, the studies required for ad- mission to the bar should be studied in course by every student — and the soundness of this contention can hardly be seriously doubted — it follows necessarily that the preparation and publication of collections of cases exactly adapted to the purpose would be a genuine and by no means unimportant service to the cause of legal education. And this result can best be obtained by the preparation of a systematic series of casebooks constructed upon a uniform plan under the super- vision of an editor in chief. For the basis of calculation the hour has been taken as the unit. The General Editor's personal experience, supplemented by the experience of others in the class-room, leads to the belief that approximately a book of 400 pages may be covered by the average student in half a year of two hours a week ; that a book of 600 pages may be discussed in class in three hours for half a year; that a book of 800 pages may be completed by the student in two hours a week throughout the year ; and a class may reasonably hope to master a volume of 1,000 pages in a year of three hours a week. The general rule will be subject to some modifications in connection with particular topics on due con- sideration of their relative importance and difficulty, and the time ordinarily allotted to them in the law school curriculum. The following subjects are deemed essential in that a knowledge of them (with the exception of International Law and General Juris- prudence) is universally required for admission to the bar: Administrative Law. Insurance. Agency. International Law. Bills and Notes. Jurisprudence. Carriers. Mortgages. Contracts. Partnership. Corporations. Personal Property, including Constitutional Law. the Law of Bailment. Criminal Law. Criminal Procedure. Real Property, .j'/d""'-?'- ( 3a " Common-Law Pleading. Public Corporations. Conflict of Laws. Quasi Contracts. Code Pleading. Sales. Damages. Suretyship. Domestic Relations. Torts. Equity. Trusts. Equity Pleading. Wills and Administration. Evidence. International Law is included in the list of essentials from its in- trmsic importance in our system of law. As its principles are simple m comparison with municipal law, as their application is less technical PKEFACE. IX and as the cases are generally interesting, it is thought that the book may be larger than otherwise would be the case. As an introduction to the series a book of Selections on General Jurisprudence of about 500 pages is deemed essential to completeness. The preparation of the casebooks has been intrusted to experienced and well-known teachers of the various subjects included, so that the experience of the class-room and the needs of the students will fur- nish a sound basis of selection. While a further list is contemplated of usual but relatively less im- portant subjects as tested by the requirements for admission to the bar, no announcement of them is made at present. The following gentlemen of standing and repute in the profession are at present actively engaged in the preparation of the various case- books on the indicated subjects: George W. Kirchwey, Dean of the Columbia University, School of Law. Subject, Real Property.' Nathan Abbott, Professor of Law, Columbia University. (Formerly Dean of the Stanford University Law School.)- Subject, Per- sonal Property. Frank Irvine, Dean of the Cornell University School of Law. Sub- ject, Evidence. Harry S. Richards, Dean of the University of Wisconsin School of Law. Subject, Corporations. James Parker Hall, Dean of the University of Chicago School of Law. Subject, Constitutional Law. William R. Vance, Dean of the George Washington University Law School. Subject, Insurance. Charles M. Hepburn, Professor of Law, University of Indiana. Sub- ject, Torts. William E. Mikell, ProfessQr of Law, University of Pennsylvania. Subjects, Criminal Law and Criminal Procedure. George P. Costigan, Jr., Dean of the University of Nebraska School of Law. Subject, Wills and Administration. Floyd R. Mechem, Professor of Law, Chicago University. Subject, Damages. (Co-author with Barry Gilbert.) Barry Gilbert, Professor of Law, University of Illinois. Subject, Damages. (Co-author with Floyd R. Mechem.) Thaddeus D. Kenneson, Professor of Law, University of New York. Subject, Trusts. Charles Thaddeus Terry, Professor of Law, Columbia University. Subject, Contracts. X PREFACE. Albert M. Kales, Professor of Law, Northwestern University. Sub- ject, Persons. Edwin C. Goddard, Professor of Law, University of Michigan. Siih- ject, Agency. Howard L- Smith, Professor of Law, University of Wisconsin. Sub- ject, Bills and Notes. Edward S. Thurston, Professor of Law, George Washington Univer- sity. Subject, Quasi Contracts. Crawford D. Hening, Professor of Law, University of Pennsylvania. Subject, Suretyship. Clarke B. Whittier, Professor of Law, University of Chicago. Sitb- ject. Pleading. Eugene A. Gilmore, Professor of Law, University of Wisconsin. Subject, Partnership. Joshua R. Clark, Jr., Assistant Professor of Law, George Washington University. Subject, Mortgages. Ernst Freund, Professor of Law, University of Chicago. Subject, Administrative Law. Frederick Green, Professor of Law, University of Illinois. Subject, Carriers. Ernest G. Lorenzen, Professor of Law, George Washington Univer- sity. Subject, Conflict of Lazvs. William C. Dennis, Professor of Law, George Washington University. Subject, Public Corporations. James Brown Scott, Professor of Law, George Washington Univer- sity; formerly Professor of Law, Columbia University, New York City. Subjects, International Law ; General Jurisprudence ; Equity. The following books of the Series are now published, or in press : Partnership, by Eugene A. Gilmore, Professor of Law, University of Wisconsin; Criminal Law, by Wm. E. Mikell, Professor of Law, University of Pennsylvania ; Damages, by Barry Gilbert, Professor of Law, University of Illinois ; Conflict of Laws, by Ernest G. Lorenzen, Professor of Law, George Washington University; Trusts, by Thad- deus D. Kenneson, Professor of Law, University of New York. James Brown Scott, General Editor. Washington, D. C, January, 1909. PREFACE. With the growing iBtercourse among nations the subject of Conflict of Laws (Private International Law) must constantly gain in impor- tance in legal practice. The more cosmopolitan society becomes, the more useful and indispensable will be a knowledg'^ of the rules govern- ing this subject in foreign countries. The practical value to the lawyer of a general familiarity with such foreign rules suggested to the editor the appropriateness of indicating under each topic treated the funda- mental differences existing between the Anglo-American and continen- tal systems. Considerations of space and a regard for the primary object of this work as a student's book made it necessary to limit the exposition of the continental law to that of France, Germany, and Italy — ^the countries wherein this newest branch of legal science has found, its highest development. For the sake of brevity I have referred to the Journal du Droit International Prive, edited by E. Clunet, to the Revue de Droit In- ternational Prive et de Droit Penal International, edited by A. Darras, to the Revue Internationale du Droit Maritime, edited by F. C. Autran, and to the Zeitschrift fiir Internationales Privat- und Strafrecht, edited at present by Th. Niemeyer, by the name of their respective editors. The labor involved in the presentation of the French and Italian law has been materially lightened by the assistance of J. Basdevant, Professor at the University of Grenoble, and of G. C. Buzzati, Profes- sor at the University of Pavia and member of the Institute of Interna- tional Law. Thanks to the collaboration of Professor Buzzati, it has become possible, also, to refer to Italian cases contained in reports other than the Annali, Giurisprudenza Italiana, Foro Italiano, La Leg- ge, and Monitore dei Tribunali, which were the only Italian reports accessible to me. It is with pleasure that I acknowledge my obliga- tions to these gentlemen for their hearty co-operation. In connection with the English and American law I have derived the greatest assistance from the well-known treatises on Conflict of Laws by Dicey, Foote, Westlake, Minor, Story, and Wharton, and from the most excellent collection of cases by Professor Joseph H. Beale, Jr. For want of better or equally good illustrative cases it has become necessary to reproduce in this work many of the cases used by Professor Beale. Washington, D. C, January, 1909. E. G. L. TABLE OF CONTENTS. Page List op Authorities. xv Table op American and English Cases -. xix PART I. General Provisions. CHAPTER I. Nature op the Subject 1 CHAPTER II. Penal Laws 31 CHAPTER III. Procedure 51 CHAPTER IV. Judgments ' 86 CHAPTER V. Domicile. Section ^ 1. In General 176 2. Of Married Women 210 3. Of Minors 216 CHAPTER VI. Capacitt. 1. Natural Persons ; 218 2. Corporations 246 CHAPTER VII. Form 2.54 Lob.Conp.L. (xiii) Xiy TABLE OF CONTENTS. PART II. Particular Subjects. chapter i. Pkopertt. „ .. Page Section , , 1. Immovables " 2. Movables ^^^ I. Tangible "^., II. Intangible '^— CHAPTER II. Obugations. 1. Contracts ^^^ I. In General 340 II. Special Contracts 405 (A) Agency and Partnership 40o (B) Guaranty and Suretyship 41.) (C) Bills and Notes 420 (D) Carriers 440 2. Torts 469 CHAPTER III. Family Law. 1. Marriage 510 2. Divorce 536 3. Legitimation and Adoption 560 4. Matrimonial Property 592 CHAPTER IV. INHEKITANCE. 1. Intestate Succession 626 2. Testamentary Succession 629 3. Execution of Powers in a Will 672 CHAPTER V. Foreign Administrations. 1. Executors and Administrators 683 2. Guardians Yjg 3. Receivers and Trustees in Bankruptcy 722 APPENDIX. Conventions op the Hague, Relating to Conflict of Laws 756 I LIST OF AUTHORITIES. 1. AUTHORITIES IN ENGLISH. V. Bar, Hie Theory and Practice of Private International Law. Translated from the German by G. R. Gillespie. (2d Ed.) 1892. Beale, a Selection of Cases on the Conflict of Laws. 3 vols. 1900-1902. Vol. 1, 2d Ed., 1907. BxTEGE, Commentaries on Colonial and Foreign Laws. 4 vols. 1838. New edition in 5 vols. Vols. 1 and 2. London, 1907-1908. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws. (2d Ed.) London, 1908. FooTE, Concise Treatise on Private International Jurisprudence. (3d Ed.) London, 1904. Meili, International Civil and Commercial Law. Translated from the Ger- man by Arthur K. Kuhn. 1905. MiNOE, Conflict of Laws, or Private International Law. 1901. Nelson, Selected Cases, Statutes, and Orders Illustrative of the Principles of Private International Law as Administered in England, with a Com- mentary. 1889. Phillimoee, Commentaries upon International Law. (3d Ed.) Vol. IV. "Private International Law or Comity." London, 1889. Rattigan, Private International law. 1895. Roeee, American Interstate Law. (2d Ed.) 1893. Savignt, a Treatise on the Conflict of Laws. Translated from the German by Wm. Guthrie. 1880. Stobt, Commentaries on the Conflict of Laws. (8th Ed.) 1883. Westlake, a Treatise on Private International Law. (4th Ed.) London, 1905. Whaeion. a Treatise on the Conflict of Laws. (3d Ed.) 1905. 2. AUTHORITIES IN FRENCH. Actes de la Conference de la Haye chargge de rgglementer diverses matiSres de Droit International Privg. 1893, 1894, 1900, 1904. AuDiNET, Prlncipes el6mentaires du droit international priv6. (2d Ed.) 1906. Autban, Revue Internationale du droit maritime. 1885-1909. Baed, Prgcis de droit international p6nal et priv6. 1883. Baetin, ifetudes de droit international prive. 1899. Beochbe, Cours de droit international privS suivant les principes consacrfis par le droit positif frangais. 3 vols. 1882-1885. CbUNET, Journal du droit internationrtl privg. 1874-1909. CoNTUzzi, Commentaire theorique et pratique des Conventions de la Haye concernant la codification du droit international privg. Vol. 1. 1904. Daeeas, Revue de droit international privg et de droit pgnal international. 1906-1909. Despaqnet, PrScis de droit international priv6. 1904. LOE.CONF.L. (xv) xvi LIST OF AUTHORITIES. DoNNEDiEU DE Vabhes, L'gvolution de la jurisprudence franeaise en matiSre de conflits des lols. 1905. Id., L'artlcle 3 du Code Civil et la jurisprudence frangaise de 1804-1904. 2 Darras, 684-699, 829-860. DuKAND, Essai de droit International privg. 1884. EsPBRSON, Le droit international priv6 dans la legislation italienne. 6 Olunet, 329-351; 7 Id. 245-259; 337-346; 8 Id. 206-230; 9 Id. 1.54- 166, 270-288; 10 Id. 263-275; 11 Id. 168-178, 251-270, 365-387, 604r-613. FiOEB, Le droit international prive. Translated from the Italian by Cli. Antoine. 1890-1903. FoELix, Traitg de droit international privg. (4th Ed.) 2 vols. 1866. JiTTA, La mgthode du droit international privg. 1890. ID., La substance des obligations dans le droit international privg. 2 vols. 1906-1907. Keidel, Le droit international privg. dans le nouveau Code Civil Allemand. 25 Clunet, 867-887 ; 26 Id. 17-47, 239-278. LAiNfi, Introduction au droit international privg. 2 vols. 1888, 1892. Lauebnt, Le droit civil international. 8 vols. 1880-1882. Mailhee de Chassat, Traitg des statuts d'aprfes le droit ancien et le droit moderne ou du droit international privg. 1845. PiLLET, Principes de droit international prive. 1903. Id., Droit international prive. 1905. RoLiN, Principes du droit international privg. 3 vols. 1897-1903. SuBviLLE ET Aethtjys, Cours gl^mciitaire dt droit international privg. (3d Ed.) 1900. Du Vakeilles-SommiSees, La synth&E« du droit international privg. 2 vols. 1897. Vincent et Pbnaud, Dictionnaire de droit international privg. 1887-1888. Weiss, Traitg thgorictue et pratique de droit international privg. 5 vols. 1894-1905. 3. AUTHORITIES IN GERMAN. V. Bae, Theorie und Praxis des internationalen Privatrechts. 2 vols. 1889. Id., Lehrbueh des internationalen Privat- und Strafrechts. 1892. Id., Internationales Privatrecht. (In Encyclopadie der Rechtswissenschaft by Holtzendorfe [6th Ed. by Kohler], 1904). Baeazetti, Das Internationale Privatrecht im Biirgerllchen Gesetzbuche fiir das deutsche Reich. 1897. BoHM, Die raumliche Herrschaft der Rechtsnormen (ortliche Statutenkolli- sion) auf dem Gebiete des Privatrechts, einschliesslich des Handels-, Wechsel- und Konkursrechts. Nach Theorie und Rechtsprechung unter besonderer Berilcksichtigung der Entscheidungen der obersten deutschen Gerichtshofe zum Handgebrauche fiir die Praxis. 1890. Id., Handbuch der internationalen NacbJassbehandlung mit besonderer Riick- sicht auf das deutsche Reich und die einzelnen Bundesstaaten. (2d Ed.) 1895. Id., Handbuch des Rechtshilfeverfahrens im Deutschen Reiche sowie im und gegenuber dem Auslande in uiirgerlichen Rechtsstreitigkeiten, in Kon- kurssachen, in Angelegenheiten der freiwilligen Gerichtsbarkeit und in Verwaltungssachen. (3d Ed.) 1900. Leske & Lovs^ENFELD, Die Rechtsverfolgung im Internationalen Verkehr, Ber- lin, 1895-. (4 vols, have so far appeared.) LIST OF AUTHORITIES. XVU Meili, Das internatiouale Civil- und Handelsrecht. 1902. Id., Das Internationale Cavilprozessrecht. 1906. NiEMEYEE, Das Internationale Privatrecht des Burgerlichen Gesetzbuchs. 1901. Id., Zeitschrift ftir Internationales Privat- und Strafrecht. 1890-1909. Planck, Biirgerliclies Gesetzbuch. Vol. VI. (3d Ed.) 1905. Savigny, System des heutigen romischen Rechts. Vol. VIII. ScHAJFFNEE, Entwlckelung des internationalen Privatrechts. 1841. ZiTELMANN, Intemationales Privatrecht. 2 vols. 1897, 1898. ZiTELMANN UND NiEMETEE, Quellen zum internationalen Privatrecht. 1908-. 4. AUTHORITIES IN ITALIAN. BuzzATi, Tr^ttato di diritto internazionale privato secondo le convenzioni dell'Aja. Vol. I. Introduzione. II matrimonio. 1908. Catellani, II diritto internazionale privato ei suoi recenti progress!. (2d Ed.) Vol. I. 1895. Cavaqlieei, Diritto internazionale privato. 1904. CoNTtrzzi, Diritto internazionale privato. 1880. Id., U diritto ereditario internazionale. 1908. FiORE, Diritto internazionale privato. (3d Ed.) 4 vols. 1888-1901. FusiNATO, Introduzione a un corso di diritto internazionale pubblico e privato. Part II. 1885. La Loggia, Le esecuzione delle sentenze straniere. 1902. LoMONACO, Trattato di diritto civile internazionale. 1874. Pieeantoni, II diritto civile e la procedura internazionale codificati nelle convenzioni dell'Aja. 1906. Rossi, Studi dl diritto internazionale privato in relazione aUa legge Italiana. 1880. LOB.CONF.L.— 1 ' TABLE OF CASES. [cases cited in footnotes ABE INDICATED BY ITALICS. WHEEB SWALL CAPITALS ABE USED, THE CASE IS BEFBEEBD TO IN THE TEXT.] Pago AM V. American Trust & Savings Bank 344 Adams v. Fitchburg E, Oo 36 Akers v. Demond 379 Alabama Great Southern R. Co. V. Carroll 483 Allen, In re 201 Amslnck v. Rogers 427 Andrews v. Andrews 541 Andrews v. Pond 382 Anonymous 707 Arbuckle v. Reaume 375 Arnold v. Potter 34, 887 Arp V. Allls-Chalmers Co 68 Atherton v. Atherton 543 Atwood V. Walker 78 Augusta Ins. & Banking Co. v. Morton : 240 Ayer v. Tilden 75 Aymar v. Sheldon ~. 433 Baltimore & O. R. Co. v. CUam- T)ers 501 Bank Commissioners v. Granite State Provident Ass'n 748 Bank of Augusta v. Earle 246 Babnes v. Whitakeb 35 Barnefet v. Kinney 316 Bell v. Beuen 36b Bennej^ v. Clemens 344 Bentley v. Whittemobe 312 Birtwhistle v. Vaedill 581 Blaine v. Curtis 31 Blythe V. Ayres 571 Booth v. Claek 723 BoYLE V. Zachabie 365 Bremer v. Freeman 19 Brook v. Brook 525 Brookman v. Durkee 606 Brown v. Gates 376 Brown v. Smith 704 Bollock v. Bullock 113 BuBNETT V. Pennsylvania R. Co 453 Burnley v. Stevenson 106 Byrne v. Crowninshield 64 Cammell v. Sewell 281 Carnegie v. Morrison 355 Carpenter v. Bell 627 Page Carpenter v. Strange 105 Carr v. Fracis Times & Co 469 Chambeblain v. Ohambeblain. . . 656 Chatenay v. Brazilian Submarine Tel. Co 410 Chicago, M. & St. P. R. Co. v. Keokuk N. L. Packet Co 729 Chicago, R. I. & p. r. Co. v. Stuem 33g Chicago, R. I. & p. R. "co! v. Thompison 69 Christmas v. Russell 142 Cochran v. Ward 257 Cole v. Cunningham 317 Collier v. Rivaz 17 Commonwealth v. Lane 521 Cooper V. Cooper 223 OopiN V. Adamson 121 Cotting V. De Sartiges 677 Cox V. United States 417 Cboss V. Trust Co 656 Curtis V. Delaware, L. & W. R. Co 350 Dammert v. Osborn 665 Davis V. JEtna Mut. Fire Ins. Co. 373 Davis V. Mills 71 Dawes v. Head 712 De Nieols, In re 598 De Nieols V. Curlier ,fi94, 598 Dennick v. Central R. Co. of New Jersey 487 Derrlckson v. Smith 39 Despaed v. Churchill 658 Doetsch, In re 58 Dolphin v. Robins 539 Dorr Cattle Co. v. Des Moines Nat. Bank 81 Dyke v. Erie R. Co 480 Eastiern Township Bank v. H. S. Beebe & Co 168 Eddie v. Eddie ;. 590 Edgerly v. Bush 303 Emanuel v. Symon 122 Embiricos v. Anglo-Austrian Bank 421 Ennis v. Smith. 626 Equitable Dlfe Assur. Soc. v. Clements 392 LOB.CONF.L. (xix) J XX TABLE OF CASES. Page Falke v. Terry 689 Fall V. Fall 108 Fauntleroy v. Lum 152 Fergusson's Will, In re 637 Fessenden v. Taft 274 Feyeriek v. Hubbard 120 First Nat. Bank of New Haven V. Balcom 198 First Nat. Bank v. Shaw 228 Fisher v. Fielding 117 Fitzgerald, In re 617 Flagg V. Baldwin 397 Fbank v. Bobbitt 320 Frierson v. Williams 271 GiBBS V. Feebmont 77 GoDABD V. Geat 172 Graham v. First Nat. Bank of Norfolk 345 Grand v. Livingston 367 Great Western Min. & Mfg. Co. v. Harris 722 Green v. Van Buskirk 292 Grove, In re 566 Grover & Baker Sewing Mach. Co. V. Radcliffe 126 GTJILLANDEE v. HOWELI. 300 Haddock v. Haddock 549 Hall, In re 510 Hall V. Cordell 265 Halley, The 474 Harrall v. Wallis 592 Harris v. Balk 331 Hartman v. Louisville & N. R. Co. 59 Healy v. Gorman 348 Hervey v. Rhode Island Locomo- tive Works 307 Hilton V. Guyot 4, 156 Hindman, Appeal of 189 Hoadley v. Northern Transp. Co. 60 Home Land & Cattle Co. v. Mc- Namara 371 Hope V. Brewer .' , . 654 Houghtaling v. Ball '. 256 Hughes V. Pennsylvania R. Co... 452 Hunter v. Potts 733 Huntington v. Attrill .',," 41 Hurd V. Elizabeth .' 726 Irving V. Ford 576 Jacobs v. Ceedit Ltonnais. .353, 368 .lohnson, In re 24 Johnson v. Powers .' 684 Kaufman v. Gerson 400 Kavanaugh v. Day 76 King V. garria '.][ 405 Knowles Loom Woeks v. Vacheb 313 Lamar v. Micou 71(5 Lawrence v. Kitteridge ...... 707 Lebel v. Tucker 404 Page Lees V. Harding, Whitman & Co. 309 Le Mesur^er v. Le Mesurier 536 Leroux v. Brown 2.>1 Levin v. Gladstein 147 Liverpool & G. W. Steam Co. v. Phenix Ins. Co 459 Lloyd v. Guibekt. .353, 363, 368, 462 Long V. Hess 6i::'. Loustalan v. Loustalan G50 Lynde v. Lynde 89 McDaniel v. CmcAGO & N. W. R. Co 368 MacDonald v. Grand Trunk R. Co. 170 McBlmoyle v. Cohen 62 Machado v. Fontes 471 McShane v. Knox 329 Male V. Roberts 51 Marshall v. Sherman 13 Maevin Safe Co. v. Noeton 313 Massib v. Watts Ill Mat v. Fiest Nat. Bank 319 May V. Wannemacheir 322 Mayor, Aldermen & Citizens of Canterbury v. Wyburn 659 Medwat v. Needham 525, 531 Merritt Creamery Co. v. Atchison, T. & S. F. R. Co 446 Miller v. Miller 578 Miller v. Tiffany .38-") Milliken v. Pratt 418 Mills v. Dueyee 97 Missouri S. S. Co., In re 3.'52 Moen V. Moen 587 Montana Coal & Coke Co. v. Cin- cinnati Coal & Coke Co ?A^ Moore v. Petty 691 Moegan v. New Oeleans, M. & T. R. Oo 454 Morrisette v. Canadian Pae. R. , Co 478 MouUs V. Owen 390 Moultrie v. Hunt .'.'.'.'." C30 Nichols & Shepard Co. v. Marshall 2''0 NOETHEEN PaC. R. Co. V. BaB- cocK 495 Ogden V. Ogden Old Wayne Mut. Life Ass'n of In- dianapolis V. McDonough. Olivier v. Townes Olmsted v. Olmsted ........ Paine v. Schenectady Ins. CO Peck v. Mayo Peet V. Peet Pemberton v. Hughes Peninsulas & Oeiental Co" v Shand Penn v. LoBD Baltimobe Pennegar v. State Pennoyer v. NefC 514 139 28o 583 80 042 90 462 111 99 TABLE OF 0ASE8. XXI Page People v. State Pkovident Ass'n 749 Petersen v. Chemical Bank 698 Phillips v. Etbk 472 Pittsburgh, C., C. & St. L. R. Co. r. Sheppard 449 Poison V. Stewart 276 Powell V. Great Northern R. Co. . . 491 Prettyman v. Gonaway 192 Price, In re 672 Pritchard v. Norton 361 Putnam v. Putnam 533 Queensland Mercantile & Agency- Co., In re 324 Ramsey v. Ramsey 711 Reed's Will, In re 192 Relpe v. Rundle 724 Reynolds v. Stockton 749 Richardson v. Rowland 378 Robinson v. Bland 353, 363 Robinson v. Queen 54 Ross v. Ross 218 Rouquette v. Overmann 439 ROUSILLON V. ROUSILLON 120 Ruhe V. Buck 53 St. Clair v. Cox 132 St. Nicholas Bank of New York V. State Nat Bank 413 Saul V. His Creditors 602 Saunders v. American Exp. Co... 56 SCHIBSBT V. Westenholz 125 Schmidt v. Perkins 288 Scotland, The 502 Scudder v. Union Nat. Bank of Chicago 262 Security Trust Co. v. Dodd, Mead & Co 741 Sell V. Miller 240 Sew ALL V. WiLMER 679 Shannon v. Georgia State Build- ing & Loan Ass'n 390 Shapard v. Hynes 301 Shaw v. Gould 539 Shelby v. Guy 66 PagB Sherman v. Gassett 34 SiDAB GURDTAL SiNGH V. RAJAH OF Faridkote 12.5 Slater v. Mexican Nat. R. Co 493 Smith V. McAtee 610 Sortwell V. Hughes 30."; Sottomayor v. Be Barros 222 Southern Pac. Co. v. Dnsablou . . . 407 Springs v. Southbound R. Co 34:i Staigg V. Atkinson g:J9 State v. Bell 530 State v. Kennedy 535 State v. Ross 535 Steers, Succession of 201 Tenant v. Tenant 415 Thompson v. Taylor 223 Thompson v. Whitman 95 Thomson v. Kyle 243 Town of Watertown v. Greaves . . 210 Tweedie Trading Co. v. James P. McDonald Co 348 Udny V. Udny 194 United States v. Crosby. '. 269 United States v. Fox 628 Vaughan v. Northup 683 Wabash R. Co. v. Hassett 15 Waite, Matter of Accounting of. . 736 Warrington v. Ball 144 Wayman v. Southard 363 Westerman v. Schwab 647 Western Union Tel. Co. v. Lacer . . 4.16 White V. Tennant 184 Wilkins v. Bllett 695 Williams v. Colonial Bank 322 Winans v. Attorney General .... 176 Wisconsin v. Pelican Ins. Co. . 44, 154 Woodruff V. Hill 426 Woodward v. Brooks 321 Woodward v. Woodward 231 Wooley V. Lyon 438 Worcester Bank v. Wells 269 Young John Allen, In re 201 CASES ON THE CONFLICT OF LAWS. PART I. GENERAL PROVISIONS. CHAPTBB I. NATURE OF THE SUBJECT. "Whenever a case containing any foreign element calls for decision, the judge before whom it is tried must, either expressly or tacitly, find an answer to at least two preliminary questions : "First question : Is the case before him one which any English court has, according to the law of England, a right to determine? * * * The first question is a question of jurisdiction (forum). "Second question: What (assuming the question of jurisdiction to be answered affirmatively) is the body of law with reference to which the rights of the parties are according to the principles of the law of England to be determined? * * * "This second question is an inquiry not as to jurisdiction, but as to the choice of law (lex). * * * "The two foregoing questions always require an answer whenever a case contains any foreign element. It is possible that the judge may be called upon to answer a third question, which, however, arises only where one of the parties bases his claim or defence upon the decision of a foreign court, or, in technical language, upon a foreign judgment. "The question which then arises and forms the third possible pre- liminary inquiry may be thus stated: Is the case one with which, according to the principles upheld by English courts, the foreign court delivering the judgment, had a right to deal? "This again is a question of jurisdiction. * * * "Each of these inquiries, be it noted, must be answered by any judge, English or foreign, in accordance with definite principles, and, by an LOE.CONF.L.— 1 GENERAL PKO VISIONS. (Part 1 English iudge, sitting in an English court, in accordance with prin- ciples or "rules to be found in the law of England. These rules make up that department of English law that deals with the Conflict ot Laws and may be provisionally described as principles of the law ot England governing the extra-territorial operation of law or recogni- tion of rights." Dicey, Conflict of Eaws, pp. 2, 3.^ EXTRACTS FROM SAVIGNY'S CONFLICT OF LAWS (Guth- rie's Translation, 2d Ed., Revised) 68-71, 76-77: "Many have at- tempted to determine these questions by the principle of independent sovereignty alone, laying down the two following postulates: (1) Every state is entitled to demand that its own laws only shall be recog- nized within its bounds. (2) No state can require the recognition of its law beyond its bounds. "I will not only admit the truth of these propositions, but even allow their extension to the utmost conceivable limits ; yet I believe that they afford little help in the solution of our problem. "To carry out the principle of the independent sovereignty of the state to the utmost possible extent with regard to aliens would lead to their complete exclusion from legal rights. Such a view is not strange to the international law of the Romans; and even where it was not enforced by them against foreign countries, a great distinction as to the capacity for rights was always maintained between Romans and foreigners. Modern law, on the contrary, has gradually . tended towards the recognition of complete legal equality between natives and foreigners. "But this legal equality of persons does not at all determine the question of collision between native and foreign laws. In the first place we must admit that, if the domestic laws give directions for the treatment of cases of conflict, these must be applied absolutely by the judges of our state. Nowhere, however, do such laws exist in any degree of completeness; in particular, not in the states where the German common law prevails. "The strict right of sovereignty might certainly, among other things, go so far as to require all judges of the land to decide the cases that come before them solely according to the national law, regardless of 1 In a country like France, where, in the absence of treaty, the enjoy- ment of strictly civil rights Is extended to those foreigners only who, willi the permission of the French government, have acquired an authorized dom- icile (see articles 11, 13, Civ. Code), the "Rights of Foreigners" form an ad- ditional and very important part of the Conflict of Laws^ See AndrP Wriss, Traitg de droit International privS, vol. II, "Le Droit de 1 Stranger." For a fuller discussion of the nature of the subject, consult Dicey, Con- flict of Laws, 1-16, and A. Fillet, Principes de droit international prive Paris, 1903. Ch. 1) NATURE OF THE SUBJECT. 3 the perhaps different rules of some foreign law with whose territory the case in question may have come in contact. Such a rule, however, is not to be found in the legislation of any known state; and its ab- sence is to be accounted for by the following consideration : "The more multifarious and active the intercourse between differ- ent nations, the more will men be persuaded that it is not expedient to adhere to such a stringent rule, but rather to substitute for it the opposite principle. This has resulted from that reciprocity in dealing with cases which is so desirable, and the consequent equality in judg- ing between natives and foreigners, which, on the whole, is dictated by the common interest of nations and of individuals. For it is the necessary consequence of this equality, in its full development, not only that in each particular state the foreigner is not postponed to the native (in which equality in the treatment of persons consists), but also that, in cases of conflict of laws, the same legal relations (cases) have to expect the same decision, whether the judgment be pronounced in this state or in that. "The standpoint to which this consideration leads us is that of an international common law of nations having intercourse with one another ; and this view has in the course of time always obtained wider recognition, under the influence of a common Christian morality, and of the real advantage which results from it to all concerned. "In this way we come to apply to the conflict of territorial laws of independent states substantially the same principles which govern the collision of particular laws in the same state; and this co-ordina- tion is preserved throughout the following inquiry. "In regard to both kinds of collision, then, the question may be stated thus: "To ascertain for every legal relation (case) that law to which, in its proper nature, it belongs or is subject. "This equalization, as contrasted with the strict law above mention- ed, may be designated a friendly concession among sovereign states ; that is, an admission of statutes originally foreign among the sources from which native coiirts have to seek for their decision as to many cases (legal relations). "Only this sufferance must not be regarded as the result of mere generosity or arbitrary will, which would imply that it was also un- certain and temporary. We must rather recognize in it a proper and progressive development of law, keeping pace with the treatment of cases of conflict between the particular laws of the same state. * * * "But this principle must be limited with respect to many kinds of laws, whose peculiar nature does not admit of so -free an application of the community of law obtaining between different states. Where there are such statutes, the judge will have to apply the domestic law more exclusively than that principle allows, and must, on the other hand, leave the foreign law unapplied, even where that principle would justify its application. Thence arises an important class of exceptions. 4 GENERAL PROVISIONS. (Part 1 to determine the limits of which is perhaps the most difficult part of this subject. The often unconscious respect paid by writers to these exceptions has not a little contributed to hinder the unanimous recog- nition of the rules which are limited by them. If it were possible satisfactorily to establish and ascertain the extent of these exceptions, many disputes as to the rules themselves would be prevented or brought to an end. I will endeavor to reduce such exceptions to two classes : "A. Laws of a strictly positive, imperative nature, which are con- sequently inconsistent with that freedom of application which pays no regard to the limits of particular states. "B. Legal institutions of a foreign state, of which the existence is not at all recognized in ours, and which, therefore, have no claim to the protection of our courts." HILTON V. GUYOT (1895) 159 U. S. 113, 163, 16 Sup. Ct. 139, 40 L. Ed. 95, Gray, J. : "International law, in its widest and most com- prehensive sense — including not only questions of right between na- tions, governed by what has been appropriately called the 'law of na- tions,' but also questions arising under what js usually called 'private international law,' or the 'conflict of laws,' and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation — is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man, duly submitted to their determination. "The most certain guide, no doubt, for the decision of such ques- tions is a treaty or a statute of this country. But when, as is the case here, there is no written law upon, the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. Fremont v. U. S., 17 How. 542, 557, 15 L. Ed. 241 ; The Scotia, 14 Wall. 170, 188, 20 L. Ed. 822 ; Respublica V. De Longchamps, 1 Ball. (Pa.) Ill, 116, 1 L. Ed. 59; Mbultrie v. Hunt, 23 N. Y. 394, 396. "No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, 'or by judicial decree, shall be al- lowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call 'the comity Ch. 1) NATURE OF THE SUBJECT. 5 of nations.' Although the phrase has been often criticised, no satis- factory substitute has been suggested. " 'Comity,' in the legal sense, is neither a matter of absolute obliga- tion, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws. "Mr. Justice Story, in his Commentaries on the Conflict of Laws, treating of the question in what department of the government of any state, in the absence of any clear declaration of the sovereign will, resides the authority to determine how far the laws of a foreign state shall have effect, and observing that this differs in different states, according to the organization of the departments of the government of each, says: 'In England and America the courts of justice have hitherto exercised 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 nations, or the "jus gentium, privatum,' has been supposed to furnish any general princi- ple, it has been followed out.' Story, Confl. Laws, §§ 23, 24. "Afterwards, speaking of the difficulty of applying the positive rules laid down by the Continental jurists, he says that 'there is, indeed, great truth' in these remarks of Mr. Justice Porter, speaking for the Supreme Court of Louisiana : '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 condition 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 prefer the laws of its. own country to that of the stranger.' , Story, Confl. Laws, § 28 ; Saul V. His Creditors, 5 Mart. (N. S.) 569, 596, 16 Am. Dec. 212. . "Again, Mr. Justice Story says : '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 mat- ter of comity or courtesy, as a matter of paramount moral duty. Now, 6 GENERAL PROVISIONS. (Part 1 assuming that such a moral duty does exist, it is clearly one of im- perfect 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, after further discussion of the mat- ter, he concludes : '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.' Story, Confl. Laws, §§ 33-38. "Chief Justice Taney, likewise, speaking for this court, while Mr. Justice Story was a member of it, and largely adopting his words, said: 'It is needless to enumerate 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 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 con- trary 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 sovereignties to which they belong, that courts of justice have continually acted upon it as a part of the voluntary law of nations.' '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 principles of municipal law are ascertained and guided.' Bank of Augusta v. Earle, 13 Pet. 519, 589, 10 L. Ed. 274 ; Stdry, Confli. Laws, §38. "Mr. Wheaton says : 'AH the effect which foreign laws can have in the territory of a state depends absolutely on the express or tacit con- sent of that state.' 'The express consent of a state to the applica- tion of foreign laws within its territory is given by acts passed by its legislative authority, or by treaties concluded with other states. Its tacit consent is manifested by the decisions of its judicial and adminis- trative authorities, as well as by the writings of its publicists. There is no obligation recognized by legislators, public authorities, and pub- licists to regard foreign laws; but their application is admitted only from considerations of utility and the mutual convenience of states— "ex comitate, ob reciprocam utilitatem." ' Wheat. Int. Law (8th Ed ) §§ 78, 79." ^ 2 The Dutch jurist, J. Voet (1647-1714), Is the author of this doctrine (De Statutis, $ 1). ^ Ch. 1) MATURE OF THE SUBJECT. 7 EXTRACTS FROM A. FILLET, ESSAI D' UN SYSTEmE GENERAL DE SOLUTIONS DES CONFLITS DES LOIS, 21 Clunet, 419^27, 433, 727 : "Each time a question is asked concern- ing the international nature of a law, a doubt is possible only be- tween two views. This law may be either territorial or extra-terri- torial. If it is territorial, everybody in a country is amenable to its provisions, without it being permissible to distinguish between sub- jects and foreigners, between persons domiciled or not domiciled, but, on the other hand, as soon as a person leaves his country, he ceases to owe it obedience. If it is extra-territorial, the contrary effects are produced. Once deemed applicable to a person (by reason of his nationality or domicile according to the view taken), the law follows him everywhere, so that its application is not determined by the place where such application is made, but by the person in question. Ter- ritoriality and extra-territoriality, these are the two poles between which oscillates the mass of undecided opinions — opinions most often devoid of definite principles capable in a given case of guiding the inquirer without hesitancy to one or the other. "Each of these extremes has had its hour of celebrity and its hope of universal sway. For four centuries, the principle 'all customs are real' has been accepted as an article of faith, to depart from which would have been regarded as impious. Reality was the rule. It was by no means a rule without exceptions, and these exceptions varied according to the opinion or the phantasy of each person; but it was the rule. It was already the rule for Bartolus, and it was still the rule for the great magistrate whose work closes the ancient history of our science and permits us to see diinly the aurora of new times. It was the rule for Dumoulin. It was also that of Argentre. All the jurists, Italian, French, Dutch, English and German, stood equally firm on this principle. Children even did not doubt it. "This principle was just, as long as the legal communities lived in a state of complete isolation; from the day that extra-territorial rela- tions (international or interprovincial) arose^ it could not. be admitted that a person leaving his country broke at .once all the legal ties which attached him to it ; from that day on there began the old struggle between the traditional principle, still intact to all appearances, and the reality of things, an obtrusive reality, disavowed by principles regarded as the most certain in the law, but existing nevertheless and taking little by little its place by reason of its obviousness and necessity. The whole history of the long war between reality and personality had its origin in the contradiction which is bound to ap- pear whenever a principle of law subsists longer than the social con- ditions out of which it grew and the exterior phenomena which it was to govern. "To most of us the statutory theory appears as only a distant recol- lection, but in its place quite a contrary conception has arisen which, 8 GENERAL PROVISIONS. (Part 1 thanks to the just authority of its inventors, thanks also to the con- sideration it attached to the human person, won immediately strong support. "The school of Mancini proclaims that personality is the rule and reality the exception. The formula is seductive, indeed, and the equitable results to which it generally leads has given to it a strong- felt influence upon the legislation enacted since the day it was an- nounced. The misfortune is that one must not try to justify it. One would not succeed, and it was only at the price of inexcusable con- fusion that its author himself was able to give to it for a time the appearance of reason. "In the meantime a great number of different systems had been proposed, principally in Germany, a country the fecundity of which in this respect has been marvelous. The ones best known are those of Titius, Eichhorn, Boschen, Hauss, Schaffner, Wachter, and Savigny. Although they borrowed their determining principles from very dif- ferent sources, of which we shall not try to give here even an idea, they possessed this common characteristic that they did not regard law as being either territorial or extra-territorial by nature. They refrain from laying down a single principle which they know cannot be up- held, and agree in deciding that, according to circumstances, laws are now territorial, now ejctra-territorial, depending, according to some, upon the intent of the legislator, according to others upon the intent of the parties, or even upon the place where the relationship arose, or, in short, upon such other particular circumstances as the author deemed wise to adopt as the pivot of his theory and as the criterion of his decisions. "These ideas are familiar to every one who has studied Private International L,aw and it is enough for us to have recalled them here by means of the lightest sketch. If we should try to give a resume in as general and abstract a formula as possible of the work accomp- lished by the theoretical writers on Private International Law, we should say that, among the jurists, some have maintained the principle of the territoriality of laws, others have proclaimed their person- ■ ality as a general principle, others, finally, and a very large number, think that by nature laws are necessarily neither real nor personal, being susceptible of assuming the one or the other of these character- istics, according to circumstances. "In order to complete the cycle of possible combinations, only one formula is lacking, namely, that laws are by their nature at once territorial and extra-territorial. It is precisely this formula which we take as the basis of our theory. It is the one which we submit and which we shall immediately try to justify. * * * "The law is essentially an instrument of authority, indispensable to the social power in its relation to those composing the community whose destiny it directs. As such the law must and always does em- brace certain characteristics indispensable to its effect, certain qualities Ch. 1) NATURE OF THE SUBJECT. 9 without which it would no longer have any reason to exist. It belongs to public law to unfold the complete sum of such characteristics. We shall distinguish here only two, which alone seem to us important from an international point of view, but the importance of which in this connection is very great — the continuity and generality of its application. * * * "When we say that the law is naturally continuous, we mean that its authority should be exercised without interruption. From the day it is enacted to the day it is abrogated a law must be followed and obeyed without interruption. It constitutes in its very essence an act of authority, command or prohibition imposed upon the will of the persons to whom it applies and who must submit to its sway. If the law operated only at intervals, if its authority had to suffer periods of enervation and paralysis, it would be better not to burden the statute books with a useless text. What would a law be which one must obey one day and can violate the next ? A veritable phantom of command, it would but reveal the radical- powerlessness of the legislator, careless enough of his authority to permit such an abuse The authority of a law must therefore be continuous. The fact is so evident that we deem it useless to insist upon it longer. "It is not less necessary that each law be general in its subjective application; that is, with respect to the persons comprised within the social group for which it has been made. Let us make this point clearer. We do not mean to say, of course, that all laws are neces- sarily made for all citizens without exception. It is clear that the laws regarding the condition of minors have nothing to do with those regarding persons of age and that laws regulating the status of mar- ried women do not apply to either girls or widows. We mean that when a law is made for a certain category of persons, it must apply to all who, being embraced within such category, are found within the territory of the legislator who has enacted it. In this consists what we may call the subjective generality of a law, and the reason for this characteristic is this. The benefit of the law consists not only in that it adapts to the interests of each one the rule deemed bv the legislator best calculated to further them, but also in that it establishes among the members of the community a certain order, an order pre- cious from a double point of view : First, for its own sake because it simplifies the relations between citizens ; then because it permits the legislator to insure a complete respect for those ideas of social morality deemed necessary by him throughout the extent of the do- main subject to his authority. Hei-e again it is obvious that no order can exist except upon the condition that one and the same law is binding upon all persons present within the territory, within the limits of which it is to be established. History has transmitted to us the remembrance of an epoch during which each person within the same territory followed his personal law, where one could see converse to- gether, according to the testimony of Agobard, five persons subject 10 GENERAL PROVISIONS. (Part to five different laws, and we know the confusion which was the re- sult of this state of affairs and which drove the following period into quite the opposite extreme. Evidently order is necessary for each state, and order exists in the domain of law only as long as law ap- plies without distinction to every person within the confines of the state. "We have argued so far independently of an international point of view. I/Ct us apply our reasoning now to the situation created by the existence of an international society. International relations have this consequence that each state has constantly within its midst a certain number of foreigners; there is a reciprocal penetration of one nation by another. What is to be the role played by the law in the face of such a phenomenon? "This point appears certain, namely, that the international manifesta- tions of individual activity should not remain outside of the domain of law (droit) and consequently outside of that of the law (loi). It is necessary that the law (there is no need of determining this law as yet) be applicable to them, direct them, comprise them, play with respect to them the same role it is accustomed to play in its purely national relations. The more completely this object is attained, the more international society will gain in stability, security, and useful- ness for those forming part of it. The ideal in this matter would be that the law in this new function would preserve that fullness of effect which it possesses in the purely national order. We shall soon see whether this ideal is such that we can ever hope to realize it fully. "The aim should therefore be to preserve for the law, in its inter- national function, the characteristics it possesses in its national func- tion, for we have seen that upon the maintenance of these character- istics depends the certainty of its effect. Let us study then these characteristics from an international point of view and let us see the consequences which they entail with respect to the effect of the lav.- in this domain. From an international point of view, continuity im- plies necessarily extra-territoriality ; subjective generality implies ter- ritoriality. This double connection is easily seen. For a law to be truly continuous, it is necessary that it be applicable under all circum- stances to the person within the purview of its provisions, that it follow him abroad when he leaves the country, that it govern the interests he may possess there, as well as those he may possess at home. Each infraction of this rule would constitute a total or partial gap in the application of law, and a defect therefore which would compro- mise its effect always seriously, sometimes irremediably. Take the common example of a rule of law concerning capacity and suppose that it ceases to apply to a person when he leaves the country, or only that it remains powerless with regard to the property of such a person situated abroad, and it will be perceived that in both cases the rule fails to attain its object because it lacks continuity in its effect. The legal regime to which a person is subject is, in the case of interruption. Ch. 1) NATURE OF THE SUBJECT. 11 replaced by a different regime conceived in a different spirit, contain- ing dispositions foreign and perhaps contrary to those of his own country; dispositions which by reason of their intermittent applica- tions will often be little superior to a total absence of any legal regu- lation. It is clear, for example, that if, with respect to the same person, a period of capacity, though it be limited, be followed by a period of complete incapacity, all the effects which the legislator could expect from the measure taken in his behalf will be forever frustrated by the lack of continuity in the application of such measure. We may say that this quality, which in municipal law is called 'continuity,' is in international law called 'extra-territoriality.' The two words represent the same idea and form part of the nature of law by virtue of the same title. "In the same way subjective generality cannot exist without ter- ritoriality. We have seen that generality is required as a condition for the existence of order in the private relations of citizens. Now, this order can exist only upon the condition that it governs all the ele- ments scattered over the territory where it is to be established. We are in the habit of making use of a comparison here which we take the liberty of reproducing. When in a military parade a certain order .is to be observed, the failure of one man to remain in the place as- signed to him is sufficient to destroy that order. Order has something indivisible about it. It exists or it does not exist, but it cannot exist in part. The figure I draw upon paper may be square or not square, but it cannot be so in part. So it is in the juridical world. An order which the law aims to establish will exist only if all of the subjects found within the society which is to benefit from it are equally subject to its dispositions. No distinction is possible, all persons must submit to it without distinction whether foreigners or subjects, all property must be subject to it without regard to its owner, all juridical acts comply therewith, wherever the place may be in which they are intend- ed to produce their effect. In a. word, the law must be strictly terri- torial. "This long demonstration is now concluded and those who have had the patience to follow us will conclude with us that all laws are by their nature both territorial and extra-territorial since the generality and continuity of application are among their essential characteristics. This truth may have a paradoxical aspect, but it is none the less the pure truth. "Here then is the first result obtained, and it is very important. Without proceeding further, the discovery we have just made will enable us to understand a fact which without it may be difficult to explain, namely, that the laws most obviously territorial operate sometimes as extra-territorial laws, and, conversely, that those whose extra-territorial character is least disputed do not fail, under certain circumstances, to produce territorial effects. * * * "If they ordinarily present to tts only one of these aspects, which is 12 GENERAL PROVISIONS. i^^^^ ^ always the same, it results solely from the necessity one is under to make some concessions in order to arrive at a solution of the contlicts_ "The social aim to be attained is the reason for the existence ot the law It gives to it its distinctive character. It assigns to it its duration. Is it not logical, therefore, to maintain that the internation- al effect of law should be determined by its social aim? This is, indeed, the rule which we propose. We know that laws are by their nature both territorial and extra-territorial, that in international com- merce they can retain only the one or the other of these characteristics, and we believe that in each case the choice of this characteristic should be determined by a consideration of the social aim of the law. We declare territorial all laws whose purpose would not be attained if in each country they were not applicable to foreigners and to subjects alike, extra-territorial those whose purpose demands that they follow everywhere the person falling within the purview of its dispositions. In all cases, therefore, we shall consult the social purpose of each law submitted to our examination. This will be for us the only key to the question of conflicts, the formula from which we shall seek an answer to the question whether a law should be considered territorial or extra-territorial." * 3 For a fuller development of Fillet's theory, consult 21 Olunet, 417-435, 711-754; 22 Clunet, 241-259, 500-517, 929-952; 23 Olunet, 5-30; also his Principes de droit International prive, 1903. A summary of the principal theories advanced by continental jurists con- cerning the Conflict of Lavi^s may be found in v. Bar, Theory and Practice of Private International Law (Gillespie's Transl. 2d Ed.) 11-77; F. Meili (Kuhn's Transl.) International Civil and Commercial Law, 52-100; and A. Weiss, Traite de droit international privg, vol. Ill, 7-243. See, also, F. Kahn, Abhandlungen aus dem internationalen Privatrecbt, 39 Ihering's Jahr- biicher f iir die Dogmatili des biirgerlichen Rechts, 1-112 ; 40 Id. 1-87 ; D. J. Jitta, Tje droit commun international comme source du droit international privg, 4 Darras, 553-.570. The earliest theory — the statute theory — ^was formulated by the early Italian school, whose chief representative was Bartolus, 1314r-1357. The Ital- ian was followed by the French school, of which Argentraeus (D' Argentre), 1519-1590, and Molinseus (Dumoulin), 1500-1566, were the leaders, and the Dutch school, to which, among others, Burgundus, 1586-1649, Rodenburg, 1618-1668, P. Voet, 1619-1677, J. Voet, 1647-1714, and Ulrlcus Huber, 1636- 1694, belonged. Speaking of the influence of the Dutch jurists upon English and American law, Meili (supra, 83, 84) says: "Foreign law gradually found an introduc- tion through the practice of the ecclesiastical courts and writs of admiralty, a result which was assisted by the fact that many Englisb and Scotch ju- rists completed their education in Holland. Another important element was the fact that William III (16.50-1702) simultaneously held the positions of king of England and stadtholder of Holland. The Dulch school exercised a great influence in England, and. through English authorities, later also In America. As the American author Story (section 10) well says, we have no early theoretical discussions from England. We may add that England never underwent the early continental European development of the statu- tory conflict at all. With the gi-owth of the science of International Pri- vate Daw, this nation took the doctrines as they had been developed by the Dutch school. Story, himself, was largely influenced by Ulrlcus Huber." See, also, Westlake, Priv. Int. Law, 8. For an account of the history of the statute theory, see the authoritative work of A. Lain6, Introduction au droit international priv6. See, also, F. Ch. 1) NATURE OF THE SUBJECT. 13 MARSHAI.Iv V. SHERMAN (1895) 148 N. Y. 9, 34, 42 N. E. 419, 433, 34 L. R. A. 757, 51 Am. St Rep. 654, O'Brien, J. : "It is a princi- ple of universal application, recognized in all civilized states, that the statutes of one state have, ex proprio vigore, no force or effect in another. The enforcement in our courts of some positive law or regulation of another state depends upon our own express or tacit consent. The consent is given only by virtue of the adoption of the doctrine of comity as part, of our municipal law. That doctrine has many limitations and qualifications, and generally each sovereignty has the right to determine for itself its true scope and extent. The courts of this state are open to all suitors to enforce rights of action, transitory in their nature, recognized by the common law, or founded in natural justice, and when no law of the forum or any principle of public policy interferes. There is, however, a large class of foreign laws and statutes which, under the doctrine of comity, have no force in this jurisdiction. It belongs exclusively to each sovereignty to de- termine for itself whether it can enforce a foreign law without, at the same time, neglecting the duty that it owes to its own citizens or subjects. It has been held, and is a principle universally recognized, that the revenue laws of one country have no force in another. The exemption laws and laws relating to married women, as well as the local statute of frauds and statutes authorizing distress and sale for nonpayment of rent, are not recognized in another jurisdiction under the principles of comity. Morgan v. Neville, 74 Pa. 53; Waldron v. Ritchings, 3 Daly, 388; Siegel v. Robinson, 56 Pa. 19, 93 Am. Dec. 775; Kelly v. Davenport, 1 Browne (Pa.) 331; Ross v. Wigg, 34 Hun, 193 ; Eudlow v. Van Rensselaer, 1 Johns. 95 ; Skinner v. Tinker, 34 Barb. 333. It is well understood, also, that the statutes of one state giving a right of action to recover a penalty have no force in another. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 234, 36 L. Ed. 1123. So, also, rights of action arising under foreign bankrupt, insolvent, or assignment laws are not recognized here when prejudicial to the inter- ests of our own citizens. Warner v. Jafifray, 96 N. Y. 348, 48 Am. Rep. 616 ; In re Waite, 99 N. Y. 433, 2 N. E. 440 ; Barth v. Backus, 140 N. Y. 230, 35 N. E. 435, 23 L. R. A. 47, 37 Am. St. Rep. 545 ; Douglass V. Phoenix Ins. Co., 138 N. Y. 209, 33 N. E. 938, 20 L. R. A. 118, 34 Am. St. Rep. 448. There is another class of cases where the right to enforce the foreign statute is conditioned upon the existence of a law substantially similar here. Wooden v. Western N. Y. & P. R. Co., 136 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803. Statutes giving a right of action for negligence resulting in death belong to that class. Whitford v. Panama R. Co., Meill, Die theoretischen Abhandlungen von Bartolus und Baldus fiber das Internationale Privat- und Strafrecht, 4 Niemeyer, 258-269, 340-346, 446-473; and F. Meili, Argentrseus und Molinaeus und ihre Bedeutung Im Intematlon- alen Privat- und Strafrecht, 5 Niemeyer, 363-380, 452-472, 554^-566. 14 GENERAL PROVISIONS. (Part 1 23 N. Y. 465. There are many other classes of foreign statutes affect- ing public and private interests which courts have uniformly held can have no extraterritorial force or effect."* EXTRACTS FROM A. S. DE BUSTAMANTE, TRATADO DE DERECHO INTERNACIONAL PRIVADO, Habana, 1896, 455- 456: "It is a recognized fact that the laws emanating from each sovereignty are normally applicable within its territorial limits. That states have no means of securing or imposing the observation and respect of their laws in foreign countries is also correct. But the author, who accepts the premises, finds, when it is asserted that a nation has the right to impose all of its laws upon all persons re- siding within its territory and is in no way bound to permit the application of foreign law, that exaggerated and false deductions are made therefrom. Moreover, the system of absolute territoriality, in- stead of settling conflicts, simply renders their existence impossible and, by modifying the capacity of persons according to the place where they may happen to be, fails to recognize that all laws are not enacted for foreigners and to that extent cannot be applicable to them. "Of comity it has been said that in theory it is a simple manifesta- tion of the doctrine of interest, and that in practice, instead of uniting, it isolates and separates, nations ; that it confounds two things so distinct as the actual power and the duty of a state; that it implies a negation of the latter; that, in view of the different ways in which it may be interpreted, it will never be able to put into relief the law * "No attempt to define the limits of that reservation (public policy) has ever succeeded, even to the extent of making its nature clearer than by say- ing that it exists in favor of any stringent domestic policy, and that it is for the law of each country, whether speaking by the mouth of its Legis- lature or by that of its judges, to determine what parts of its policy are stringent enough to require its being invoked." — ^Westlake, Priv. Int. Law, 53. OoNTiNBNTAi, LAW. — On the continent foreign law will yield to the local law whenever its enforcement is deemed contrary to its rules concerning pub- lic order. France, article 6, Oiv. Code. Italy, article 12. Prel. Disp. Civ. Code. Germany, article 30, Law Intr. Civ. Code, providing: "The appli- cation of a foreign law is excluded, if it would be repugnant to good morals (gute Sitten) or to the object of a German law." In order to distinguish such rules from rules of municipal law applicable only to transactions taking place within the jurisdiction, it is customary to call the former rules concerning "international public order." See, also, A. de Bustamante, El orden publico, Havana, 1893 • R Bois- sarie, De la notion de I'ordre public en droit international pr'ivg Paris 1888; F. Despagnet, L'ordre public en droit international priv6 le'chinet" n-21: P. Fedozzi, Quelques considerations sur I'idee d'ordre public inter' nattonal, 24 Clunet, 69-78, 495-507; P. Fiore, De la limitation de I'autori- ii_'. des lois fitrangeres et de la determination des lois d'ordre public ^"i t.lunet, 351-3G6; F. Kahn, Die Lehre vom Ordre Public 39 Iherin^'s iThr 1)iicher fiir die Dogmatik des biirgerlichen Rechts, 4-112- P Klein Zur Sns legnng des Art. 30 des E. G. zum deutschen B. 6. B , 14 Niemever ]4P,-1'S1 • 311-384°' ^"^ ^""''^ ''°™ ^''^''^ ^"'"*'' ^^ ^"""'''' ^^'^ biirgerliches Recbt', Ch. 1) ■ NATURE OF THE SUBJECT. 15 applicable to each case and does not establish a criterion for the choice of law between the different foreign systems. * * * "If nations lived isolated otie from the other, and in a state of con- stant and interminable enmity, the correctness of the first ground upon which the doctrine of the North American and English writers is based would have to be admitted. But since peace is the habitual state in international relations, making of the civilized peoples a large voluntary association, whose ties and necessities are increasing every day, law itself cannot hold aloof from the exchange of products, cus- toms and institutions, which is the basis and source of the cosmo- politanism of our time. When everything passes the frontiers law- fully, law itself should not be confined within the limits of the state enacting it, and thus become an insurpassable obstacle to this very exchange of men, things and ideas which characterizes modern civ- ilization. But we shall see hereafter, and in the preliminary chapters we have already seen, how Private International Law finds its solid basis in the international community, which, at the same time guar- antees the independence of each state and imposes the application of foreign law to certain juridical relationships. The sovereignty of a state, correctly understood, is not injured by this, although it would be necessary to deprive it of some of the attributes with which the adherents of the statute school of jurists clothed it and with which Anglo-American writers pretend to adorn it still. "Comity is a pretext for the evasion of the consequences of a strict- ly territorial law. After the notion of such a law is denied, it would be idle to combat it, for it becomes unnecessary. But it may not be amiss to observe that in its obscured and little defined concept, interest, courtesy and reciprocity, ideas so important for the history of law, play a part. In another place we have dealt with these ideas, giving our opinion with respect thereto. The name of science cannot be given to them, nor can a practical and useful system be based upon them. They authorize simply concessions ungoverned by rule, the sup- posed independence of a state consisting in an adjustment of its con- duct to that followed by other states, resulting ultimately in a real isolation between the people of the different countries, and in making of courtesy and reciprocity a system of reprisal, instead of a further- ance of juridical relations." WABASH R. CO. v. HASSETT (Ind. 1908) 83 N. E. 705, 708, Montgomery, J.: "Appellant's learned counsel insist, however, that this suit cannot be maintained in Indiana, because the statute of Illinois, creating the right of action, provides 'that no action shall be brought or prosecuted in this state to recover damages for a death occurring outside of the state.' It is argued that jurisdiction of a cause of action arising under the statute. of one state is sustained by the courts 16 GENERAL PROVISIONS. • (Part 1 of another only upon the ground of comity or reciprocity, and, since the courts of Illinois cannot entertain a similar cause of action arising under the statute of this state, the requisite reciprocity is wanting ana jurisdiction of our courts over this action must fail. The cases cited which seemingly support this doctrine are : Baltimore & O. R. Co. v. Chambers, 73 Ohio St. 16, 76 N. E. 91, 11 L. R- A. (N. S.) 1012; Wabash R. Co. v. Fox, 64 Ohio St. 133, 59 N. E. 888, 83 Am. St. Rep. 739. These Ohio decisions were based upon a statute permit- ting actions for wrongful death occasioned in another state to be en- forced in that state only where such other state allowed the statutes of Ohio of a like character to be enforced in its courts. The reciprocity policy of Ohio was thus embodied in a positive statute. The English rule is to the same effect. 23 Am. & Eng. Ency. of Law, 1379. The doctrine of reciprocity is a fair and reasonable principle to govern the conduct of independent nations in affording relief to aliens through their courts. The people of the United States comprise one nation, banded together, among other reasons, to 'establish justice' and 'to promote the general welfare.' Each state may undoubtedly limit the jurisdiction of its courts and formulate its local policy; but, in the absence of a state policy declared and restricted by statute, the rule contended for is too narrow and illiberal to meet our approval. The statutes of a state have no extraterritorial force, but they are effective within the state enacting them, and, if they create a valid right of action there, such liability may be recognized and enforced elsewhere upon proper complaint and proof. Civil rights, whether founded upon statutes or the common law, are not local, and actions to recover dam- ages for the violation of such rights are transitory, and not confined to the state where the cause of action accrued. The circuit courts of this state are courts of general jurisdiction, and unquestionably have jurisdiction over the subject-matter of transitory actions. The juris- diction or power of- the court to afford a remedy for a legal liability is not dependent upon the question whether the right to be enforced is of statutory or of common-law origin. If a liability has been in- curred, and a right of action therefor has accrued, such action may ordinarily be prosecuted in any court which has jurisdiction of such matters and can obtain jurisdiction over the parties. If the Legisla- ture, as it might have done, had spoken against the enforcement of foreign causes of action like this, the courts would readily obey its mandate. The policy of Illinois in this respect is embodied in a pro- hibitory statute. Conditions may exist within that state, which do not obtain here, making such policy expedient. The right of action herein asserted is founded wholly upon the statute of Illinois, and in nowise upon that of this state relating to the same subject. Our statute is important only as it manifests the general policy of this state toward such legislation ; and the circumstance that the courts of Illinois are not permitted to entertain a suit, based upon a foreign statute to re- cover damages for death by wrongful act, cannot affect the jurisdic- Ch. 1) NATURE OF THE SUBJECT. 17 tion of our courts, or control the policy of this state, and of itself will not impel our courts to adopt retaliatory procedure. The failure and injustice of the common law to afford redress for a negligent injury resulting in death is recognized by the enactment of our statute creating a right of action for the benefit of the widow and next of kin. The policy of Indiana, so far as outlined or expressed by the Legislature, is favorable to remedial legislation of this character. If a legal liability exists, a justice-loving people should be inclined to afford a remedy within their power, and we find nothing, either upon the ground of adverse interests or public policy, to preclude the courts of this state from entertaining jurisdiction of this action. In reaching this conclusion we approve the modern and generally ac- cepted doctrine that to justify our courts in refusing to enforce a right of action accruing under the laws of another state as against the policy of this state the prosecution of such action must appear to be against good morals or natural justice, or prejudicial to the general interests of the citizens of this state." COLLIER v.. RIVAZ." (Prerogative Court of Canterbury, 1841. 2 Curt. Bcc. 855.) Sir Herbert Jenner. This is a question with respect to certain testamentary papers of Mr. Philip Ryan, who died at Brussels in 1839. He left behind him two nieces, Mary Ryan and Mrs. Langebear, a widow, who would have been entitled to his personal estate in case he had died intestate. He left property to the amount of about £20,000. In September, 1824, he executed a will, of which he appointed Mr. V. F. Rivaz, Mary Ryan, and A. H, Rivaz, executors, and his niece, Mary Ryan, residuary legatee; he also left behind him six codicils, four of which are opposed, upon the ground that they are not executed according to the forms of the law of Belgium, in which country, it was contended, that the deceased was domiciled at the time of his death. [After finding that the testator was domiciled at Brussels, at the time of his death the learned justice continued as follows:] The question however remains to be determined, whether these codicils which are opposed are executed in such a form as would entitle them to the sanction of the court which has to pronounce on the validity of testamentary dispositions in Belgium, in the circum- stances under which they have been executed. Because it does not follow, that Mr. Ryan, being a domiciled subject of Belgium, he is therefore necessarily subject to all the forms which the law of Belgium 5 This case, as well as the two succeeding cases, involves what is gener- ally known as the "renvoi" doctrine or theory (in German, "Ruckverweisung" and "Weiterverweisung"). LoB.CoNP.L.— 2 18 GENERAL PROVISIONS. (Part 1 requires from its own native-born subjects. I apprehend there can be no doubt that every nation has a right to say under what circum- stances it will permit a disposition, or contracts of whatever nature they may be, to be entered into by persons who are not native born, but who have become subjects from continued residence ; that is, for- eigners who come to reside under certain circumstances without ob- taining from certain authorities those full rights which are necessary to constitute an actual Belgian subject. Every nation has a right to say how far the general law shall apply to its own born subjects, and the subjects of another country; and the court sitting here to deter- mine it, must consider itself sitting in Belgium under the particular circumstances of the case. Now three witnesses have been examined with respect to the law of Belgium, as applying as well to the acquiring of a domicile in Belgium as to the law with respect to the execution of testamentary instruments. With respect to domicile acquired, it is quite clear, according to the evidence of these persons, that no domicile according to the law of Belgium can be acquired unless the authority of the ruling powers is obtained to authorize the persons who apply for that authority to continue in that country; that unless that authority is obtained he is liable to be removed at any time; that having obtained that authority he then becomes to all intents and purposes a subject of Belgium, and has a right to remain there and enjoy the privileges of a natural-born subject. But it may be a different question, whether a person who has not obtained that authority, a mere resident there, is to be considered as a foreigner simply having a residence and not a domicile. I think it is very doubtful whether the Dutch and Belgian lawyers understand the same thing — from the evidence given with respect to domicile — whether they do not consider that a person to become domiciled, must have denization, that which is equivalent to our naturalization, and they do not mean simply domicile for the purpose of succession or anything of that description, but they consider that a person in order to become domiciled must place himself by the authority of the gov- ernment in the same situation as a Belgian subject, and have the rights and privileges of that country. But I think it is not necessary- to in- quire into this, because I think we have the conclusive evidence of two witnesses as to that which is necessary to give validity to the testa- mentary dispositions of persons who reside there, but have not ac- quired all the rights of Belgian subjects. [The learned justice here recited the testimony of the witnesses and continued as follows :] Then according to the opinion of these gentlemen, well skilled in the practical application of the Code Napoleon and its dispositions, and which was the law in force in Belgium up to the year 1830, when the separation of the two countries took place, and consequently at the time at which these testamentary documents of Mr. Ryan were executed, they do not consider that Mr. Ryan, as a foreigner, was Ch. 1) NATURE OF THE SUBJECT, 19 bound by the requisites of the law of Belgium, as to the form and execution of a will, as would necessarily be the case with a free, natural-born subject of Belgium; but the successions of persons who, however long they might have been resident, not having obtained the royal authority to reside there, being considered as mere foreigners, would be governed by the laws of their own country, and would be upheld by the courts of Belgium, if those courts were called on to decide. The court sitting here decides from the evidence of persons skilled in that law, and decides as it would if sitting in Belgium. Therefore I am of opinion, that notwithstanding the domicile of Mr. Ryan must be considered to have been in Belgium, and that he had in point of law abandoned his original domicile, and had acquired animo et facto a domicile in a foreign country, yet that foreign country in which he was so domiciled would uphold his testamentary disposition, if executed according to the forms required by his Own country. I am therefore of opinion, that I am bound to decree probate of the will and all the codicils. And I decree the costs of all parties to be paid out of the estate.* BREMER V. FREEMAN. (Privy Council, 1857. 10 Moo. P. C. 306.) An Englishwoman resided uninterruptedly in France for a period of fifteen years without any business or occupation in that country; renting apartments upon lease, and making declarations never to re- turn to England; providing, moreover, a vault in the cemetery of Pere Ea Chaise in Paris, where she expressed her wish to be buried. In 1842 she made a will in Paris in the English form, executed ac- cording to the wills act (St. 1 Vict. c. 26), but not in accordance with the requirements of the French law. By this will she bequeathed personal property, the bulk of which was in English funds, to parties resident in England. The deceased at the time of the making of the will and at her death was not naturalized in France, nor had she ob- tained any authorization as required by the thirteenth article of the Code Napoleon.'' Lord Wensleydale.* * * * The onus of proving that an in- strument is the will of the alleged testator lies on the party propound- ing it. The respondent has undoubtedly established a prima facie case sAccord: In re Brown-S6quard, 70 Law T. Rep. (N. S.) 811 (1894). ' This brief statement of facts, which has been taken from the headnote. has been substituted for that of the original report. sA part of the opinion has been omitted. 20 GENERAL PROVISIONS. (Part 1 by the evidence he has adduced of the due execution of the will. The onus probandi, then, lies upon the party impeaching the will, to show that' it ought not to be admitted to proof. The appellant alleges that the supposed testatrix was at the time of her death (for that is the material date) domiciled elsewhere than in England. The burden of proof of that fact unquestionably rests upon her. She must establish that the alleged testatrix had lost her domi- cile in England; and if it is proved that she abandoned it and gained another elsewhere, and died in that new domicile, the onus probandi is then shifted, and it lies upon the party propounding the will to prove that the law of that domicile was such as to authorize a will in that form. If he fails in that proof the will propounded cannot be admitted to probate. That the law of the testator's domicile at the time of making the will, and of the death of the testator, when there is no intermediate change of domicile, must govern the form and solemnities of the in- strument, can no longer be questioned. * * * Two questions, therefore, are to be disposed of in this case : First. Has the appellant proved satisfactorily that the deceased, Madame Calcraft, or AUegri, died domiciled in Italy, or in France, where the appellant alleges that she was actually then domiciled ? Secondly., Has the respondent established, to the satisfaction of their lordships, that by the municipal law of the domicile at the time of death the will propounded was valid? We proceed to consider these questions in their order. [His lordship considered here the evidence as to domicile and con- tinued as follows :] On the whole, their lordships entirely concur with the learned judge in his opinion that the deceased was domiciled, according to the law of nations, at Paris, both at the time of her death and the time of making her will, if that is at all material ; and we think it is not. This domicile being established in evidence, the burden is thrown on the respondent to prove that the will, in the English form, is sanctioned by the municipal law of France. He must show, upon the balance of the conflicting evidence in the cause, that the wills of persons, so domiciled, in that form, are allowed by that law. This is the important question, and the only one of any difficulty in the case. Much evidence was produced of the law of France on both sides ; the viva voce testimony of experts in the science and practice of the law, vouching and referring to the Code Napoleon decrees, and to known treatises. Some of those last have been since brought forward and referred to without objection on either side, and their lordships have to decide on the whole of this (for the most part) very un- satisfactory, confused, and conflicting evidence, whether they are con- vinced that this will, executed in France in the English form, is valid On the part of the respondent, five persons practicing in the French Ch. 1) NATURE OF THE SUBJECT. 21 courts, stating themselves to be experienced in the law of Prance, were examined ; on the part of the appellant, three. It is to be lamented that from the very nature of the case we cannot satisfy ourselves by the personal examinations of those witnesses as to the weight due to each of them, and a proper sense of professional delicacy precludes them from giving evidence as to the merits of each other. We are com- pelled, therefore, to decide the disputed question with inadequate means of judging of their professional eminence, their skill, and knowl- edge. It is to be remarked, speaking with all respect to those gentle- men, that the rule of international law which all English lawyers con- sider as now firmly established, namely, that the form and solemnities of the testament must be governed by the law of the domicile of the deceased, does not appear to be recognized, or at least borne in mind, by any of them. Nay, in Quartin's Case, both the Cour Royale and the Cour de Cassation, expressly decided that the will must be in the form and with the solemnities of the place where it is made, on the principle that "locus regit actum" ; an error which is ably exposed in the opinion of M. Target in the Duchess of Kingston's Case (Coll. Jur. p. 323). The three witnesses called for the appellant, Messrs. Frignet, Senard, and Paillet, all maintain the same doctrine. If this position were really true, the case of the appellant would prevail, but the othel- witnesses do not maintain the same doctrine. Of the five experts examined for the respondent, three, Messrs. Blanchet, Hebert, De Vatismesnil, all think that the will, either in the form required by the law of the domicile of origin, or the place where the party dwells, is valid; a position which, by English lawyers, is certainly now considered to be exploded since the case of Stanley v. Bernes. The whole of these five experts give their opinion that the deceased never was domiciled de facto, according to the law of nations, in France, upon the facts stated in the case. In that respect their lordships have already intimated that they entertain a contrary opin- ion, and that circumstance, although it is quite consistent with their being right in their opinion of the law, a little diminishes the reliance to be put upon it. These five witnesses all say, some less decidedly than others, that to gain a legal domicile in France the authorization of the Emperor was necessary. Some admit that there are contrary dicta and decisions. The other three experts, those examined on behalf of the appellant, give their opinion that to acquire a legal domicile, such as will cause the succession to open in France, the imperial authorization is not necessary (Frignet, Senard, and Paillet), but most of these experts also admit that it is a disputed question. This difference between the learned experts arises upon the con- struction of the thirteenth article of the Code Napoleon, upon which we can form some opinion ourselves. It is to this effect: "The foreigner who shall have been admitted by authorization of the Emper- 22 GENERAL PKOVI8IONS. (Part 1 or to establish his domicile in France, shall enjoy there all civil rights, so long as he shall continue to reside there." It is said that the rights of testacy and succession are civil rights, and that a domiciled foreigner cannot enjoy those rights without this authorization. Pothier, in his treatise "De la Communaute," pt. I, c. 1, art. 1, classes the right of testacy and succession among civil rights, which strangers have thought not to include domicile, and contracts among the "droits des gens," which strangers have thought to be included ; and in his "Tr'aite des Testaments," c. 3, § 1, art. 1, p. 309, he says: "Le testament ap- partient au droit civil, d'oti il suit qu'il n'y a que ceux qui jouissent des droits de citoyens qui puissent tester," and, therefore, "aubains" are strangers not naturalized, are regularly incapable of bequeathing the goods they have in France. The affirmative provision that every foreigner who shall be author- ized to fix his domicile in France shall have all the civil rights, though it does not explicitly say so, no doubt means that the foreigner, to en- joy all, must have that authorization ; but it does not follow from that provision alone that he cannot enjoy any one or more of those rights without it ; he may quite consistently with that article have the power of testacy and the power of leaving his succession to devolve on his family. But assuming that the thirteenth article prohibits the exercise of any civil right to one who is domiciled, but has not an authorization from the Emperor, and, therefore, denies the right of testacy altogether, what is the consequence? Is it that the foreigner cannot rriake any will at all of his personal goods, wherever situated, or only of his personal goods situated in France ? If the former is to be considered as the true construction, then the consequence is that a stranger, if he elects to domicile himself in, and dies in, France without authorization, loses his power of making a will altogether, and his effects by the law of nations will not pass under his will, according to the rule already stated. What rights his relatives would have is another question. If he should be domiciled in a country where, on death, by law all his effects go to the sovereign by a "droit d'aubaine," more extensive than that of old France, which applied only to personal effects within the kingdom, that law must prevail, and his will would be of no validity, and his relatives, by the law of his domicile of origin, would lose all their rights. In this view of the thirteenth article, this will cannot be admitted to probate. If the meaning is, as seems probable (see Merlin, Rep. de Jur. art. "Etranger," § 11, Ed. 1812), that he shall have no power unless so authorized, to make a will of personal effects situate in France, but he may for those elsewhere, still his will, to have any effect, must be in the form and with the solemnities of his domicile, according to the general rule, otherwise it cannot be admitted to proof, and the prop- erty in France would not pass by it. So that upon any construction Ch. 1) NATUKE OF THE SUBJECT. 23 of this article, on the assumption that the power of making a will is one of the civil rights on which it operates, the will in question is not valid. There seems strong ground to contend that the restraint upon the power of testacy, and of the right of devolving personal effects upon relatives, is done away with altogether by subsequent legislation. By the law of the 14th of July, 1819, foreigners are entitled to succeed, and to dispose and receive in the same way as French subjects in all the extent of the kingdom. If a stranger can dispose of his personal property in France, or anywhere else by will, why should he be the less able to do it, because he is domiciled in France? Be that as it may, if the power of testacy is still restrained by the thirteenth article of the Code Napoleon, and if the only effect of that article is, that a foreigner may be legally domiciled, but yet not enjoy the civil right of making a will, this will ought not to be admitted to proof. But it is then contended on the part of the respondent, that by the law of France no domicile, for any purpose whatever, can be obtained there except by the previous authorization of the government. The witnesses differ on this point, and it will be proper to take a short review of the decided cases and the principal text authorities cited at the bar on both sides. * * * On the whole, then, on a review of all this evidence of the law of France, their lordships are clearly of opinion, that it is not estab- lished, that for the purpose of having a domicile which would regu- late the succession, any authorization of the Emperor was necessary; that a legal domicile for this purpose was clearly proved, and that consequently, if the testatrix had a power to make a will at all, the will in this form was invalid. There are still two English cases to be noticed. The respondent relies on Collier v. Rivaz (2 Curteis, 855), in which Sir Herbert Jennet Fust decided that on the evidence before him an Englishman domiciled in Belgium by the law of nations, but not authorized by the govern- ment, according to the thirteenth article of the Civil Code of France, in force there, might make a will in the English form. The case was not regularly contested, which makes it of less authority. It was a mere question on the parol evidence of the Belgian law, which was very short and unsatisfactory. Their lordships have referred to the depositions, and doubt whether the learned judge was warranted by the evidence contained in them in coming to tlie conclusion which he did. In this case the evidence on both sides is very full, and leads to a different conclusion. On the other hand, there may be cited for the appellant the case of Anderson v. Laneuville (9 Moore, P. C. Cases, 235), where the judicial committee decided that a domicile was acquired in France, though the deceased had not complied with the thirteenth article of the Code Napoleon, and that objection was 24 GENERAL PROVISIONS. (Part 1 distinctly taken (page 336). That point, however, does not appear to have been much considered. . Their lordships are of opinion that the judgment of the learned judge of the Prerogative Court was unsupported by the evidence, and will advise Her Majesty to reverse it, and recall the probate. Under all the circumstances of this case their lordships will direct the whole costs of these proceedings to be paid out of the estate. In re JOHNSON. (Chancery Division, 1903. 1 Cli. 821, 72 L. J. Ch. 682.) FarwELL, J.* Mary Elizabeth Johnson, the testatrix, was born out of wedlock in Malta in 1810. Her father, Thomas Johnson, was a British subject and domiciled in England at the date of her birth. Her mother, Marianna Attard, was domiciled in Malta at her birth. They eventually married in 1815. The testatrix left Malta about 1832 or 1833. She made a will, which does not dispose of the whole of her property. She was at the date of her will, and thenceforth down to her death on December 25, 1894, domiciled in Baden. She was not, however, naturalized in Baden; and, "according to the law of Baden, the legal succession to the property of the deceased of which she has not disposed by will is governed solely by the law of the country of which the testatrix was a subject at the time of her death." This is the finding of fact in the master's' certificate, and, there being no summons to vary, is binding on all parties. On these facts the master has submitted certain questions to the court, which really re- solve themselves into this one question: According to what law are the rights of the persons claiming the undisposed-of personal estate of the testatrix to be determined ? This personal estate consisted entirely of personal property (movables), situate partly in Germany and partly in England. Now, the rights of the parties claiming, in an English court, mova- bles (and there is no question in this case of leaseholds or real estate) of an intestate depend on the law of his domicile at the time of his death. It is a settled principle of English law that no one shall be without a domicile. Every one takes at birth the domicile of his father if he be legitimate, of his mother if illegitimate, and he may in later life acquire a domicile of choice. But until he does so, or if he abandons his domicile of choice, his domicile of origin remains or revives. To quote I^rd Watson (13 App. Cas. 439) : "Lord West- *A part of the opinion has been omitted. Ch. 1) NATUEE OF THE SUBJECT. 25 bury in Udny v. Udny, I.. R. 1 H. L. Sc. 458, * * * said : 'Domi- cile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a par- ticular place, with an intention of continuing to reside there for an unlimited time.' According to English law, the conclusion or infer- ence is, that the man has thereby attracted to himself the municipal law of the territory in which he has voluntarily settled, so that it becomes the measure of his personal capacity, upon which his majority or minority, his succession, and testacy or intestacy must depend." But when I turn to the laws of Baden, at the death of the testatrix the municipal law of which, according to our law, the testatrix has attracted to herself, I find that the courts of Baden pay no heed to domicile — she is foreign to them in birth, and had done in her lifetime no act which their courts recognise as entitling her to be regarded as a person the succession to whose movables should be regulated by their law. According to their law, the succession to her movables was regulated by the law of the country of which she was a subject at her death. Now, I do not understand that any one contends, and, if they did, it would be impossible for me to hold, that this results in a circulus inextricabilis, an unending reference from one court to another. In my opinion, the true view is this : The question, having arisen in an English court primarily, falls to be decided in accordance with the law administered by that court. That law distributes movables ac- ' cording to the domicile at the death ; and, according to that law, every person must have a domicile somewhere or other, either of origin or of choice. When the court has ascertained that the domicile of origin has been displaced by a domicile of choice, distribution of movables follows the domicile of choice ; but, in order to establish a new domi- cile of choice, the court has to be satisfied that it has been adopted animo et facto — it is essential that there should be both animus and factum. When, therefore, the law of the land said to be chosen as the new domicile disregards domicile, and declines to distribute in accordance therewith, or to treat it as of any force, there cannot have been any change of domicile de facto; a,nd the case is accordingly remitted to this court as a case where the propositus has intended but has failed to obtain an effectual domicile of choice. No change is ef- fectual unless the factum is proved, and the factum cannot exist in a country where the law refuses to recognize it. The result is that this court must conclude that a domicile of choice, ineffectual to create any rights and liabilities governing the distribution of movables in the country supposed to have been chosen, is for this purpose no domicile at all, and that the propositus, therefore, is left with his domicil^e of origin unaffected. The Baden courts would in effect have disavowed him and disclaimed jurisdiction. This appears to me to be the logical result of the application of our rules respecting domicile and to be in accordance with justice. 26 GENERAL PROVISIONS. (Part 1 It is argued that the proper course is to remit the case to the Ba- den courts, leaving them to say what their law would do with the movables of the propositus. But the only ground on which the ques- tion is referred to them at all is by reason of our law of domicile. When they have once rejected this, they have rejected the propositus, and all claims to direct the distribution of his movables altogether — he is a mere stranger within their gates. Why, then, should this court ask their assistance when the only ground for seeking it is repudiated by them? Take the converse case. Suppose that the Baden courts were distributing the movables of an English subject whose domicile of birth was English, but who would, according to our law, have acquired a domicile of choice in Baden. They would disregard the domicile altogether, and, if they treat the question of English law as a matter of fact, as we do, on which evidence must be adduced, they would distribute the movables in accordance with the domicile of origin of the propositus exactly as I am proposing to do in the present case. If, on the other hand, they regard it as a question of their own law and not of fact, as M. Labbe appears to hold in regard to French law (see Journal du Droit International Prive, 1885, p. 5), and there is a conflict between their views and ours, I see no reason why, in dis- tributing movables under the jurisdiction of this court, we should surrender our own law to their views of our law in order to secure uniformity. As has been well said in an American case of Hilton v. • Guyot, quoted in Minor on Conflict of Laws, p. 6 : "Comity is neither matter of absolute obligation nor of mere courtesy and good will. It is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the pro- tection of its laws." I cannot think that I should have due regard to such rights if I were to abrogate our own ordinary rules simply for the sake of securing uniformity with the views taken of those rules by another country. If the movables of the same propositus are distributed amongst different persons, according as the court direct- ing the distribution is in England or Baden, the reasen is because the two systems of law are intrinsically different, and can only be recon- ciled by international treaty. Story on the Conflict of Laws, § 38, con- tains this apposite passage: "There is indeed great truth in the re- marks which have been judicially promulgated on this subject by a learned court [the Supreme Court of Louisiana, per Porter, J., Saul v. His Creditors, 5 Mart. (N. S.) 569, 595, 596, 16 Am. Dec. 212] : 'When so many men of great talents and learning are thus found to fail in fixing certain principles, we are forced to conclude that they have fail- ed, not from want of ability, but because the matter was not suscep- tible 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 Ch. 1) NATURE OF THE SUBJECT. 27 on a question which touched the comity of nations, and that that com- ity 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 condition 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 prefer the laws of its own country to that of the stranger.' " But in the particular matter with which I have to deal I do not think that any great divergence must necessarily result. It is not for me to say how the Baden courts would interpret their rule of distributing according to nationality. I venture to think that this does not and cannot mean that they regard the propositus as an Englishman, wherever his domicile of origin may have been, but that they distribute his movables in the same way that the English courts would distribute the movables, not of any Englishman, but of the particular propositus, and would therefore necessarily have regard to his domicile of origin. This would be in accordance with the comity of nations, inasmuch as our courts defer to and regard their laws in distributing the movables of a native of Baden who has not acquired a domicile here, and would avoid the difficulties to which I shall have to refer further presently. The one case in which an unavoidable conflict arises appears to me to be that of a native subject of Baden who has acquired a domicile of choice in England. If and so far as this court distributes his mova- bles, they would be distributed according to our law; but if and so far as the courts in Baden distributed them, they would be distributed in accordance with Baden law. I see no way to avoid this except by treaty, nor do I think that the fact that in the converse case such as is now before me we distribute our own subject's movables in accordance with our law, although he would have acquired a Baden domicile if it were possible, is any breach of international comity, inasmuch as we make this distribution, not in disregard of but in compliance with Baden law, which rejects the jurisdiction over the movables of the propositus that we ofifer it. Counsel have been unable to refer me to any decided case on the subject, and I have been unable to find any myself, unless the Brown-Sequard Case, referred to in the Journal du Droit International Prive, 1895, vol. XXII, p. 427, which seems to be the same case as In the Goods of Brown-Sequard (1894) 70 L. T. 811, is an authority, but that was only an ex parte application. * * * It was urged in argument that the finding in the certificate is that, according to the law of Baden, movables are to be distributed accord- ing to the nationality of the propositus. I have already given my rea- sons for holding that the Baden courts would have really refused juris- diction ; but, even if this were not so, I should arrive at the same con- 28 GENERAL PROV^ISIONS. (PS-Tt 1 elusion in a different way. When it is said that the Baden courts re- gard the nationality of the propositus, I apprehend that this means that they distribute according to the law of the nation to which the proposi- tus belongs, or in other words, of which he is a subject. But the British Empire consists of a large number of states, countries, and colonies, and differs from continental nations in that it does not impose its own laws wherever its sway extends,, but admits many different systems of law within its bounds. There is no one uniform law of this empire which can be taken for this purpose as the law of the nationality of the propositus. To what nationality, then, does the propositus belong, or of whom is he a subject? The only possible answer appears to me to be that he is a subject of the British Crown and that his nationality is the British Empire. But inasmuch' as there is no one law of the empire to which the rule in question can refer, resort must be had to the law of England. The first proposition seems to be clear. Wheth- er born in England, Scotland, Canada, Cape Colony, or the Channel Islands, or elsewhere within the empire, he is a natural-born subject of the crown, and, as Calvin's Case, 7 Rep. *27b, shows, the crown is one and indivisible, and cannot be severed into as many distinct king- ships as there are kingdoms; and even if it could, how is it possible to determine what is a distinct kingdom? Even if India or some of our great colonies could lay some claim to be so considered, how could the Isle of Man, or, indeed, Scotland, since the Act of Union ? But to admit that either of these latter must be treated as one with England would let in all the inconveniences which have been pointed out in argument, and would, moreover, create an extraordinary anomaly. I base my decision on principle and on considerations of policy and con- venience. "Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject." 1 Blackst. 354. As is said in Calvin's Case, 7 Rep. *5 : "Protectio trahit subjectionem et subjectio protectionem." It is admit- ted that it is the same thing for this purpose to say that the proposi- tus is the subject of X., as to say that he belongs to the nationality of X. I see no way in which the propositus can claim to belong to a separate part of the king's dominions or to a separate nation- ality without denying allegiance to the king as supreme over the whole empire as one empire. The point appears to me to be involved in, and to be decided by, Calvin's Case. Although there were at that time— James I's reign — two distinct kingdoms of England and Scotland, each with its own code of laws, it was resolved by the Lord Chancellor and twelve judges that there was but one allegiance to one king, and therefore that a Scottish-born subject of the king was no alien in England. To quote the resolution at page 10a of the report : "Ligeantia naturaHs nullis claustris coercetur, nullis metis refrsenatur nullis finibus premitur." And consistently with this we find that when the East India Company was abolished by St. 21 & 23 Vict. c. 106 it was enacted (section 2): "India shall be governed by and in the Ch. 1) NATURE OF THE SUBJECT. 29 name of Her Majesty." So, too, the sanction, either express or im- pHed, of the crown, is required for the validity of the acts of all colonial Legislatures. Dicey on the Law of the Constitution (3d Ed.) p. 98. Turning from principle to policy and convenience, how is the foreign court to ascertain what law of what part of the British Empire is to apply? Foreign states are in diplomatic relation with this country as representing the whole empire. They know nothing officially of Scotland or Canada, or the colonies, still less, perhaps, of the Channel Islands or the Isle of Man. It would surely be a task of difficulty and delicacy for them to discriminate and determine judicially that Canada (for instance) or the Cape is a distinct nationality. Indeed, in some circumstances, in some states of public feeling, such a determination might come perilously near to an unfriendly act. Further, unless a novel and hitherto unheard of definition of nationality is adopted, whereby every country within the empire that has a distinct set of laws is treated as a separate nationality (an impossible course, in my opinion), the foreign court has no data to guide it in determining what is a nationality. Does it depend on area, or population, or wealth? And how is any uniformity of opinion on the point, amongst foreign courts, to be secured? Again, what nationality at his death can a court which ignores domicile attribute to a man born in Scotland who makes his home and fortune at the Cape and dies in England? These are practical difficulties which appear to me overwhelming. Further, the object aimed at would not be attained, at any rate, in the very case put forward in argument — namely, of Scotland. It was said to be hard on a Scotchman that his estate should be dealt with under English law. But whatever might be said of some of the colonies, I fail to see how any court could hold that Scotland is a distinct nationality in the face of the Act of Union (St. 6 Anne, c. 11, § 1) : "That the two kingdoms of England and Scotland shall be upon the first day of May, 1707, and for ever after be united into one kingdom." So the Isle of Man, though retaining its own laws, was purchased in the reign of George III, and by St. 5 Geo. Ill, c. 36, was inalienably vested in His Majesty and his heirs and successors. Indeed, I incline to think that the only part of the British Empire which could with any plausibility claim to be regarded as a separate nationality if allegiance to the crown would permit it — is the Channel Islands, being part and parcel of the Duchy of Normandy and described in Calvin's Case as "no parcel of the realm of England but several dominions enjoyed by several titles governed by several laws." The only possible solution appears to me to be that foreign courts must necessarily refer such questions as these to and decide them according to the law of the country with which alone they are in diplomatic relation; and in- asmuch as the law of England distributes such movables in accordance with domicile of origin substantial justice is done to all His Majesty's subjects, and the born Scotchman will not, any more than the Cape of 30 GENEKAL PROVISIONS. (Part 1 Good Hope colonist or Jerseyman, be deemed to have become an Englishman or to have given up that domicile of origin with its at- tendant laws, to which, according to counsel's argument, he is so deeply attached, although in the particular case he had done all that in him lay to change it for another. I conclude, therefore, that dis- tribution according to the law of the nationality means according to English law, but according to that law as applicable to the particular propositus, and Hot to Englishmen generally without regard to their domicile of origin. The testatrix in this case is found by the certifi- cate to have been born a subject of the British Crown and to have had her domicile of origin in Malta. Her movables, therefore, will be distributed amongst the persons who would be entitled thereto accord- ing to Maltese law.^" loAccord: In re Bowes, 22 T. L. R. 711 (Ch. D. 1906). See Harral v. Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17 (1884). CoNTiNENTAi, LAW. — The "renvol" doctrine bas been applied frequently in France since the Forgo Case (Cass. June 24, 1878, D. 1879, 1, 56). See Cass. Feb. 22, 1882 (S. 1882, 1, 393), and note by J. E. Labb6 ; App. Toulouse, Jlay 22, 1880 (D. 1881, 2, 93); App. Douai, Feb. 2, 1899 (26 Clunet, 825): App. Aix, July 19, 1906 (34 Clunet, 152). It has been rejected in recent years in a number of decisions by the lower courts. See App. Paris, Aug. 1, 1903. (D. 1906, 2, 169) ; App. Rouen, June 30, 1897 (2 DaiTas, 511) ; Trib. Civ. Seine, Feb. 10, 1893 (20 Clunet, 530); App. Pau, June U, 1906 (D. 190T, 2, 1), and note by A. COlin. It has obtained no foothold in Italy. Cass. Rome, Jan. 5, 1906, and Rome, Dea 1, 1906 (34 Clunet, 1205). In Germany it has been recognized expressly by the Civil Code with re- spect to capacity, marriage, matrimonial property, divorce, and succession, provided the foreign law refers back to German law. Article 27, Law Intr. Civ. Code. According to article 28 it is inapplicable, however, to property in a third estate where different rules prevail. The renvoi doctrine was rejected by the Institute of International Law at its session at Neuchatel in 1900 by a vote of 21 to 6 (v. Bar, Brusa, Har- burger, Roguin, Weiss, and Westlake voting in its favor). See Annualre de rinstltut de Droit International, vol. XVIII, 145-176. It is sanctioned, on the other hand, by article 1 of the Convention of the Hague of June 12, 1902, relating to marriage ("^ moins qu'une disposition de cette loi ne se refSre expressSment a une autre loi"). See Appendix, A, I. See also, 20 Harv. Law Rev. 226 ; Westlake, Priv. Int. Law, 25-40, 826 ; Bicey, Conflict of Laws, 715-723 ; Eldwin H. Abbot, Jr., Is the Renvoi a Part of the Common Law? 24 Law Quar. Rev. 133-146; John P. Bate, Notes on the Doc- trine of -Renvoi in Private International Law, London, 1904; T. M. C. Asser, Quelques observations concernant la thgorie ou le systeme du renvoi, 32 Clunet, 40-43 ; V. Bar, Die Ruckverweisung im Internationaleu Privatrecht, 8 Niemey- er, 177-188; G. C. Buzzati, Nochmals die Ruckverweisung im Internationaleu Privatrecht, 8 Niemeyer, 449-456 ; G. C. Buzzati, Die Frage der Riickverweisung vor dem "Institut de Droit International," 11 Niemeyer, 3-15 ; P. Fiore, Du conflit entre les dispositions legislatives de droit international priv6 (Theorie de renvoi), 28 Clunet, 424-442, 681-704 ; J. Klein, Die Riick- und Weiters'er- weisung im Internationaleu Privatrecht, 27 Archiv fUr biirgerliches Recht, 252-282 ; J. E. Labbe, Du conflit entre la loi natiouale du juge saisi et une loi etrangSre relativement k la determination de la loi applicale t la cause, 12 Clunet, 5-16; A. LainS, La thgorie du renvoi en droit international irivfi, 2 Darras, 605-643 ; 3 Darras, 43-72, 313-339, 661-674 ; 4 Darras, 729^758; Maurice Ligeoix, La thSori;! du renvoi et la nature juridique des rggles de droit iutemational priv6, 30 Clunet, 481^98; 31 Clunet, 551-567; J T. B St'well, Du renvoi d'aprc^s la jurisprudence anglaise en mati^re de' succession mobiliere, 3 Darras, 507-524. Ch. 2) PENAL LAWS. 31 CHAPTER n. PENAL LAWS. BLAINE V. CURTIS. (Supreme Court of Vermon t, 1887. 59 Vt. 120, T Atl. 708, 59 Am. Rep. 702.) Action of debt to recover the penalty given by the statute of New Hampsh ire for taking usury. WalkeRj J. The case comes before us upon general demurrer to the declaration, and the only question to be decided is whether the forfeiture imposed by the laws of New Hampshire upon a person re- ceiving interest at a higher rate than 6~per cent, may be entorced by ^'^A^tJo g of debt, in faVor of the person aggrieved^inThis stat ed ^The provisions of the statute, which are substantially set out in the declara- tion, are as follows : "If any person, upon any contract, receives in- terest at a higher rate than 6 per cent., he shall forfeit three times the sum so received in excess of said 6 per cent, to the person aggrieved who will sue therefor." It is alleged, in substance, in the declaration, that the defendant, at Piermont, in the state of New Hampshire, received upon a promissory note for the sum of $1,500, then held by the defendant and owing by the plaintiff to her, $30 interest in excess of 6 per cent, from the plaintiff on the first day of May in each year for six years, beginning with May, 1876, and ending with May, 1883 ; making $180 thus re- ceived by the defendant of the plaintiff in excess of 6 per cent, interest during the years named. It is also alleged that, by virtue of the stat- ute of New Hampshire aforesaid, an action hath accrued to the plain- tiff to recover of the defendant three times the excess of 6 per cent, interest so paid. The case stated comes within the statute declared upon, and, if the suit had beeri instituted in New Hampshire, there could be no doubt of the right of the plaintiff to feci5ver7Tf lHe""aefiofi is not barred in THaFsTate'^r'fBF statute of limitations! The question here is, can the J liability imposed by the statute be enforced out of the limits'of Newl Hampshire? jThisjnust depend^ the nature of the liability, and the manner in which it is created. It is not a_responsibility ex contractu ; and the question arises, is it a liability nnp^ed^ by the statute upon a personreceivingniegal interest for a violation of its provisions, and, "penal In its nature ', or is it a statute declaratory of a common-law right, i and a means or way enacted for enforcing it, and therefore remedial I in TEs nature? ■ 32 GENERAL PROVISIONS. (Part 1 If it only gave a remedy for anjnjury^against the person by whom it IS commit ted to t h e personinfured,' and limited .thej:ecoveryJo the mere amount of lo ss susta ined, or t o cumulative_d amages as compen- sation for th e injury sustained, it would fall vvithiiTthe class" ofTemedial statutes. lIBITComm. 86; Lake v. Smith, 1 Bos. &" P. (N-TTTITS, iMTWoodgate v. KnatchbuH, 2 Term R. 154, 155, note ; Pinkney v. Rutland Co., 2 Saund. 376, note 7 ; Shore v. Madisten, 1 Salk. 206 ; Boice V. Gibbons, 8 N. J. I^aw, 324; Burnett v. Ward, 43 Vt. 80. But this sta tute does not liqiit the recovery to the rnere arnount of the loss sustained, or to cumulative damages as compensation. It goes beyond, and inflicts a punishment upon the offender. It makes "The taking ot illegal mteresf"anrbffense,"ahd prescribes a "penalty of "three times th e arnount of illegal interest taken. The right of action under it does not arise out of any privity existing between the person paying and the person receiving the illegal interest, but is derived en- tirely fromjthe statute. The action given is not to recover back money > (that the person receiving had no lawful right to take and hold against | the person paying it, but one to recover a penalty for a breach of a// statute law, and founded entirely upon the statute imposing the for-/'' feiture. It was held in Hubbell v. Gale, 3 Vt. 266, that whatever may be I the form of the action, if it is founded entirely upon a statute, and the object of it is to recover a penalty or forfeiture, it is a penal I action. We think JheJ[iability_created by the statute declaredji^on 1 is dearly a statutory^ one, imposed upon the person receiving jUggaJ interest j^s_a wrongdoer, and penal in its natu re. This view is supported by the decisions of many courts of last re- sort, some of which have been cited in the argument. We refer, however, only to a decision of the Supreme Court of the United States in a case analogous to the case at bar. The provisions of the act in question are similar to the provisions of the national currency act of Congress, approved June 3, 1864, which provides that, if unlawful interest- is received by any banking association created by it, the person or persons paying the same, or their legal representatives may recover back, in an action of debt, twice the amount of interest thus paid from the association taking or receiving the same. This provision of the currency act referred to came up for consideration by the Supreme Court of the United States in the case of Barnet v. Muncie Nat. Bank 98 U. S. 555, 25 L. Ed. 212, where the plaintiff in error sought to avail himself of the benefit of the act in his defense, by way of offset and counterclaim to the bill of exchange on which the suit was brought Justice Swayne, in delivering the opinion of the court, denied the relief sought, and said: "The remedy given by the statute for the wrongs IS a penal suit. To that the party aggrieved, or his legal representa- tive, must resort. He can have redress in no other mode or form of procedure. The statute which gives the right prescribes the re Ch. 2) PENAL LAWS. 33 dress. The suit must be brought especially to recover the penalty, where the sole question is the guilt or innocence of the accused." This statute has been repeatedly under consideration by the Supreme Court of the state of New Hampshire, and has been by that court invariably treated as a penal statute. Harper v. Bowman, 3 N. H. 489, was an action to recover a forfeiture of three times the illegal interest paid. It was objected that -some-pait^o f the penalty w a s barred by the statute o f limitationS i_and the court in considering the question — hBla that the act limiting suits on penal statutes, which provides that . actions upon any penal statute shall be brought within one year from I the time of committing the offense, was controlling in the decision of the question raised. In Kempton v. Sullivan Sav. Institution, 53 N. H. 581, the court treated the statute as a penal one, in an able opinion upon its construc- tion, and rules of pleading applicable to actions brought upon it. This construction, which has been given to the statute by the Supreme Court of the state in which it was enacted, treating and holding it a penal statute, should be followed, and is controlling, in courts of this state. Hunt V. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; I^eonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491. It is well settled that no state will en force penalties imposed by the laws o f another _state. Such laws are universally ccmsi dered as having no extra-territorial operation or ef fect, whetheF the penalty Jxe to the„ "puHHc or to persons^ I'hey areltrictly local, and effect nothing more tKan Ihey can reach wj thm the limits of the state in wh ich they were enacted. They cannot be enforced in the courts of pother _ state, either by force of the statute, or upon the principles of^jtate comity, "^toiyTConflT Laws; §§ 620, 621; Ror. tntTSt. Law, 148, 165'; Ogden v. Folliot, 3 Term R. 733 ; Scoville v. Canfield, 14 Johns. 338, 7: Am. Dec. 467 ; First Nat. Bank of Plymouth v. Price, 33 Md. 487, 3 Am. Rep. 204 ; Derrickson v. Smith, 27 N. J. Law, 166 ; Barnes v. Whitaker, 22 111. 606 ; Sherman v. Gassett, 9 111. 521 ; Henry v. Sargeant, 13 N. H. 321, 40 Am. Dec. 146; Slack v. Gibbs, 14 Vt. 357. Acti ons for the recovery of a penalty or forfeiture, given by laws of orie_state_upoDL usurious contracts made and entered into in such state, will not lie in another state. Such laws are held to be penal in their nature, and governed by the general__rule_ that they have no extra- territorial force, and'can be enforced only by the courts of the. state in which they are enactecL_ Ror. Int. St. Law, 165 ; Barnes v. Whit- aker, 22 111. 606; Sherman v. Gassett, 9 111. 521. The judgment of the county court sustaining the demurrer, and ad- judging the declaration insufficient, was correct, and is affirmed. LOB.CONF.L.— 3 3i GENERAL PROVISIONS. (Part 1 ARNOLD V. POTTER. (Supreme Court of Iowa, 1867. 22 Iowa, 194.) Wright, J.^ * * * What was the contract between these par- ties was a question for the jury to determine. Appellant denies the position assumed by appellee, and insists that this was a contract made in Massachusetts, payable in New York, and that there was no agree- pient beyond what appears upon the face of the notes ; and assuming that the contract might be governed by the law of Massachusetts, the appellee asked and the court gave this instruction: "This court will not enforce the penal statute of 'another state relating to usury, when that statute does not make the contract wholly void ; and, therefore, the statute of Massachusetts is not to be considered by the jury." In this respect, as intimated in the commencement of this opinion, the court below erred. The statute of Massachusetts (Rev. St. 1836, c. 35, § 2) fixes tha rate of interest at six per cent. ' "If m ore is reserved, jthejcontract is not void, but the defendant recovers full hosts' and plaintiff for feits Jthreefold the amount of the whole interest reserved, aiad shal l hav e judgme nTf or^ the balance only, w hich shall remain due after deduct- in g the three fold amount."- Now, we do not controvert appellee's proposition thatour courts will not enforce the p erial statutgs_pf another state. The error is in the conclusion based upon such proposition, that, therefore, this statute of Massachusetts^ wjll not be enforced, if jthe_ccHitract_falls_witlnn its provrsions. Some cases are relied upon by counsel to which we first direct attention. Gale v. Eastman, 7 Mete. (Mass.) 14, was expressly ruled upon the ground that the law of New Hampshire, where the contract was made, peculiarly related to the remedy, and could not be enforced in Massachusetts. But, aside from the proposition that the remedy provided could only extend to suits brought in New Hamp- shire, there is nothing remotely bearing upon the question now before us. There is no intimation that the court refused to act, because the law of the place of the contract was penal; and the same remark is applicable to Wright v. Bartlett, 43 N. H. 548. Scoville v. Canfield, 14 Johns. 338, 7 Am. Dec. 467, decides nothing more, except so far as it states the admitted proposition that the penal laws of one state could have no operation in another, that such laws are strictly local, and aiifect nothing more than they can reach. De Wolf v. Johnson 10 Wheat. (U. S.) 367, 6 L. Ed. 343, touches the point here made, very remotely, if at all. It certainly does not go to the extent claimed by the appellee. On the contrary, there is much in it to favor the opposite view. Sherman v. Gassett, 4 Gilman (111.) 521, is more in 1 Only a part of the opinion Is given. Ch. 2) PENAL LAWS. 35 point. It was decided by a divided court, Lockwood, J., delivering the opinion of six of the judges, and Kermer, J., the dissenting opinion of the other three. We do not propose to examine it at length. The argument of the majority of the court strikes us as being based upon improper assumptions, and is equally inconclusive in its reasoning; and most pertinently does the dissenting opinion dispose of the whole, argument, by saying: "To maintain that we are bound to declare a usurious contract wholly void, when the laws of the place of contract make it so, whereby the creditor is deprived of the whole of his claim, but that we are not bound to regard the law when it provides for a forfeiture only by which the creditor loses but a part of his claim, seems to involve a singular inconsistency. It, in other words, involves the following remarkable syllogism: 'The law everywhere avoids usurious contracts, when they are declared whofly void by tlie law of the place. This contract was void in part, and consequently it is good in whole.' " But a more conclusive answer to the case is found in Barnes v. Whitaker, 22 111. 606, where the Supreme Court of .that state enforced the statute of this state upon a contract made here, so far as it declares that plaintiff shall have judgment for the principal sum, without either interest or costs. They refused, of course, to adjudge the penaltj of ten per cent, to the school fund; but the right of the defendant to insist upon the enforcement of our statute in the other respect, is maintained by an argument strong and unanswerable : "It is admit- ' ted," says the Chief Justice, in summing up, "that such would be the effect of this law if it had declared that plaintiff should have judgment for nothing. How much more so, in common sense, when it (only) allowed him to take judgment for the principal sum borrowed. "The distinction in the two cases is not only without reason, but is against all reason, and all sound law and the philosophy of the law." Now, upon principle, why is not this case in point? Our law s ays ^ilaintiff_shall__have judgment for the p rincipal sum withouL interest or costs. The M assachus etts sta tute is, tha t he 'sh all have judgment f or J:he_ balance only,_whidi shall remain after deductjngthe t hreefol d amo unt. In neither case i s there a criminal law to enforce a penal statute _having operatio n beyond the limits of the state~enactingTf. "' Hie legal effect of the"contracl:s cotiH^ njot Ibe 31Herent^ in different _states^_and it is according to this legal effect that_ all courts are bound to enforce them. * _If_the law affixed a penalty, and the _def endant_ was in this case seeking to c ollect it, or if, as imder our statute, the defendant forfeited a certain amount to the school or other fund,~an3'wewere askeH to' Heclare "the sameT'we ._wouI3'~E aye~cases' to which the instruct|ons_in question would apply. Is forfeiture the s ame as penalty in this con- .nection? This is easily answered. If the law attaches a penalty, as the consequencje_of_an act, it may be sued jor and recovered ; but it will 36 GENERAL PROVISIONS. (Part 1 be enforced alone in the state declaring the same. If ^on the other hand, a person's prp^ert}f_ni^_be|orjEeitei or lost by some fault or ' offense, ' thS-Jnrieiture is not e nforced except in the prosecution for the fault or offense; and, if the party guilty of the fault seeks to en- force ^tEe contract which he has obtained as the fruits of such o ffens e^ iie~rari take no p'art ofTfie~forferture. And wEe n^ he declares and , seeks to recover upon such a contract, in another state, if the courts of that' state hol d that his contract shall be carried out as interpreted by the laws oftEeltate where made, they inilict upon him no penalty, they are not enforcing the penal laws of another state, but enforce the statute of the sister state so far as it effects a discharge of the claim. Gambling is punished by our statute, and a gambling contract is v6i3. Suppose our laws declared that a party holding such a contract, might re cover o ne-half and no more. Now, the penalty, the penal statute, would not be enforced in anotfieF state ; but, in an action upon the contract there, the holder "woulcPEe" limited in his recovery to the onejialf. The Mas sachusetts statute not only uses the word "forfeit," I but s aysj the pla intiff shall^only have judgment for so much ; thus un- : mistakably keepng up the distinction between a law of this kind and one penal in its nature. * * * - v^^\ Vi^' ■ ADAMS V. FITCHBURG R. CO. {Supreme Court of Vermont, 1894. 67 Vt. 76, 30 Atl. 687, 48 Am. St Kep. 800.) Action on the case. Heard upon demurrer to the plaintiff's declara- tion, at the March term, 1894, Windham county; Ross, C. J., presid- ing. Judgment sustaining the demurrer, and for the defendant. The plaintiff excepts. The plaintiff brought suit, as the administratrix of one L. C. Adams, alleging that the defendant was a railroad corporation operating a railroad in the state of Massachusetts, and that her intestate, while a passenger upon said railroad in_that_state, had been killed by the negli- ligence of the defendant, and without fault upon his part; and that she thereby became entitled to an action in virtue of chapter 113, § 213, of the Public Statutes of Massachusetts, which she alleged was in substance as follows : "If by reason of negligence or carelessness of a corporation operating a railroad or street railway or the unfitness or gross negligence or carelessness of its servants or agents while engaged in its business,the life of a passenger or of a person being in the exercise of due diligence and not a passenger or in the employ- ment of such corporation is lost, the ^or"^5?Sfer shall be punished ' by fine of not less than five hundred dollars or more than fivelRotlsand^ dollars to be recovered by indictment prosecuted within one year from the time of the. injury causing the death and paid to the executor or Ch. 2) PENAL LAWS. 37 administrator for the use of the widow and children of the deceased in equal moieties ; or if there are no children to the use of the widow, or if no widow to the use of the next of kin, but a corporation operat- ing a railroad shall not be so liable for the loss of life by a person while walking or being upon its road contrary to law or to the reasonable rules and regulations of the corporation. If the corporation is a rail-/ road co rporation it shall also be liable in damages hot exceeding five- thousand dollars nor less than five hundred dollars to be assessed with reference to the degree of culpability oj the^ corporation or its servants or agents and to be recovered in an action of tort commenced within one year from the injury causing the death by the executor or ad- \ ihinistrator of the deceas ed person for the use of the persons herein-' before specified in a_case^f_indictment." MuNSON, J. The plaintiff claims Fo recover by virtue of the pro- visions of a public statute of Massachusetts. The suit cannot _be main- tained if the statut e declared u pon is held to be penal. Blaine v. Curtis, 59 Vt. 120,TAtl. 708, 59 Am^ Repr702. So' far as we are informed by counsel, or have been able to ascertain by examination, no construc- tion has been placed upon this statute by the Massachusetts court. It thus becomes necessary for us to give to the statute our own inter- pretation. Its provisions ji re diff erent from those oi any other statute to which our attention has been_called. It is not free from expressions which in themselves would characterize a statute as remedial, rather <, jthan j)enal. The defendant is made liable in damages , and the^ascer- f tainment of the amount is characterized as an assessment. It is ce r- I tain, how ever, that the designation ofjhe recovery as damages or as a "forfeiture is not conclus ive~as to the character of the statute. A statute giving a right of re covery is often penal as to one party and ^emediaT as'fo the other. It is said that in such cases the true test IS whether t he main purpose of the statute is t he giving of compen- sation tor an iHTury sustained, or th e inflicti on of a punisEment upon fE^^wrbngdoer.~~~ We "think an application of th is testjojhe provision m question sho ws it to be, Bgnal. The foundation of the action is 'the loss of "a life by reason of the defendant's negligence. There w as no right of action at commonjaw. This statute gives a right of action to the person^il representative of the deceased for the bene- fit of the widow and children, or widow, or next of kin. If the right of recovery is establish ed, the damages a r e to be $500 i n any event. Any recovery beyond this is to be assessed with ref- erence to the c[egfee"'3F" the~ defendant's culpability. It appears, (' then, that whatever the damages may be, or whos oever the per- '' son for whose benefit they are recovered, they are ~not given 'with ref erence to the loss su stained^ If the recovery could be~had only for the benefit of widow a nd children, the statute mi ght perhaps~more I easily be looked u pon as remedial^ But the reco very jria7be^?0r the ' benefit of distant relafives, whohad no claim upon the deceased for 38 GENERAL PROVISIONS. (Part 1 , support. And whether the recovery be for the benefit of widow and / children or of distant relatives, the health or habits of the deceased may have been such as to preclude the existence of any appreciable pecuni- ary interest in the continuance of his life. All these matters, which enter into the question of compensation, are excludedjrmnjhejngmry. The wrongdoer is~to"5e"'"pum sH ea, whetHer ~ the person r eceiving the s^mount of the recovery h a s siistained a sub stantial in juTy or not. J~n "the beneficiary has in fact received an injury, it is m ri O" wav made the basi s 'otiEeTecovery. T he provision differs in this respect from those which give damages in exc ess of the injury received. Statut es giving double damages to a n aggrieved partyare held not to be penal. Burnett v. Ward, 42 Vt. 80; Reed v. Northfield, "l3 Pick. (Mass.) 94, 33 Am. Dec. 663. But in su ch cases there is an ascertainment of ithe actual damages^ and that a scerfainmen rjs'TEe' basis of th e entire recovery. Here there' J FiKTasc ertainment of the loss suffered, and^ as far as the amount oTthe verdict is left to the judgment blthe jury, it is to be determined by the culpability of the defendant's act, regard- less of the injury resuIting~from it to the persons for whose benefit the suit is brought. ~~Tt~is true that in Newman v. Waite, 43 Vt. 587, an amount given without any reference to the damage sustained was held to be given by way of compensation. But in that case, if the statute ,had merely created the duty of making the returns, the'common law I would have enMed Ui£^town to recover its actual damages tor a fail- ure to do~so; and it was taken to have been the purpose of the legis- I lature in its further provision to gfve a certain sum as fixed damages in lieu of actual damages otherwise recoverable which might not 6e~ "easil ^ascertai ned^_ Jint that reasoning is not available here, for i n this • case the existence of the obligation to carry the deceased witE'"due care~3i3 not give these beneficiaries a right to any damages whatever for the neglect complained of. And it is to be noticed that the giving of a fixed sum excludes a consideration of the degree of culpability as well as of the loss sustained. We think the rule given for deter- / friinin gjhe unascertained part of the recovery is the con trolling feature j oi the^taf nte. It__is difficult to say that an assessment which is made to depend solely upon the degree of the party's culpability is'not "primarily meteJout as a punishment. The sum is to be deterniined ■ by the~very considerations that would govern a court in fixing a fine for involuntary manslaughter. The fact that it is given to persons whom the law would have entitled to share in the estate of the "de^ ceased cannot control the construction. A statute may be penal al- though the entire amount recovered be given~di7ectly to the party injured. The disposition of the recovery and the hmitations of the amount recoverable are the same in the clause declared upon as in the provision for an alternative procedure by indictment, contained in the same section. The_£rovisifltLJBdlkh.is, clearly penal serves the samj: purpose as regards compensation, and has no greater eiTect as regards Ch. 2) PENAL LAWS. 39 punishment. In view of these considerations, and in the absence of knowledge of a construction by the Massachusetts court, we hold that the provision sued upon is penal. Judgment affirmed, and cause re- manded.* DERRICKSON V. SMITH. (Supreme Court of New Jersey, 1858. 27 N. i. Law, 166.) Assumpsit in the Morris circuit court against the administrators of John Smith, trustee of the Congress Manufacturing Company, a New York corporation, for noncompliance with a statute of th e state of New Yo rk requiring corpora tions to mak e annu al reporti~ang pro vIS^ i ng tfiaFupon a failure to make^such reports "all the trustees of tfie company shall be jointly and se verally liable for a ll debts ot tlie_com-" pany then existing anii for all that shall be con tracted before such report shaTTSe' made." The defendanT demurred "to~the declaratTon, and~3ie circuit court certified the case to the Supreme Court for an advisory opinion.* Green, C. J.* * * * 'pjig Qjjly question certified for the opin- ion of this court is, whether the neglect of the company to comply with the requirements of the statute of the state of New York entitles the plaintiffs to recover of the defendants in the courts of this s tate the amount of their claim against the corporation. The declaration sets out the statute upon which the action is found- ed ; the organization of the company under the provisions of the stat- ute; the indebtedness of the company to the plaintiffs; that the in- testate became a trustee, and that while he was such trustee there was a failure of the company to perform the requirements of the statute, by reason whereof the defendant's intestate became liable to pay the amount of the indebtedness of the company to the plaintiffs. The objection to the right of the plaintiffs to recover is, that the alleged liability of the defendant, being a mere creature of the statute of a foreign state, cannot be enforced out of the jurisdiction of such state. The general principle is conceded, that penal laws are strictly local, and that the penal statutes of one state can have no operation in 2Accord: O'Beilly v. New York & N. E. R. Co., 16 R. I. 388, 17 Atl. 171, 906, 19 Atl. 244, 5 L. R. A. 364, 6 D. R. A. 719 (1889) ; Lyman v. Boston & A. R. Co. (C. O.) 70 Fed. 409 (1895) ; Dale v. Atciison, T. & S. F. R. Co., 57 Kan. 601, 47 Pac. 521 (1897); Raisor v. Chicago & A. R. Co., 215 111. 47, 74 N. E. 69, 106 Am. St. Rep. 153 (1905). Contra: Boston & M. R. Co. v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193 (1901); Malloy v. American Hide & Leather Co. (C. C.) 148 Fed. 482 (1906). 3 This brief statement of facts has been substituted for that contained in the opinion of the Chief Justice. *A part of the opinion and the concurring opinions of Elmer and Vreden- linrgh, JJ., have been omitted. 40 GENERAL PROVISIONS. (P^'^t 1 another state. Story's Conf. of L. §§ 620, 631. But it is insisted that the provision of the statute which renders the defendant liable is not a penalty in any proper sense, but that the liab ility of the defendant is founded upon contract. "TTHaTbeen decided in the s tate of New Y ork, and seems to be now settled after some conflict of authority, that where a statute or act of incorporation declares that thejndividual corporators shall J3e_ jointly and severally liable^f or the debts of the corporation, such liabihty is norioun aed'"on th e- gtStuTe7a n Tthat a suit a gainst the stockholder, to cHar^ehim individuall y wifl i "a debt contracted^ by _tHe"corporation, pursuant to. a , provision in the" act of Incorporation, is not an action u£onJliS„statute for a forfeituTe". Corning v. McCuIlougK," I' N. Y. 47, 49 Am. Dec. 287; Freeland v.'McCullough, 1 Denio (N. Y.) 414, 43 Am. Dec. 686 ; Harger v. McCullough, 2 Denio (N. Y.) 119 ; Moss V. Oakley, 2 Hill (N. Y.) 265; Bailey v. Bancker, 3 Hill (N. Y.) 188, 38 Am. Dec. 625; Moss v. McCullough, 5 Hill (N. Y.) 131; Moss V. McCullough, 7 Barb. (N. Y) 279. In such case it is held that jihe stockhol ders are liable, in an original and primary sense, like partners or members of "aii" unincorporated associatio n,"~ "and that^ their liability is not created^ by the statute oT incorporation ! That the effect of such enactment is to invest the company with a qualified corporate capacity, and not to confer upon the stockholders, either directly or indirectly as the consequence of such incorporation or otherwise, any exemption or immunity from personal liability for the debts of the company, to be contracted in its corporate name and capacity. Without calling in question the soundness of this conclusion, but conceding, for the purpose of the present inquiry, the law to be as settled by the result of these authorities, the pres ent case does not fall within th e^ reach of jhe principle. In the statute upon which those decisions were founded, the stockholders were declared to be liable for the debts of the corporation, in like manner as if they were members of an unincorporated company. The act of incorporation was so limited or qualified that it did not exempt the stockholders from in- dividual liability for the debts contracted by the corporation; conse- quently each individual corporator became liable for every debt of the body corporate. Such liability he voluntarily assumed by becom- ing a member of the corporation. The personal liability of the stock- holder to pay the debt is the immediate and necessary consequence of 1 the contract made by the company. It becomes, by the terms of the charter, his debt. It is clear that this reasoning has no application to the case now under consideration. It is not claimed that the defendant, by the act of incorporation, is individually liable, as a corporator, for the debts of the body corporate, or that his liability attached as' a neces- 1 sary result of the contract made by the company. His liability results \ from the failure of the trustees to comply with the requirements of Ch. 2) PENAL LAWS. 41 the statute . It is, in fact, a penalty inflicted upon the trustees for a failure to perform a Hii ty enjorneH hy .thcL statute! It_is_inimaterial whether that p enalty b e a specified s urn or the payment of the debts " of the c orporation. In ei ther case it is_a„p£iialty-imposjed by statute ; nor is It perceived how the liability of the individual trustee to pay the debts of the corporation can be said, in any proper way, to be founded on contract. It certainly did not result from the contract made by the corporation, nor from the defendant becoming a stockholder, nor from his accepting the office of trustee, but solely from the omission to comply with the statute. Now the acceptance of the charter, or the defendant becoming a stockholder, is doubtless an assent to the terms of the charter, but it is, in no appropriate sense, an engagement to pay the debts of the company, imposed as a penalty for violations of the charter. Such liability is clearly the creature of the statute. * * * With every disposition to yield to the claims of comity, and to sus- tain, as far as we lawfully may, what may be deemed the salutary legislation of a sister state, I am of opinion that there is no principle upon which the present action can be sustained in the courts of this state, and that the Circuit Court should be advised accordingly. ) ^ HUNTINGTON V. ATTRILU V \J.' ^(^ (Supreme Court of tbe United States, 1892. 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123.) CoUis P. Huntington, a resident of New York, lent to the Rocka- way Beach Improvement Company, Limited, a New York corporation, $100,000 on June 15, 1880, repayable on demand. Henry Y. Attrill was a director of this company and continued to act as such until after January 29, 1881. On June 30, 1880, Attrill, as director of the company, signed and made oath to and caused to be recorded, as re- quired by the law of New York, a certificate, which he knew to b5 false, stating, that the whole of the capital stock of the corporation had been paid in, whereas in truth no part had been paid in. By making such false certificate he became liable, by the law of New York, for all the debts of the company contracted before Jan. 29, 1881. Under "this statute Huntington Obtained a judgment against Attrill in the "Stlpfeme Court of New York for the county of Kings for nearly $100,000 ; only $932 of the sum borrowed having been repaid. On March 21, 1888', "^Huhfifigton "'filed a bill iii "the circuit court of Baltimore city against the Equitable Gaslight Company of Baltimore, a Maryland corporation, and against Attrill, his wife and three daughters, to set aside a transfer of stock in that company made by Attrill for their benefit and in fraud of his creditors, and to charge that stock with the payment of the above judgment. One of the 42 GENERAL PROVISIONS. (Part 1 daughters demurred to the bill, because it showed that plaintiff's claim was for the recovery of a penalty'agSist'Attrill and because it did not "state a case which entitled the plaintiff to any relief in a court of equity in the state of Maryland. The circuit court of Baltimore city overruled the demurrer. On appeal to the Court of Appeals of the state of Maryland, the order was reversed, and the bill dismissed. Attrill V. Huntington, 70 Md. 191, 16 Atl. 651, 2 L. R. A. 779, 14 Am. St. Rep. 344. A writ of error to the Supreme Court of the United States was sued out by Huntington under the "full faith and credit" clause of the federal Constitution.^ Gray, J.s * * * The question whether due faith and credit were thereby denied to the judgment rendered in another state is a federal question, of which this court has jurisdiction on this writ of error. Green v. Van Buskirk, 5 Wall. 307, 311, 18 L,. Ed. 599 ; Crapo V. Kelly, 16 Wall. 610, 619, 21 Iv. Ed. 430 ; Dupasseur v. Rochereau, 21 Wall. 130, 134, 22 E. Ed. 588 ; Crescent City Eive Stock Co. v. Butch- ers' Union Slaughter House Co., 120 U. S. 141, 146, l47, 7 Sup. Ct. 472, 30 E. Ed. 614 ; Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L'. Ed. 538 ; Carpenter v. Strange, 141 U. S. 87, 103, 11 Sup. Ct. 960, 35 L. Ed. 640. In order to determine this question, it will be necessary, in the first place, to consider the true scope and meaning of the fundamental maxim of international law, stated by Chief Justice Marshall in the fewest possible words: " The courts o f no country execute_the_penal laws of another." The Antelope, lo" Wheat. 66," 123,' 6 E. Ed. 268. In interpreting this maxim, there is danger of being misled by the different shades of meaning allowed to the word "penal" in our language. In the municipal law of England and America, the words "penal" and "penalty" have been used in various senses. Strictly and primari- ly, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws. United States v. Reisinger, 128 U. S. 398, 402, 9 Sup. Ct. 99, 32 L. Ed. 480; United States v. Chouteau, 102 U. S. 603, 611, 26 E. Ed. 246. But they are also commonly used as including any extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged, not limited to the damages suffered. They are so elastic in meaning as even to be familiarly applied to cases of private contracts, wholly independent of statutes, as when we speak of the "penal sum'' or "penalty" of a bond. In the words of Chief Justice Marshall; "In general, a sum of money in gross, to be paid for the nonperform- ance of an agreement, is considered as a penalty, the legal operation of which is to cover the damages which the party in whose favor the stipulation is made may liave sustained from the breach of contract by 6 The statement of facts lias been abstracted from the opinion. 8 Portions of the opinion have been omitted. Ch. 2) PENAL LAWS, 4S the opposite party." Tayloe v. Sandiford, 7 Wheat. 13, 17, 5 L. Ed. 384. Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal. The action of an owner of property against the hundred to re- cover damages caused by a mob was said by Justices Willes and Buller to be "penal against the hundred, but certainly remedial as to the sufferer." Hyde v. Cogan, 2 Doug. 699, 705, 706. A statute giving the right to recover back money lost at gaming, and, if the loser does not sue within a certain time, authorizing a qui tarn action to be brought by any other person for threefold the amount, has been held to be remedial as to the loser, though penal as regards the suit by a common informer. Bones v. Booth, 2 W. Bl. 1336 ; Brandon v. Pate, 2 H. Bl. 308 ; Grace V. McElroy, 1 Allen (Mass.) 563 ; Read v. Stewart, 129 Mass. 407, 410 ; Cole v. Groves, 134 Mass. 471. As said by Mr. Justice Ashhurst in the King's Bench, and repeated by Mr. Justice Wilde in the Supreme Judicial Court of Massachusetts, "it has been held in many instances that, where a statute gives accumulative dam- ages_to_the_ party grieved^ it is not a penal action." Woodgate v. Knatchbull, 2 Term R. 148, 154;'Read v.' Chelmsford, 16 Pick. (Mass.)' 138, 133. Thus a statute giving to a. tenant, ousted without notice, double the yearly value of the premises against the landlord, has been held to be "not like a penal law, where a punishment is imposed for a crime," but "rather as a remedial than a penal law," because "the act indeed does give a penalty, but it is to the party grieved." Lake v. Smith, 1 Bos. & P. (N. R.) 174, 179, 180, 181; Wilkinson v. Colley, 5 Burrows, 3694, 2698. So in an action given by statute to a traveler injured through a defect in a highway, for double damages against the town, it was held unnecessary to aver that the facts constituted an offense, or to conclude against the form of the statute, because, as Chief Justice Shaw said: "The action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for neglect or -breach of duty operate to a certain extent as punishment ; but the distinction is that it is prosecuted for the purpose of punish- ment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to ■himself from a failure to perform that duty. The law gives him en- hanced damages; but still they are recoverable to his own use, and in form and substance the suit calls for indemnity." Reed v. North- field, 13 Pick. (Mass.) 94, 100, 101, 33 Am. Dec. 663. _The test wh ether a law i^ penal, in the_ strict and primary sense, is whether the wTong sought to be redressed is a wrong to the public 44 GENERAL PROVISIONS. {F^^^ ^ or a wrong to the individual, according to the familiar classification of BEaSTone: -"Wrongs are -^divisible into two sorts or species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, con- sidered as individuals, and are thereupon frequently termed civil in- juries' ; the latter are a breach and violation of public rights and duties which affect the whole community, considered as a community, _ and are distinguished by the harsher appellation of 'crimes and misde- meanors.' " 3 Bl. Comm. 2. Laws have no force of themselves beyond the jurisdiction of the state which enacts them, and can have extraterritorial effect only by the comity of other states. The general rules of international comity upon this subject were well summed up, before the American Revolu- tion, by Chief Justice De Grey, as reported by Sir William Black- stone: "Crimes are in their nature local, and the jurisdiction of crimes is local. And so as to the rights of real property, the subject being fixed and immovable. But personal injuries are of a transi- tory nature, and sequuntur forum rei." Rafael v. Verelst, 3 W. Bl. 1055, 1058. Crimes and offenses against the laws of any state can only be de- fined, prosecuted, and pardoned by the sovereign authority of that state; and the authorities, legislative, executive, or judicial, of other states take no action with regard to them, except by way of extradi- tion, to surrender offenders to the state whose laws they have violated, and whose peace they have broken. * * * Upon the question what are to be considered penal laws of one country, within the international rule which forbids such laws to be enforced in any other country, so much reliance was placed by each party in argument upon the opinion of this court in Wisconsin v. Pelican Ins. Co., 127 U. S. 365, 8 Sup. Ct. 1370, 33 L. Ed. 239, that it will be convenient to quote from that opinion the principal propo- sitions there affirmed: "The rule that the courts of no country execute the penal laws of another applies, not only to prosecutions and sentences for .crimes and misdemeanors, but to all suits in favor of the state for the re- covery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judg- ments for such penalties." Page 290, 137 U. S., and page 1374, 8 Sup. Ct. (32 L. Ed. 339). " The ap phcation of the rule to the courts of the several states and of tiie United States is not affected by the provisions of the Constitu- tion and of the act of Congress, by which the judgments of the courts of any state are to have such faith and credit given to them in evei-y court within the United States as they have by law or usage in the state in which they were rendered." Page 391, 137 U, S., and page 1376, 8 Sup. Ct. (32 L,. Ed. 239). Ch. 2) PENAL. LAWS. 45 "The essential nature and real foundation of a cause of actiori__arfi not changed by recoverin g judgment upon u; and~the t echnical rules, which regard t he_origirial claim as merged in the judgment, and the judgment as implyin g a promise by the defendant to pay it, do not preclu de a co urt, _to_which ajudgment~is~presenfed tor affirmative' action (while it cannot go behind"the 'judgirienf for the pilfpo'se' 6T examining into the validity of the claim), from ascertaining whether the^n^mTs^TeaW~bne of such a ffature that the cbiirt is authorized 't o enforc e it." Pages 393, 393, 137 U. S., and page 1375, 8 Sup. Ct.' (33 L. Ed. 339). "The statute of Wisconsin, under which the state recovered in one of her own courts the judgmerit now and here sued on, was in the strictest sense a penal statute, imposing a penalty upon any insurance company of another state doing business in the state of Wisconsin without having deposited with the proper officer of the state a fuir statement of its property and business during the previous year. The cause of action was not any private injury, but solely the offense "committed against TEe~statenby violating her law. The prosecufiorf ""was" in the name of the state, and the whole penalty, when recovered, ' would accrue to the state." Page 399, 137 U. S., and page 1378, 8 Sup. Ct. (33 t. Ed. 339). Such were the grounds upon which it was adjudged in that case that this court, under the provision of the Constitution giving it original jurisdiction of actions between a state and citizens of another state, had no jurisdiction of an action^_b^_a statejugon_a judgment recovered by it in one of its own^ courts^ against a citizen qr^a,cor- pof atioii of _.an!Other state for a pecuniary penalty for a yiplation of Its municipal law.'' * * * For the purposes of extraterritorial jurisdiction, it may well be that actions by a common informer, called, as Blackstone says, " 'popu- lar actions,' because they are given to the people in general," to recover a penalty imposed by statute for an offense against the law, and which may be barred by a pardon granted before action brought, may stand on the same ground as suits brought for such a penalty in the name of the state or of its officers, because they are equally brought to enforce the criminal law of the state. 3 Bl. Comm. 161, 163; • 3 Bl. Comm. 437, 438 ; Adams v. Woods, 3 Cranch, 336, 3 L. Ed. 397 ; Gwin V. Breedlove, 3 How. 39, 11 L. Ed. 167 ; United States v. Con- nor, 138 U. S.-61, 66, 11 Sup. Ct. 339, 34 L. Ed. 860; Bryant v. Ela, Smith (N. H.) 396. And personal disabilities imposed by the law of a state, as an incident or consequence of a judicial sentence or decree, by way of punishment of an offender, and not for the benefit of any other person — such as attainder, or infamy, or incompetency of a convict to testify, or disqualification of the guilty party to a cause of divorce for adultery to marry again — are doubtless strictly penal, and f See Fauntleroy v. Lum, 210 U. S. 230, 28 Sup. Ct. 641, 52 L. Ed. 1089 (1908). 46 GENERAL PHOVISIONS. (Part 1 therefore have no extr^aterritorial operation. Story, Confl. Law, §§ 91, 92; Dicey, Dom. 162; FoUiott v. Ogden, 1 H. Bl. 123, and 3 Term R. 726 ; Logan v. United States, 144 U. S. 263, 303, 12 Sup. Ct. 617, 36 L. Ed. 429 ; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444; Ponsford v. Johnson, 2 Blatchf. 51, Fed. Cas. No. 11,266; Commonwealth v. Lane, 113 Mass. 458, 471, 18 Am. Rep. 509 ; Van Voorhis V. Brintnall, 86 N. Y. 18, 28, 29, 40 Am. Rep. 605. The question whether a statute of one state, which in some aspects may be called penal, is a penal law, in the international sense, so that it cannot be enforced in the courts of another state, depends upon the questiorr"^whether its purpose is to punish an offense against the^ public justice of the state, or to afford a private remedy to a person injured by the wrongful act. There could be no better illustration of this than the decision of this court in Dennick v. Central R. Co. of New Jersey, 103 U. S. 11, 26 L. Ed. 439. * * * That decision is important as estabHshing two points:. (1) The court considered "criminal laws," that is to say, laws punishing crimes, as constituting the whole class of penal laws which cannot be enforced extraterritorially. (2) A statute of a state, manifestly intended to protect life, and to impose a new and extraordinary civil liability upon those causing death, by subjecting them to a private action for the jpecuniary damages thereby resulting to the family of the deceased, might be enforced in a circuit court of the United States held in another state, without regard to the question whether a similar liability would have attached for a similar cause in that state. * * * Tlie^jproyision of the statute of New York now in question, making the officers of a corporation, who sign and record a false certlffcate of the amount of its capital stock, liable for all its debts, is in no sense a crnTimal or quasi criminal law. The statute, while it enables persons complying with its provisions to do business as a corporation, without being subject to the liability of general partners, takes pains to secure and maintain a proper corporate fund for the payment of the corporate debts. With this aim, it makes the stockholders individually liable for the debts of the corporation until the capital stock is paid in, and a certificate of the payment made by the officers, and makes the officers liable for any false and material representation in that certificate. The individual liability of the stockholders takes the place of a cor- poritrfund, until that fund has been duly created; and the "individual liabiHty of the officers takes the place of the fund, in case Their state- ment that it has been duly created is false. If the officers do~nbt truly' state and record the facts which exempt them from liability, they are made liable directly to every creditor of the company, who by reason of their wrongful acts has not the security, for the payment of his debt out of the corporate property, on which he had a right to rely. As the statute imposes a burdensome liability on the officers for their wrongful act, irfhay well be considered penal, in the sense that" it should be strictly construed. -But as it gives' a" c ivilremedy at the" Ch. 2) PENAIi LAWS. 47 p rivate suit o f the creditor only, and measured b y the amount of his ^^aeoi, jt is as to him clearly remedial. To maintain such a s uit is not to ad minister a punishm ent imposed__upon an offendet agamstjthe state, but simply to enforce a private right secured under its laws to Jin individual. We can see no just ground, on principle, for holding such a statute to be a penal law, in the sense that it cannot be enforced in a foreign state or country. The decisions of the Court of Appeals of New York, so far as they have been brought to our notice, fall short of holding that the liability imposed upon the officers of the corporation by such statutes is a pun- ishment or penalty which cannot be enforced in anotlier state. * * * It is true 'that the courts of some states, including Maryland, have declined to enforce a similar liability imposed by the statute of another state. ^But in each of those cases it appears to have been assumed to be a sufficient ground for that conclusion that the liability was not "founded in contract, b ut was in the n ature of a penalty imposed by statute ; and no reasons were given for considering the statute a penal law, in the strict, primary, and international sense. Derrickson v. "Smith, 27 N. J. Law, 166; Halsey v. McLean, 12 Allen (Mass.) 438, 90 Am. Dec. 157 ; First Nat. Bank of Plymouth v. Price, 33 Md. 487, 3 Am. Rep. 204. * * * The true limits of the international rule are well stated in the deci- sion of the judicial committee of the Privy Council of England, upon an appeal from Canada, in an action brought by the present plaintift against Attrill in the province of Ontario upon the judgment to enforce which the present suit was brought. The Canadian judges, having in evidence before them some of the cases in the Court of Appeals of New York, above referred to, as well as the testimony of a well- known lawyer of New York that such statutes were, and had been held by that court to be, strictly penal and punitive, differed in opinion upon the question whether the statute of New York was a penal law, which could not be enforced in another country, as well as upon the question whether the view taken by the courts of New York should be conclusive upon foreign courts, and finally gave judgment for the defendant. Huntington v. Attrill, 17 Ont. 245, and 18 Ont. App. 136. In the Privy Council, Lord Watson, speaking for Lord Chancellor Halsbury and other judges, as well as for himself, delivered an opin- ion in favor of reversing the judgment below, and entering a decree for the appellant, upon the ground that the action " was not, in the sense of international Iqvy, p enal, or. in ot her words, an actiQn_Qn-b£^ half oft he government or communitv of the state of New York for "punishment of an offense against theirjnunicipaLlaw;." The fact that "That opinion has not been found in any series of Reports readily ac- cessible in this country, but only. in 8 Law T. R. 341, affords special reasons for quoting some passages. "The rule" of international law, said Lord Watson, "had its founda- tion in the well-recognized principle that crimes, including in that 48 GENERAL PKOVISIONS. (Part 1 term all breaches of public law punishable by pecuniary mulct or otherwise, at the instance of the state government, or of some one representing the public, were local in this sense— that they were only cognizable and punishable in the country where they were committed. Accordingly no proc eeding, even injhe shape of £L civil su it, wh ich had for its oSiect the enforceme nt by the sta te, whether directly or indirectly, of punishment imposed for such breaches by the lex loci, ought to be admitted jn^ the courts of any other country. In its ordi- nary acceptation. The word 'penal' might embrace penalties for in- fractions of general law, which did not constitute, offenses against the state; it might, for many legal purposes, be applied with perfect pro- priety to penalties created by contract; and it, therefore, when taken by itself, failed to mark that distinction between civil rights and crim- inal wrongs which was the very essence of the international rule." After observing that, in the opinion of the judicial committee, the first passage above quoted from Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 290, 8 Sup. Ct. 1370, 32 L. Ed. 239, "disclosed the proper test for ascertaining whether an action was penal, within the meaning of the rule," he added: '"A proceeding, in or der to come wi thin th e scope of the rjjle, must be in the nature of a suit in favor of t he sta te whose law had been infringed. All the provisiohs of municipal sFatufes for the regulation of trade and trading companies were pre- sumably enacted in the interest and for the benefit of the community at large; and persons who violated those provisions were, in a certain sense, offenders against the state law, as well as against individuals who might be injured by their misconduct. But foreign tribunals did not regard those violations of statute law as offenses against the state, unless their vindication rested with the state itself, or with the com- munity which it represented. Penalties might be attached to them, but that circumstance would not bririg"them within the rule, except in cases 'where those penalties were recoverable at the instance of the state, or of an official duly authorized to prosecute on its behalf, " or of a member of the public in the character of a common informer. An action by the latter was regarded as an actio popularis, pursued, not in his individual interest, but in the interest of the whole community." He had already, in an earlier part of the opinion, observed : "Their lordships could not assent to the proposition that, in considering whether the present action was penal in such sense as to oust their jurisdiction, the courts of Ontario were bound to pay absolute defer- ence to any interpretation which might have been put upon the statute of 1875 in the state of New York. They had to construe and apply an international rule, which was a matter of law entirely within the cognizance of the foreign court whose jurisdiction was invoked. Judi- cial decisions in the state where the cause of action arose were not precedents which must be followed, although the reasoning upon which they were founded must always receive careful consideration and might be conclusive. The court appealed to must determine for Ch. 2) PENAL LAWS. A9 itself, in the first place, the substance of the right sought to be en- forced; and, in the second place, whether its enforcement would, either directly or indirectly, involve the execution of the penal law of another state. Were any other principle to guide its decision, a court might find itself in the position of giving effect in one case, and denying effect in another, to suits of the same character, in consequence of the causes of action having arisen in different countries, or in the predicament of being constrained to give effect to laws which were, in its own judgment, strictly penal." i In this view, that the question is not one of local, but of inter- national, law, we fully concur. The test is not by what name the statute is called by the Legislature or the courts of the state in which it was passed, but whether it appears, to the tribunal which is called upon to enforce it, to be, in its essential character and effect, a punish- ment of an offense against the public, or a grant of a civil right to a private person. In this country, the question of international law must be determined in the first instance by the court, state or national, in which the suit is brought. If the suit is brought in a Circuit Court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions. Burgess V. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. 10, 27 h. Ed. 359 ; Texas & P. Ry. Co. V. Cox, 145 U. S. 593, 605, 12 Sup. Ct. 905, 36 L. Ed. 829 ; above cited. If a suit on the original liabil ity under the_statute of one state is brought in a court of another state, the Constitution^and "Taws o f the~nnite? States have n^ authorized its decision upon such a question to be reviewed by this court.^ New York Life Ins. Co. v. ITendren, 92 U. Sr286, 23 LT Ed. 709 ; Roth v. Ehman, 107 U. S. 319, 2 Sup. Ct. 312, 27 L. Ed. 499. But i f the original liability has passe d into judgment _in_mie sta te, th e courts of anot her st ate, when asked to 'enf orceitrare bound by the Constitutionand laws_qf the-UnitecLSlatfis "t o give fu ll faith and cre dit to thatjudgment ; andjif they, do not, th eir 'decision, as said at. the outset of this opinion, jrnay_ be reviewed jnd reversed by this court on writ of error. _The essential nature and real foundation of a cause of action, indeed, are not changed by recovering judgment upon it. This was directly adjudged in Wisconsin v. Peli- can Ins. Co., above cited. The difference is only in the appellate jurisdiction of this court in the one case or in the other. If a suit to enforce a judgment rendered in one state, and which has not changed the essential nature of the liability, is brought in the courts of another state, this court, in order to determine, on writ of error, whether the highest court of the latter state has given full faith and credit to the judgment, must determine for itself whether the original cause of action is penal, in the international sense. The case, in this regard, is analogous to one arising under the clause of the Constitution which forbids a state to pass any law impairing the obliga- LOB.CONF.L.— 4 50 GENERAL PROVISIONS. (Part 1 tion of contracts, in which, if the highest court of a state decides nothing but the original construction and obligation of a contract, this court has no jurisdiction to review its decision ; but if the state court gives effect to a subsequent law, which is impugned as impairing the obligation of a contract, this court has power, in order to determme whether any contract has been impaired, to decide for itself what the true construction of the contract is. New Orleans Water- Works Co. v. Louisiana Sugar-Refining Co., 125 U. S. 18, 38, 8 Sup. Ct. 741, 31 L. Ed. 607. So if the state court, in an action to enforce the origmal liability under the law of another state, passes upon the nature of that liability, and nothing else, this court cannot review its decision ; but if the state court declines to give full faith and credit to a judg- ment of another state, because of its opinion as to the nature of the cause of action on which the judgment was recovered, this court, in determining whether full faith and credit have been given to that judgment, must decide for itself the nature of the original lia- bility. * * * The judgment rendered by a court of the state of New York, now in question, is not impugned for any want of jurisdiction in that court. The statute under which that judgment was recovered was not, for the reasons already stated at length, a penal law, in the international sense. The^ faith and credit, force and effect, which that j udgm ent had by law and usage in New York was to be conclusive eyidence of a~aiT5Ct civil liability from the individual defendant to the individual pEintiff for a certain sum of money, and a debt of record, on which an action would lie, as on any other civil judgment inter partes. The Court of Appeals of Maryland, therefore, in deciding this case against the plaintiff, upon the ground that the judgment was not one which it was bound in any manner to enforce, denied to the judgment the full faith, credit, and effect to which it was entitled under the Consti- tution an! laws of the United States. ~~ Judgment reversed, and case remanded to the Court of Appeals of the state of Maryland for further proceedings not inconsistent with the opinion of this court.* 8 Fuller, G. J., dissented (opinion omitted). Lamar and Shiras, JJ., did not sit. Another principle operating to modify the application of the general rules governing the Conflict of Laws is foimd in the doctrine of the federal courts according to which they decline In matters of general commercial law, or of general, instead of local, law, to follow the principles adopted by 'the courts of the state where the cause of action arose. Swift v Tyson 16 Pet 1, 10 L. Ed. 865 (1842) ; Baltimore & Ohio R. Co. v. Baugh, 149 U S 368' 13 Sup. C5t. 914, 37 L. Ed. 772 (1893). • • . A similar exception is recognized by a few of the state courts. Franklin V. Twogood, 25 Iowa, 520, 96 Am. Dec. 73 (1868) ; St. Nicholas Bank v. State Nat Bank, IgS- N . Y^6, 27 N,. B. 849, 13 L. B. A. 241 (1891) • Roads v Webb, 91 Me. 406, 40 Atl. 128, 64 Am. St Rep. 246 (1898). But not generally Forepaugh v. Delaware, L. & W. R. Co., 128 Pa. 217, 18 Atl. 503, 5 U R A 508, 15 Am. St Rep. 672 (1889) ; Limerick Nat Bank v. Howard. 71 N H 13, 51 Atl. 641, 93 Am. St. Rep. 489 (1901). Ch. 3) PKOCEDUEE. 51 CHAPTER m. - PROCEDURE. MALE V. ROBERTS. ^^\ "f^ (Nisi Prlus, in tlie Common Pleas. 1800, 3 Esp., 163.) Assumpsit for money paid, laid out, and expended, to the use of the defendant; money lent and advanced, with the other common money counts. Plea of the general issue. The case, as opened by the plaintiff's counsel, was, that the plaintiff andAe_de£endant were performers at the Royal Circus. While the company were performing at Edinburgh, in Scotland, the defendant had becom e indebted to on^_Cockburn, ^fotJiquors i^f different sorts, with which Cockburn had furnished him; not having discharged the debt, and it being suspecTlea that ffie defendant was about to leave Scot- land, Cockburn arrested him, by what is there termed a Writ of Euge, The object of which is to prevent the debtor from absconding. "^ejifiieadant being then unable to pay the money, the plaintiff paid it for him; and he was liberated. The present action was brought to ' recover the moiiey so paid, as money paid to his use. The defence relied upon was, that the defendant was an infant when / the money was so advanced. / Lord Eldon. It appears from the evidence in this cause, that the cause of action arose in Scotland ; the contract must be therefore gov- erned by the laws of that country where the contract arises. Would infancy be a good defence by the law of Scotland, had the action been commenced there ? Best, Sergeant, for the defendant, contended, that the contract was to be governed by the laws of England; in which case, the plaintiff could recover for necessaries only. That at all events it should not be presumed that the laws were different ; and as it appeared that the debt did not accrue for necessaries, the plaintiff could neither recover on the counts for money paid, or for money lent to an infant. Lord Eldon. What the law of Scotland is with respect to the right -of recoverin g against _an inf ant for nec e ssaries, I can not say; but if the law of Scotland is, th at such_a contract as the present could not b e' enforced against anjnfant, that should h ave bee n given in evid ence ; I and I hold myse lf not wa rranted jn saying th at such a contra ct is void fhy the law of Scotland, because it is void by th e law of EngTa"rid7 "The 52 GENERAL PROVISIONS. (Part 1 law of the country where the contract arose, must govern the contract, and what that law is, should be given in evidence to me as a fact Wo such evidence has been given; and I cannot take the fact of what that law is, without evidence. •+ j i The plaintiff failed in proving his case, and was nonsuited. lAccord: Thompson v. Ketchum, 8 Johns. (N YO If ' S^"?- ^^''- ^^^ (^^"^• See, in general, 113 Am. St. Rep. 868-884; 67 Ij. R. A. ^-61- ™„eDtion In suits upon foreign judgments some courts will by way o^ ^™\?°^ take judicial notice for some purposes of the laws of another state i-ame V. Schenectady Ins. Co., 11 R. I. 411 (1876). Black on Judgments (2d Ed.) ^^Tto^^Micial notice by the federal courts, see Owmgs 7. Bull, 9 Pet. (U. S.) 607, 9 L. Ed. 246 (1835) ; Hanley v. Donoghue, 116 U. S. 1, b t>up. ot. ' ^^n-^thJ'absence of proof of the foreign law, courts will often preside that it is identical with the common law as understood at the forum. B lagg v. Baldwin, 38 N. J. Eq. 219, 48 Am. Rep. 308 (1884); Commonwealth v. Gra- ham, 157 Mass. 73, 31 N. E. 706, 16 L. R. A. 578 34 Am St Rep. 2^ (1892) , Vanderpoel v. Gorman, MajJ. Y. 563, 35 N. E. 932, 24 L. R. A. 548, 37. Am. St. Rep. 601 (1894). PrOTideSriiowever, that the jurisprudence of such for- eign state rests essentially upon the common law. Aslanian v. Dostumian, 174 Mass. 328, 54 N. E. 845, 47 L. R. A. 495, 75 Am. St. Rep. 34S (1899). If the foreign law rests essentially upon some other system of law, the general law of the forum, whether common-law or statutory, will usually be applied. Brown v. Wright, 58 Ark. 20, 22 S. W. 1022, 21 L. R. A. 467 (1893) ; Feet & Co. v. Hatcher, 112 Ala. 514, 21 South. 711, 57 Am. St Rep. 45 (1896). Some courts apply the law of the forum, whether common-law or statutory, irrespective of the general nature of the foreign system of law. Bagwell v. McTighe, 85 Tenn. 616, 4 S. W. 46 (1887); Cavallaro v. Texas & P. R. Co., 110 Cal. 348, 42 Pac. 918, 52 Am. St. Rep. 94 (1895) ; Bar- ringer V. Ryder, 119 Iowa, 121, 93 N. W. 56 (1903). But not In the case of statutes prescribing penalties or forfeitures. Hubble v. Morristown Land & Improvement Co., 95 Tenn. 595, 32 S. W. 965 (1895). A statute of another state creating a cause of action not existing at com- mon law, must be proved, and no presumption will apply. Morgan v. Beau- mont, 121 Mass. 7 (1876) ; Atchison, T. & S. F. R. Co. v. Betts, 10 Colo. 431, 15 Pac. 821 (1887) ; Myers v. Chicago, St. P., M. & O. R. Co., 69 Minn. 476, 72 N. W. 694, 65 Am. St. Rep. 579 (1897). Continental Law.— Foreign law must generally be proved by the parties as a fact, and in the absence of such proof the lex fori will be applied. France. — App. Pau, Feb. 14, 1882 (S. 1884, 2, 129) ; Trib. Civ. Seine, July 18, 1885 (13 Clunet, 202). Italy.— Cslss. Turin, Nov. 9, 1891 (La Legge, 1892, 1, 83) ; but the parties need not prove it, if it is well known to the judge. App. Turin, Dec. 7, 1894 (Giurispr. Ital. 1895, 2, 127). Germonj/.— Section 293, Code Civ. Proc, requires the judge ex officio to inform himself with respect to the foreign law ; but it has been held that, where the parties fail to prove the foreign law, the lex fori may be applied, in the absence of personal knowledge of such foreign law on the part of the judge. 2 R. O. H. 6. 27 (Feb. 14, 1871). See, also, Planck, Biirgerliches Gesetzbueh (3d Ed.) vol. VI, art. 7-31, 8 (p. 27). A mistake made by the trial judge with respect to a foreign law is, there- fore, not subject to revision by the courts of last resort. France. — Cass. June 15, 1899 (S. 1901, 1, 303) ; Cass. July 18, 1904 (2 Darras, 544). See Cass. Aug. 2, 1893 (S. 1895, 1, 449). German?/.— Sections 549, 562, Code Civ. Proc. Contra: Italy. — At least if the judge is specifically directed to apply such foreign law. Cass. Florence, Apr. 25, 1881 (Monitore, 1881, p. 601); Cass Naples, Jan. 26, 1897 (Monitore, 1897, p. 466). See, also, A. Darras, De la connaissauce, de I'application et de la preuve de la loi Stranggre. 28 Caunet, 209-231, 442-456. j^ f Ch. 3) - iir\ PKOCEDUEB. 53 RUHE V. BUCK, W ,^ y^^ i^'^ ' (Supreme Court of Missouri, 1894. 124 Mo. 178, 27 S. W. 412, 25 L. R. A. 178, 46 Am. St. Rep. 439.) GantTj p. J.^ This recprd presents this case : At the time of the transactions involved, a married woman i n Missouri was incompetent to make a va hd contract at law] Art that time, how ever^ she was au- thorized by the la ws ot Dakota to contract as a ferne~sble, and~sue and "be sued as such! MrsrBiick7i:he-T!\rife of Cr."WI Buck, became the pur- chaser of'a'city lot in Tarkio, Mo., and held a bond for title from Perkins, the owner, until a balance of the purchase money should be paid. Under the firm name of O. W. Buck & Co., Mrs. Buck and her husband became indebted in Dakota, and the interest of herself and her husband in said lot was attached for said debt, in an action comnienc- ^ ed in the circuit court of Atchison county . Mo. After this attachment was levied on the lot, Mrs. Buck sold the lot to Thompson and Trout, who afterwards paid the balance of the purchase money to Perkins, and received a warranty deed from Perkins, which was recorded. That_ a married wo man was not subject to a suit bv attachment in Missouri prior to 1 889 was decided by this court in Gage v. Gates, 62 Mo. 412 ; a nd that a judgment o btained against her in such a proceeding was a ,.nu ility was repea ted in Lincol n v. Kowe, 64 Mo. 138 ; and that she could not be sued as a member of a mercantile firm at law ..was. also -S£t- tled in We il v. Simmons, 66 Mo. 617. From these and many other de- cisions, it would appear that no resident creditor could proceed by an attachment at law against a married woman in this state for a debt contracfea~in IHTs' state, aiid 'this'record presents the question whether our laws will give nonresident credi tors remedi^_to_cqllect their^ claims _against a married wom an in this state, which we uniformly deny to Qurjj wn citizens . The Supreme Court of the United States in Scud- der V. Union Nat. Bank of Chicago, 91 U. S. 406, 23 L. Ed. 245, sums up the general principle in a few words : "Matters bearing upon the execution, the interpretation, and the validity of a contract a re deter- mined bv the law of the place where the contract is made. Mat- ters connected with its performance a re regulated by the law pre- vailine at the place _of. performance. Matters respecting the rem - 1 edy, such as bringing of suits, admissibility of evidence, statutes of limitation, depend' upon t he law of the place where the suit was \ brought. " So that while we concede that, by the laws of Dakota. Mrs. Buck could enter into a contract of partnership with her hus- band, and become bound for the debts of that partnership, the ques- tion remains, when the creditors sue her in this state, are thev bound to take such remedies , and such only, a s our laws o ffer against a mar- ried woman (for such she remains, notwithstanding h e r capacity to con- 2A part of the opinion and the dissenting opinion of Sherwood, J., have been omitted. > 54 GENERAL PKOVisiONS. (Part 1 tract and sue and be sued), or are we bound to treat her as a single person ? Judge Story, in his treatise on the Conflict of Laws (8th Ed., § 556), says: "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 within its own do- mains), we are next led to the consideration of the question in what manner suits arising from foreign causes are to be instituted and pro- ceedings 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 pre- scribed by the laws of the place where the suits are brought? For- tunately, 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 estab- lished that th e form s of remedies and_modes of proceeding and t he ex- ecution of juJgment£are_to_be.regulated solely and exclusively by the laws of the place where the action is instituted, or * * * accord- ing to the lex fori." [The learned justice here commented upon Williams v. Haines, 27 Iowa, 351, 1 Am. Rep. 268 ; Mathuson v. Crawford, 4 McLean, 540, Fed. Cas. No. 9,279; Mineral Point R. Co. v. Barron, 83 111. 365; Burchard v. Dunbar, 82 111. 450, 25 Am. Rep. 334; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241.] That the law of the forum governs as to remedies in the enforce- ment of contracts, see, also, Pickering v. Fisk, 6 Vt. 102 ; Commercial Nat. Bank v. Chicago, M. & St. P. Ry. Co., 45 Wis. 172 ; Leiber v. Union Pac. R. Co., 49 Iowa, 688 ; Denny v. Faulkner, 22 Kan. 89 ; Green v. Van Buskirk, 5 Wall. (U. S.) 307, 18 L. Ed. 599; Whart. Confl. Laws, § 121 ; Bank of United States v. Donnally, 8 Pet. (U. S.) 362, 8 L. Ed. 974 ; Laird v. Hodges, 26 Ark. 356. A case very similar to this arose in Illinois. An action at law was brought against a married woman. She pleaded coverture at the time of making the contract and the commencement of the action. Reply : "Contract good by the laws of Iowa, where it was made, and a liability to suit as a feme sole in that state." Discussing the sufficiency of this reply, the Supreme Court of Illinois said : "A party seeking to enforce a contract valid by the laws of another state must avail of the remedy provided by our laws. * * * That part of the replication which alleges that, by the laws of Jhe state of Iowa, a married woman could be sued alone on contracts concerning her separate propertv^ did present an immaterial issue." But because, by the laws of Illinois, she could be sued~aIone7 it was held that enough remained to make a good replication. Halley v. Ball, 66 111. 250. A different conclusion was reached in Robinson v Queen' 87 Tenn. 445, 11 S. W. 38, 3 L. R. A. 214, 10 Am. St. Rep. 690. although the court recognized the rule already stated, in these words : "Under this rule, we act in requiring the husband to be a party defendant with the wife, as was done in the case at bar. While under the laws of Ch. 3) PKOCEDUEE. 55 Kentucky, this married woman has had her disabilities removed, and can contract, sue, and be sued as a feme sole, we recognize and en- /force in this state [Tennessee] so much of the foreign law as deter- ' mines and fixes her liability — in other words, the law of the contract; J)ut in enforcin g such liability in the courts of this state, if she is plain- tifil:, she must su e by iiexfTfTend~or with her husband, and, as defend- i ^nt, her husband must be joined wi th h er as a pa rty." In other words, [her status as a marrie d woman, by the laws of Tennessee, still remain- ed, and the rem edies thei^gTveh against a marfiedrwom SrcohfrolIed . That was a proceeding" in a chancery court, and we are not sufficiently advised of the practice in that state to draw any conclusion as to its persuasiveness as an authority for the practice here invoked. The gen- eral principle announced is in harmony with the rule heretofore deduc- ed. In Gibson v. Sublett, 82 Ky. 596, the Court? of Appeals of Ken- tucky held a marr ied woman personally liable in Kentucky on a note _ executed in Louisiana, although, if she had made the note in Ke n- tucky, her promise would have been v oid. The reasons for this deci- sion are tersely stated by the court. They say: " And if, by the law .of the p lace of the domicile of the husband, a married woma n has a capacity to sue or t o make a contract or to ratify an act, her acts so done will be held valid everywhere. Story, Confl. Laws, § 66a. If, then, t he contract is to be held valid and binding here because it is so in the st ate where it was made, it would seem to reasonably follow that her pr operty here should be subject ;~ToFTo hold that a 'valia~arid Jjinding contract is not enforceable at any time nor in any manner is ab- surd." And the court consequently heU "that the remedy provided for the satisfaction of judgments in Kentucky should be applied as though the judgment was against a feme sole." Entertaining, as we do, the highest respect for^he court that decided this case, we do not think its reasoning convincing in that case. In our opinion, it has mingled the "lex loci contractus" with the "lex fori," which are distinct in their nature and obligation, and treats them as one. We do not think that many other courts have gone so far. The rule which recognizes the binding force of the contract wh ere made has neve r gone to the ex- tent of attaching to it the local re medies, and carryi ng, them into an - other jurisdiction, .but it is left to each nation and state to en force such a contract acco rdi ng to its own laws. As already said, when this action was brought, this court had, by uni- form decisions, held that a married woman could not be sued by attach- ment in actions at law in Missouri. No such remedy was available in our courts in favor of resident creditors. Had any citizen of Missouri, on a contract made or to be performed in this state, proceeded by at- tachment at law against this real estate, no lien would have been creat- ed, and no valid judgment could have been rendered against Mrs. Buck, and no purchaser for value would have been affected ; but, if plaintiff's contention is true, the fact that this claim originated in Dakota has changed all this, and his attachment is as valid as if Mrs. Buck was a 56 GENEEAL PROVISIONS. (Part 1 single woman. But Mrs. Buck is still a married woman, and there was no such exception in our Code of Procedure in favor of contracts exe- cuted beyond our borders when this suit was brought, and an attempt to enforce such a distinction out of a spirit of comity would create end- less confusion. A purchaser's rights ought not to .depend upon the^ac- ddentalcircm^ance.oithe place^of the executioti of _the contract upon which the judgment is based. Our courts administer justice without distinction, according to the modes prescribed by the state, and those who seek them must take such reme dies as are prescribed. An infants "EontracTmay be good in Illinois,, but,, if. he is sued in Missouri, Tie is proceeded against as an infant, by next friend or guardian. His stat- us, for the purposes of the action, is determined by our laws m force 'wken the suit is_brought^_It_lonowsJ:halthe circu it cou rt properly held that the proceedings by._ attachment against Mrs, Buck werejvoid^ and hence presented no obstacle to the purchase by Trout and Thomp- son, and its judgment is affirmed.^ SAUNDERS V. AMERICAN EXPRESS CO. (Supreme Court of New Jersey, 1904. 71 N. J. Law, 270, 57 Atl. 899.) SwAYZE, J. In this case I allowed a rule .to show cause why the serv- ice of a summons should not be set asid e, and made the ruleTEturna- ble before me at chambers. Depositions were taken, and the matter ar- gued in pursuance of the rule. The ground relied up on for settin g aside the summons is that the de ^ fendant is not a corp oration, but a jqint^stock association, organized unde r the laws of New York, and it is c ontende d that t he sui t shou ld have bee n bro ught against_the _pre.sident or treasurer by_name, pursuant to the prjivLsions. ot the New^Jtork, Code authorizing that procedure. The case of Edgeworth v. Wood, 58 N. J. Law, 463, 33 Atl. 940, "was relied upon. In that case an action was brought against "Theodore F. Wood, treasurer of the United States Express Company," for a tort for which the express company was liable. After verdict for the plain- tiff it was argued, upon a rule to show cause, that the action should have been brought against the United States Express Company by that name, under our statute authorizing suit against unincorporated or- ganizations bv their recog nized name. The only question "actually pre- seiited was w h ether a caus e of actio n which existe d_ag ainst the organ- ization could form the basis o£ a suit in name _against^ne^FltF]offi- cers, and^ the proc eedings were sust ained because Jths_4irocedure_.was that p rovid ed by the New York stat ute. J do not understan d that the court decided that it would have been improper to have sued~nie e x- press company by its recognized name ; on the contrary, the reasonin g » See 57 L. R. A. 520-523. Ch. 3) PKOCEDUEE. 57 of the court was t hat the express company was, by virtue oLthe-Iiew York statutes, a corporate entit y, and that the status of Wood was that of a representative of the com pany. The construction adopted by the court was based upon a New York statute, chapter 258 (238 in the re- port is evidently a misprint), p. 389, of the Laws of 1849, and upon two sections of the Code of Procedure, which statutes were put in evidence. In the present case later statutes were put in evidence by counsel fo r the plaintiff, and it now appears that the act of 1849 was repealed in 1880 (pag e 367, c. 245). The history of the New York legislation is important. The act of 1849 provided that any joint-stock company or association might sue and be sued in the name of the president or treasurer, but reserved to the plaintiff the right, after judgment against the association, to sue all or any of the shareholders individually, and also the right to proceed in the first instance against the persons con- stituting the joint-stock company or association. In 1853, by chapter 153, p. 283, of the Statutes, it was made obligatory to proceed in the first instance against the president or treasurer, and only in the event of a judgment and ai execution returned unsatisfied could an action be brought against the shareholders or associates individually. This act also was repealed in 1880 (chapter 245). The present Code of Civil Procedure, by section 1919, authorizes suits against the association in the name of the president and treasurer, as by the act of 1849. but in sections 1922 and 1923 modifies the act of 1853, so that it is no longer obligatory t o bring suit in the first instance against the president o r treasurer. The plaintiff is given his choice to bring a suit against the association in the name of the president or treasurer , or to bring his suit against all the members of the ass oc iation . As was said by Judge Finch, in People ex rel. Winchester v. Coleman, 133 N. Y. 279, 31 N. E. 96, 97, 16 Li. R. a. 183 : "Permission to sue their president or treas- urer is only a convenient mode of enforcing that liability, but in no man- ner creates or raises it. The statute of 1853 did interfere with it. That act required, in the first instance, a suit against the president or treasurer and so a preliminary exhaustion of the joint property. But that act was modal, and determined the procedure. It suspended the common-law right, but recognized its existence. We so held in With- erhead v. Allen, 4 Abb. Dec. 628, a nd at the same t ime said that the as- sociations were not corporatio ns, but mere partnership concern s. Even that mode of procedure has been modified by the Code, so that the cred- itor at his option may sue the association without first bringing his ac- tion against the president or treasurer." In view of the fact that the plaintiff has this option m the st^te of New^'ork, w6 certaifllv cannot hol d that he is limited in New Jersey to the method of procedure pre- scribed by the act of 1853. That procedure is permissible in this state only by comity ; such a procedure could not be maae obligatory^^^^rT- vate contract. B ank of Toronto v. iVlanutacturers' & Merchants' Fire 1 Association, 63 N. J. Law, 5 12, 42 Atl. 761. As it has not bepn maHp obligatory by the laws of New York, it ought not t o be made ob liga- I 58 GENEEAL PROVISIONS. (Part 1 tory in this state, especially as it is not in harmony with our modes of procedure. The question of the party to be sued is one of procedure, and is reg - ulated by the lex fori. Harker v. Brink, 34 N. J. Law, 333 ; General Steam Navigation Co. v. Guillon, 11 Meeson & Welsby, 877 ; Bullock v. Caird, L. R. 10 Q. B. 276 ; same case, 44 L. J. Q. B. 124. Our statut e _faas_provided a method of suin g unincorporated associations by their xecog nized names, and we are not bound, even though it is per missible ' by way of comity, to follow one of the methods of procedure sanctione d by the New York statute, to the exclus i on of the method o f procedure provided by our own statute . Since it is not obligatory upo n thejpjain- tiff to bring his suit against the president or treasurer, it c an ma ke no difference, for the present purpos e, whetherwe regard the defendant as an unincorporated organization ( Chapman v7Barney, i29"U. S.'BY7, 9 Sup. Ct. 436, 33 L,. Ed. 800 ; Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 449, 30 Sup. Ct. 690, 44 L. Ed. 483), .a-partnership, with some of the powers of a corporation (People ex rel. Winchester V. Coleman, 133 N. Y. 379, 31 N. E. 96, 16 L,. R. A. 183), or as a cor- poration (Edgeworth v. Wood, 58 N. J. Eaw, 463, 33 Atl."94(rpTide Water Pipe Co. v. State Board of Assessors, 57 N.J. Law, 516, 31 Atl. '330, 37 L. R. A. 684; Id., 59 N. J. Law, 369, 39 Atl. 1114). Ij the de - fendant is an unincorporated organiza tion orj._2artnership, with some of the powers of a corporation, it can be_sue^^bylts recognize3~name under section 40 of the practice act (PT L. igOSTpTSiS). If it"is~a"cor- por ation. it can of course be sued by its corporate n ame, and wh ether that name is Adams Express Company, or "Levy C . Weir, President of the Adams Express Company." is of little"cbnseq uence^jf:the summ ons has been actually ser ved in the manner pointe d out by the statute. The defect, if one existed, would be amend able. * * * I think the~sefv ^" . ice of the summons. W-as,-jirQpexl3LJiLad£-i£,the -deiej3dantjs_aiLunin- cor porated organ ization. The same service _would be ^effectual undex section 88 of the corporation act (R L. 1896, p. 305) if the defendant js_a corporatLcm,, Jl^canjnake no diffe^^ laration describe th e defendant as an uninmrpnrafp^ prganization. If it is injact a corgoradon,_ these words may be rejected as surplusage. The motion to set aside the summons is denie'd, with costs.* iJw^lo^isTn^mr *"" ^^'^^' ^^"'^'^^'^ ^- ^-^^"^^ Express Co., 71 N. J. Se« Taft V Ward,"l06 Mass. 518 (1871); Edwards v. Warren Linolina & Gasoline Works, 168 Mass. 564, 47 N. a 502, 38 L. R. A 791 (imn In re Doetsch (1896) 2 Ch. 836, 839, Romer J.: "Now from the admis sions before me-and there is no other evidenc^it appears to me tht?X Spanish law only difCers from the English law in a Ster of Drocekre The Spanish courts require that a joint creditor shall before he seel'«* to reach the estate of a deceased partner first proceed agai^t^d exhius? or prove the insolvency of the joint estate. In my opinion th^ is a mntte^ of procedure. It is clear that the Spanish firm was not a corDoration * . » self of For that 59 Ch. 3) S(\JtJ^ PKOCEDURE. HARTMAN v. LOUIS VII.I.E & NASHVILLE RY. CO. vv 3 (St. Louis Court of Appeals, 1890. 39, Mo. App. 88.) Action to enforce a common-law liability of defendant as common carrier for failure to deliver to the plaintiff goods which it had received from plaintiff's agent in Illinois to be shipped to plaintiff at St. Louis, Mo. The goods were destroyed while in transit by an accidental fire at East St. Louis, 111. The defendant set up in his answer a special contract exonerating it from liability.^ Thompson, j.e * * * in any view which we may take of the question it is, therefore, clear that the validity a nd inte rp retat ion of the contract of affreig-htmen t. which the defendant sets up in its__an- swer is governed by the laws of Illinoi s. * * * The statute of Illinois, which was put in evidence, is as follows : "That. whenever any property is received by ^ common carrier, to be transported from one place to another, within or without this state, it_ ^all not be lawful for such Carrier to limit his common-law liabil- ity, safely to deliver such propert y at the"piace~towliich the same is to be transported, by any~ stipuiaHoh"oF limitation expres seH i p thp rp - ' ceipt given for such property," Hurd, Rev St. 111. 1874, c. 37, § 1. ' (Jne ot the decisional of the-Appellate Court of Illinois, which was put in evidence by the plaintiff, shows that, under the law as settled in that state, "a common c arrier can lim i t his ordinary liability only by a. spe- cial contract, and the acceptance of a receipt or_bill of lading, with print- e3~c5nditi6ns or notice~limiting the carrier's liability, by the owner or ^shipper of goods, without dissent, will not establish such a contract It must be show n thatjhe^ shipper knew of and assented to the exem2tioti7 and such assent must be shown by other and additional evidence, and is nottHe" subject of presumption from the terms of the receipt alone." jWestem Transit Co. v. Hosking, 19 111. App. 607. Upon the question of what shall be regarded as evidence that the shipper assented to the conditions in the bill of lading or receipt, a decision of the Supreme Court of Illinois, also put in evidence by the plaintiff, is to the effect that evidence that the shipper, prior to the shipment in question, had filled out similar blank bills of lading for shipments which contained the same stipulation in relation to the property as the one in question, is admissible, as going to show knowledge of the provision in question and the shipper's assent thereto. Wabash, St. L. & P. Ry. Co. v. Jag- german, 115 111. 407, 4 N.'E. 641. We must, therefore, hold that the stipulations in this contract of af- freightment, limiting the common-law liability of the defendant, were void for want of assent, unless the question, what is to be deemed evi- dence of assent, is to be' determined by the law of Missouri instead of B This brief statement of facts has been abstracted from the opinion. • Only a part of the opinion Is given. 60 GENEKAL PKOVISIONS. (Part 1 the law of Illino is. We have met with a decision of the Supreme Ju- dicial Court of Massachusetts* which is quite in point, to the efSfect that this question is to be determined by the law of Missouri. In that case goods were shipped from a place in Illinois to be delivered at a place in Massachusetts. They were destroyed by fire, while yet in the state of Illinois, in the hands of the transportation company. There was in the contract of affreightment, as in the case before us, a clause exon- erating the carrier from liability in the case of a loss by fire. The plain- tiff appealed to the rule of the law of Illinois, that the mere fact of the acceptance by the shipper of a contract of aflfreightment, containing such a stipulation, is not evidence of assent by him to its terms, ^y the lawof Massachusetts (Grace v. Adams, 100 Mass. 505, 97 Am. Dec. IT?; i Am. Rep. 131), as by the law of Missouri (Snider v. Adams Ex- press Co., 63 Mo. 376 ; O'Bryan v. Kinney, 74 Mo. 125 ; St. Louis, K. C. & N. Ry. Co. v. Cleary, 77 Mo. 634, 46 Am. Rep. 13), the recep- tion by the shipper of a bill of lading containing such stipulati(ms_was evidence^of "his'assenT to them. There seems to haye been in that case, as in this, no affirmative evidence other than the acceptance of the b ill "bTTadtngTjf-the shipper's assent to these stipulations. "The question, ThereforeTwas whether the particular stipulation was binding upoiTtPre plaintTIfaccOrding" to the law of Massachusetts, or whether it was n o parforthe'CCiTitract, according to the law of IllinoisT The Massachu- setts' court TTeRTTEat the question was to be determined by the law of Massachusetts, and tnat the stipulation was, therefore, binding. The court proce eded upon the view that the question did not relate to the validitypFinterpretation of the contract, so as to be determinable by the rule of lex loci contractus, but that it related to the remedy, and was, therefore, to be determined by the rule of the forum. , In other wo rds, JJhe_court treated it as a mere rule of evidence or procedure pertaining ^to^the^ remedy upon a contract. While the decisions of that state are entitled to great respect, we cannot assent to the soundness of this conclusion. The rule that mat- ters_pertaining to the remedy are. governed by the forum always as- I _sumes that Jher^ is a contract upon which a remedy is sought. ITcan- r not be^ properly jtppealed to, to determine the question of co ntract o r no contract. The question for decision in that case, as in.thecase be- fore us, was wEetEeF^certain stipulation in an instrument of writing was a binding contract. ' The governing principle by which to determine that question was, not the rules of procedure of the forum, but a rule of universal appH- cation, laid down by Mr. Justice Story in the statement that all the for- malities, proofs or authentications of contracts, which are required by the lex loci, are indispensable to their validity everywhere else. Story, Conflict of Laws, § 260. The same rule is laid down by another em- inent writer on private international law, thus : "A contract, so far as concerns its formal making, is to be determined by the place where it is solemnized, unless the lex situs of the property disposed of other- ^\ * Hoadley v. Noithern Transp. Co., 115 Mass. 304, 15 Am. Rep. 106 (1874). Ch. 3) PROCEDURE. 61 wise requires." Wharton, Conflict of Laws, § 401. The courts have gone so far as to 'hold that, although the parties intended that a certain instrument should be a contract between them, yet if the law of the place where it was made required it to be stamped, and it was not stamped, it would be void in the place where the remedy upon it was sought. Alves v. Hodgson, 7 T. R. 241 ; Clegg v. Levy, 3 Camp. 166 ; Satterthwaile v. Doughty, 44 N. C. 314, 59 Am. Dec. 554. But the rule cannot be made plainer by illustrations than it can by a mere state- ment of it. Many cases illustrating the rule are cited by Story and Wharton in support of their respective statements of it. The rule must of necessity? apply to such a contract as the one before us; otherwise , j ve should b e involved in the solecism of holding^that^a^ piece of_£aper containing a stipulation, oTno validityTn' the place where it was exe- ^.uteiAnd. delivered and where the general engagement evidenced by it was to be chiefly performed, becomes a contract in some other jurisdic- tion in w hich an actioirmay~chanceto be broughmpon-it: — The4ffC0ff-| venience of such a rule, as applicable~to"tKe"~facts^before us, would be that a shipper in Illinois, accepting a bill of lading containing such a stipulation, must determine whether, by accepting it, he does not draw himself into a disadvantageous contract, not according to the law where the parties are when they make the contract, but according to the law of Missouri or Massachusetts or some other foreign jurisdiction where the contract may possibly become the subject of an action. [The court thereupon held that there was no evidence that plaintiff had assented to the stipulation.] ^ T Pitcalrn v. PhUIp Hiss Cb. (1903) 125 Fed. 110, 113, 61 O. C. A. 657, Arch- bald, District Judge: "According to the modem and better view, the rule yiiicli prnhihits the modification of a, writte n contra r t bv Parol is a rule, no t of evidence, but of substantive law. 2U )u & E. Enc. Law (2d Ed.) 1079; Thayer's^viaence, p. 390~et seq. ; 1 Greenleaf , Evidence (16th Ed.) § 350a. Parol proof is excluded, not because it is lacking in evidentiary value, but because the law for some substantive reason declares that what is sought to be proved by it (being outside the writing by which the parties have under- ( taken to be bound) shall not be shown." So as to whether an indorsement in blank can be modified by parol evidence. Baxter Nat Bank v. Talbot, 154 Mass. 233, 28 N. E. 163, 13 L. R. A. 52 (1891). But see Downer v.' Chesebrough, 36 Conn. 39, 4 Am. Rep. 29 (1869). The form of action — e. g., whether it must be at law or in equity, Burch- ard V. Dunbar, 82 111/ 450, 25 Am. Rep. 834 (1876) ; or whether it shall be assumpsit. c ovenant.-jorL-jdfibt— is determined by the lex fori. Warren v. Lynch, 5 JohhsT (N. T.) 239 (1810) ; Trasher v. Everhart, 3 Gill & ,T. (Md.) 234 (1831) ; Bank of United States v. Donnally, 8 Pet. (U. S.) 361, 8 L. Ed. 974 (1834). For this purpose, the question whether an instrument is sealed or not has been held to be governed by the same law. Le Roy v. Beard, 8 How. (U. S.) 451, 12 L. Ed. 1151 (1850). The_ lex fori decides whether the a ssignee. o f a chose In action can sue in his own_name, Ji'oss v. JNutting, 14 Gray (Mass.) 4S (IS60)"1 whether a married woman can be sued alone, or whether her husband must be Joined, Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 3 L. R. A. 214, 10 Am. St. Rep. 690 (1889) ; whether parties to a joint obligation can be sued several- ly, Fryklund v. Great Northern R. Co., 101 Minn. 37, 111 N. W. 727 (1907). It deteiMiines, also, the mode of continuing an action against a foreign cor- poration after Its dissolution, Sturges v. Vanderbilt, 73 N. X. 384 (1878); 62 GENERAL PKOVI8IONS. (Part 1 McELMOYLE v. COHEN. ^^^ l<« V \ vq '^ ' (Supreme Court of the United States, 1839. 13 Pet. 312, 10 U Ed. 177.) Certificate of division from the Circuit Court of Georgia. William McElmoyle, a citizen of the state of South Carolina, suing for the use of Isaac S. Bailey, also a citizen of that state, presented a' petition, in 1835, to the Circuit Court of the United States for the District of Georgia, stating that L,evy Florence had died intestate, qj;d^ having be- fore his death resided in the state of South Carolina, he^d'bbtained a judgment against ffl*i?r4he court of common pleas for the city of Charleston, for $9,687, on a promissory note, on t he 16th day of Feb- ruary, 1822, which remained unsatisfied; an exemplification ot which judgment in due form was exhibited to the court with the petition. The defendant, a citizen of Georgia, to which state Levy Florence removedj_after seven years from the rendition of the judgment, and in which state he reside? at the tirne of his death, pleaded the statute of limitations of the state of Georgia, which, the plea alleged, limited such actions to ^ejrears from the cause of action ; and he alteFwards plead- ed that there was no statute of the state of South Carolina which lim- ited suits upon judgments therein to any particular time, nor was there any statute of limitations in that state applicable to judgments, but that a statute was passed by the Legislature of Georgia, on the 7th day of December, 1805, which provided and declared that all actions of debtson, judgments obtained in courts other than the courts of (jcor- gia should be _ commenced and prosecuted within five years from the "rendition of such, jiidgmentSi^ and not afterwards, and that for seven /" years after the rendition of the jiiH^nenFon which the suit is brought, JL,evY Flo r ence wa s a resident and citizen of the state_ofJ2£orgia, and no suit on the judgment was commenced againsThim, nor for two years after the defendant, John J. Cohen, had been the duly qualified ad- ministrator of the said Levy Florence. The defendant, for further plea, stated that he had not funds of the estate of Levy Florence suffi- cient to pay the whole of the judgment, and to pay the other debts claimed as due from the estate. Upon the trial of the cause, the following questions occurred, upon which the opinions of the judges were opposed; and the same were certified to the Supreme Court: (1) Whether the statute of limita- tions of Georgia can be pleaded to an action in that state, founded and the question whether a pending action can be revived upon the death of either party, Baltimore & O. R. Co. v. Joy, 173 U. S. 226, 19 Sup Ot 387, 43 L. Ed. 677 (1899). ' ^' The lex fori governs ordinary presumptions of law. Johnson v Chicago & N. W. Ry. Co., 91 Iowa, 248, 59 N. W. 66 (1894) ; Jones v Chicago St P., M. & O. R. Co., 80 Minn. 488, 83 N. W. 446, 49 L. R. A. 640 (1900)' It regulates the evidence requisite to make a prima facie case Richmond &■ D R. Co. v^ Mitchell, 92 Ga 77, 18 S. E. 290 (1898); or to submit a case to 60^At"382 (lloir ^" ^' "^ ^^^ "^^'''^^' ^^ ^' ^- ^''^' ^^' Ch. 3) PKOCEDUHE. 6S upon a judgment rendered in the state of South Carolina? (2) Wheth- er in the administration of assets in Georgia, a judgment rendered in South Carolina, upon a promissory note, against the intestate, when in life, should be paid in preference to simple contract debts ? Wayne, j.s * * * gych 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 limitations, i Is_i t a plea that settles the right of a party on a contract or judgment, or one that bars the remedy ? Whatever "Hfvefsity oFopiriiohTIiere ] may be among jurists upon this point, w^jthirik_it_well settled to be a p lea to the remedy j. and, consequently, that. the lex fori must_j)revail. TTiggins V.' Scott, 2 Barn. & Adolph. 413 ; 4 Cow. (N. Y.) 528," 5307 note 10; Van Reimsdyk v. Kane, 1 Gall. (U. S.) 371, Fed. Cas. No. 16,871 ; Le Roy v. Crowninshield, 2 Mason, 151, Fed. Cas. No. 8,269 ; British L,inen Com. v. Drummond, 10 Bar. & Cresw. 903 ; De La Vega V. Vianna, 1 Barn. & Adolph. 284 ; Decouche v. Savetier, 3 Johns. Ch. (N. Y.) 190, 8 Am. Dec. 478 ; Lincoln v. Battelle, 6 Wend. (N. Y.) 475 ; Gulick V. Loder, 13 N. J. Law, 68, 33 Am. Dec 711 ; 3 Burge's Com. on Col. and For. Laws, 883. The statute of Georgia is: "That ac- tions of debt on judgments obtained in courts, other than the courts of this state, must be brought within five years after the judgment ob- tained." It would be strange, if in the now well-understood rights of nations to organize their judicial tribunals according to their no- tions of policy, it should be c onceded , to thern in every other respect than tnat br'prescribing the time within which suits shall be litigated in their courts. " .Prescription, is a Jiunguif policy, growing out of the experience of its necessity; and the_timejafter which suits or actions shall be barred, has been, from a remote antiquity, fixed by every nation, "m virtue' of ffiat sovereignty by which it exercises its legislation for all persons and p roperty wit hin its"j'u risdiction. , This being the founda- 'tioii of the right to pass "statutes' of prescription 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 rendered 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 j;emedies_upon the judgments of other "States, anJ alter the common .law., by -statute,., fixing a less or larger "time for such presumption, and altogether barrin gs suits upon such juagmentiT if they shall not .be brought within the time stated in the statute? It certainly will not be contended that judgmeiiFCTeaitors'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 » Only a part of the opinion Is given. 64 GKNEKAL PROVISIONS. (Part 1 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 Hmitations, but subject to the common-law presump- tion of payment after the lapse of twenty years? In other words, may not the law of a state fix different times for barring the remedy Tn a suit uporTajudgment of another state, and for those of its own^ tribu- nals? We use this mode of argument to show the unreasonableness of a contrary doctrine. But the point might have been shortly dismissed with this sage declaration, that there is no direct constitutional inhibi- tion upon Jhe states, nor any clause in the Constitution from which^it can be even plausibly inferred, that the states may not legislafe upon the remedy in suits ugon the judgments^ of other states, exclusive of^ll interference with their merits. ~It~Seing settled that the st attife of Jimitations may bar recoveries upon foreign judgments; that the effect intended to be given under our Constitution to judgments, is, that they ^e^concjBsive onlj as regards _,the, merits ; the common-law "prirSple then applies to suits upon^them, that they must be brought within the period prescribeSTiy the local law, the lex fori, or the suit will b e barredT]!^ Counsel have relied, to establish a contrary doctrine, upon Morton & Co. V. Naylor, 1 Hill's I^aw (S. C.) 439. But that case was obvious- ly decided upon a misconception of the learned judges of the decision of this court in the case of Mills v. Duryee, 7 Cranch, 481, 3 L,. Ed. 411. It is, therefore, our opinion, that the statute of limitations of Georgia can be pleaded to an action in that state, founded upon a judgment rendered in the state of South Carolina. [In regard to the second question, it was held that, in the payment of the debts of a deceased party, a judgment of another state would enjoy such rank only as is assigned to it by the law of the forum.]' BYRNE V. CROWNINSHIElvD. /'' (Supreme Judicial Court of Massachusetts, 1820. 17 Mass 55) • A ' -• Assumpsit by the endorsee against the maker of sundry promissory notes, dated at New York, on the 29th day of March, 1811. The_defendant pleads the statute of limitations of the state of New YorVuTBar; and avers "that, at the time when the supposed cause "of action accrued to the plaintiff, the parties resided in and were citizens » See Le Roy v Orowninshield, 2 Mason, 151, Fed. Cas. No. 8,269 (1820): Townsend V Jemison, 9 How. (U. S.) 407, 13 L. Ed. 191 (1850)- wTd in general, 48 L. R. A. 625-644; 4 L. R. A. (N. S.) 1029-1032 ' The doctrine that the statute of limitations goes to the remedv wa<4 sun , ported by the Dutch jurists P. Voet (De Statutis. § 10 c 1 No D^fnrt m tleus Huber (De conflictu legum, No. 7) ' ' ^' "^^^ ^'" Ch. 3) PEOCEDTJRE. 65 of that state, and that the cause of action accrued, if at all, within the said state. To this plea the plaintiff demurs, and the defendant joins in de- murrer. Nichols, for the plaintiff, cited and relied on the case of Pearsall v. Dwight, 2 Mass. 84, 3 Am. Dec. 35, as decisive of the question arising in the present action. Cummings, for the defendant. I am to distinguish this case from the one cited for the plaintiffs; and it will be found to differ in one essential fact. In that case, the defendants were citizens and residents in Massachusetts, nor does it appear that they were ever within' the state of New York. In the case at bar, the parties were all citizens of and residents in New York, at the time of making the contract and long after. If this court will ever recognize a statute of limitations enacted by another state they will give effect to the one pleaded in this case. Nichols, in reply. The court considered the parties in Pearsall v. Dwight as inhabitants of New York, and the contract as made there. See Nash v. Tupper, 1 Caines (N. Y.) 402, 2 Am. Dec. 197; Smith v. Spinolla, 2 Johns. (N. Y.) 198; Jackson v. Dieffendorf, 3 Johns. (N. Y.) 269. By The Court. The case cited by the plaintiff's counsel from our own Reports, is decisive of this action. The principle h as often been recognizedjjhat Jhe Ja^j)fjdie. country where the c.Qntract_is made, are to govern its construction; those jpft^he country where_tfie remedy "is sought, are to £rescribe_that remedy. "ATdifference has been attempted to"be shown in this case, from that of Pearsall v. Dwight, in that both the parties to this action were in- habitants of New York at the time when the contract was made, and the cause of action accrued. But that fact was assumed in the case referred to. The difference then does not exist. Defendant's plea bad.^" 10 For statutory modification of rule, see West v. Thels, 96 Pac. 932 (1908), ^and note on case in 22 Harv. L. Rev. 62. As to when statute begins to run, see 15 L. R. A. (N. S.) 156-165. Tlie lex fori has been held to govern, also, certain preliminary matters-^ e. g., whether for the purpose of the statute of limitations an instrument Is to be deemed a specialty or not, Bank of United States v. Donnally, 8 Pet. (U. S.) 361, 8 L. Ed. 974 (1834); and whether a person f or such pu c:- pose has reached the age of majority, Eurgett v. Williford, 56 Ark. 187, 19 SrW. 750, 35 Am. St. Rep. 96 (1892). LOB.CONF.Ii. — 5 66 GENERAL PROVISIONS. (Part 1 SHELBY V. GUY. ^ ' ' ' (Supreme Court of the United States, 1826. 11 Wleat. 361, 6 I/. Ed. 495.) The plaintiffs here were defendants in the court below. The facts were as follows: One Dickerson, a citizen of Virginia, and grandfather of the plaintiff, was the owner of a female slave named Amy, from whom the slaves in question have descended. Upon the marriage of Thomas T. Guy with plaintiff's mother. Amy passed into his- possession, having been sent to him by Dickerson. Whether it was by way oil loan or parol gift was controverted. From 1778 to 1794 Amy remained in Guy's possession and was then sold with her increase to David Shelby, defendant, who thereupon re- moved with the slaves to Tennessee where he resided until the begin- ning to this action. In 1788, 10 years after Amy came into the possession of T. T. Guy, Dickerson willed the slaves to T. T. Guy for life with remainder to the testator's grandsons, John and Thomas Guy. The executory devise took effect by the death of their father in 1795. Shortly afterwards and before the bringing of this action John died. Neither brother had been in Tennessee until within three years prior to the institution of this suit, but had resided in Virginia. ThQinas^Guy brought this action in Tennessee to_ recover the slaves there in possession of Shelby. Defendants below pleaded non detinet a nd the acj of limitations of Tennessee. (^. | l^a. The limitation to the action of detinue in Tennessee was three years with a jaymg clause in favor of nonresidents, while it was five years in the state of Virginia. Plaintiff joined issue upon the plea of non detinet and filed a special replication to the plea of the statute, the object of which was to bring himself within the saving in favor of absentees. Defendants demurred to the replication, but the demurrer being overruled, they went to trial on the general issue, and verdict was rendered for plaintiff. Defend- ant thereupon sued out a writ of error to the Supreme Court of the United States." Johnson, J.^^ * * * fhe object of the defendants, in the sev- eral prayers for instructions propounded to the court, was to be let into proof of a title, without will or deed, in the father of T.k5E\ Guy, from whom they purchased, and to maintain, that although that title was only derived to him by implication, under the limitation acts of Virginia, it was sufficient, not only to make out a defense by pleading, but by giving such facts in evidence as would be a good defence on a plea of the statute of limitations, if the suit were instituted in the state 11 The statement of facts has been abstracted from the opinion. ISA part of the opinion has been omitted. Ch. 3) PItOGEDURE. 67 of Virginia, or to maintain detinue in a suit to reoover in right of a possession under the statute in that state. With this view, they pro- posed to rely on the following propositions: 1- That the proof that Dickerson, on the marriage of Guy with liis daughter , had sent t he slave m questi on with th em, or to them, iii,pon their going to" housekeeping, and permitted her to remain there ever after, as their"pr6perty, without any specific declaration of the Interest vested in them,, other than ihe_ will of 1788, with a varrety ;O f corrobo rating facts, was sufficie nt to sustain_ an^jnference of a gift or transfer by parol, and of such an adverse possession as might con- stitujte a bar under the act of limitations of Virginia of 1705. This the cou rt refused, on the ground,, that a parol gift oT slaves^ In Vir- ginia was, at the date of that transaction, absolutely void. * * * 'And on this point, we think the court erred in rejecting the proof. For, although the gift may have been void or voidable, the fact of de- livery of possession attended it, and this must have p ut the p arty to ■ his action to reinstate hi mself in the en j.o.ym£.nt-J3£j3ie, property., .The limitatio n to" the action ^f detinue in Virgi nia, is five years ; and here "the supposed donee proves a posse ssion ot t en veafs ! 1 nere can, thenTBe burone"douEt raised on the right of the defendant to the instruction here prayed, and to the admission of the evidence offered to the fact of a parol gift, and that is, whether he could avail himself of this defence in this mode? In the case of Newby's Adm'rs V. Iilakey73 lfeii.~S~K[7 (Va.) 57, a case strikingly resembling this in its circumstances, it was adjudged, that a plai ntiff in Virginia, may re- cover in detinue, upon five years' peaceable possession of a slave,_ac^ quired without foirce or fraud. And four months after that decision, and ^obviously withoiit being apprised of it, this court, in the case of Brent v. Chapman, maintained the same doctrine (5 Cranch, 358, 3 L. Ed. 125). It follows, we think, that, on the same principle, such a possession must cons titute a goo d defen ce in Te nnessee. To preclude ttie de~ tendant from availing himself of the benefit of that e viden ce which would have sustained an action forjthe ^ame property, by the per- son~ from which he purchased it, wouH^'be to convert a good and valid title in Virginiaj^nto a defeasible title in Tennessee ; a sufficient title in "a' vendor, into a defeasible title in his vendee^and, by anjndi- "~rect op6rafio^"to make the seller liable, where a direct action could not' have been maintained against him to recover the property sold. ' 13 As to distinction between statutes of limitation affecting merely the remedy and those extinguishing the debt or claim, see Story, Conflict of Laws (8th Ed.) § 582b. This distinction was approved by Chief Justice Tindal in Hnber v. Steiner, 2 Bing. N. G. 202, 211 (1835), and by Shipman, Cir- cuit Judge, in Canadian Pac. R. Co. v. Johnston, 61 Fed. 738, 9 C. C. A. 587, 25 L. R. A. 470 (1894). See, also, Wyna v. Lee, 5 Ga. 217 (1848) ; How- .ell v. Hair, 15 Ala. 194 (1849) ; Alexander v. Torrence, 51 N. a 260 (1858) ; Waters v. Barton, 41 Tenn. 450 (1860). 68 GENERAL PROVISIONS. (Part 1 ARP V. ALLIS-CHALMERS CO. (Supreme Court of Wisconsin, 1907. 130 Wis. 454, 110 N. W. 386, 8 L. R. A. [N. S.] 997, 118 Am. St. Rep. 1036.) WiNSi,0Wj J. This action was commenced August 10, 1904, and was brought by the plaintiff to recover damages f or personal injuries suffer- ed by the plaintiff while in the employ of the defendant as the result of an accident which happened at the defendant's shop in the city of Chicago, March 31, 1903. The defenda nt is a foreign corporation op- erating a manufactunngjplant in Wisconsin, and on the 17tH of Sep- ~tember, iWT,lmdrSSy filed with the Secretary of State an instrument appointing a resident attorney in this state as required by section 4231, Rev. St. Wis. 1898. The defendant by answer pleaded as a defense that part of subdivision 5 of section 4322, Rev. St Wis. 18?8, "which provides "tha t no action to recover damages for p ers<:ffiainri|riri(^srs1iall be maintained unless a m dlt gn notice thefeor^ontaining certai n pre- scribed statements shall be served on the person responsible f(g r the mjury within one year after thf ^^^ppp^ing f^f i^hf e^y^r^i- It was admit- ted on trial that no notice as required by said subdivision had been served, a verdict for the defendant was directed, and, from judgment thereon, the plaintiff appeals. . The controlling question presented is whether that part of sectio n 4222 above referred to applies to a cause of action arising irt anot her state when a resident of that state brings suit thereon ag-ainst a resi dent of Wisconsin m a Wism nsin court. A few well-established prin- ciples seem to answer this question in the affirmative. The cl.ause in uestion is a statute of limitation s.' Rely eaT v. Tomahawk Paper' & ulp Co., 102 Wis. 301, 78 N. W. 412, 72 Am. St. Rep. 878 ; O'Don- nell V. City of New London, 113 Wis. 292, 89 N. W. 511 ; Meisen- heimer v. Kellogg,, 106 Wis. 30, 81 N. W. 1033 ; Lawton v. Waite, 103 Wis. 344, 79 N. W. 321, 45 L. R. A. 616 ; Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003, 49 L. R. A. 475, 80 Am. St. Rep. 1. True, its operation is somewhat different from the operation of other sta tutes of limitations in that it acts upon the time within which a prelimin arv notice sha l l be served instead of the time within which the sum mons shall be served, but it is none tne less a limitation upon the ri ght to maintain the action. Troschansky v. Milwaukee Electric R. & Light Co., iiu WIS. i)7U, 86 N. W. 156. It is the long-settled doctrine of th is court that, when a statute of limitations Tiascompletelv operated it extmguisHes the right of action bv taking away the remedy . Bingart- ner v: TMnois Steel Co., 103 Wis. 373, 79 N. W." 433, 74E Am. St. Rep. 871. Injhe absence of any saving clause our statutes of limitation operate against nonresident plaintiffs_w ho bring actions in the courts /?rf this state as well as against residents. Winter v. Winter 101 Wis "494, 77 N. W. 883; Fields v. Estate of Mundy, 106 Wis. 383, 82 n" W. 343, 80 Am. St. Rep. 39. Were the rule, otherwise the result would Ch. b) FEOCEDDRE. 69 be that nonresident litigan ts_coming into our courts to enforce a for- eign caus e of action would possejs_ greater rights and privileges than citizens o f our own state. "They are entitled to itlie same" rights and privilegesTno more, no less. Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 603, 59 Am. St. Rep. 859. This does not mean that our statutes jo.liiaiitationsJh ave an y extraterritorial ef- f ectso far as foreign causes, of action _are concerned . .They do not reacETover in to Illinois and extinguish a right of action arising there. It only means that the foreign right sought to be enforced in this state ' after our statute ha s run has ceased to exist so"far a s regards its e n- forcement in this state, although tne rignt and all remedies to enforc e • it in the state of Illinois remain entirely unaffected^ Of course, when a cause of action aris ing here betw een, residents of Wisconsin is ba rred here the right is extmguishedlnrall jurisdictions, but no one could r ea- sonably claim that because it could not be enforced under the limita- tion laws of a sister state it is barred here. So we hold that the provision in question is a limitation statute ad- mitting of no exception; that it applies to both foreign and domestic causes of action; that it acts like any other statute of limitations, ex- tinguishing the right in a domestic cause of action as to all jurisdic- tions, and extinguishing the right in a foreign cause of action sought to be enforced in this state by a nonresident as far as its enforcement in our courts is concerned. This accords with the decision of the trial court. Judgment affirmed. ^ CHICAGO, RH. & P. RY. CO. v. THOMPSON. ^i ^ (Supreme Court of Texas, 1906. 100 Tex. 185, 97 S. W. 459, 7 L. R. A. [N. S.] 191.) Action by C. B. Thompson against the Chicago, Rock Island & Pacific Railway Company and another. The Court of Civil Appeals affirmed a judgment in favor of plaintiff (93 S. W. 703), and defend- ants bring error. Williams, J.^* The defendant in error applied for and received from plaintiffs in error atChidfa^ha, TnH. T .. employment in the capacity of brakeman. His application, which constitutes a part of the con- tract of employment, contained this stipulation : "In further considera- tion of my employment, I agree that if, while in the service of the said company, I sustain any personal injury, for whiclTTlilTairor may make "claim against said c6rnpaSiy~for damages, I will w ithin thirty H^ys after receiving such injury, give notice in writihgliFlilKnT" rrairri tn t he general claim agent of said company, at Chicago, for i njuries occurrin g '^' " ~ ■ - - - 1* Only so much of the opinion is given as relates to the question whether the stipulation afCected only the remedy. •ID GENERAL PROVISIONS. (Fart I in Illinois or Iowa, and to the general attorney of said co mganj^at Topeka, for inju ries~oc<:tirrmg elbewliere on the systenTT'wMcH" no tice s!iall state the time, pl ace, mann er, and cause of my being injured, and ^he nature and extent ot my mjiiries, and the claim made therefor, to the end 'tTiat such claim may be fully, fairly, and promptly investigated ; and my failure to give notice of such claim in the manner and within the time "aforesaid shall be a bar to the institution of any su it on firrnnnt nf .such injuries." He was afterwards, in Oklahoma Territory, hurt while per- TorSIngliis duties to plaintiffs in error under the contract, and brought this action and recovered the judgment before us for damages upon the ground that his injury resulted from the negligence of defendant in failing to exercise proper care in keeping its track in safe condition. At the trial the defenda nt offered in evidence the contrac t above stat- ed, together with evidence to show that it was valid under jheJaws_o f " the Indian Territory and of Oklahoma, and that the notice had not been given as agreed upon: all of which farts had been pleaded in the an - swer . This evidence was excluded upon the objections urged by the plaintiff. The Court of Civil Appeals held that this iniling was justi- fied by article 3379 of the Revised Statutes of 1895 of this state, which provides : "No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid, unless such stipulation is reasonable, and any such stipulation fixing the time within which such notice shall be ' given at a less period than ninety days shall be void, and when any such notice is required, the same may. be given to the nearest or any other convenient local agent of the company requiring the same. In any suit brought under this and the preceding article it shall be pre- sumed that notice has been given, unless the want of notice is specially pleaded under oath." _ The stipulation was r egarded bv the Cnnrt of Civil Ap ppalg ac affect- jng only t he remedy, in analogy tn thp .itatiitp nf Umitatini^.^ , oTfrl- as being controlled by the law of the forum . The evident purpose oflhe stipulation was to secure notice to the employer of the claim of the serv- ant that it was liable for an injury suffered by him in order that op- portunity might be given for prompt investigation and ascertainment of the facts affecting the claim. Phillips v. Western Union Telegraph Co., 95 Tex. 643, 69 S. W. 63. It fixes no time within which suit must be brought after notice has been given, leaving the plaintiff free to sue within the time allowed by law. But it attach estothe failure to give t he no tice the effect of "a bar tolhe institutlQiroTanYlmt" on _ accuuu Ujfguch. injuries." The~BaFls" nof to arise from lipse' of time, "mefelyT^utjErom the failure to do jFat wHicK the parties' agreed~on" asTssential to the right to have a determination by suit oFthe question"~of ? liability_ forjlie injury:" Its effect, if enforced according to its" "term s I was either to prevent the accrual' of liability, or to piit an end tp-alf I further questio n of liability after the expiration of the prescribed tirn ^ without notice. Whether it had the effect first mentioned, as contend" 'd^ Ch. 3) PROCEDURE. 71 by plaintiffs in er ror, or the latter, as contended by d efendant in error, 'is wholly immaterial to the present inquiry , in either view it acts upoIT/ the substantive rights of the parties, and not upon the mere mode and/ / "Time of their e nforcement in the courts. Had it been only an agree- ment, valid bot h in Oklahoma and in the Indian Territory, to fix a period within which suit must Ee'brdught, we s hould have the questio n, wh ich we need not consider, whether the time so"hxed or that prescrib - ed by our statute of limitations would govern. S ection 3, Wharton's LJonnict of Laws (3d Ed.) p. 1434. The cases of Armstrong- v. Galves- ton, H. & S. A. Ry. Co., 93 Tex. 117, 46 S. W. 33, and Burgess v. Western Union Telegraph Co., 93 Tex. 135, 46 S. W. 794, 71 Am. St. Rep. 833, cited by the Court of Civil Appeals, do not decide the ques- tion before us. In the Armstrong Case the contract was made in Texas, and was subject to our laws unless the fact that it was for an interstate shipment put it beyond their operation, and that was the ques- tion discussed. The contract in the Burgess Case was made in Louisi- ana; the law of which, presumed to be the same as that of this state, made it illegal. This is the. gist of the decision, the court holding, as in the Armstrong Case, that it was in the power of the state Leg- islatures to make regulations applicable to contracts concerning inter- state commerce. Neither case holds that the statute of this state applies to contracts made in other jurisdictions. Indeed, the Burgess Case holds that the contract there in question was governed by the law of Louisiana. * * * For the error in excluding the evidence, the judgment is reversed, and the cause remanded. DAVIS v. MILLS. (Supreme Court of the United States, 1904. 194 V. S. 451, 24 Sup. Ct. 692, 48 L. Ed. 1067.) Statement by Mr. Justice Holmes : This, case came here on a certificate of which the following is the material portion: " The plaintiff is a citize n of Montan a, and the owner by assign- ment of three causes of action (for goods sold and on a promissory note) against the Obelisk Mining & Concentrating Company, a M on- tana corporation. The indebtedness of the company upon these causes of action accrued July 31, 1893, July 1, 1893, and December 13, 1892, respectively. The defendants are and always have been citizens an d residents of Con tipftirnt, and pt a ll the times mentioned in the com - plaint were trustees of the said Obelisk Mining Company . The sta t- utes of Montana provide that within twenty days ffo m the 1st day of September every such company shall annually file a specified repo rt, 'andTthat if it 'shall fail to do so. all the trustees of the corhpany shall 72 GENERAL PROVISIONS. (Part 1 be jointly and severally liable for all of t h e debts of the company then 'e5 asting, _ and for all that shall be contracted before such report sh all BelnaaeT^ection 460 of chapter 35 of the 5th division, Compiled StaiuteTof Montana, which was in force when the cause of action arose, re-enacted as section 451 of the Civil Code of Montana, which went into effect July 1, 1895. ' 'rh^_n hfy,<,]r Pnmpany failed to file Certain of the required _reBgrts, and the caus es of action sued upon here, against the de fendants as trustees, to recover debts of the compan y , accrued .September ^2 . 1833 . or_p rior thereto. ' I'his action was broughtto enforc e the joint and ii^iF glJi ?hii;i-y nf the defend ants under the statute O i r Tulv 00, 189 '?'- " When the cause of action a ccrued the Compiled Statutes of Mon- tana contained these sections: "~' " 'Sec. 45. 1. In an action for a penalty or forfeiture, when the action is given to an individual, or to an individual and the territory, except where the statute imposing it prescribes a different limitation; 2, an action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil -process shall be commenced within one yea r.' " 'Sec. 50. If, when the cause of action shall accrue ag ai nst a person, he is out ot the terntoryTthe action may b e commencecTwith- In th e time herein limited, after his return to the territory; and if, after the cause of action shall have accrued, he depart from this territory, the time of his absence shall not be a part of the time limited for the commencement of the action.' "Both of tho se s ections were repeal ed by Code of Civil Procedure, § 3482, which went into etfect July 171895. On the last-named date the Civil Code of Montana went into effect, containing section 451, above cited. The Code of Civil Procedure contains a separate title, numbered II, and containing four chapters (sections 470 to 559), which deals exhaustively with 'the time of commencing actions.' It con- tains these sections : "'Sec. 515. Within two years: " '1. An action upon a statute for a penalty or forfeiture, "when the action is given to an individual, or to an individual and the state, except when the statute imposing it prescribes a different limitation." ' " 'Sec. 541. If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.' " 'Sec. 554. This title does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture im- posed, or to enforce a liability created4)y law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty of forfeiture attached or the liability created (sic).' Ch. 3) PROCEDURE. 73 "Upon the facts above set forth, the question of law concerning which this court desires the instruction of the Supreme Court, for its proper decision, is: " 'May^ a defendant, in an action of the kind specified in section 554 ol the Code ot (Jivil Procedure of JVTontana. avail of the limita - tion therein prescribed, w_hen_the action is brought against him in the court of another state ?' " JbLOLMES, J." The general theory on which an action is maintain ed upon a cause .which accrued in another jurisdiction is that the liabili tv IS an obligatio/which. having been attached to the person by the la w then having that person within its power, will be treated by othe r countries as accompanying the person when brought before the ir courts. But, as the source of the obligation is the foreign law, the defendant, generally speakijig, is erititled to^the_t^npfit_r)f_ w2'i'^^^^^^ conclitions~aiid""limitations the foreign law creates. Slater v. Mexi- I can Nat. R. Co., 194TJ.''S. TSTJTM'SuprCtT'SSl, 48 L. Ed. 900. It is true that this e ;-eneral proposition is qualified bv the fact that th p" ordinary limitations of a ''<^i^r° '"'° t''''r^tprl ag la-yy^ of procedure, an d as belonging to the lex fo n", "^ affpf-finor th p rprnprly nn lv and not the righ t. But in cases where it has been possible to escape from that qualification by a reasonable distinction, courts have been willing to/ treat limitations of time as standing like other limitations, an d cut -/ Jtingdown t he defendant's liabi l ity wherever he is s ued. The common* ' I (^se is where a' slatutecreates a' new liability, and in the same sectio ir or in the s ame" act limi ts the time within which it can be enforce d. whether usihg WOtTfe-Ql condition or not. The Harrisburg. 119 U. S. 199.~7~Sup. Ct. 140. 30 L. Ed. 358. But the fact that Jhe limitation is contained in the same section or the sa me statute is material only a s bearing on construction. It is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation ever3rwhere. The same conclusion would be reached if the limitation was in a dilterent statute, provideg'TF' was directed ~to "theJliewT v created liability so specifically as to warrant saying that it qualified the right. ■ . _ — , If, then, the only question were one of construction and as to liabil- ities .subsequently incurred, it would be a compar atively easy matter to say that section 554 of the Montana Code of Civil procedure quali- fies the liability imposed upon directors by section 451 of the CiviT Code, and creates a condition to the corresponding right of action against them, which goes with it into7any._jjucisdictiQn_whe,reJ:he a.c - jtion may be brough t. But the question certified raises greater difficulties both as to construction and as to power. We h a ve first to consider whether section__5.54_.purports to qualify, or to impose a coriditioi i upon, liabilities already incurred under the_ear1ipr agt tak en up int o section 4ax. in doing so we assume that the word "directors" in the ISA part of the opinion has been omitted. 74 GENERAL PKQV18IONS. (Part 1 later act means the same as "trustees" in the earlier one. The con- trary was not suggested. At the argument we were pressed with sec- tion 3455 of the Code of Civil Procedure: "No action or proceeding commenced before this Code takes effect, and no right accrued, is affected by its provisions." But the trouble made by this is more seeming than real. The following section deals specifically with lim- itations, and must be taken to override a merely general precaution against the disturbance of vested rights. By section 3456: "When a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this Code goes into effect, and the same or any limitation is prescribed in this Code, the time which has already run shall be deemed part of the time prescribed as such limitation by this Code." The language clearly imports th at the limitations in the Code are to apply to existing obligations iipp n which the previous limitation already had begun to ru n. The resuh: is that section 554 purports to substitute a three years' limitatiori~to r tlieTone year previously in force, assuming that the previous one yea r limitation applied to, this .case, as under the d ecisions , it did , "State "Sav. Bank of Butte City v. Johnson, 18 Mont. 440, 45 Pac. 662, 33 Iv. R. A. 552, 56 Am. St. Rep. 591; National Park Bank v. Remsen, 158 U. S. 337, 343, 15 Sup. Ct. 891, 39 h. Ed. 1008, 1009. But if section 554 purported to make this substitution, it purported to introduce important changes, it lengtnened the time on the one hand ; but it took away th e excention in case nf absence from the state o n the oth er. This last is disputed, but it seems to us a part of the meanmg of the words "This title does not affect actions against directors," etc. The section as to absence from the state is a part of the title, and whatever necessary exceptions may be made from the gen- erality of the words quoted, this is not one of them. A further difference is that, while there might be difficulties in con- struing the general hmitation upon actions for penalties as going' to the right, this s ection is so specific that it hardly can mean anything dse. We express no opinion as to the earlier act, but we think tha t this section _554 so definitely deal s with the liability sought to be'T n- tnreerl that" upon tVi g principles heretofore established" it musf be taken to affect its substance so far as it can, although passed at a d if- ferent time from the statute by which that liability first was created We do not go beyond the case before us. Different considerations might apply to the ordinary statutes as to stockholders. We express no opinion with regard to that. _ [The learned justice thereupon discussed and upheld the constitu- tionality of the law.] The question is answered in the affirmative, and it will be so certi- fied.^* 16 As to malnten.ance of an action on a bond for a deficiency arising from the foreclosure of a mortgage on real estate in another jurisdiction, where a par Ch. 3) PROCEDURE. 75 AYER V. TILDEN. vv. h"^'' '^ (Supreme Judicial Court of Massachusetts, 1860. 15 Gray, 178, 77 Am, ttec. 355.) Action of contract upon the following promissory note, made and indorsed by defendants : "$670.81. New Lebanon, N. Y., 20th June, 1857. Six months after date we promise to pay to ourselves six hundred and seventy dollars and eighty-one cents, value received, at Bank^ America, N. X Tilden & Co." " Hoar, J.^* * * * f^g defence of usury failing, Jhe^laintiff s 'are entitled to recover, according to the agreement of parties, the principal of the note, with interest at such a rate as the law will allow. That raJte wilJLbe six per cent, from^ the maturity of the note. The' interest is not a sum du£by the contract, for by the contract no inter- est was payable, and is jnqttherefore. affected by the law of the place of the contract. It is given as damages for the breach of contract, and ; must follow the rule , in force. within the jurisdiction where the judg-< i 2^HiLiS_I££22£Ifid.^ Grimshaw v. Bender, 6 Mass. 157 ; Eaton v. rJVLellus, 7 Gray, 566; Barringer v. King, 5 Gray, 13. The contrary rule has been held to be applicable where there was an express or implied agreement to pay interest. Winthrop v. Carleton, 13 Mass. 4; Von Hemert v. Porter, 11 Mete. 310; Lanusse v. Barker, 3 Wheat. (U. S.) 147, 4 E. Ed. 343. Perhaps it would be difficult to support the decision in Winthrop v. Carleton upon any sound principle; because the court in that case held that interest could only be computed from the date of the writ, ticular mode of procedure is prescribed, see Sea Grove Building & Loan Ass'n V. Stockton, 148 Pa. 146, 23 Atl. 1063 (1892); Stumpf v. Hallahan, 101 App. Div. 383, 91 N. Y. Supp. 1062 (1905), affirmed 185 N. Y. 550, 77 N. B. 1196 (1906). SET-Orr. — ^Wliether or not a valid claim can be set up by v^ay of set-off or counterclaim is uniformly held to be a matter of procedure, governed by the lex fori. Gibbs v. Howard, 2 N. EL 296 (1820) ; Davis v. Morton, 5 Bush (Ky.) 160, 96 Am. Dec. 345 (1868). The very nature of the contract may exclude the idea of set-off; e. g., in the case of negotiable paper. See Stevens v. Gregg, 89 Ky. 461, 12 S. W. 775 (1890) ; Pritchard v. Norton, 106 U. S. 124, 133, 1 Sup. Ot. 102, 27 L. Ed. 104 U882). Exemption Laws.— "Exemption laws are not a part of the contract. They are a part of the remedy, and subject to the law of the forum." McKenna, J., in Chicago, E. I. & P. R, Co. v. Sturm (1899) 174 U. S. 710, 717, 19 Sup. Ot. 797, 43 L. Ed. 1144. Accord: Mineral Point R. Co. v. Barron, 83 111. 365 (1876); National Tube Co. v. Smith, 57 W. Va. 210, 50 S. E. 717, 1 L. R. A. (N. S.) 195, 110 Am. St. Rep. 771 (1905). Contra: Drake v. Lake Shore & M. S. Ry. Co., 69 Mich. 168, 37 N. W. 70, 13 Am. St. Rep. 382 (1888). But courts may enjoin citizens of their state from proceeding in other states in evasion of the exemption laws of their own state. Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448 (1877). See, also. Singer Mfg. Co. v. Fleming, 39 Neb. 679, 58 N. W. 226, 23 L. R. A. 210, 42 Am. St. Rep. 613 (1894). 17 Thi^ statement of facts has been substituted for that of the original report. 18 Only so much of the opinion is given as relates to the question of damages. 76 GENERAL PKOVISION8. (Part 1 thus clearly showing that it was not considered as due by the contract, and yet adopted the rate of interest allowed at the place of the con- tract. But the error would seem to be in not treating money, paid at the implied request of another, as entitled to draw interest from the time of payment. _ . . An objection to adopting the rule of the rate of interest in the juris- diction where the action is brought as the measure of damages may be worthy of notice, that this rule would allow the creditor to wait until he" could find his debtor or his property within a jurisdiction where a much higher rate of interest was allowed than at the place of the con- tract. But a debtor could always' avoid this danger by performing his contract; and the same difficulty exists in relation to the actions of tro- ver and replevin. ■ If such a case should arise, it might with more reason be argued that the damages should not be allowed to exceed those which would have been "recovered in the state where the contract was made and to^ be performed.^' '^ KAVANAUGH v. DAY. \\x v^f J ,.'' (Supreme Court of Rhode Island, 1873. 10 R. I. 393, 14 Am. Rep. 691.) DuEFEE, J.^" Interest upon a contract for the payment of money, where it is payable ai interest by the terms of the contract, is to be paid according_to tbe law of the place where the contract is made, unless it is elsewhere to be perf ormed. The bonds, secured' by the mortgage iTbfe in smt, were m ade in New York, between parties resident there, and, as they make no provision for payment elsewhere, were presumably to be paid in New York. Accordingly interest on them, _if_payable as interest, would have to be paid at the legal rate in New York, — ^the fact that they are secured by a mortgage of real estate in Rhode Island being ineffectual to vary the rule. De Wolf V. Johnson, 10 Wheat. (U. S.) 367, 6 L. Ed. 343; Lockwood v. Mit- chell, 7 Ohio St. 387, 70 Am. Dec. 78; Varick v. Crane, 4 N. J. Eq. 128 ; Dolman v. Cook, 14 N. J. Eq. 56 ; Cotheal v. Blydenburgh, 5 N. J. Eq. 17 ; Stapleton v. Conway, 3 Atk. 737. The interest, however, is_gayable^jiot_as interest, there being no - stigulatjon for interest in the bonds, but as damages for the non- payment of the bonds at their maturity; and the counsel for the de- fendants contends that, where interest is to be paid as damages, it is 19 So as to interest upon a foreign judgment. Clark v. Ctiild, 186 Mass. 344 (1884); Wells, Fargo c& Co. v. Davis, 105 N. Y. 670, 12 N. E. 42 (1887). Contra: Thompson v. Monrow, 2 Cal. 99, 56 Am. Dec. 318 (1852). As to damages in general, see 91 Am. St. Rep. 714^-743. 56 L. R: A. 301- 316. 20 Only the opinion of the court rendered upon the respondent's excep- tions to the master's report under the decree of foreclosure Is given. Ch. 3) PKOCBDURB. 77 to be computed at the rate established^ by the law of the place where the suit is brou ght, "aignigJat'THelFafe established by the law of the place where the^coritract was made or t o be performed. The cases cited show that such is the rule in Massachusetts. Ayer v. Tilden, 15 Gray (Mass.) 178, 77 Am. Dec. 355; Ives v. Farmers' Bank, 3 Allen (Mass.) 236. The case of Cooper v. Waldegrave, 3 Beav. 283, does not show that such is the rule in England. In that case, the question was at what rate interest was payable on three bills of exchange, drawn in Paris and there accepted, but payable in London. No par- ticular rate of interest was stated to h6 payable "oiTthe face of the bills. The holder of the bills, in a suit in England against the acceptor, claimed interest at six per cent., the legal rate in France. The court decided that English interest, at the rate of five per cent., should be paid. The reason given for the decision was, that interest was given as compensation for nonpayment in England and for the delay suffer- ed there, and that the law of the place where the default happened must govern the allowance of interest arising out of the default. The inference is, that if the default had happened in another place, the in- terest would have been allowed at the rate established by the law of such other place. In Gibbs v. Fremont, 9 Exch. 24, a bill of exchange, on the face of which no interest was reserved was drawn in California upon a drawee at Washington, and protested for nonacceptance. In an action by the indorsee against the drawee, in the Court of Exchequer in England, the plaintiff recovered interest, by way of damages, at the rate of twenty-five per cent., being the rate payable in California. The ques- tion considered was whether the plaintiff should have interest at the rate current in Washington or in California, no claim even being ad- vanced that only the much lower English rate was to be paid. The court followed the decision in Allen v. Kemble, 6 Moore, P. C. 314, in which it was said that the drawer of a bill of exchange "is liable for payment of the bill, not where the bill was to be paid by the drawee, but where he, the drawer, made his contract, with such interest, dam- ages, and costs as the law of the country where he contracted may allow." See, also, Ekins v. East India Company, 1 P. Wms. 395, and 1 Eq. Cas. Abr. 288 (E). In Peck V. Mayo, 14 Vt. 33, 39 Am. Dec. 205, the defendants were sued in yermont as indorsers of a promissory note; drawn in Canada, indorsed in Vermont, and Ijay^WeJii^New York, at a dayjcertain, without interest reserved. The court held that interest was recover- able as damages at the rate of seven per cent., being the New Yor k rate, an d one per cent, higher than the rate in Vermont or Canada. The ground of the de cision was that the defenda nts had made de- fault m New York, the view of the court ditterihg in tha t_rgsgect fro m the view which was taken in G ibbs v. FremonE TEeTanguage used by Justice Redfield, in delivering the Opinion of the court, was, that on a contract to pay money at a certain time and place, where no 78 GENERAL PROVISIONS. (Part 1 interest is reserved, and there is a delay of payment, "interest, by way of damages, shall be allowed according to the law of the place of pay- ment, where the money may be supposed to have been required by the cFeHitor for use, and where he might be supposed to have borrowed money to supply the deficiency thus occuring, and to have paid the rate of interest of that country." This view is supported by many other cases; 'Poden v. Sharp, 4 Johns. (N. Y.) 183; Beckwith v. Trustees of Hartford, P. & F. R. Co7^rC5Hir368, 76 Am. Dec. 599 ; Cowqua v. Lauderbrun, 1 Wash. C. C. (U. S.) 521, Fed. Cas. No. 3,- 299 ; Jaffray v. Dennis, 3 Wash. C. C. (U. S.) 253, Fed. Cas. No. 7,- 171; Evans v. White, Hempst. 296, Fed. Cas. No. 4,572a; Pauska -V. Daus, 31 Tex. 67, 73; McAllister v. Smith, 17 111. 328, 65 Am. Dec. 651. , We think the rule which allows interest according to the law of the place where default is made, in a case where interest is recoverab le as damages , is the more reasonable rule, and the rule whic h is best supported by'authority;^.and that, where no special rate is reservedr there is no distinction which can justly affect the rate to be recovered, between interest recoverable as interest and interest recoverable as damages. The exception is overruled. ATWOOD V. WALKER. (Supreme Judicial Court of Massacliusetts, 1901. 179 Mass. 514, 61 N. E. 58.) Action by D. Preston Atwood against Kate N. Walker for breach of contract to convey a certain piece of land. From a judgment in favor of plaintiff, defendant excepts. Lathrop, J."^ * * * fhe second and third instructions request- ed may be considered together, and were as follows: "(2) If the jury find that the contract for the sale of the real estate was made in New York, and to be execjated_there, and the defendant, believing herself to have a good title, agreed to convey the same, believing that she was able so to do, the plaintiff can recover no damages except his reason- able counsel fees for examining title and necessary expenses connected therewith. (3) If the contract was made in New York by the defend- ant, and to be executed there, and was made by her in good faith, the contract price is conclusive ; and the plaintiff, having paid nothing," can recover nothing." The presiding judge refused to rule as request- ed, but instructed the jury that, if the contract was made, and the defendant failed, to carry it out, or refused so to do, by reason of inability to give a good title, the plaintiff could recover the amount^ if any, by which the fair market value of the real estate exceeded, if 2iA part of the opinion lias been omitted. Ch. 3) PKOOEDURE. . 79 any, the purchase price. The jury found for the plaintiff in the sum of $7,371. The defendant's exceptions are not only to the refusal to rule as requested, but also to the ruling given. It is apparent from the amount of the verdict that, if there was error on the part of the judge, the defendant has a very substantial grievance. The first question is as to the law of New York, and this is to be determined from the authorities put in evidence by the defendant, the plaintiff having put in no evidence on this subject. An examinati on of the_ authorities cited shows. .that in New York, m an action for ~15reach of an agreement to convey land, if the defendant has acted in* "goodTaith, believing that he had a good title, and he is unable to con- vey on account of a defect in his title, only nominal damages can be' Recovered. IBaldwin v. Munn, 3 Wend. (N. Y.) 39'9, 30 Am. Dec. 637; Peters v. McKeon, 4 Denio (N. Y.) 546 ; Conger v. Weaver, 30 N. Y. 140 ; Margraf v. Muir, 57 N. Y. 155 ; Cockcroft v. New York & H. R. Co., 69 N. Y. 301. Where the vendee ha s paid the purchase money in whole or in part, so much as is paid niaybe recovered back. Fletcher V. Button, 6" Barb. (N. Y.) 646. So, too, the verid'ee'may recover for the expense of examining the title, it a^such expense has been incur- red. Northridge v. Moore, 118 N. Y. 419, 23 N. E. 570. If, however7 a person contracts to sell lands wjiich he knows at the tinie he~has not the power to sell and convey, he is liable to make good to the vendee the loss of -his bargain; and it does not excuse the vendor that he may have acted in good faithj and believed, when he entered into the contract, that he would be able to procure a good title for his purchaser.^ PumpelTy v. Phelps, 40 N. Y. 59, 100 Am. Dec. 463. There is nothing in this case to show that the defendant acted in bad faith, or that she knew of the defect in her title. The second request states the law„ in New York with substantial accuracy ,~as We "under- stand the facts of the case. The third request states the law in New York too broadly. The New York decisions follow the English rule as laid down in Flureau v. Thornhill, 3 W. Bl. 1078, Bain' v. Fothergill, L. R. 6 Exch. 59, and Iv. R. 7 H. L. 158, and in other cases. The English and the Ne w York r ule differs from that which genera lly prevai.l s7n this cornmonwealth. Roche v. Smith, 176 Mass. ""5937""598; 58 N7E. 153, 51 L. R. A. 510, 79 Am. St. Rep. 345. The contract for b reach of which da mages are sought in this case was made in New Y"orlc, and was to be performed there. The land is situ- lated in Massachusetts, and the action is brought here] The question ," I then, arises" whether the damages are to be assessed according to the fle x tori, the leJT rei sitse, or the lex loci conFractus? As to the lex foff ^ I the general ruTe is that all matters touching the remedy and the mode of procediire, including the admission of evidence and the probative force of evidencej'are to be governed by the lex fori, with some ex- ceptions. See Minor, Confl. Laws, § 305 et seq. So, where interes t is allowed as damages J^qr delay, and not as a part of the contract, it Has~Be5nieI3~that"tEe amount to be allowed depends upon the lex 80 GENERAL PBOVISIONS. (Part 1 fori. Barringer v. King, 5 Gray (Mass.) 9; Ayer v. Tilden, 15 Gray, l78, 77 Am. Dec. 355 ; Hopkins v. Shepard, 129 Mass. 600 ; Clark v. Child, 136 Mass. 344. See, however. Ex parte Heidelback, 2 Low. 526, Fed. Cas. No. 6,322. As to the lex rei sit^, it may be said that^ it governs in many respectsTTF has this "effect as to the title and sei- sin~ and'a deed or' will made in one state, purporting to convey or transfer land in another, must be in the form and according to the formalities prescribed by the law of the latter state. But the dis tinction between a conveyance of land and a covenant to convey land was pointed out and enforced in Poison v. Stewart, 167 Mass.~^n, 45 N. E? 737, 36 L. R. A. 771, 57 Am. St. Rep. 452, and it was held tha t a covenant betwe e n a husband and wif e, valid in th e state where it was made, but which would haveTeen" invalid TT'made i n this commonwealth, might be enforced herer' So, in Glenn v. Thistle, 23" MissT 42, where a contract was made in one state for the purchase of land lying in another, and the money was to be paid in the state in which the contract was made, it was held that the _lex . rei sitje governed as to the titl£ pfthe land, and the lex loci contractus as to the effect of a failure of consideration. See, also, Pritchard v. Nor- Vn,'TO"S U. S. i24, i Sup. Ct. 102, 27 L. Ed. 104. It is a general rule t hat in all that relates to th e n ature, validity, and interpretation of ,a contract the lex loci contractus governs,^ and that contracts are presumed to be^ made with reference to the law of the placejwhere they are entered into, unless they are entered into with reference to the law of some other state or country. See Baxter Nat. Bank v. Talbot, 154 Mass. 213, 216, 28 N. E. 163, 13 E. R. A. 52, and cases cited. So the lex loc i contractus governs in all matters relat ing t£ the substantive rights of the parties. Minor, Confl. Laws, §§ 305- 308"; Pritchard vT Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104. ' The rights which are given by a contract, and,whjch_become fix ed an d detinite immediately upon a breach of the contract, as a necessa ry re- sult of giving the contract its true meaniiig and effect, are of a differ- ent kind from damages given for delay ; and these rights will be en- forced by a foreign jurisdiction, if there is nothing in them against its I'views" of public policy. "" In the-^present case the N ew York contr act was to convey a certain piece of land. Its meaning ancTeSectTaccording to the law applicable to ^liJl-th^tihe defendant, acting in good faith, if it turns ouf that she is unable to make a good title, will not give to the plaintiff the profits of his bargain, but will save him fromjoss, and put him in as good a position as if the contract had not" been made.' This is'the true interpretation of the contract, reading it' in' connection with'lFe law that determines its effect. The contract cannot be made a dif- ferent contract, or given a greater effect, by bringing an action u^ It in another jurisdiction. The rights of the parties are fixed by the writing and the law by which it is to be interpreted. When the breach occurred, the details of the damages were immediately fixed'. Ch. 3) PKOCEDURB. 81 by the writing, the law, and the conditi ons then- existing. When the j)resent ^ ction jj;as_brsugj]J:,.4t was to rscaver. the damages due under J:he conT r act^ " These dama gfs grew ^ut, of a contract and transaction? which had been concluded in IJew York,. and were the cause of action on which the plaintiff seeks to recover here. There is nothing in our pirocedure, or in our "mode of administering remedies, that can make' these 3aHages more or less. See Ayer v. Tilden, 15 Gray (Mass.) 178, 184, 77'Am. Dec. 355, per Hoar, J.; Ex parte Heidelback, 2 Low. 526, 530, Fed. Cas. No. 6,332. We are of opinion, therefore, that the rule of damages adopted at the trial was wrong, and that the order must be : Exceptions sustained. DORR CATTLE CO. v. DES MOINES NAT. BANK. (Supreme Court of Iowa, 1904. 127 Iowa, 153, 98 N. W. 918, 102 N. W. 836.) Ladd, J.'"^ In this action the plaintiff demands damages to credit alleged to have been caused by the malicious prosecution of attach- rp^SLprQ£e£dLilg;sjn_Cook county. 111. * * * , The only damages allowed werg^such as resulted from the suppos- ed injury_ to^plaintiffls, credit. Was this_ a proper ekmenFof damages to be taken into consideration? In the early case of Campbell v. ' CHamberlairi, 10 Iowa, 337, this court announced the rule that in an action on an attachment bond "injuries to credit or character or busi- ness are too remote and speculative to be considered _in an action of '' this kind." ~This rule^Tias "since prevailed in this state. Lowenstein v. Monroe, 55 Iowa, 83, 7 N. W. 406 ; Mitchell v. Harcourt, 63 Iowa, 349, 17 N. W. 581 ; Tisdale v. Mayor, 106 Iowa, 1, 75 N. W. 663, 68 Am. St. Rep. 363. Some expressions in Thomas v. Isett, 1 G. Greene (Iowa) 470, were disregarded in subsequent decisions. The rule is also in harmony with the weight of authority. Crymble v.Mulvaney, 21 Colo. 203, 40 Pac. 499 ; Seattle Crockery Co. v. Haley,' 6 Wash. 303, 33 Pac. 650, 36 Am. St. Rep. 156 ; Elder v. Kulner, 97 Cal. 490, Se Pac. 563 ; Union Nat. Bank of Chicago v. Cross, 100 Wis. 174, 75 N. W. 993; State v. Thomas, 19 Mo. 613, 61 Am. Dec. 580; Holliday v. Cohen, 34 Ark. 707; 3 Sutherland on Damages (3d Ed.) § 513. The reason uniformly given is that such damages are too remote, uncertain, and speculative for estimation. * * * The cause of action, however, arose in Illinois, and, as notqd, a dif-^ ferent rule prevails there. In Lawrence v. Hagerman, 56 III." 68, '8 Am.'Rep."674, though attachment bond had been given, suit was brought independent of the bond, and recovery allowed for damages resulting to the defendant's business credit and reputation from mali- ciously suing out the attachment without probable, cause. Appellee 22A part of the opinion has been omitted. LOE.CJONF.L.— 6 82 GENKKAL PROVISIONS. (Part 1 insists that this^ right to recover compensatory damages for loss of credit is a part of the cause of the action, and should be recognized by the courts_of this state. Appellant argues that the measure^of damages pertains' to the remedy; and therefore the lex fori should con- trol. It is not ' questioned but that, if liable under the lex loci deTjHi,. 'the defendant ought to beheld liable here. The^riglit to suffer the tort, the liability of the perpetrator, and the defenses that he may plead I arefwith few exception?, governed by the law of the place. Minor on ToiTffict'of Law.§,_ill96, J^97; 33 Am. & Eng. Ency. of Law, 1378, et seq. It is likewise held that matters of procedure and the remedy to be applied are to be determined by the law of the forum. Minor on Conflict of Laws, § 335 ; Savary v. Savary, 3 Iowa, 371 ; Shaffer v. Balander, 4 G. Greene, 301. But it is often diffi cult Jo_di seem whether a particular inquiry relates to the remedy or is a substantive, right. The wrong inflicted, or the "right invaded, on which the action is based, must not be confused with the redress which the law affords. Eor every wrong there is a remedy, says the maxim. "The principal, and for the most part the only, available remedy which the law can give is an award of money, estimated as an equivalent for the damages suffered." Cooley on Torts, 64. Indeed, "every action is brought to obtain some particular result, which is termed a remedy." Cohen V. Virginia, 6 Wheat. (U. S.) 407, 5 L. Ed. 375. The act complained of is always to be diagnosed in the light of the law of the place where committed, and its character determined according to that law; but the particular kind of and the extent of the remedy to be applied neces- sarily"depends oh the' notions of justice entertained by the forum by which it is to be administered. The rule is like that pertaining to contracts. The lex loci determines their validity and meaning, but, when found' valid, and the true interpretation ascertained, the Taw of the forum steps in, and declares the time, mode, and extent of the rem- edy. Sherman v. Gassett, 9 111. 531 ; Arnold v. Potter, 23 Iowa, 194 ; Hazel V. Chicago, M. & St. P. Ry. Co., 83 Iowa, 477, 48 N. W. 926. The wron sLaverred. in the_ instant case was suing out the writ of at- tachment wi thout probable cause, and with a malicious intent,~and causing it to be levied. This constituted j, cause of action in Illinois, precisely as it w ould have m Iowa. Tallant v. Burlington" Gailight Co., 36 Iowa, 363; Frantz v. Hanford, 87 Iowa, 469, 54 N. W. 474. Carraher v. Allen, 113 Iowa, 168, 83 N. W. 903; Smeaton v. Cole, 130 Iowa, 368, 94 N. W. 909. "The cause of action is the right claimed or the wrong suffered by the plaintiff on the one hand, and the duty or delict of the defendant on the other; and these appear by the facts of each separate case." Box v. Chicago, R. I. & P. Ry. Co., 107 Iowa, 660, 78 N. W. 694. See Van Patten v. Waugh, 122 Iowa, 302, 98 N. W. 119. The only injury suffered by the cattle com- pany^ if any, was in its credit, and for present purposes this mayie conceded part of the cause of action. Up to this point the lex loci is determinative of the legal effects and incidents" of what was done. " Ch. 3) PEOCEDURE. 83 Nothing is left save to administer the remedy, and under all authori- tieT'the character and extent of the remedy is governed by the law of' " Ihe" f (li'iriim" save where the remedy has been created inferentially or difettly" with the right by statute and has become a part of it. See Northern Pac. Ry. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958 ; Minor on Conflict of Laws, § 199 ; Higgins v. Central N. E. & W. R. Co., 155 Mass. 176, 39 N. E. 534, 31 Am. St. Rep. 544; Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491; Herrick v. Minneapolis & St. L. Ry. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771 ; Knight v. West Jersey R. Co., 108 Pa. 350, 56 Am. Rep. 200 ; 32 Am. & Eng. Ency. of Law, 1387. Thus, when an^ac - tion was brought in New York for causing the death of intestate in "Fehrisyivania, the court helcl that j~as the amount of dariiages to be " allowed in the latter sta te was not limite d, no more than authorize d ' T3y statute" m the tormer could De recovered. Wooden v. Western H. y. & P. "RrCoTISSrN. Y. 10, 26 M. K. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803. In Higgins v. Central N. E. & W. R. Co., 155 Mass. 176, 39 N. E. 534, 31 Am. St. Rep. 544, the ac - tion was based on a wrong committed in Conn ecticu t, resulting in death, and the court assumed that m brmgmg 'smt'~lti IVIiiB'saclTiiget ts the plairTfifF waived the right to recover exemplary damages not allo w- e d' there,' "but w hich would have been included had the action be en tried in Connecticut : In Evey v. Mexican Cent. Ry. Co., 81 Fed. -29?;-S-6~Cr-C. A. 407, 38 L. R. A. 387, the injury was sufifered in i Mexico, and, though damages peculiar to social position were allow- able under the Mexican statute, they might be omitted in Texas. In one portion of the opinion the court remarked: "Our opinion in this branch of the case is that the difference in the mode of arriving at and administering the damages is a matter which affects the rem- edy only." See, also, Mexican Nat. Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28. Says Minor in his work on Conflict of Laws: "Occasionally some point may arise under differences between the lex delicti— and the Iex~fori as to the elements to be taken into consideration in estimating the amount of damage. Such mattery pertain to the remedy, and are to becon- trolled by the lex fori, since they Ho not involve any substantive right." The statement in the American notes to Dicey on Conflict of Laws ttial "the ItiX lT5gtll^etr" determines, in effect, * *_ * the amount of damages that may be recovered7' Is not in point, for the author had ~ir\ mipH~gf3ftVfnryjvvi-tg as the decisions cited clearly show. ""Tt^ similar statement will be found in the third volume of Beale's Cases on Conflict of Laws, at page 531, in support of which two cases are cited: Meyer v. Estes, 164 Mass. 457, 41 N. E. 683, 32 L. R. A. 283, and Louisville R. Co. v. Whitlow's Adm'r, 19 Ky. 1931, 43 S. W. 711, 41 L. R- A. 614. The former is not in point, as the action was based on a contract to be performed in Massachusetts, the state of the forum. The latter was an action for the wrongful death of 84 GENERAL PROVISIONS. CP^rt 1 a human being in Tennessee, the right to recover for which had been created by the statutes of that state. * * * In the instant case no right created by statute was asserted to have be'eri~vMated. The_rules ,of Jhe common law alone were invoked. These obtain with equal force in Illinois, Iowa, and other states. They lii^^^Tbe'en adopted, in so far as applicable, from the same common source, and must necessarily be assumed to be the same everywhere. Mistakes in interpretation may be made, but the principles of justice go on forever. Every court will determine for itself what these may be as found in the common law. Franklin v. Twogood, 25 Iowa, 520; National Bank v. Greene, 33 Iowa, 140; Johnson v. Ry., 91 Iowa, 248, 59 N. W. 66 ; 6 Am. Eng. Enc. of Law (2d Ed.) 283. As said in Ruhe v. Buck, 124 Mo. 178, 27 S. W. Rep. 412, 25 E. R. A. 178, 40 Am. Dec. 439 : "The spirit of comity does not r enuire that a non- resident shall be allowed"! remedv which is. bv the policy of the stat e law, denied to its own ritizpns. " According to the decisions of This court, damages resultin g from injury to credit are too rem oteTuncer^ tarn, and" speculative for'allowaiice."' The Supreme Court of Illinois ■fias'Tield""otirerwise, but, with all "diie respect for that eminent tribunal, we have felt constrained to adhere to our former conclusion, the effect of which is to denounce the ruling of that court, allowing such dam- ages, as erroneous and contrary to the principles of justice as admin- istered at the common law. Shall this court stultify its notion s of justice by awardi ng a recover y contrary tq what it conceives the prin - ciples of j us tice require^, merely because the injury occurred across our borders instead ot within the state? Because the injury occurred "iiT Illinois, are the damages any less remote, uncertain, and specul a- tive? The decisions of neither state purport to allow damages of tEis character, and what are such are for the court of this state to deter- mine. .Necessarily involved in the administration of the remedy are the elements to be considered in determining what it shall be. The effects ot the wrong and injury are to be ascertained, but for the sole purpose of so advising the court as to enable it to apply the balm of adequate reparation. The nature and extent of the wrong, everything relating to its essence, is one thing ; the consequences which naturally flow from it quite another. The right of recovery depends on the former ; the remedy to be applied, and its extent, upon the latter ; and the law of the forum necessarily determines what consequences shall be taken into consideration in fixing upon the remedy, for these inhere in that to be applied. It .follows that, though the law may presume damages resulted from the injury, these in the instant case were so remote, uncertain, and speculative in character as not to permit of estimation, and nominal charges only should have been allowed. * * :!« 28 "■ Reversed. 23 Continental Law.— The rule that matters relating to the remedy are to be determined by the lex fori, while recognized, has a much more restrict- Ch. 3) PROCEDUEE. 85 ed sphere of application than it has in England or in the United States. Much of what our courts deem to relate to the remedy, is held on the conti- nent to go to the substance ; for example, questions relating to the burden of proof. France, App. Rouen, July 25, 1906 (35 Clunet, 382) ; Italy, article 10, Prel. Disp. Oiv. Code; Germany, 6 B. G. 412 (April 17, 1882). So as to the mode of proof. France, Cass. June 14, 1899 (S. 1900, 1, 225) ; Cass. May 23, 1892 (S. 1892, 1, 521) ; Italy, article 10, Prel. Disp. Civ. Code. So as to set- off. France, Trib. Civ. Nancy, March 25, 1890 (18 dunet, 923) ; Germany, 26 R. G. 66 (July 1, 1890). So as to the statute of limitations. France, Cass. May 19, 1884 (S. 1885, 1, 113) ; Cass. Jan. 18, 1869 (S. 1869, 1, 49), and note by J. E. liabbg; App. Alger, Aug. 18, 1848 (D. 1849, 2, 130); App. Rennes, Jan. 7, 1908 (35 Clunet, 1101); Germamy, 6 R. G. 24 (Jan. 17, 1882); 2 R. G. 13 (May 18, 1880) ; Italy, Cass. Turin, June 30, 1882 (Oass. Tor. 1882, 2, 215) ; App. Genoa, March 24, 1888 (Circ. Genov. 1888, p. 188). A few cases have applied the lex fori. Framie, Trib. Civ. Seine, Nov. 28, 1891 (19 Clunet, 712); App. Rennes, May 20, 1899 (15 Autran, 25). See, also, Cass. March 13, 1900 (D. 1903, 1, 89), and note by Levillain. 86 GENERAL PKOVISIONS. (Part 1 CHAPTER IV. JUDGMENTS. PAINE V. SCHENECTADY INS. CO. (Supreme Court of Rhode Island, 1876, 1877. 11 R. I. 411.) DuRFEE, C. J. This is an action of assumpsit to recover damages for breach of contract. It was commenced in the court of common pleas, August 27, 1870. The plaintiff recovered judgment in that court at the December term, 1875. The defendant appealed to this couri at the March term, 1876. May 13, 1876, the defendant filed a plea puis darrein continuance, setting forth that on the 8th May, 1876, George T. Hanford, who had been duly appointed receiver of the goods and effects of the defendant, had impleaded the plaintiff in the Su- preme Court, in the state of New York, and recovered judgment against him for $1,878.11, and costs, "which still remains in full force and effect, not in any wise reversed, annulled, discharged, or satisfied." The plea sets forth the proceeding in the New York suit, showing that the plaintiff therein pleaded in set-off the matters in- volved in this case, and avers that the cause of action and the issue raised by the pleadings are the same in both suits, and that the parties are identical. To this plea the plaintiff demurs, assigning four causes of demurrer. The first cause is, that the suit set forth in the plea is not alleged to have been instituted before the commencement of the present suit. And in his brief, the counsel for the plaintiff contends that there is no precedent for such a plea where the judgment was recovered by the defendant, or was recovered in a suit commenced subsequently to the suit in which it was pleaded. We do not see that it makes any difference which party has recover- ed judgment. The true question is, whether the controversy has been determined by a competent tribunal having jurisdiction; for, if it has been, the defendant has the right to insist that it shall not be fur- ther prosecuted, unless for some technical reason he cannot have the benefit of the estoppel. The plaintiff says he cannot have the benefit of the estoppel because the suit in this state was first commenced. Is this so? We think not. The defendant had the right to sue the plaintiff in New York, notwithstanding the plaintiff had sued him in Rhode Island. The plaintiff, in defending against the New York suit, put in issue the same controversy which was in issue in the Rhode Is- land suit, and it was decided against him. Why should he not be con- cluded, and, if concluded, why should not the defendant have the benefit Ch. 4) JUDGMENTS. 87 of the conclusion by plea puis darrein? If the judgment in New York had been recovered before the suit in Rhode Island, the defendant would certainly have been entitled to plead it. Indeed, such a judg- ment would be pleadable in bar if recovered in a foreign country, and a fortiori, tinder the federal Constitution and law, when recovered in a sister state. Ricardo v. Garcias, 13 CI. & Fin. 368; Bissell v. Briggs, 9 Mass. 463, 6 Am. Dec. 88; Mills v. Duryee, 7 Cranch (U. S.) 481, 5 L,. Ed. 411; 3 Am. Lead. Cas. (5th Ed.) 611 et seq., where this sub- ject is discussed, and the cases fully cited. The two cases of Baxley v. Linah, 16 Pa. 241, 55 Am. Dec. 494; and North Bank v. Brown, 50 Me. 314, 79 Am. Dec. 609, are closely in point. In Baxley v. L,inah, 16 Pa. 341, 55 Am. Dec. 494, an action was commenced in Maryland December 30, 1846, and in Pennsylvania, for the same cause, June 3, 1847. The defendant pleaded the prior pendency of the Maryland action in abatement to the Pennsylvania action, and the plea was overruled, the plea of prior pendency being available only when both actions are pending in the same state. Bowne v. Joy, 9 Johns. (N. Y.) 331; Walsh v. Durkin, 13 Johns. (N. Y.) 99. Subsequently, January 31, 1848, the plaintiff recovered judgment against the defendant in the Maryland action; and Decem- ber 6, 1849, the defendant pleaded it in bar puis darrein continuance. The plaintiff demurred. The court, however, sustained the plea. The only material difference between that case and the case at bar is, that there the judgment was recovered first in the earlier case, here in the. later. But the judgment, whenever recovered* is still a judg- ment; and why, then, is it not pleadable as such? In North Bank V. Brown, 50 Me. 314, 79 Am. Dec. 609, the plaintiff commenced suit against the defendant in Maine, January 11, 1858; and in New York^ for the same cause, January 31, 1858. Judgment was fjrst ob- tained in the New York suit, and it was held to be a good defence to the suit in Maine. Here the judgment does not appear to have been specially pleaded ; but if it had been specially pleaded, we see no rea- son why the decision would not have been the same. We think the first cause of demurrer is npt sufficient. * * *i Demurrer overruled. After the foregoing opinion, the plaintiff replied to the plea puis darrein continuance: 1. That the judgment of the Supreme Court of New York set forth in the plea had been appealed from, and that the suit wherein judg- ment had been given was consequently pending in the Supreme Court of New York. 3. That the receiver Hanford acted without authority, and did not institute the New York suit in behalf of the defendant corporation but for himself. ' • 1 The balance of the opinion, discussing the other causes of demurrer, has been omitted. GENERAL PROVISIONS. (Part 1 3. That the cause of action in the New York suit was not that in the present case. j r j * ^ All these replications concluded to the country. The defendant de- murred to them all. DuRFEE, C. J. This is an action of assumpsit to which the defend- ant pleads in bar a former judgment recovered in the Supreme Court of the State of New York. The plaintifif replies that the judgment has been appealed from by him, and the suit is still pending in the court. The defendant demurs to the replication. The defendant contends that by the law of New York an appeal does not vacate the judgment appealed from, but leaves it, until an- nulled or reversed, conclusive upon the parties. Two questions arise upon the demurrers : 1. The first question is, whether we can take judicial cognizance of the law of New York, or must presume it to be the same as ours until it is shown by averment and proof to be diflferent. The decisions upon this point are conflicting, but we think the decision of the Supreme Court of Pennsylvania, in State of Ohio v. Hinchman, 27 Pa. 479, rests upon the better reason. The court there held, that, when the judgment impleaded is the judgment of a sister state, the court will notice ex officio the law of the state in which it was rendered. The reason given for this is, that, in such a case, the court acts under the Constitution and laws of the United States, which require that the judgment shall have in every state the same faith and credit which it has in the state where it was originally rendered. In such a case, it was said, the decision of the state court is re-examinable in the Supreme Court of the United States, which will, without averment or proof, take cognizance of the law of the state in which the record originates. "It would be a very imperfect and discordant administration," it was further said, "for the court of original jurisdiction to adopt one rule of decision, while the court of final resort was governed by another; and hence it follows that in questions of this sort we should take no- tice of the local laws of a sister state in the same manner the Supreme Court of the United States would do on a writ of error to our judg- ment." See, also, Baxley v. I^inah, 16 Pa. 241, 55 Am. Dec. 494; Rae V. Hulbert, 17 111. 573, 578; Butcher v. Bank of Brownsville, 3 Kan. 70, 83 Am. Dec. 446 ; 2 Am. Lead. Cas. 648 et seq. We think the reasoning is sound, and that it is not satisfactorily met by courts which adopt a different view. Rape v. Heaton, 9 Wis. 328, 341, 76 Am. Dec. 269. 2. The second question relates to the conclusiveness of the judgment. We find, as claimed by the defendant, that by the law of New York an appeal, though it may stay the execution when proper security is given, does not affect the conclusiveness of the judgment as long as it re- mains unreversed. A judgment so appealed from is a vaHd bar to an action involving the same controversy. Sage v. Harpending, 49 Barb. (N. Y.) 166; Harris v. Hammond, 18 How. Prac. (N. Y.) 123; Rath- Ch. 4) JUDGMENTS. 89 bone V. Morris, 9 Abb. Prac. (N. Y.) 313; Freeman on Judgments, § 338. If the judgment would be a good bar to this action in New York, it is entitled to have the same effect in this state. Mills v. Dur- yee, 7 Cranch (U. S.) 481, 3 L. Ed. 411 ; McElmoyle v. Cohen, 13 Pet. (U. S.) 313, 10 L. Ed. 177; Jacquette v. Hugunon, 3 McLean (U. S.) 139, Fed. Cas. No. 7,169. The case of Bank of North America v. Wheeler, 38 Conn. 433, 73 Am. Dec. 683, is a case exactly in point. After the commencement of that case in Connecticut a judgment was recovered for the same cause of action in New York, and it was held that the judgment, notwithstanding it had been appealed from, was a good bar to the suit in Connecticut; it being found that, by the law of New York, the appeal operated only as a proceeding in error and did not vacate the judgment. We think, therefore, that the demurrer to the first replication must be sustained. We will add, however, as a matter of practice, that we think the pendency of the appeal in New York may be a good ground for delay- ing judgment here until the appeal is disposed of; for otherwise we may give the judgment here a permanently conclusive effect, whereas in New York, if the appeal is successful, it will be conclusive only for a short time. There are two other replications which are demurred to; but we think they raise issues of fact, which the plaintiff is entitled to have tried. The demurrers to them are, therefore, overruled.* LYNDE V. LYNDE. (Supreme Court of the United States, 1901. 181 U. S. 183, 21 Sup. Ct. 555, 45 L. Ed. 810.) Error to the Supreme Court of the State of New York. Gray, j_a * * * gy. ^jjg Constitution and the act of Congress requiring the faith and credit to be given to a judgment of the court of another state that it has in the state where it was rendered, it was long ago declared by this court: "The judgment is made a debt of record, not examinable upon its merits; but it does not carry with it, into another state, the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judg- ment in another state, it must be made a judgment there, and can only 2 Continental Law. — The defense of lis pendens is recognized in Germany if in the country where the suit was first instituted reciprocity in this re- spect is guaranteed. R. G. Jan. 26, 1892 (4T SeufEert's Archiv, 465); R. G. April 13, 1901 (30 Olunet, 188). It is not recognized in France. App. Paris, July 25, 1877 (5 Clunet, 168) ; App. Paris, June 15, 1853 (11 Olunet, 65) ; App. Alger, Oct. 15, 1902 (31 Clunet, 895). Nor in Italy. App. Milan, April 11, 1894 (Monitore 1894, p. 498); App. Genoa, Sept 5, 1896 (La Legge 1896, 2, 664) ; Cass. Turin, July 27, 1904 (1 Darras, 759), and note. 8 The statement of facts and a part of the opinion have been omitted. 90 GENERAL PROVISIONS. (Part 1 be executed in the latter as its laws may permit." McElmoyle v. Cohen, 13 Pet. 312, 325, 10 L. Ed. 177; Thompson v. Whitman, IS Wall. 457, 463, 21 L,. Ed. 897, 899; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 292, 8 Sup. Ct. 1370, 32 L. Ed. 239, 244; Bullock v. Bullock, 51 N. J. Eq. 444, 27 Atl. 435 ; Id., 52 N. J. Eq. 561, 30 Atl. 676, 27 E. R. A. 213, 46 Am. St. Rep. 528. The decree of the Court of Chancery of New Jersey, on which this suit is brought, provides, first, for the payment of $7,840 for alimony already due, and $1,000 counsel fee ; second, for the payment of ali- mony since the date of the decree at the rate of $80 per week; and, third, for the giving of a bond to secure the payment of these sums, and, on default of payment or of giving bond, for leave to apply for a writ of sequestration, or a receiver and injunction. The decree for the payment of $8,840 was for a fixed sum already due, and the judgment of the court below was properly restricted to that. The provision of the payment for alimony in the future was sub- ject to the discretion of the Court of Chancery of New Jersey, which might at any time alter it, and was not a final judgment for a fixed sum. The provisions for bond, sequestration, receiver, and injunc- tion being in the nature of execution, and not of judgment, could have no extraterritorial operation ; but the action of the courts of New York in these respects depended on the local statutes and practice of the state, and involved no federal question. On the writ of error of the wife, therefore, The judgment is affirmed.* PEMBERTON v. HUGHES. (Court of Appeal, 1899. 68 L. J. Cb. [N. S.] 281, 1 Ch. 781.) Appeal from a decision of Kekewich, J. The action was brought by Sarah Elizabeth Pemberton, who claimed to be the widow of Francis Alexander Pemberton, who died on Au- gust 2, 1892, for a declaration that by virtue of a deed poll executed by Mr. Pemberton, dated April 15, 1891, she was entitled during her Hfe to a yearly rent charge of £200. for her jointure, issuing out of certain lands in Cambridgeshire, devised by the will of one Christopher Pemberton. The plaintiff's right to this sum depended upon whether she was the widow of Mr. Pemberton, and that depended upon the validity of their alleged marriage, and that depended upon the va- 14S Fp!i i^' 7^n n ^''?; 18» ^Ifiss. So, 75 N. B. 92 (1905); Israel v. Israel, ^N'r^feslt^'T^sbliol^ii).' ''■ ^ ^- ^^- '•> ^^^ '''^^' ^'^^^ - ^---i =„^T? ^,^1°^ '^''? ^ .!"-'°"S,'?t upon a foreign judgment which at the time of T n^l ^l„ # °^i '•'^r,*"" ^°''<'^ ™ ^^^ ^^^^ ^liere it was rendered. St. T.oais Type Foundry Co. v. Jaclvson, 128 Mo, 119, .30 S. W. 521 (1895) So izi.'y. Cass. Turin, Sept. 24, 1904 (Monitore 1905, 1, 727) Ch. 4) JUDGMENTS. 91 lidity of a previous divorce of the lady from a former husband of the name of Erwin. The material facts were as follows : In February, 1884, the plaintiff and Erwin, who were both domi- ciled and resident in the state of Florida, were married in that country according to the laws thereof. On January 18, 1888, Erwin — he and the plaintiff being then in Florida — sued the plaintiff for and obtained a decree for divorce. This decree was pronounced by a court having jurisdiction in Florida to pronounce divorces between persons domi- ciled and resident in Florida, and the decree had never been set aside or reversed, but stood as a final and subsisting decree. On December 30, 1890, Erwin being still alive, the plaintiff and Mr. Pemberton married in Florida, and they lived together as man and wife until the death of Mr. Pemberton in August, 1893. Under the will and codicil of his grandfather Christopher Pemberton, who died on October 33, 1860, Mr. Pemberton was entitled to certain estates in Cambridgeshire for his life, and he had power to charge them with an annuity or jointure of £300. a year in favor of any woman whom he should marry, or have married. In exercise of this power he, by deed poll of April 15, 1891, appointed the £300. a year to the plain- tiff. The defendants, who were entitled to the estates, disputed the validity of the appointment, contending -that the decree divorcing the plaintiff from her former husband, Erwin, was void and of no effect by the law of Florida. They based their contention on the ground that the subpcena to appear did not give the wife ten clear days for ap- pearance, the subpcena having been served on the wife on November 35, 1887, and the time fixed for the wife's appearance being December 5, 1887. On behalf of the plaintiff it was contended that, having regard to the rule requiring ten days' service of notice, the terrninal days might be reckoned for the purpose of deteripining whether there had been effective process. Kekewich, J., was of opinion that there should have been ten clear days between the day of the issue of the writ and the day on which it was returnable ; and on the evidence of the experts he came to the conclusion that this defect in process went to the root of the juris- diction of the court in Florida, and that the decree of divorce was consequently invalid. He dismissed the plaintiff's action with costs. The plaintiff appealed.' LiNDLEYj M. R.® The evidence of the law of Florida is not to my mind so clear as to convince me that the decree standing as it does unimpeached, 'could be treated in a collateral proceeding as wholly null and void even in Florida. * * * Further information on this point could be procured, if necessary, under the provisions of the B The Statement of facts has been abridged. 8A part of the opinion of Lindley, M. R., and the concurring opinions of Rig- by and Vaughan-Williams, L. JJ., have been omitted. 92 GENERAL PROVISIONS. (Part 1 foreign law ascertainment act of 1861 (24 & 35 Vict. c. 11), but, in my opinion, it is not necessary to pursue this question further. Assuming that the defendants are right, and that the decree of di- vorce is void by the law of Florida, it by no means follows that it ought to be so regarded in this country. It sounds paradoxical to say that a decree of a foreign court should be regarded here as more efficacious or with more respect than it is entitled to in the country in which it was pronounced. But this paradox disappears when the principles on which English courts act in regarding or disregarding foreign judgments are borne in mind. If a judgment is pronounced by a foreign court over persons within its jurisdiction, and in a matter with which it is competent to deal, English courts never investigate the propriety of the proceedings in the foreign court unless they offend against English views of substantial justice. Where no substantial justice, according to English notions, is offended, all that English courts look to are the finality of the judgment and the jurisdiction of the court, in this sense and to this extent — namely, its competence to entertain the sort of case which it did deal with, and its competence to require the defendant to appear before it. If the court had juris- diction in this sense, and to this extent, the courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed. There is no doubt that the courts of this country will not enforce the decisions of foreign courts, which have no jurisdiction in the sense above explained — that is, over the subject-matter or over the persons brought before them. Schibsby V. Westenholz, 40 L. J. Q. B. 73 ; I,. R. 6 Q. B. 155 ; Rousillon v. Rousillon (1880) 49 L. J. Ch. 338; 14 Ch. D. 351; Price v. Dew- hurst (1838) 8 L. J. Ch. 57; 4 Myl. & Cr. 76; Buchanan v. Rucker, 1 Campb. 63, 180b ; 9 East, 193 ; and Sirdar Gurdyal Singh v. Faridkote (Rajah) [1894] A. C. 670. But the jurisdiction which alone is im- portant in these matters is the competence of the court in an interna- tional sense — that is, its territorial competence over the subject-matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the courts of this country. ^ This is pointed out in Westlake on Private International Law (3d Ed.) § 338, and in Foote's Private International Jurisprudence (2d Ed.) p. 547, and is illustrated by Vanquelin v. Bouard, 33 L,. J. C. P. 78 ; 15 C. B. (N. S.) 341. That was an action on a judgment obtained in France on a bill of exchange. The court was competent to try such actions and the defendant was within its jurisdiction. He let judgment go by default, and in the action in this country on thfe judgment he pleaded that by French law the French court had no jurisdiction because the defendant was not a trader and was not resident in a particular town where the cause of action arose. In other words, the defendant pleaded that the French action was brought in the wrong court The Court of Common Pleas held the plea bad, and that the defence set Ch. 4) JUDGMENTS. 93 Up by it should have been raised in the French action. The French action in Vanquelin v. Bouard, 33 L. J. C. P. 78; 15 C. B. (N. S) 341, was an action in personam, and the parties to the action in France were also the parties to the action brought in this country on the French judgment. The decision, therefore, does not exactly cover the present case, but it goes far to show that the defendants' contention in this case cannot be supported. The defendants' contention entirely ignores the distinction between the jurisdiction of tribunals from an international and their jurisdiction from a purely municipal point of view. But that distinction rests on good sense and is recognized by modern writers on private international law. See Westlake and Foote, ubi supra, and Piggott on Foreign Judgments (3d Ed.) p. 139, and following pages. He says (page 130) : "The jurisdiction to pro- nounce judgment in a suit depends solely on the right to summon a person before the tribunal to defend the suit." Wharton's Conflict of Laws contains (section 793, and following sections) a careful re- view of the question by a learned American lawyer, and he brings out the distinction very clearly (sections 801 and 813). In section 812 he says, "The true test seems to be competency according to the rules of international law;" and it is plain that these do not include mere rules of procedure. In Dicey's Conflict of Laws there are some valu- able chapters (XI, p. 361, and XVI, p. 400), on the jurisdiction of foreign courts, and in them will be found various meanings of the expression "court of competent jurisdiction." These various mean- ings show the danger of using that expression without taking care to avoid the confusion to which they otherwise give rise. It may be safely said that, in the opinion of writers on international law and for international purposes, the jurisdiction or the competency of a court does not depend upon the exact observance of its own rules of procedure. The defendants' contention is based upon the assump- tion that an irregularity in procedure of a foreign court of competent jurisdiction in the sense above explained is a matter which the courts of this country are bound to recognize if such irregularity involves nullity of sentence. No authority can be found for any such proposi- tion; and, although I am not aware of any E^nglish decision exactly to the contrary, there are many which are so inconsistent with it as to shew that it cannot be accepted. A judgment of a foreign court having jurisdiction over the parties and subject-matter — that is, having jurisdiction to summon the defendants before it and to decide such matters as it has decided — cannot be impeached in this country on its merits. Castrique v. Imrie, 39 L. J. C. P. 350; L. R. 4 H. L. 414 (in rem); Godard v. Gray, 40 L. J. Q. B. 62; L. R. 6 Q. B. 139 (in personam); and Messina v. Petrococchino [1872] 41 L. J. P. C. 37; L. R. 4 P. C. 144 (in personam). It is quite inconsistent with these cases, and also with Vanquelin v. Bouard, 33 L. J. C. P. 78; 15 C. B, (N. S.) 341, to hold that such a judgment can be impeached here for a mere error in procedure. And in Castrique v. Imrie, 39 L. J. C. 1)4 GENEKAL PEO VISIONS. (Part 1 P. 350 ; L. R. 4 H. L. 411, Lord Colonsay said that no inquiry on such a matter should be made. A decree for divorce, altering as it does the status of the parties, and affecting, as many do, the legitimacy oftheir after-born children, is much more like a judgment in rem than a judg- ment in personam. Niboyet v. Niboyet [1878] 48 L. J. P. 1, 5; 4 P. D. 1, 12. And where there are differences between the two, the decisions on foreign judgments in rem are better guides for the de- termination of this case than decisions on foreign judgments in per- sonam. The leading recent cases on foreign judgments in rem are Doglioni v. Crispin, 35 L. J. P. & M. 129 ; L. R. 1 H. L. 301, in 1866, Castrique v. Imrie, 39 L. J. C. P. 350; L. R. 4 H. L. 414, in 1870, and Trufort, In re, Trafford v. Blanc, 57 L. J. Ch. 135, 36 Ch. D. 600, in 1887. There is nothing, however, in the decisions in these cases to assist the defendants. On the contrary, the judgipents delivered in them are, in my opinion, adverse to the defendants' contention. In Doglioni v. Crispin, 35 L. J. P. & M. 129 ; L. R. 1 H. L. 301, a Portuguese court decided that the respondent was the natural son of a deceased man domiciled in Portugal and not a noble, and that the respondent was consequently entitled to succeed to his father's per- sonal estate. The appellant was a party to those proceedings, but she afterwards claimed the property in question under a will of the de- ceased. She was held precluded from disputing the Portuguese de- cree. Lord Cranworth distinctly stated that the decision having been pronounced by a court of competent jurisdiction was one which Eng- lish courts were "bound to receive without inquiry as to its conformity or nonconformity with the laws of the country where it was pro- nounced" ; and a little lower down he stated that, in his opinion, evi- dence to show that the decision was not in accordance with Portu- guese law ought not to have been received. Lord Cranworth's judg- ment did not, as I understand it, turn on the fact that the appellant was personally estopped from disputing the Portuguese judgment be- cause she was a party to the proceedings in Portugal. His decision was based on the competence of the court and the nature of the con- troversy before it. It is necessary, however, to bear in mind that undefended proceed- ings for divorce require to be very narrowly scrutinized, for such divorces may be easily connived at. It is unnecessary to consider whether an English court would recognize a foreign divorce proved -to have been obtained by collusion, even if the parties divorced were foreigners domiciled and resident within the jurisdiction of the foreign court. No collusion is relied upon or proved in the present case. If, therefore, the principles above explained are correct, I see no ground on which an English court can refuse to recognize the validity of the divorce in question in this case, unless it be on one or other of the two following grounds— namely, first, that a foreign divorce decree pro- nounced in an undefended action will never be recognized in this country ; or secondly, that the courts of this country will not recognize Ch. 4) JUDGMENTS. 95 any divorce, even of foreigners, for any causes other than those for which a divorce can be obtained in this country. To lay down now for the first time either of these doctrines is, in my judgment, quite impossible, nor were they alluded to by counsel. I thought it, how- ever, desirable to mention them in order that it might not be supposed that they had been overlooked. In the result, the appeal must be allowed and the judgment reversed, and a declaration be made that the plaintiff is entitled to the £300. a year, with an account and order for payment. The defendants must pay the costs of the action and of the appeal.' THOMPSON v. WHITMAN. Ws (Supreme Court of the United States, 1873. 18 Wall. 457, 21 L. Ed. 897.) Error to the Circuit Court for the Southern District of New York. BeadlBY, J.* The main question in the cause is, whether the record produced by the defendant was conclusive of the jurisdictional facts therein contained, It stated, with due particularity, sufficient 7 Continental Law. — No foreign judgment will be given effect in Ger- many unless It was rendered by a court competent according to, the rules governing the jurisdiction of German courts. Section 328, subd. 1, Code Civ. Proc. ; R. G. March 8, 1907 (Juristische Wochenschrift, 1907, p. 265). The very court rendering the judgment must be competent. Competency of the courts of the state or country in general is not enough. If the foreign court had jurisdiction according to German law, the fact that its jurisdic- tion in a particular case was based upon a ground not recognized by Ger- man law, is immaterial. 51 K. G. 135 (March 21, 1902). In France, also (semble), the particular court must have iiad jurisdiction. Cass. April 27, 1870 (S. 1871, 1, 91) ; but in both France and Italy the ques- tion of jurisdiction Is to be determined on principle, it would seem, by the rules obtaining In the country where the judgment was rendered. App. Paris, Dec. 20, 1906 (3 Darras, 202); Cass. Naples, Dec. 6, 1866 (Annali 1866, 1, 119). Such principle is frequently departed from in practice, however, and the lex fori- substituted, on the ground that the dispositions of the foreign law are exorbitant. App. Lyon, June 18, 1907 (35 Clunet, 158) ; App. Aix, July 22, 1901 (S. 1903, 2, 305) and note by E. Audinet; Cass. Palermo, April 11, 1893 (S. 1895, 4, 21) ; App. Naples, Dec. 30, 1883 (12 Clunet, 464). Con- tra: App. Chambgry, Aug. 13, 1900 (S. 1903, 2, 305). Or by way of retorsion. App. Lyon, June 18, 1907 (35 Clunet, 158). Such foreign judgment will be enforced if there was an express or im- plied submission to the foreign jurisdiction. Tr. Com. Seine, June 17, 1907 (35 Clnnet, 170) ; App. Palermo, Aug. 4, 1893 (21 Clunet, 918) ; Comp. App. Eennes, Dec. 26, 1879 (S. 1881, 2, 81). The regularity of the citation is liliewise governed by the law of the state where the judgment was rendered. App. Paris, Dec. 20, 1906 (3 Darras, 202) ; Cass. Palermo, April 11, 1893 (S. 1895, 4, 21). But the mode of serving a de- fendant In Italy in a foreign suit has been held by the Italian courts to be subject to the rule "locus regit actum," and thus to be governed by Italian law. Cass. Turin, March 21, 18192 (Monitore 1892, p. 481) ; App. Milan, April 4, 1887 (Monitore 1887, p. 397). Contra: App. Milan, Nov. 26, 1888 (Moni- tore 1888, p. 1015)- App. Casale, Feb. 26, 190T (35 Clunet, 595); Cass. Flor- ence, May 16, 1907 (35 Clunet, 593). « A part of the opinion only is given. 96 GENERAL PEOVisioNS. (Part 1 facts to give the justices jurisdiction under the law of New Jersey. Could that statement be questioned collaterally in another action brought in another state ? If it could be, the ruling of the court was substantially correct. If not, there was error. It is true that the court charged generally that the record was only prima facie evidence of the facts stated therein; but as the jurisdictional question was the principal question at issue, and as the jury was required to find, special- ly thereon, the charge may be regarded as having reference to the question of jurisdiction. And if upon that question it was correct, no injury was done to the defendant. Without that provision of the Constitution of the United States (article 4, § 1) which declares that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state," and the act of Congress passed to carry it into effect, it is clear that the record in question would not be conclusive as to the facts necessary to give the justices of Monmouth county jurisdiction, whatever might be its effect in New Jersey. In any other state it would be regarded like any foreign judgment; and as to a foreign judgment it is perfectly well settled that the inquiry is always open, whether the court by which it was rendered had juris- diction of the person or the thing. "Upon principle," says Chief Jus- tice Marshall, "it would seem that the operation of every judgment must depend on the power of the court to render that judgment; or, in other words, on its jurisdiction over the subject-matter which it has determined. In some cases, that jurisdiction unquestionably de- pends as well on the state of the thing as on the constitution of the court. If by any means whatever a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of prop- erty. Upon principle, then, it would seem that, to a certain extent, the capacity of the court to act upon the thing condemned, arising from its being within, or without, their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence." Rose v. Himely, 4 Cranch, 269, 3 L. Ed. 608. To the same effect see Story on the Constitution, c. 29 ; 1 Greenleaf on Evidence, § 540. The act of Congress above referred to which was passed 36th of May, 1790 (Act May 26, 1790, c. 11, 1 Stat. 122), after providing for the mode of authenticating the acts, records, and judicial proceedings of the states, declares, "and the said records and judicial proceedings, authen- ticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the 'state from whence the said records are or shall be tak- en." It has been supposed that this act, in connection with the constitu- tional provision which it was intended to carry out, had the effect of rendering the judgments of each state equivalent to domestic judgments in every other state, or at least of giving to them in every other state Ch. 4) JUDGMENTS. 97 the same effect, in all respects, which they have in the state where they are rendered. And the language of this court in Mills v. Duryee, 7 Cranch (U. S.) 484, 3 L,. Ed. 411, seemed to give countenance to this idea. The court in that case held that the act gave to the judgments of each state the same conclusive effect, as records, in all the states, as they had at home; and that nil debet could not be pleaded to an action brought thereon in another state. This decision has never been departed from in relation to the general effect of such judgments where the questions raised were not questions of jurisdic- tion. But where the jurisdiction of the court which rendered the judgment has been assailed, quite a different view has prevailed. Justice Story, who pronounced the judgment in Mills v. Duryee, in his Commentary on the Constitution, § 1313, after stating the general doctrine established by that case with regard to the conclusive effect of judgments of one state in every other state, adds : "But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given, to pronounce it; or the right of the state itself to exercise authority over the person or the subject-matter. The Constitution did not mean to confer [upon the states] a new power or jurisdiction, but simply to regulate the effect of the acknowl- edged jurisdiction over persons and things within their territory." In the Commentary on the Conflict of Laws, § 609, substantially the same remarks are repeated, with this addition : "It [the Constitution] did not make the judgments of other states domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them, as evidence. No execution can issue upon such judg- ments without a new suit in the tribunals of other states. And they enjoy not the right of priority 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 judgments." Many cases irj the state courts are referred to by Justice Story in support of this view. Chancellor Kent expresses the same doctrine in nearly the same words, in a note to his Commentaries. Volume 1, p. 381. See, also, volume 2, p. 95, note, and cases cited. "The doctrine in Mills V. Duryee," says he, "is to be taken with the qualification that in all instances the jurisdiction of the court rendering the judgment may be inquired into, and the plea of nil debet will allow the defend- ant to show that the court had no jurisdiction over his person. It is only when the jurisdiction of the court in another state is not im- peached, either as to the subject-matter or the person, that the record of the judgment is entitled to full faith and credit. The court must have had jurisdiction not only of the cause, but of the parties, and in that case the judgment is final and conclusive." The learned com- mentator adds, however, this qualifying remark: "A special plea in bar of a suit on a judgment in another state, to be valid, must deny, by positive averments, every fact which would go to show that the Lob.Conf.Ij.— 7 98 GENEEAL PROVISIONS. (Part 1 court in another state had jurisdiction of the person, or of the subject- matter." * * * But it must be admitted that no decision has ever been made on the precise point involved in the case before us, in which evidence was admitted to contradict the record as to jurisdictional facts asserted therein, and especially as to facts stated to have been passed upon by the court. But if it is once conceded that the validity of a judgment may be attacked collaterally by evidence showing that the court had no jurisdiction, it is not perceived how a~ny allegation contained in the record itself, however strongly made, can affect the right so to ques- tion it. The very object of the evidence is to invalidate the paper as a record. If that can be successfully done no statements contained therein have any force. If any such statements could be used to prevent inquiry, a .slight form of words might always be adopted so as effectually to nullify the right of such inquiry. Recitals of this kind must be regarded like asseverations of good faith in a deed, which avail nothing if the instrument is shown to be fraudulent. The records of the domestic tribunals of England and some of the states, it is true, are held to import absolute verity as well in relation to jurisdictional as to other facts, in all collateral proceedings. Public policy and the dignity of the courts are supposed to require that no averment shall be admitted to contradict the record. But, as we have seen, that rule has no extraterritorial force. It may be observed that no courts have more decidedly affirmed the doctrine that want of jurisdiction may be shown by proof to invalidate the judgments of the courts of other states, than have the courts of New Jersey. The subject was examined and the doctrine affirmed, after a careful review of the cases, in the case of Moulin v. Trenton Mut. lyife & Fire Ins. Co., in 24 N. J. L,aw, 233, and again in the same case in 25 N. J. Law, 57, and in Ward v. Price, 35 N. J. Law, 325, and as lately as November, 1870, in the case of Gordon v. Mackay, 34 N. J. Law, 286. The judgment of Chief Justice Beasley in the last case is an able exposition of the law. It was a case similar to that of D'Arcy v. Ketchum, in 11 How. 165, 13 L. Ed. 648, being a judgment rendered in New York under the statutes of that state, before referred to, against two persons, one of whom was not served with process. "Every independent government," says the Chief Justice, "is at liber- ty to prescribe its own methods of judicial process, and to declare by what forms parties shall be brought before its tribunals. But, in the exercise of this power, no government, if it desires extraterritorial recognition of its acts, can violate those rights which are universally esteemed fundamental and essential to society. Thus a judgment by the court of a state against a citizen of such state, in his absence, and without any notice, express or implied, would, it is presumed, be re- garded in every external jurisdiction as absolutely void and unenforce- Ch. 4) JUDGMENTS. 99 able. Such would certainly be the case if such judgment was so ren- dered against the citizen of a foreign state." On the whole, we think it clear that the jurisdiction of the court by which a judgment is rendered in any state may be questioned in a col- lateral proceeding in another state, notwithstanding the provision of the fourth article of the Constitution and the law of 1790, and notwith- standing the averments contained in the record of the judgment it- self. * * * » PENNOYER V. NEFE. K (Supreme Court of the United States, 1877. 95 U. S. 714, 24 L. Ed. 565.) Error to the Circuit Court of the United States for the District of Oregon. Field, J.^° This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the state of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under Act Cong. Sept. 27, 1850, c. 76, 9 Stat. 496, usually known as the "Donation Law of Oregon." The defendant claims to have acquired the premises under a sheriff's deed, made upon a sale of the property on execution issued upon a judgment recovered against the plaintiff in one of the circuit courts of the state. The case turns upon the validity of this judgment. It appears from the record that the judgment was rendered in Feb- ruary, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and the judg- ment rendered, the defendant therein, the plaintiff here, was a nonresi- dent of the state, that he was not personally served with process, and ■did not appear therein; and that the judgment was entered upon his default in not answering the complaint, upon a constructive service of summons by publication. The Code of Oregon provides for such service when an action is Ijrought against a nonresident and absent defendant, who has property within the state. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the non- resident.- And it also declares that no natural person is subject to the jurisdiction of a court of the state, "unless he appear in the court, 9 To the effect that the record may be contradicted as to the facts neces- sary to give the court jurisdiction, see Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. 506, 43 L. Ed. 808 (1899); Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ot. 237, 47 L. Ed. 366 (1903) ; Old Wayne Mut. Life Ass'n v. McDonough, 204 U. S. 8, 27 Sup. Ot. 236, 51 L. Ed. 345 (1907). But see Caughran v. Gil- man, 72 Iowa, 570, 34 N. W. 423 (1887) ; Magowan v. Magowan, 57 N. J. Eq. 322, 42 Atl. 330 (1899). i»The statement of facts, parts of the opinion, and the dissenting opinion ■of Hunt, J., have been omitted. 100 GENERAL PROVISIONS. (Part 1 or be found within the state, or be a resident thereof, or have property therein ; and, in the last case, only to the extent of such property_ at the time the jurisdiction attached." Construing this latter provision to mean, that, in an action for money or damages where a defendant does not appear in the court, and is not found within the state, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the state in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648. In the case against the plaintiff, the property here in controversy sold un- der the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to the property, rendered against a non- resident without service of process upon him in the action, or his ap- pearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved. There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority are of opinion that inasmuch as the statute requires, for an order of publica- tion, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advan- tage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. * * * If, therefore, we were confined to the rulings of the court below up- on the defects in the affidavits mentioned, we should be unable to up- hold its decision. But it was also contended in that court, and is in- sisted upon here, that the judgment in the state court against the plain- tiff was void for want of personal service of process on him, or of his appearance in the action in which it was rendered, and that the prem- ises in controversy could not be subjected to tlie payment of the de- mand of a resident creditor except by a proceeding in rem ; that is, by a direct proceeding against the property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained, notwithstanding our dissent from the reasons upon which it was made. And that they are sound would seem to follow from two well-established principles of public law re- specting the jurisdiction of an independent state over persons and property. The several states of the Union are not, it is true, in every lV< Ch. 4) JUDGMENTS. lu respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent states, and the principles of public law to which we have referred are applicable to them. One of these principles is, that every state possesses exclusive jurisdiction and sovereignty over persons and property within its ter- ritory. As a consequence, every state has the power to determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be deter- mined and their obligations enforced; and also to regulate the man- ner and conditions upon which property situated within such territory, both personal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the one mentioned; that is, that no state can exercise direct jurisdiction and authority over persons or property without its territory. Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several states are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one state have no operation outside of its territory, except so far as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. "Any exertion of authority of this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding such persons or property in any other tribunals." Story, Confl. Laws, § 539. But as contracts made in one state may be enforceable only in an- other state, and property may be held by nonresidents, the exercise of the jurisdiction which every state is admitted to possess over per- sons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a state afifecting persons resident or property situated elsewhere, no objection can be justly taken; whilst any direct exertion of authority upon them, in an attempt to give ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be deemed an encroachment upon the independence of the state in which the per- sons are domiciled or the property is situated, and be resisted as usur- pation. Thus the state, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner in- terferes with the supreme control oyer the property by the state within which it is situated. ,Penn v. Lord Baltimore, 1 Ves. 444; 102 GENERAL PROVISIONS. (Part 1 Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181 ; Watkins v. Holman, 16 Pet. 25, 10 L. Ed. 873 ; Corbett v. Nutt, 10 Wall. 464, 19 L. Ed. 976. So the state, through its tribunals, may subject property situated within its limits owned by nonresidents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the state where the owners are domiciled. Every state owes protection to its own citi- zens; and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property own- ed by such nonresidents to satisfy the claims of its citizens. It is in virtue of the state's jurisdiction over the property of the nonresident situated within its limits that its tribunals can inquire into that non- resident's obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the nonresident have no property in the state, there is nothing upon which the tribunals can adjudicate. * * * If, without personal service, judgments in personam, obtained ex parte against nonresidents and absent parties, upon mere publication of process, which, in the great majority of cases', would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evi- dence of the transactions upon which they were founded, if they ever had any existence, had perished. Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by sei- zure or some equivalent act. The law assumes that property is al- ways in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condem- nation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or a lien respect- ing the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are sub- stantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the de- fendants, that is, where the suit is merely in personam, constructive service in this form upon a nonresident is ineffectual for any purpose. Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the state where the tribunal sits cannot create any greater obligation Ch. 4) JUDGMENTS. 103 upon the nonresident to appear. Process sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability. The want of authority of the tribunals of a state to adjudicate upon the obligations of nonresidents, where they have no property within its limits, is not denied by the court below: but the position is assumed, that, where they have property within the state, it is immaterial wheth- er the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards ap- plied by its judgment to the satisfaction of demands against its owner ; or such demands be first established in a personal action, and the prop- erty of the nonresident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the jurisdiction of the court to inquire into and determine his ob- ligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judg- ment. If the judgment be previously void, it will not become valid by the subsequent discovery of property of the defendant, or by his subse- quent acquisition of it. The judgment, if void when rendered, will al- ways remain void : it cannot' occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position assumed were confined to cases where the nonresident defendant pos- sessed property in the state at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execution, the defendant had or had not disposed of the property. If before the levy the prop- erty should be sold, then, according to this position, the judgment would not be binding. This doctrine would introduce a new element of uncertainty in judicial proceedings. The contrary is the law : the valid- ity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. * * * Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been as- sented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other states, where actions are bi^ought against nonresidents, is effectual only where, in connection with process against the person for commencing the action, property in the state is brought under the con- trol of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein ; in other words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, for any other pur- pose than to subject the property of a nonresident to valid claims against him in the state, "due process of law would require appe^ance 104 GENERAL PROVISIONS. (Part 1 or personal service before the defendant could be personally bound by any judgment rendered." It is true that, in a strict sense, a proceeding in rem is one taken di- rectly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions be- tween parties, where the direct object is to reach and dispose of prop- erty owned by them, or of some interest therein. Such are cases com- menced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the state, they are substantially proceedings in rem in the broader sense which we have mentioned. It is hardly necessary to observe, that in all we have said we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the state creating the tribunal may provide. They are considered as rather a continuation of the original litigation than the commencement of a new action. Nations v. Johnson, 24 How. 195., 16 L. Ed. 628. It follows from the views expressed that the personal judgment recovered in the state court of Oregon, against the plaintiff herein, then a nonresident of the state, was without any validity, and did not authorize a sale of the property in controversy. To prevent any misapplication of the views expressed in this opin- ion, it is proper to observe that we do not mean to assert, by any thing we have said, that a state may not authorize proceedings to determine the status of one of its citizens towards a nonresident, which would be binding within the state, though made without service of process or personal notice to the nonresident. The jurisdiction which every state possesses to determine the civil status and capacities of all its inhabit- ants involves authority to prescribe the conditions on which proceed- ings affecting them may be commenced and carried on within its terri- tory. The state, for example, has absolute right to prescribe the condi- tions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty, of acts for which, by the law of the state, a dissolution may be granted, may have removed to a state where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the state of the defendant ; and if application could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress. Bish. Marr. & Div. § 156. Neither do we mean to assert that a state may not require a non- resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or repre- Ch. 4) JUDGMENTS. 105 sentative in the state to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such ap- pointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be bind- ing upon the nonresidents both within and without the state. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 390 : "It is not contrary to natural justice that a man who has agreed to re- ceive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them." See, also, Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451, and Gillespie v. Conimercial Mut. Marine Ins. Co., 12 Gray (Mass.) 201, 71 Am. Dec. 743. Nor do we doubt that a state, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investi- gated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members of such corporations or institutions would hold their interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345. In the present case, there is no feature of this kind, and, conse- quently, no consideration of what would be the effect of such legisla- tion in enforcing the contract of a nonresident can arise. The ques- tion here respects only the validity of a money judgment rendered in one state, in an action upon a simple contract against the resident of another, without service of process upon him, or his appearance therein. Judgment affirmed.^^ CARPENTER v. STRANGE. "^ (Supreme Court of the United States, 1891. 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640.) FULLER, C. J." * * * The judgment or decree of the New York court was entitled to the same credit and effect in the state of Tennessee that it had in the state of New York where it was rendered. Did it receive it? * * * 11 The effect of proceedings in rem upon property within the jurisdiction of the court will be recognized in other countries to which such property is sub- sequently removed. Castrique v. Imrie, L. R. 4 H. L. 414 (1870). See, also, Rose V. Hlmely, 4 Cranch (U. S.) 241, 2 L. Ed. 608 (1808). But if such foreign proceeding was merely one in personam it will not be enforced elsewhere by proceedings in rem. The City of Mecca, 6 Prob. Div. (O. A.) 106 (1881). 12A part of the opinion only is given. 106 GENERAL PROVISIONS. (Part 1 The real estate was situated in Tennessee, and governed by the law of its situs ; and while, by means of its power over the person of a party, a court of equity may, in a proper case, compel him to act in relation to property not within its jurisdiction, its decree does not oper- ate directly upon the property, nor affect the title, but is made effectual through the coercion of the defendant; as, for instance, by directing a deed to be executed or canceled by or on behalf of the party. The court "has no inherent power, by the mere force of its decree, to annul a deed, or to establish a title." Hart v. Sansom, 110 U. S. 151, 155, 3 Sup. Ct. 586, 38 L. Ed. 101. Hence, although in cases of trust, of contract, and of fraud the jurisdiction of a court of chancery may be sustained over the person, notwithstanding lands not within the juris- diction may be affected by the decree (Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181), yet it does not follow that such a decree is in itself necessarily binding upon the courts of the state where the land is situated. To declare the deed to Mrs. Strange null and void, in vir- tue alone of the decree in New York, would be to attribute to that de- cree the force and effect of a judgment in rem by a court having no jurisdiction over the res. By its terms, no provision whatever was made for its enforcement as against Mrs. Strange in respect of the real estate. No conveyance was directed, nor was there any attempt in any way to exert control over her, in view of the conclusion that the court announced. Direct action upon the real estate was certainly not with- in the power of the court ; and as it did not order Mrs. Strange to take any action with reference to it, and she took none, the courts of Ten- nessee were not obliged to surrender jurisdiction to the courts of New York over real estate in Tennessee, exclusively subject to its laws and the jurisdiction of its courts. Story, Confl. Laws, § 543 ; Whart. Confl. Laws, §§ 288, 389 ; Watkins v. Holman, 16 Pet. 25, 10 L. Ed. 873 ; Northern Indiana R. Co. v. Michigan Cent. R. Co., 15 How. 233, 14 L. Ed. 674; Davis v. Headley, 22 N. J. Eq. 115; Miller v. Birdsong, 7 Baxt. (Tenn.) 531 ; Cooley v. Scarlett, 38 111. 316, 87 Am. Dec. 298 ; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192. The judgment of the supreme court of Tennessee is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. BURNLEY V. STEVENSON. (Supreme Court of Ohio, 1873. 24 Ohio St. 474, 15 Am. Rep. 621.) McILVAINE, J." The main proposition submitted in this case is, whether under and by virtue of the decree of the circuit court of Ken- tucky and the master's deed made in pursuance thereof, or of either of them, such an estate or right was vested in John Evans as entitles the defendant, who has succeeded to all the rights of Evans, to the 18 The statement of facts has been omitted. Ch. 4) JDDGMENTS. 107 possession of the lands in controversy, as against the plaintiffs, whose claim of title is derived from the parties against whom the decree was rendered. 1. The jurisdiction of the circuit court to pronounce the decree, is the first inquiry involved in this proposition. It appears from the record before us, that the circuit court of Ken- tucky, which pronounced the decree, was a court of general equity jurisdiction; that some of the defendants in the cause were properly served with the process of the court, and that all others voluntarily appeared and submitted themselves to its jurisdiction, and, that the subject-matter of the bill on which the decree was rendered, was the enforcement of a trust and the specific performance of a contract to convey lands situate in the State of Ohio. That courts exercising chancery powers in one state have jurisdic- tion to enforce a trust, and to compel the specific performance of a contract in relation to lands situate in another state, after having ob- tained jurisdiction of the persons of those upon whom the obligation rests, is a doctrine fully settled by numerous decisions. Penn v. L,ord Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch (U. S.) 148, 3 L,. Ed. 181; Penn v. Hayward, 14 Ohio St. 303, and cases therein cited. 2. It does not follow, however, that a court having power to compel the parties before it to convey lands situated in another state, may make its own decree to operate as such conveyance. Indeed, it is well settled that the decree of such court can not operate to transfer titk to lands situate in a foreign jurisdiction. And this, for the reason that a judgment or decree in rem can not operate beyond the limits of the jurisdiction or state wherein it is rendered. And if a decree in such case can not effect the transfer of the title to such lands, it is clear that a deed executed by a master, under the direction of the court, can have no greater effect. Watts v. Waddle, 6 Pet. (U. S.) 389, 8 L. Ed. 437; Page v. McKee, 3 Bush (Ky.) 135, 96 Am. Dec. 201. The master's deed to Evans must therefore be regarded as a nullity. The next inquiry then is as to the force and effect of the decree ren- dered by the Circuit Court directing the heirs of Gen. Scott to convey the land in Ohio to Evans. This decree was in personam, and bound the consciences of those against whom it was rendered. In it, the con- tract of their -ancestor to make the conveyance was merged. The fact that the title which had descended to them was held by them in trust for Evans, was thus established by the decree of a court of compe- tent jurisdiction. Such decree is record evidence of that fact, and also of the fact that it became and was their duty to convey the legal title to him. The performance of that, duty might have been enforced against them in that court by attachment as for contempt; and the fact that the conveyance was not made in pursuance of the order, does not affect the validity of the decree in so far as it determined the equi- table rights of the parties in the land in controversy. In our judgment. 108 GENEEAL PKOVI8IONS. (Part 1 the parties, and those holding under them with notice, are still bound thereby. 3. Under our code of practice, equitable as well as legal defenses may be set up in an action for the recovery of land. The defendant in the court below set up this decree of the circuit court of Kentucky as a defense to the plaintiffs' action. That it did not constitute a good defense at law may be admitted, but we think, in equity, it was a sufH- cient defense. The Constitution of the United States declares that full faith and credit shall be given in each state to the records and judicial pro- ceedings of every other state, and provides that Congress may pre- scribe the mode of proving such, records and proceedings, and the effect thereof. By Act May 26, 1790, c. 11, 1 Stat. 122, Congress de- clared that the "records and judicial proceedings of the state courts,'" when properly authenticated, "shall have the same faith and credit given to them in every court within the United States, as they have, by law or usage, in the courts of the state from whence they are or shall be taken." When, therefore, a decree rendered by a court in a sister state, having jurisdiction of the parties and of the subject- matter, is offered as evidence, or pleaded as the foundation of a right, in any action in the: courts of this state, it is entitled to the same force and effect which it had in the state where it was pronounced. Mills V. Duryee, 7 Cranch (U. S.) 481, 3 L. Ed. 411 ; Hampton v. McCon- nel, 3 Wheat. (U. S.) 234, 4 L. Ed. 378; McGilvray & Co. v. Avery, 30 Vt. 638. That this decree had the effect in Kentucky of determin- ing the equities of the parties to the land in this state, we have already shown; hence the courts of this state must accord to it the same ef- fect. True, the courts of this state can not enforce the performance of that decree, by compelling the conveyance through its process of attachment; but when pleaded in our courts as a cause of action, or as a ground of defense, it must be regarded as conclusive of all the rights and equities which were adjudicated and settled therein, unless it be impeached for fraud. See cases supra; also, Davis v. Headley, 22 N. J. Eq. 115; Brown v. Lexington & D. R. Co., 13 N. J. Eq. 191; Dobson V. Pearce, 12 N. Y. 156, 62 Am. Dec. 152 ; Bank of United States V. Merchants' Bank of Baltimore, 7 Gill (Md.) 415. Motion overruled. FALL V. FALL.* (Supreme Court of Nebraska, 1907. 75 Neb. 120, 113 N. W. itS.) In 1876, E. W. Fall and Sarah S. Fall were married in Indiana. They afterwards removed to Hamilton county, Neb., and lived in Nebraska until 1889, when they removed to the state of Washington. ♦Tills case was pending before the Supreme Court of the United States at the time these pages had to go to press. Ch. 4) JODGMENTS. 109 In 1879, while they lived in Nebraska, E. W. Fall purchased 160 acres of land in Hamilton county, the title to the undivided one-half of which is in controversy. In 1887 he conveyed the farm to Mrs. Fall's brother as an intermediary, who in turn reconveyed to E. W. Fall and Sarah S. Fall, thereby vesting each with an undivided one- half interest in the land. On October 5, 1895, Sarah obtained a- di- vorce from her husband in Washington. The court in the decree of divorce set apart and gave all Nebraska land to the wife as her sole and separate property, and directed the husband to convey the land to the wife in five days. This he refused and neglected to do. The law of Washington requires parties desiring a divorce to bring into court a list and description of all their property, and empowers the judge of the court, sitting as chancellor, to make an equitable division of all the property between the parties. On May 24, 1895, E. W. Fall executed an indemnity mortgage to his brother, the defendant W. H. Fall, a resident of Nebraska, as de- fendants allege, to secure him from loss by reason of his having signed a note of $1,000, as surety for E. W. Fall, in September, 1893, for money borrowed from his sister, Elizabeth Eastin. This mortgage was recorded on January 10, 1896. On July 3, 1896, without notice to E. W. Fall, the Washington court appointed one W. T. Scott as commis- sioner for the purpose, who executed a deed of E. W. Fall's undivided half interest in the Hamilton county land to Sarah S. Fall. This in- strument was approved by the judge of the superior court, filed in the office of its clerk, and afterwards recorded in Hamilton county, Neb. On April 37, 1896, E. W. Fall, who in the meantime had become a resident of California, executed a warranty deed to Mrs. Eastin for his undivided one-half interest in the land in payment of the same debt. At the time of the divorce and conveyances the land was incum- bered, and Fall's interest in it was apparently worth no more than the amount of the debt. In 1897 Sarah S. Fall began an action in the District Court of Ham- ilton County, Neb., to quiet her title to the undivided one-half interest in the land acquired by virtue of the decree of the Washington court and the commissioner's deed and to cancel the aforesaid mortgage and deed executed by E. W. Fall to the defendants W. H. Fall and Eliza- beth Eastin, alleging that the mortgage and deed were each made without consideration and for the purpose of, defrauding her, and that the mortgage and deed cast a cloud upon her title to such land. Per- sonal service was had upon W. H. Fall. Mrs. Eastin appeared and defended the action. E. W. Fall was served only by publication and did not appear. A judgment in favor of plaintiff, Sarah S. Fall, was affirmed upon appeal (75 Neb. 104, 106 N. W. 412). On rehearing.^* 1* The facts have been abstracted from the opinion of the court 110 GENEKAL PROVISIONS. (Part 1 Letton, J." * * * The contentions of the appellant in sub- stance are that the decree of the Washington court and the deed ex- ecuted by the commissioner of said court to Mrs. Sarah S. Fall are absolute nullities in so far as they relate to the land in Nebraska ; that Mrs. Fall has no such title or interest in the undivided half interest in the land which had belonged to E. W. Fall that she can maintain this action ; that, conceding that the Washington court had the power to compel the execution of the conveyance by E. W. Fall while he was within its jurisdiction, still, since its decree acted only upon the person and not upon the land, and since no action was taken or com- pelled towards conveying the title to Mrs. Fall, she never acquired an)- interest in or title to the real estate in this state, and the decree of the Washington court utterly failed to affect the land, or to bind or fetter any action taken by E. W. Fall after he passed beyond the jurisdiction of that court. She further contends that by the laws of this state the courts of Nebraska are not permitted, by a decree in a divorce proceeding, to take the title of real estate from the husband and vest it in the wife, by way of adjusting the equities of the parties in the property of the husband, and that such a proceeding would be in violation of the law and public policy of this state. Upon the other hand, the appellee, Mrs. Fall, contends that the decree of the Wash- ington court in the proceedings for divorce and for a division of the property fixed the equities and bound the conscience of the parties, and created a personal legal contract of recoi-d on the part of E. W. Fall to make a conveyance of his interest in the land, which he could not escape by going beyond the jurisdiction of the Washington court, and that the decree is entitled to the same faith and credit in the courts of this state that it has in the courts of Washington; that Mrs. Fall's rights in and to the land, acquired by virtue of the decree, are sufficient to enable her to maintain an action in this state for the purpose of quieting her title to the land ; that the decree of the Washington court bound E. W. Fall to such an extent that neither he nor his privies could afterwards set up any right or title in the Nebraska lands against her; and that Mrs. Eastin acquired no right, title, or interest in the land by virtue of the deed from E. W. Fall or the mortgage to W. H. Fall, and that the same were fraudulently made. If the Washington court had taken the value of the Nebraska land into consideration in fixing the rights of the parties and rendered a money judgment accordingly, such a judgment might be enforced here, under the full faith and credit clause of the United States Con- stitution, since the court had full power and jurisdiction to render the same. Barber v. Barber, 31 How. (U. S.) 582, 16 L. Ed. 236; Trowbridge v. Spinning, 23 Wash. 48, 62 Pac. 125, 54 L. R. A. 204, 83 Am. St. Rep. 806. And this has been the usual method in such 16A part of the opinion and the dissenting opinion of Sedgwick, C. J., have been omitted. Ch. 4) ■ JDDGMENTS. Ill cases. 2 Bishop, Marriage, Divorce & Separation, 1123. But what power had the Washington court to aifect the title to the land or to confer equities therein by its decree? The purpose of the statutes of Washington referred to evidently was to give to the courts of that state powers with reference to the ascertainment of the duties of the parties with reference to property, growing out of the marriage rela- tion, of the same nature as those which are enjoyed by courts gener- ally having jurisdiction over divorce, alimony, and the custody and support of children, but greater in extent than those enjoyed by the courts of some states. This power was unknown to the unwritten law, and when no statute exists the courts do not possess it. 2 Bishop, Marriage, Divorce & Separation, § 1119. The power thus given is to be exercised in connection with the proceedings concerning the mar- riage status. Id. § 826. It is remedial, and ancillary to the divorce proceedings, and not independent. In that state the same marital du- ties which are enforced here by way of alimony may be enforced by the compulsory division of real estate belonging to either . spouse. This division of property is not based upon the view that the innocent party has an equitable interest in the property itself, but upon the fact that it is the duty of a husband to provide for, support, and maintain his wife in such manner as suits and accords with his pecuniary cir- cumstances and station in life, so that she, being innocent, shall not suffer from his fault. It is of the same nature as that exercised by the courts of Nebraska in awarding permanent alimony. In such case it is the duty of the court to consider the condition, situation, and standing of the parties, financial and otherwise, the duration of the marriage, the amount and value of the husband's estate, the source from which it came, and the necessity for the support and education of children. It is a method of enforcing the duty of support and main- tenance. Fischli v. FischH, 1 Blackf. (Ind.) 360, 12 Am. Dec. 251; Shafer v. Shafer, 10 Neb. 468, 6 N. W. 768; Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942 ; Zimmerman v. Zimmerman, 59 Neb. 80, 80 N. W. 643 ; Smith v. Smith, 60 Neb. 273, 83 N. W. 72. It is well established that a court of chancery in a proper case has power to compel a conveyance of lands situated in another country or state, where the persons of the parties interested are within the jurisdiction of the court. It is said by Justice Story: "The ground of this jurisdiction is that courts of equity, have authority to act upon the person, '^quitas agit in personam.' And, although they cannot bind the land itself by their decree, yet they can bind the conscience of the party in regard to the land, and compel him to perform his agreement according to conscience and good faith." 2 Story, Eq. § 743 ; 3 Pomeroy's Eq. Jur. § 1318. The leading case upon this doctrine in England is Penn v. Lord Baltimore, 1 Ves. 444, in which the Chan- cellor of England decreed a specific performance of a contract re- specting lands lying in North America. This case was followed in Massie v. Watts, 6 Cranch (U. S.) 148, 3 L,. Ed. 181, in a learned 112 GENEEAL PROVISIONS. (Part 1 opinion by Chief Justice Marshall, which examined and reviewed the cases prior to Penn v. Lord Baltimore and announced the rule as fol- lows: "Upon the authority of these cases and of others which are to be found in the books, as well as tipon general principles, this court is of opinion that in a case of fraud, or trust, or of contract, the juris- diction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree." This case settled the law upon this point, and its principal doctrine has ever since been recognized and enforced by the courts of chancery in this country. "But," says Judge Story, "still it must be borne in mind that the doctrine is not without limita- tions and qualifications, and that to justify the exercise of the juris- diction in cases touching lands in a foreign country, the relief sought must be of such a nature as the court is capable of administering in the given case. We have already seen that a bill for a partition of lands in a foreign country will not be entertained in a court of equity, upon the ground that the relief sought cannot be given by issuing a commission to such foreign country. Perhaps a more general reason might be given, founded upon the principles of international law, and that is that real estate cannot be transferred, or partitioned, or charg- ed, except according to the laws of the country in which it is situated." 2 Story's Equity, § 1398. It is conceded by the appellee that the decree of the Washington court has no force and effect on the title to property here; but it is contended, mainly upon the authority of Burnley v. Stevenson, 24 Ohio St. 474, 15 Am. Rep. 621, that though the decree of the court of Washington could not affect the title to land in this state, yet, when this decree is pleaded in the Nebraska court as a cause of action, it must be regarded as conclusive of all the rights and equities which were adjudicated and settled in the divorce case. A number of cases have been cited in which it is said this principle is upheld; but we have yet been unable to find a single case in which the direct question at issue was whether or not a decree affecting the title to real estate lying in another state will be recognized in the state in which the land lies, where no conveyance has been made in obedience to the de- cree, and where the title has been conveyed to third parties. It is true that in Cheever v. Wilson, 9 Wall. (U. S.) 108, 19 L,. Ed. 604, and in Dull V. Blackman, 169 U. S. 243, 18 Sup. Ct. 333, 42 L. Ed. 733, there are certain obiter expressions which are quoted in support of such doctrine ; but in these cases this question was not before the court for decision; in Cheever v. Wilson an instrument having been executed in performance of the decree, and in Dull v. Blackman the case was decided upon another point. We think there can be no doubt that, where a court of chancery has by its decree ordered and directed persons properly within its jurisdiction to do or refrain from doing a certain act, it may compel obedience to this decree by appropriate proceedings, and that any action taken by reason of such compulsion Ch. 4) JUDGMENTS. 113 is valid and effectual wherevef it may be assailed. In the instant case, if Fall had obeyed the order of the Washington court, and made a deed of conveyance to his wife of the Nebraska land, even under the threat of contempt proceedings, or after duress by imprisonment, the title thereby conveyed to Mrs. Fall would have been of equal weight and dignity with that which he himself possessed at the time of the execution of the deed. Gilliland v. Inabnit, 92 Iowa, 46, 60 N. W. 211, was a case of this kind, where the controversy was be- tween the plaintiff, who was the grantee in a conveyance of land in Iowa which had been compelled by a Kentucky court, and the heirs of her grantor. The Iowa court held that the decree of the Kentucky court established the trust and that the conveyance made in conse- quence of such decree was valid and effectual to convey the Iowa land. even though made by compulsion and by imprisonment of the grantor. * * * The case of Bullock v. Bullock [52 N. J. Eq. 561, 30 Atl. 676, 27 L. R. A. 213, 46 Am. St. Rep. 528] deserves special examination. In this case the complainant's husband had been adjudged by the Su- preme Court of the state of New York, in a divorce proceeding of which it had jurisdiction, to execute a mortgage upon lands in New Jersey to secure the payment of a certain sum per month to the com- plainant as alimony. He refused to do so, and made other mortgages and conveyances of the lands, which the wife alleged were fraudu- lently made for the purpose of defeating her rights. She charged that she had acquired an equitable lien in the lands by virtue of the New York decree, and prayed the court to set aside the several mort- gages and conveyances, and that he be decreed to execute and deliver the mortgage required by the New York court. It will be seen, there- fore, that the case was similar to the one at bar; but it was stronger in this respect: That personal service was had upon the respondent in New Jersey in the action to enforce the decree, while in this case no personal service has been had upon E. W. Fall. The majority of the court held that, while the New York court might have enforced the execution of the mortgage by the defendant while he was within its jurisdiction, this not having been done, the New York decree could not operate as a cause of action affecting the title to land in New Jer- sey, and it is pointed out "that the doctrine that jurisdiction respecting lands in a foreign state is not in rem, but one in personaipi, is bereft of all practical force, if the decree in personam is conclusive and must be enforced by the courts of the situs," and that such a doctrine would result in practically depriving a state of that exclusive control over its real estate which has always been accorded. Justice Garrison con- curred upon the ground that the decretal order was only ancillary to the divorce suit, and "did not possess any element of a judgment upon the issue submitted to the court of decision, which was whether the marriage between the parties should be dissolved." Justice Van Syckel,'in a dissenting opinion, said that the New York judgment LOB.CONF.L. — 8 114 GENERAL PROVISIONS. (Part 1 was conclusive as to the right of the wife to have him execute a mort- gage on the New Jersey land, and that, since the courts of New Jer- sey would have afforded such relief if the action had been brought in that state, the judgment imposed an obligation upon the husband, which could be enforced in New Jersey by the intervention of a court of equity there. In this connection, however, he says: "The ques- tion is whether our court of equity will establish a lien upon the New Jersey land, so as to give effect to the New York decree. It may be conceded that the lex fori must apply to the remedy to enforce the New York judgment in our courts. Harker v. Brink, 24 N. J. Law, 333; Garr v. Stokes, 16 N. J. Law, 404; Armour v. Michael, 36 N. J. Law, 92. While we will give full faith and credit to the New York judg- ment, we cannot be asked to give greater efficacy to a decree for ali- mony made in New York than we can give to a like decree made in our own courts. For instance, if the common law prevailed here, we would enforce the New York decree for alimony only according to the common-law practice, for that would exhaust our powers in that respect. * * * j^ being competent for our courts to enforce such a decree made in our own courts by establishing it as a lien on lands, we cannot refuse like relief in this case on the extraterritorial judg- ment. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123; McElmoyle v. Cohen, 13 Pet. (U. S.) 312, 10 L. Ed. 177." It will be seen, therefore, that neither the opinion of the majority nor of the minority of the New Jersey court in Bullock v. Bullock would warrant the granting of the relief sought in this case, since the appellee is asking the court to give effect to a decree of the Washing- ton court, which it would not enforce, if it had been rendered in a court of this state, and that, if the view expressed by Justice Garri- son is correct, as to which we expresss no opinion, the decree adjudg- ing the land to Mrs. Fall is only of the nature of a decretal order, ancillary to the subject-matter of the suit, which was the matrim.onial status, and is not such a judgment as is entitled to full faith and credit under the Constitution and laws of the United States. From a con- sideration of these authorities, and upon principle, it seems clear that a decree of a court of chancery in a foreign state, acting upon a per- son within its jurisdiction and directing him to make a conveyance of lands in this state, in no wise affects the title to the land. The de- cree and order acts only upon the person, and, if obedience to its man- date is refused, it can only be enforced by the means which havp from time immemorial been the weapons of a court of chancery. To say that the decree binds the conscience of the party, so that persons to whom he may convey the land thereafter take no title, is the same as saying that the decree affects the title, which is beyond the power of the courts of another state to do. The transfer and devolution of title to real estate within the limits of a state is entirely subject to the laws of that state, and no interference with it can be permitted by other states. Watts v. Waddle, 6 Pet. (U. S.) 389, 8 L. Ed. 437; Ch. 4) JUDGMENTS. 115 Davis V. Headley, 22 N. J. Eq. 115 ; Clarke v. Clarke, 178 U. S. 186, 20 Sup. Ct. 873, 44 L. Ed. 1028; Wimer v. Wimer, supra; Bowdle V. Jencks, 18 S. D. 80, 99 N. W. 98 ; Manton v. J. F. Seiberling & Co., 107 Iowa, 534, 78 N. W. 194. The law will not permit that to be done indirectly which cannot be done directly, and, if the courts of other states can so adjudicate the rights of parties to land in this state that a title apparently clear upon the official records could be made null and void by its action "upon the conscience" of the holder of the legal title, the recording acts of this state would cease to afford protection to purchasers of land, and thus the title in fact be affected, and the power of the state over the transfer and devolution of lands inter- fered with. If the Washington decree bound the conscience of E. W. Fall, so that when he left the jurisdiction of that state any deed that he might make would be absolutely void, and had he sold the land to an innocent purchaser, who had inspected the records and found that he was the owner in fee of an undivided one-half interest to the prem- ises, such purchaser, though relying on the laws of this state for his protection, would receive no title. This is the contention of the ap- pellee, carried to its ultimate conclusion; and, if this is correct, the action of the court of another state directly interferes with the opera- tion of the laws of this state over lands within its sovereignty. Under the laws of this state the courts have no power or juris- diction in a divorce proceeding, except as derived from the statute providing for such actions, and in such an' action have no power or jurisdiction to divide or apportion the real estate of the parties. Ny- gren v. Nygren, 42 Neb. 408, 60 N. W. 885 ; Brotherton v. Brother- ton, 14 Neb. 186, 15 N. W. 347; Cizek v. Cizek, 69 Neb. 800, 96 N. W. 657, 99 N. W. 28; Aldrich v. Steen, 71 Neb. 33, 98 N. W. 445, 100 N. W. 311. In the Cizek Case, Cizek brought an action for di- vorce, and his wife filed a cross-bill and asked for alimony. The court dismissed the husband's bill, found in favor of the wife, and by a stipulation of the parties set off to the wife the homestead and or- dered her to execute to the husband a mortgage thereon, thus en- deavoring to make an equitable division of the property. Afterwards, in a contest arising between the parties as to the right of possession of the property, the decree was pleaded as a source of title in the wife ; "but it was held that that portion of the decree which set off the home- stead to the wife was absolutely void and subject to collateral attack, for the reason that no jurisdiction was given to the district court in a divorce proceeding to award the husband's real estate to the wife in fee as alimony. The courts of this state in divorce proceedings must look for their authority to the statute, and so far as they attempt to act in excess of the powers therein granted their action is void and subject to collateral attack. A judgment or decree of the nature of the Washington decree, so far as affects the real estate, if rendered by the courts of this state, would be void. Is it our duty to give ef- fect to this decree under the full faith and credit clause of the Consti- 116 GENERAL PROVISIONS. (Part 1 tution of the United States? "These provisions of the Constitution and laws of the United States are necessarily to be read in the light of some established principles v^rhich they were not intended to over- throw. They give no effect to judgments of a court which had no ju- risdiction of the subject-matter or of the parties, * * * and they confer no new jurisdiction on the courts of any state. * * * Nor do these provisions put the judgments of other states upon the foot- ing of domestic judgments to be enforced by execution, but they leave the manner in which they may be enforced to the law of the state in which they are sued on, pleaded, or offered in evidence." Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123. The provision of the Constitution establishes a rule of evidence, -rath- er than of jurisdiction. Weaver v. Cressman, 21 Neb. 675, 33 N. W. 478; Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. 242, 29 L. Ed. 535; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 Iv. Ed. 239. We know of no rule which compels us to give to a decree of the courts of Washington a force and effect we would deny to a decree of our own courts upon the same cause of action. We must accord full faith and credit to the divorce decree, since the Washington court had jurisdiction to render it; but we are not compelled to recognize a decree affecting the title of E. W. Fall and his grantees, in an ac- tion where he is not in court by personal service, and where the act directed by the Washington court is in opposition to the public policy of this state in relation to the enforcement of the duty of marital sup- port. Anglo-American Provision Co. v. Davis Provision Co., 191 U. S. 373, 24 Sup. Ct. 92, 48 L. Ed. 225 ; Wisconsin v. Pelican Ins. Co., supra; Lynde v. Lynde, 181 U. S. 183, 21 Sup. Ct. 555, 45 L. Ed. 810; McElmoyle v. Cohen, 13 Pet. (U. S.) 312, 10 L. Ed. 177; Bullock V. Bullock, 51 K. J. Eq. 444, 27 Atl. 435 ; Andrews v. An- drews, 188 U. S. 14, 23 Sup. Ct. 237, 47 L. Ed. 366. In order to vest Mrs. Fall with any right, title, or interest in and to her husband's land in Nebraska by virtue of the Washington decree, it was abso- lutely necessary that the decree be carried into effect by that court by compelling a conveyance from her husband. Neither the decree nor the commissioner's deed conferred any right or title upon her. The decree is inoperative to affect the title to the Nebraska land, and is given no binding force or effect, so far as the courts of this state are concerned, by the provisions of the Constitution of the United States with reference to full faith and credit. Since the decree upon which the plaintiff bases her right to recover did not affect the title to the land, it remained in E. W. Fall until divested by operation of law or by his voluntary act. He has parted with it to Elizabeth Eastin, and whether any consideration was ever paid for it or not is imma- terial, so far as the plaintiff is concerned, for she is in no position to question the transaction, whatever a creditor of Fall might be able to do. Ch. 4) JUDGMENTS. 117 In whatever manner the result of our conclusion may afifect the parties to this controversy, it is our duty to sustain the rights of the state to sovereignty over the land within its borders, and to resist an attempt to convey and set apart real estate in Nebraska by the court of another state, when not acting upon and through the person of the owner, when under its jurisdiction and by virtue of the proper powert. of a court of chancery. It appears that Mrs. Fall has paid taxes and interest and made other outlays for the benefit of the property, for which she should be reimbursed. The former judgment of this court is vacated, and the cause re- versed, and remanded to the district court, with directions to proceed in accordance with this opinion, and, if plaintiff so desires, to take an accounting of the rents and profits and disbursements, and to render such decree as may be equitable.^' FISHER V. FIELDING. (Supreme Court of Errors of Connecticut, 1895. 67 Conn. 91, 34 Atl. 714, 32 L. R. A. 236, 52 Am. St. Hep. 270.) Action on a judgment obtained in England. Judgment for plaintiffs, and defendant appeals. Baldwin, J.^' * * * Three special defenses were pleaded, and, on demurrer, held insufficient. The second of these set up that the de- fendant was served with the process in the English action while tran- siently stopping at an hotel in Birmingham, and when he was about 18 In a dissenting opinion, Sedgwick, C J., held: (1) That by the law of Nebraska a wife had an equity In the land of her husband during coverture, alimony being determined by a consideration of the amount which she con- tributed towards the accumulation of the common property of the family ; that these equities were personal rights, and went with their persons to the state of Washington, whose courts, therefore, had jurisdiction both of the mar- riage status and of the equities existing between the parties in this land. (2) That the method by which the wife gets her equitable share of the property — whether by the process of a judgment, lien, and sale (the method followed in Nebraska), or by a direct determination by the court of the just and equitable interest that each has In the joint property (the method pursued in Washing- ton) — related merely to procedure, and that, the public policy of a state not being interested in fctrms of procedure, the transfer of the lands of the hus- band directly to the wife In a divorce pi'oceeding would not be opposed to the public policy of Nebraska. (3) That defendant, who claimed through Mr. Fall, had constructive notice of Mrs. Fall's equities in the land, and therefore took the land subject to those equities. As to the jurisdiction of courts of equity with respect to foreign land, see J. H. Beale, Jr., "Equitable Interests In Foreign Property," 20 Harv. Law Kev. 382-397; Dicey, Conflict of Laws, 203-207; Westlake, Priv. Int. Law, 210-212 ; Foote, Priv. Int. Jurispr., 184-197. See, also, 69 L. R. A. 673-697 ; 67 Am. Dec. 95-105. As to the nature of equity jurisdiction In general, see Ames' Cases on Equity Jurisdiction, 1-35. 1 ' Only so much of the opinion is given as relates to the question of juris- diction. The dissenting opinion of Hamersley, J., has been omitted. 118 GENERAL PBOVISIONS. (Part 1 to take his departure for home, and that such service was so made and timed for the purpose of embarrassing him, and obtaining an unjust and unfair advantage, by preventing his having a fair opportunity to make his defense unless he prolonged his stay abroad indefinitely. The rights of sovereignty extend to all persons and things, not excepted by some special privilege, that are within the territory of the sovereign. An alien friend, however transient his presence may be, is entitled ta a temporary protection, and owes in return a temporary allegiance. Story, Confl. Laws, §§ 18, 22, 541 ; Carlisle v. United States, 16 Wall. (U. S.) 147, 154, 21 Iv. Ed. 426. The fact that the defendant was a foreigner, making but a brief stay in the country, and on the point of leaving it for his own, did not deprive the courts of England of all ju- risdiction over him. The Roman maxim, "Actor sequitur forum rei," if it has any force in English or American jurisprudence, operates as a permission, rather than a command. A man who is absent from his domicile can still be sued there, but he can also be sued wherever he is found, if personally served with legal process within the jurisdiction where the plaintiff seeks his remedy. The action must be brought, indeed, in a court to which the defendant is subject, and subject at the time of suit ; but, unless protected by treaty stipulation or official privi- lege, he is subject to every court within reach of whose process he may enter. The Roman law allowed a nonresident to be sued where he had established a temporary seat of business, and, in some cases, where he had simply contracted a single obligation. Dig. V, 1, "De judiciis, et ubi quisque agere vel conveniri debeat," 2, 19, 24. The common law, so far as concerns the enforcement of a pecuniary liability, goes farther, and operates alike upon every private individual who may be found, however transiently, within the territory where it is in force. Whart. Confl. Laws, § 653. An English court will take cognizance of an action on a contract, wherever made, and between whatever par- ties. Holland, Jur. (5th Ed.) 349. So the courts of this state have always regarded transitory actions as following the person, and entertained them against foreigners found within our jurisdiction, whether brought by a foreigner or a citizen. Place v. Lyon, Kirby (Conn.) 404, 406; Potter V. Allin, 2 Root (Conn.) 63, 66, 67. "Territorial jurisdiction at- taches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another, independent country." Sirdar Gurd- yal, Singh v. Rajah of Faridkote, [1894] App. Cas. 670, 683. The sev- eral states of the United States are, as respects their relations to each other, excepting only such of these as are regulated by the Constitution of the United States, independent and foreign sovereignties. Buckner V. Finley, 2 Pet. (U. S.) 586, 590, 7 L. Ed. 528 ; Pennoyer v. Neflf, 95 U. S. 714, 722, 24 L. Ed. 565. The effect in one of them of a suit brought or judgment rendered in another is precisely the same as if the latter Ch. 4) JUDGMENTS. 119 were a foreign country, except so far as article 4, § 1. of the Constitu- tion of the United States may have established a d'flerent rule. Hatch V. SpoiJord, 22 Conn. 485, 498, 58 Am. Dec. 43S ; M'Elmoyle v. Cohen, ' 13 Pet. (U. S.) 312, 324, 10 L. Ed. 177 ; Thompson v. Whitman, 18 Wall. (U. S.) 457, 461, 21 L,. Ed. 897. Notwithstanding that provision of the Constitution, and the statute passed to enforce it (Rev. St. U. S. § 905), the jurisdiction of a state court whose judgment is brought in question in another state is always open to inquiry. In that respect, every state court is to be regarded as a foreign court. Hall v. Lan- ning, 91 U. S. 160, 165, 23 L. Ed. 271; 'Grover & Baker Sewing Mach. Co. V. RadclifiEe, 137 U. S. 287, 294, 298, 11 Sup. Ct. 92, 34 L. Ed. 670. The courts of this state have never before had occasion to pass di- rectly upon the defenses which may be open here to an action upon a judgment of a court of a foreign country, but they have often been called to consider the effect of legal proceedings instituted in one of the United States against a citizen of another; and the right to secure jurisdiction over a nonresident, who is served with process while tran- siently in the state, has been uniformly upheld. Hart v. Granger, 1 Conn. 154, 165, 173; Wood v. Watkinson, 17 Conn. 500, 504, 44, Am. Dec. 562 ; Hatch v. Spofford, 22 Conn. 485, 58 Am. Dec. 433 ; Bishop V. Vose, 27 Conn. 1, 11, 12 ; Duryee v. Hale, 31 Conn. 217, 223 ; East- erly V. Goodwin, 35 Conn. 273, 278 ; O'Sullivan v. Overton, 56 Conn. 102, 103, 14 Atl. 300. These decisions are based on what has been deemed an accepted principle of international law, applicable between the states, on no other ground than that they are, as to such a question, in the position of foreign nations to each other. Grover & Baker Sew- ing Mach. Co. V. Radchffe, 137 U. S. 287, 298, 11 Sup. Ct. 92, 34 L. Ed. 670 ; Lazier v. Westcott, 26 N. Y. 146, 154, 82 Am. Dec. 404. The English court having, then, jurisdiction of the parties, and pre- sumably of the action and the subject-matter, as to which no question has been made, there is nothing in the defense now pleaded, that the suit was brought, as it was and when it was, "for the purpose of em- barrassing and impeding the defendant, and to prevent his having a fair opportunity to defend said suit unless he prolonged his stay' in- definitely at said Birmingham, and thereby said plaintiff sought to ob- tain, an unjust and unfair advantage over said defendant." Where there is a legal right to do a certain act, the motive which induces the exercise of the right is of no importance. McCune v. Norwich City Gas Co., 30 Conn. 521, 524, 79 Am. Dec. 378 ; Occum Co. v. A. & W. Sprague Mfg. Co., 34 Conn. 529, 540. "Nullus videtur dolo facere, qui suo jure utitur." The act complained of having been fully stated, and being one which the law permitted, whatever advantage it gave the plaintiffs could be neither unjust nor unfair, and these epithets are therefore of no effect. Middletown v. Boston & N. Y. A. L. R. Co., 53 Conn. 351, 359, 5 Atl. 706. They had the right to sue the defendant where they found him, or at his domicile in Connecticut, and, in the 120 GENERAL PROVISIONS. (Part 1 choice of the forum, were free to consult their own convenience, with- out regard to any loss he might sustain from "the law's delays." Lovell v. Hammond Co., 66 Conn. 500, 512, 34 Atl. 511. * * * There is no error in the judgment appealed from.^* FEYERICK V. HUBBARD. (King's Bench Division, 1902. 71 L. J. K. B. 509.) Walton, J. ^* In this case the plaintififs sue the defendant for £1,- 308. 19s.. Id., money alleged to be due from the defendant to the plain- tiffs under a final judgment of the Tribunal of Commerce of Ghent, in the kingdom of Belgium, bearing date November 15, 1900. The question is whether this judgment is binding on the defendant. The defendant is not a Belgian subject — neither domiciled nor resident in Belgium; nor has he been served with process in Belgium; but it was proved that judgment was delivered by the Belgian court — a final judgment — and that all the requisites of Belgian law had been duly com- plied with. It is therefore a regular judgment duly obtained. The question is whether it is binding on the defendant. The ground on which it is said to be binding is that by clause 11 of the contract made between the plaintiffs and the defendant all dis- putes between the parties were to be referred to the Belgian jurisdic- tion. This contract is dated September 7, 1895, and appears to have been executed by the defendant at Ghent on that date. It is said that, as by the terms of that contract, for breach of which the plaintiffs seek to recover the damages awarded by the Belgian court, the defendant agreed to submit to the Belgian jurisdiction, therefore he is bound by the decision of the Belgian court. There is no authority directly in point — that is to say, it has never been decided in any case that where a contract, on which a cause of action and proceedings thereon arise, submits all disputes to the jurisdiction of a foreign tribunal, that fact alone is sufficient to render the foreign judgment binding. But in the case of Rousillon v. Rousillon [1880] 49 E. J. Ch. 338, at page 344, 14 Ch. D. 351, at page 371, Mr. Justice Fry reviewed all the cases on this subject, and stated his conclusions. After citing the case of Schibsby v. Westenholz [1870], 40 L. J. Q. B. 73, L. R. 6 Q. B. 155, he continues thus: "What are the circum- stances which have been held to impose upon the defendant the duty of obeying the decision of a foreign court? Having regard to that case, and to Copin v. Adamson, 43 L. J. Ex. 161, L. R. 9 Ex. 345, they 1 8 Service in another state from the one In which the remedy is sought does not confer personal jurisdiction. Bank of Horton v. Knox, 133 Iowa, 443, 109 N. W. 201 (1906). As to jurisdiction of English courts, see Dicey, Conflict of Laws, 217-249.' i» The opinion only is given. Ch. 4) JUDGMENTS. 121 may, I think, be stated thus. The courts of this country consider the defendant bound where he is a subject of the foreign country in which the judgment has been obtained ; where he was resident in the foreign country when the action began ; where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued ; where he has voluntarily appeared; where he has contracted to submit him- self to the forum in which the judgment was obtained, and, possibly, if Becquet v. MacCarthy [1831] 2 B. & Ad. 951, be right, where the defendant has real estate within the foreign jurisdiction, in respect of which the cause of action arose whilst he was within that jurisdiction." That is a classification by Mr. Justice Fry of the cases where a party is bound by the judgment of a foreign court, and one of those cases is "where he has contracted to submit himself to the forum in which the judgment was obtained." If so, the plaintiffs are entitled to judg- ment in this case. It was not absolutely necessary for Mr. Justice Fry to decide this point in Rousillon v. Rousillon, 49 L. J. Ch. 338, at page 344, 14 Ch. D. 351, at page 371. In support of his opinion he refers to Copin v. Adamson, 43 L. J. Ex. 161, L. R. 9 Ex. 345. That was an action on a .judgment of the Court -of the Tribunal of Com- merce in the Department of the Seine. The defendant pleaded that he was not at any time before the judgment resident or domiciled in France or within the jurisdiction of the court, or subject to French law ; that he was never served with any process or summons, and had no notice or knowledge of any process or summons nor any opportunity of defending himself. To this plea the plaintiff replied that the de- fendant was the holder of shares in a French company having its place of business and legal domicile in Paris, in the department of the Seine, and within the jurisdiction of the Court of the Tribunal of Commerce of that department, and thereby was by -the law of France subject to all the liabilities, rights, and privileges belonging to the hold- ers of shares in the company, and in particular to the regulations, con- ditions, and stipulations contained in the statutes and articles of as- sociation by which it was provided and agreed that all disputes which might arise during the liquidation of the company between the share- holders and the company with respect to the affairs of the company, should be submitted to the jurisdiction of the competent tribunal of the department of the Seine, and that every shareholder who should pro- voke a contest must elect a domicile at Paris, and that, in default of election, election should be made of full right at the office of the Im- perial procurator of the civil tribunal of the department in which the office of the company was situate, and that all summonses, or notices of process, should be validly and effectually served at the domicile formally or impliedly chosen ; that the company was declared bankrupt, and the defendant provoked a contest within the meaning of the stat- utes or articles ; that, the defendant not having elected a domicile, the office of the procurator of the civil tribunal of the department of the Seine became his domicile, where all process was duly served. 122 GENERAL PEOVISIONS. (Part 1 It was held by the Court of Exchequer, consisting of Chief Baron Kelly, Baron Amphlett, and Baron Pigott, that that replication was good. Baron Amphlett, delivering the judgment of himself and Baron Pigott, said : "I apprehend that a man may contract with others that his rights shall be determined not only by foreign law, but by a for- eign tribunal, and thus by reason of his contract, and not of any al- legiance absolute or qualified, would become bound by that tribunal's decision." The facts in Copin v. Adamson, 43 L. J. Ex. 161, L. R. 9 Ex. 345, might be distinguished from those in this case, and the deci- sion might, I think, have been put on other grounds ; but it was in fact put upon the ground that a man may contract with another that his rights shall be decided by a foreign tribunal. That case was af- firmed in the Court of Appeal [1875], 45 L. J. Ex. 15, 1 Ex. D. 17, where Lord Cairns, in giving judgment, said: "The Court of Excheq- uer have held that a good replication. I am clearly of the same opinion. It appears to me that, to all intents and purposes, it is as if there had been an actual and absolute agreement by the defendant." Therefore Copin v. Adamson, 43 L. J. Ex. 161, h. R. 9 Ex. 345, is practically a decision that a defendant in an action on a foreign judg- ment agreeing to be bound by the judgment of the foreign court is bound by that judgment although not resident, served, or domiciled within the jurisdiction of the foreign court. If so, the opinion of Mr. Justice Fry in Rousillon v. Rousillon, 49 L. J. Ch. 338, at page 344, 14 Ch. D. 351, at page 371, is well founded, and I am bound by it. Here the defendant agreed that he would refer all disputes to the Belgian jurisdiction — that is, that he would be bound by the decision of the Belgian tribunal — and if the cases cited above were rightly decided, the judgment in Belgium is binding on the defendant. I see nothing in the Belgian proceedings contrary to natural justice. There must therefore be judgment for the plaintiffs. Judgment accordingly. EMANUEE V. SYMON. (Court of Appeal, 1908. 77 L. J. K. B. 180, 1 K. B. 302.) Appeal by the defendant from the judgment of Channell, J., in an action tried without a jury. The plaintiffs sought to recover from the defendant the sum of £1,281. 4s. lid. on a judgment obtained in the Supreme Court of Western Au- stralia on July 25, 1902, or, in the alternative, on accounts taken on the dissolution of a partnership. In 1895 the defendant verbally entered into partnership with certain persons (who at the time the action was brought in Western Australia were represented by the plaintiffs) — all the parties being then resident in Western Australia — to work a gold mine situated in that colony, each Ch. 4) JUDGMENTS. 123 of the partners having an equal share. According to the plaintiffs the partnership was in existence in 1901, when, it being seen that the ad- venture was not successful, it was decided that steps should be taken for a dissolution and an account. For this purpose a suit was com- menced in the colony in 1901. At that time the defendant did not car- ry on business or reside in Western Australia, having left the colony in 1899 and taken up his residence in England. The writ in the Western Australian action was served on the defendant in England on Novem- ber 13, 1901, and thereafter he was from time to time kept informed of the proceedings ; but he did not enter an appearance in that action or take any part therein. In the action a decree was made dissolving the partnership as from July 25, 1902, and ordering a sale of the mine. Under the decree accounts were taken which shewed a deficiency, after crediting the partnership with the sale of the mine, of £7,867. 9s. 9d., to be met by the partners. Of that amount the defendant's one-sixth share was £1,281. 4s. lid., the amount sued for. By his defence the defendant alleged that at all material times he was a British subject domiciled in England; that neither at the date of the commencement of the suit in Western Australia nor at any time during its continuance was he resident or domiciled in that colony or subject ■ to the jurisdiction of its courts; that he did not appear to the writ in that action or agree to submit to the jurisdiction of the colonial court, and that the decree of that court was consequently not binding upon him. In his evidence the defendant stated that the partnership was dissolv- ed in 1896 ; but upon the whole of the evidence Channell, J., came to the conclusion that the dissolution did not take place in that year, and that the partnership continued until at least 1899, in which year two of the partners assigned their shares in the partnership to One of the other partners, who died in 1901, in which year the plaintiffs and, as they al- leged, the defendant were the members of the partnership. Channell, J., held that the defendant, by joining the partnership for working the mine in Western Australia, had impliedly agreed that part- nership disputes, whether arising during the continuance or on the ter- mination of the partnership, should be settled in the courts of Western Australia, and that, having submitted to their jurisdiction, he was bound by the judgment. The defendant appealed. Lord Alverstone, C. J.^" In this case I am unable to agree with the decision to which my Brother Channell has come. Out of respect to his very great learning and the weight of his opinion, I should have wished to have taken time to consider my judgment if I had felt that further consideration would have enabled me to understand the authorities bet- ter than I understand them now. But, having regard to the fact that 2 xhe concurring opinions of Buckley and Kennedy, L. J J., have been omit- ted. 124 GENEEAL PROVISIONS. (Part 1 the point is one which has been the subject of a great deal of discussion in the courts for a very considerable time, I think we should give our judgment at once. My Brother Channell based his judgment upon this proposition: "The defendant, by joining this partnership for the working of the mine in Western Australia, must, I think, be taken to have contracted that all partnership disputes, if any, should be determined by the courts of that country, and thereby subjected himself to the jurisdiction of those courts, just as in Copin v. Adamson, 43 L. J. Ex. 161, L. R. 9 Ex. 345, it was held that a man who took shares in a French company and ex- pressly agreed that disputes as to shares should be settled in the man- ner provided by the company's articles, that is, in the courts of France, so subjected himself." If that proposition, which is the root of the judgment, is right, this judgment should be affirmed; but in my opin- ion it goes a great dedl too far. I think it goes further than is con- sistent with, if not the direct decision, at any rate the considered opin- ions of very eminent judges in courts which are either binding upon us or of such high authority that we ought not to adopt that proposition in its breadth unless we are able to distinguish those opinions. The proposition was supported upon two grounds : The first that the de- fendant had become the owner of real property in Western Australia; the second that he had entered into a partnership, which partnership was to manage that property, and to deal with it as real estate. Coun- sel for the plaintiffs has based his argument mainly on the second ground. Now it cannot be disputed that the ownership of property in a country gives certain rights and involves submission to the jurisdic- tion of that country to a certain extent. That was decided in the case of Douglas V. Forrest, 6 L. J. (O. S.) C. P 157, 164, 4 Bing. 686, 703, and the principle was recognized by the House of Lords in the case of London & North- Western Railway v. Lindsay [1858] 3 Macq. H. L. 99. Therefore it is clear that foreign courts have jurisdiction to deal with the property and the rights of the person in the property itself, but that jurisdiction is limited. It by no means follows that there is juris- diction for all purposes. It has been, however, suggested, and I think with some warrant of authority, that Becquet v. MacCarthy, 2 B. & Ad. 951, was a case in which the jurisdiction proceeded on the basis of the ownership of property. But Mr. Dicey in his book on Conflict of Laws has indicated in a note on page 373 that it is very doubtful whether that case properly understood rested on the ownership of property : wheth- er it did not rest on the fact that the defendant there was the holder of an office. I will only refer to the case of Sirdar Gurdyal Singh v. Ra- jah of Faridkote, [1894] A. C. 670, where Lord Selborne in a passage at page 685, to my mind, disposed once and for all of the contention that Becquet v. MacCarthy, 2 B. & Ad. 951, can be relied upon as being an authority laying down the proposition that the mere possession of property is sufficient to give a general jurisdiction in the foreign court. Certainly it seems to me, having regard to the way in which Becquet v. Ch. 4) JUDGMENTS. 125 MacCarthy, 2 B. & Ad. 951, has been treated, that it can only be regard- ed as an authority if it is based on the principle which Ivord Selborne pointed out in the passage to which I have just referred. The second ground upon which, as I have said, counsel for the plain- tiffs mainly based his case was that there was a contract of partnership entered into between these people in Western Australia, and that it must be inferred from that contract of partnership that they had agreed that all disputes with regard to that partnership should be finally deter- mined in the Western Australian courts. He went so far as to contend that, even if the defendant had immediately left Western Australia and had never been there again, everything connected with the partnership, or flowing from it, must be subject to the jurisdiction of the Austra- lian courts. I do not wish to enlarge on the consequences of such a proposition, but it is necessary for him to contend that the mere fact of entering into the partnership in Western Australia in the year 1896, re- maining there until 1899, was sufficient to give the court jurisdiction against this particular defendant. The "writ was not issued until Novem- ber 13, 1901. Now, if the case is based upon the contract of partner- ship — the contractual obligations which the defendant has entered into — in my opinion the point is covered by authority or opinion of such great weight that we ought not to disregard it. In the case of Schibsby V. Westenholz, 40 L. J. Q. B. 73, L. R. 6 Q. B. 155, 163, Mr. Justice Blackburn had said in the course of his judgment: "If at the time when the obligation was contracted the defendants were within the for- eign country, but left it before the suit was instituted, we should be in- clined to think the laws of that country bound them; though before finally deciding this we should like to hear the question argued." That passage is commented upon by Lord Selborne in Sirdar Gurdyal Singh V. Rajah of Faridkote [1894] A. C. 670, in the following passage, where he says : "The learned judge had not to consider whether it was a legitimate consequence from this, that they would be bound to sub- mit, on the footing of contract or otherwise, to any assumption of juris- diction over them in respect of such a contract, by the tribunals of the country in which the contract was made, at any subsequent time, al- though they might be foreigners resident abroad." Then he proceeds to express his opinion that such an obligation could not be implied. Speaking for myself, I think it is far too wide a proposition that, simply because there is a contract of partnership, or a contract of any other kind, made in a foreign country, it of necessity follows that all the con- tracting parties have submitted to the jurisdiction of the foreign trib- unal for all purposes in respect of any question arising out of the con- tract or otherwise. The question was, to a certain extent, dealt with, although not directly, in the case of Copin v. Adamson, 43 L. J. Ex. 161, L,. R. 9 Ex. 345. In that case the judgment of the Court of Ex- chequer, and of the Exchequer Chamber, was in favor of the plaintiffs, on the ground that there was a contract by the then defendant whereby he had agreed to be bound in terms by the decision of the foreign trib- 120 GENERAL PROVISIONS. (Part 1 tmal. Lord fcairns, when the point was raised in 'the Exchequer Cham- ber, decided the case entirely upon that point. The plaintiffs had also raised a second point, which was one very like the point urged in this case on behalf of the plaintiffs — namely, that the defendant, by becom- ing a shareholder, had submitted to the jurisdiction of the French courts. Baron Amphlett, in giving the judgment of himself and Baron Pigott in that case, said : "I now proceed to consider the second rep- lication, which is silent as to the statutes or articles of association, but simply alleges that according to French law the members of the com- pany were bound to elect a domicile; and that, according to French law, upon default a domicile would be elected for them at a public office, where process might be served, and that they would be bound thereby. I confess I cannot find a case which has gone so far as to hold a de- fendant liable, under such circiimstances, upon a foreign judgment ob- tained as this was, without any knowledge on his part of the proceed- ings. Can it be said that an Englishman, for example, who buys a share in a foreign company on the London Stock Exchange thereby be- comes necessarily bound by any decision to which the foreign tribunal may come upon a matter affecting his interests ? " I do not say that that is express authority, but it seems to me to shew that very learned Judges were not prepared to accept the principle that the mere fact of entering into contracts in a foreign country, or owning property in a foreign country, is sufficient to make the person contracting or owning property in a foreign country amenable to the laws of that country un- der all circumstances. When the case came before the Exchequer Chamber, Lord Cairns, in giving the judgment of that court, said they affirmed the decision on the ground on which the majority in the court below had decided it, and did not express any opinion on the other point raised. Under these circumstances I think that the proposition as stated by Mr. Justice Channell is too wide. In my opinion, some- thing more than the mere ownership of property, or the entering into a contract of partnership, is required in order to enable a foreign judg- ment to be used as res judicata against a man who has ceased to reside in the country, who was not resident in the country at the time that the proceedings were instituted, and who has not submitted to the juris- diction of its courts. I think, therefore, that this appeal must be al- lowed. GROVER & BAKER SEWING MACH. CO. v. RADCLIFFE.^^ (Supreme Court of the United States, 1890. 137 U. S. 287, 11 Sup. Ct. 92, 34 L. Ed. 670.) Error to the Court of Appeals of Maryland. This was an action brought in the circuit court of Cecil county, Md., by the Grover & Baker Sewing Machine Company, a Massachusetts corporation, against James Beu^e and John Benge, who were then ^"h. 4) JUDGMENTS. 127 citizens of Delaware, by summons and attachment on warrant, which was served on William P. Radcliffe. garnishee. This suit was institut- ed to recover the sum of $3,300 on a judgment obtained by plaintiff in the court of common pleas in and for the county of Chester, in the state of Pennsylvania. The judgment was entered by the prothono- tary of the court upon a bond executed by defendants, one of whom was at the time a citizen of Pennsylvania, and the other (John Benge) a citizen of Maryland, authorizing "any attorney of any court of rec- ord in the state of New York or any other state to confess judgment." Under the law of the state of Pennsylvania the prothonotary of any court of record within the commonwealth was authorized to enter judgment upon such a bond without the agency of an attorney or dec- laration filed. A judgment for the defendant was affirmed by the Court of Appeals of Maryland.^^ Fuller, C. J. The Maryland circuit court arrived at its conclu- sion upon the ground that the statute of Pennsylvania relied on did not authorize the prothonotary of the court of common pleas of that state to enter the judgment; and the court of appeals of Maryland reached the same result upon the ground that the judgment was void as against John Benge, because the court rendering it had acquired no jurisdiction over his person. It is settled that notwithstanding the provision of the Constitution of the United States, which declares that "full faith and credit shall be given in each state to the public acts, records, and ju- dicial proceedings of every other state" (article 4, § 1), and the acts of Congress passed in pursuance thereof (1 Stat. 122; Rev. St. § 905), and notwithstanding the averments in the record of the judgment it- self, the jurisdiction of the court by which a judgment is rendered in any state may be questioned in a collateral proceeding ; that the juris- diction of a foreign court over the person or the subject-matter, em- braced in the judgment or decree of such court, is always open to in- quiry; that, in this respect, a court of another state is to be regarded ' as a foreign court; and that a personal judgment is without validity if rendered by a state court in an action upon a money demand against a nonresident of the state, upon whom no personal service of process within the state was made, and who did not appear. D'Arcy v. Ketchum, 11 How. (U. S.) 165, 13 L. Ed. 648; Thompson v. Whit- man, 18 Wall. 457, 21 L. Ed. 897; Hall v. Lanning, 91 U. S. 160, 23 L. Ed. 271 ; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. The rule is not otherwise in the state of Pennsylvania, where the judgment in question was rendered (Guthrie v. Lowry, 84 Pa. 533; Scott v. Noble, 72 Pa. 115, 13 Am. Rep. 663 ; Noble v. Thompson Oil Co., 79 Pa. 354, 21 Am. Rep. 66; Steel v. Smith, 7 Watts & S. [Pa.] 447), nor in the state of Maryland, where the action under review was brought upon it (Bank of United States v. Merchants' Bank of Baltimore, 7 Gill [Md.] 415; Clark v. Bryan, 16 Md. 171; Weaver v. Hoggs, 38 Md. 21 This statement of facts has been substituted for that of the origiual re- port. 128 GENERAL PROVISIONS. (Part 1 355). And the distinction between the validity of a judgment rendered in one state, under its local laws upon the subject, and its validity in another state, is recognized by the highest tribunals of each of these states. Thus, in Steel v. Smith, 7 Watts & S. (Pa.) 447, it was de- cided, in 1844, that a judgment of a court of another state does not bind the person of the defendant, in another jurisdiction, though it might do so under the laws of the state in which the action was brought, and that the act of Congress does not preclude inquiry into the jurisdiction, or the right of the state to confer it. The action was brought on a judgment rendered in Louisiana, and Mr. Chief Justice Gibson, in delivering the opinion of the court, said: "The record shows, that there was service on one of the joint owners which, in the estimation of the law of the court, is service on all; for it is affirmed in Hill V. Bowman, already quoted [14 La. 445], that the state of Louisiana holds all persons amenable to the process of her courts, whether citizens or aliens, and whether present or absent. It was ruled in George v. Fitzgerald, 12 La. 604, that a defendant, though he re- side in another state, having neither domicile, interest, nor agent in Louisiana, and having never been within its territorial limits, may yet be sued in its courts by the instrumentality^ of a curator appointed by the court to represeUt and defend him. All this is clear enough, as well as that there was in this instance a general appearance by attor- ney, and a judgment against all the defendants, which would have full faith and credit given to it in the courts of the state. But that a judg- ment is always regular when there has been an appearance by attor- ney, with or without warrant, and that it cannot be impeached collat- erally for anything but fraud or collusion, is a municipal principle, and not an international one having place in a question of state juris- diction or sovereignty. Now, though the courts of Louisiana would enforce this judgment against the persons of the defendants, if found within reach of their process, yet, where there is an attempt to enforce it by the process of another state, it behooves the court whose assist- ance is invoked to look narrowly into the constitutional injunction, and give the statute to carry it out a reasonable interpretation." 7 Watts & S. (Pa.) 449, 450. Referring to section 1307 of Mr. Justice Story's Commentaries on the Constitution, and the cases cited, to which he adds Benton v. Bur- got, 10 Serg. & R. (Pa.) 240, the learned judge inquired : "What, then, is the right of a state to exercise authority over the persons of those who belong to another jurisdiction, and who have perhaps not been out of the boundaries of it? " (7 Watts & S. [Pa.] 450), and quoted from Vattel, Burge, and from Mr. Justice Story (Confl. Laws, c. 14, § 539), that " 'no sovereignty can extend its process beyond its own territorial limits, to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals,' " and thus continues: "Such is the familiar, reasonable, and Ch. 4) JUDGMENTS. 129 just principle of the law of nations ; and it is scarce supposable that the framers of the Constitution designed to abrogate it between states which were to remain as independent of each other, for all but national purposes, as they were before the Revolution. Certainly it was not -intended to legitimate an assumption of extraterritorial jurisdiction which would confound all distinctive principles of separate sovereign- ty ; and there evidently was such an assumption in the proceedings under consideration. * * * But I would perhaps do the juris- prudence of Louisiana injustice, did I treat its cognizance of the de- fendants as an act of usurpation. It mal inffr i"ntB«*.lan " "The law," Said Lord Cairns, L. C, in Bell V. Kennedy (1868) L. R. 1 H. L. Sc. 310, "is beyond all doubt clear with regard to the domicile of birth that the personal status in- dicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another dom- icile is acquired." The onus of prov ing that a domicile has been chosen . in subs titution for the domicile of origin" lies Jigon those who assert that the domicile of origin has been lost. "Kesigeneg'an^'domicile", " as Lord Westbury points out (L. R. 1 H. L. Sc. 320, at page 321 ) , "are two perfectly distinct things. * * * Although residence may be some small prima facie proof of domicile, it is by no means to be inferred from the fact of residence that dom- icile results, even although you do not find the party had any other residence in existence or in contemplation." Lord Chelmsford's opin- ion— Udny V. Udny (1869) L. R. 1 H. L. Sc 455— was that "in a competition between a domicile of origin and an alleged subsequent- ly acquired domicile there may be circumstances to show that how- ever long a residence may have continued, no intention of acquiring a domicile may have existed at any one moment during the whole a of the continuance of such residence. The question in s uch a cas e , is not_whether there_is_ evidence of -aiL intention to retain the domicile of origin, but whether it is proved that .there was an intention to ac- quire another domicile." Such jm intention, I think, is not to be_ijiferred jErom an _attitude of indifference or a disinclinatiOT to move increasing with,^ increas- ing "years, least of all from the absence of any manifestation of in- "tenticTn one way or the other. It must be, to quote Lord Westbury again, a "fixed and settled purpose." "And," says his Lordship (L. R. 1 H. L. Sc. .381), "unless you are able to shew that with perfect clear- ness and satisfaction to yourselves, ^ follows that a domicile of origin continues." *S6 Heavy is the burden cast upon those who seek to show that the domicile of origin has been superseded by a domicile of choice ! And rightly, I think. A change of domicile is a serious matter — serious enough when the competition is between two domiciles both within the ambit of one and the same kingdom or country — ^more serious still when one of the two is altogether foreign. The change may involve far-reaching consequences in regard to succession and distribution and other things which depend on domicile. To the same effect was the inquiry which Lord Cairns proposed for the consideration of the House in Bell v. Kennedy, L. R. 1 H. L. Sc. 311. It was thfe: Whether the person whose domicile was in question had "determin ed" to make , a nd had, in fact, rnade^the .alleged domicile of choice "his home with Jhe intention of establish- ing himself and hi s family there,^nd_ ending his days in that coun- try"?^In a later case, Douglas v. Douglas '(1871) L. R. 12 ^q. 645, whiclT came before Wickens, V. C, who was an excellent lawyer, 178 GENERAL PEOVisiONS. (Part 1 and owing to the official position whicli he long held peculiarly con- versant with cases of this sort, all the authorities were reviewed. The competition there was between a Scotch domicile of origin and an alleged English domicile of choice. The learned Vice Chancellor thought the case "a peculiar and difficult one." He put the question in this way: "What has to be here considered," he said, "is wheth- er the testator * * * ever actually declared a final and deliber- ate intention of settling in England, or whether his conduct and dec- larations lead to the belief that he would have declared such an in- tention if the necessity of making the election between the countries had arisen." My Eords, if the authorities I have cited are still law, the ques- tion which your Lordships have to consider must, I think, be this : Has it been proved "with perfect clearness and satisfaction to you.t- selves" that Mr. Winans had at the time of his death. formed A^x- 'ed"arid_ settled purpose" — "a determination" — "a final .and .delih£r- ate intention" — ^to abandon his American domicile and set tle in En g- landj ~ ' ■ Considering the amount of Mr. Winans' fortune, which was be- tween two and three millions in marketable securities, and the length of his residence in this country, it is somewhat singular that the evi- dence offered on the question before your Lordships should be so meager. There i s not a single letter written by or to him^ or^ mem- orandum or note of any sort made by him, which bears directly on the point. There is notlmig but long-continued residence in ijjigland >on the one hand and some oral declarations jandsorne words in som e legal documents on the other. There i s nothing else except such ^in- ference as may be drawn from a consideration of Mr._ Wing.ns' r. har- acter and disposition, the life he led here, and the objects which he seems Yq have had mQSi.at^heart. The principal events in Mr. Winans' life may be stated briefly. He was born in the United States in 1823. He lived there till 1850, re- siding in Baltimore with his father, a railway contractor, and em- ployed in his father's business. Mr. Winans' eldest son, Walter, who was examined in this case, says that when he spoke of Baltimore he always called it "home." In 1850 Mr. Winans went to Russia. He was employed by the Russian government, as his father had been, in equipping railways there on the American system. During the Crimean War he rendered assistance to the Russian government in the construction and the equipment of gunboats to be used against the enemy — England and England's ally. In Russia he married a Guernsey lady, the daughter of a gentleman also employed by the Rus- sian government. He had two sons by her. In 1859 his health broke down. There were symptoms of consumption, and he was warned by his doctor that another winter in Russia would probably be fatal. He was advised to winter in Brighton in England. Very reluctantly, un- der medical orders, he left St. Petersburg and spent the winter in Ch. 5) DOMICILE. 179 a hotel at Brighton, returning to Russia when the winter was over. In 1860 he took a furnished house in Brighton, No. 2 Chichester Ter- race, fo r a t erm of five years, determinable at .the end of any year. He_aIso^tooli1EKeTiext hquse7T^J^o. 1, for a term of twenty-one years, determ inable at the fifth, seventh, or fourteenth year. He connect- ed the two houses structurally. He held both these houses at the time of his death — the furnished house, No. 2, as tenant from year to year, and No. 1 on a tenancy similar to that on which it was orig- inally taken. Frorn 1860 down to^ 1870_or^l871 he^used to sgend the winter at B righton and about eight moiiths of the year in^Russia. in 1870 he gave up his house in St. Petersburg, and took a lease of some shooting in Scotland, apparently for the sake of his sons, for he shot very little himself. From 1871 to 1883 he spent about two , months in Russia, two or three months in Kissingen in Germany, and the rest of the year in Brighton, Scotland, or London. In 1883 he ceased to visit Russia, thenceforward dividing his time between Kis- singen, Brighton, London, and Scotland. 'TQiis_jTiode_M..,.li|s_i;.ontin- ued until 18!1 3. After tjhat date jie spent the whole of the year in England — in London, Brighton, and the country. He never bought aiTestate in England for himself or for either of his sons. As far as he was concerned "he preferred Hying in furnished houses oF hotels" ~ — so his~son says. " Two events in his life referred to in the argument have, I think, no bearing on the question before your Lordships. In 1877, to please his wife, he bought the crown lease of a house in Palace Gardens. But he never lived there after 1893. It was shut up, and he tried to dis- pose of it. When he bought the lease he seems to have made partic- ular inquiries in order to ascertain whether there was anything in the conditions of the lease which might prevent his parting with it at any time he pleased. He never liked to "hamper" himself. Any prudent person would probably have done the same. Then there was his unfortunate experiment in the management and improvement of deer forests in Scotland. He took vast tracts of forest, not, perhaps, altogether for sporting purposes, as sport is understood in this coun- try. After a time he inclosed the ground with miles of fencing to prevent the deer straying. He had a notion that the value of the for- est for letting purposes would be much increased by stopping shoot- ing for some years, and allowing the stags a longer term of undis- turbed life. However, he got into trouble with the crofters and with his lessors, and he became rather unpopular both with those by whom deerstalking is highly esteemed and those to whom deer forests are an abomination. He thought, too, he had rather wasted money on the shootings; so he gave up his experiment, and he seems to have got rid of all the Scotch shootings before his death. My Lords, in the dearth of evidence by written or oral declara- tions as to Mr. Winans' intentions, it seems to me to be important to consider what manner of man Mr. Winans was, what were the main 180 GENERAL PROVISIONS. (Part 1 objects of Jxis existence, and what sort of a life hg lived i n this coun- tryT"! think there is a good deal of force in some observations that were made both by Lord Cranworth and Lord Wensleydale in the case of Whicker v. Hume (1858) 7 H. L. C. 124, to the effect that in these days, when the tendency of the educated and leisured classes is to become cosmopolitan — if I may use the word^-you inust^look very narrowly into the nature of a residence suggested as a domicile of choice before you deprive a man of his native domicile. Mr. Winans was a person of considerable ability and of singular tenacity of purpose, self-centered, and strangely uncommunicative. He was not interested in many things, but whatever he did he did, as his son says, thoroughly. He became completely absorbed in a scheme when he took it up. At the same time he lived a very re- tired — almost a secluded — life. He took no part in general or mu- nicipal politics. He rarely went into society. He had~n6~iiifiniate friends, if, indeed, he had any friends at all, in this country. There is_no evidence that he wa s interested in any charity or charitable or philanthropic institution in England. Although he was' on affection- ate terms with his two sons, he never let them into his secrets. "He always worked his business himself," his son says, "and never brought us into the business affairs in any way." And although at odd times he mentioned his property in America, he never allowed even his eldest son "to understand much about it." Mr. Winans had three objects in life. His first object was his health. He nursed and tended it with wonderful devotion. He took his temperature several times a day. He had regular times for tak- ing his temperature, and regular times for taking his various waters and medicines. Besides the care of his health, there were two other objects which engrossed his thoughts. The first was the construction of spindle- shaped vessels commonly called cigar ships. This form of vessel was, as Mr. Winans asserted, an invention of the Winans family. Many patents were taken out for it both in England and in America. It was claimed that vessels of this type would be able to cross the Atlantic without pitching or rolling. In_an aj^lication_to Congress m_jthe_year_1893 Mr^ Winans represented himself as a ttache d~heart andsqul to his country, and asked for protection for a long-term of years in consideration of the great expenditure which he and hisjam- ily had incurred in perfecting the invention, and the vastTienefits that would result from it to the people of the United States. Mr.' Winans declared his confident expectation that a fleet of spindle-shaped ves- sels subsidized by Congress would restore to America the carrying trade which had fallen into the hands of England and other foreign nations, secure to America the command of the sea, and make it im- possible for Great Britain to maintain war against the United States. Such a fleet as he described in his application could, he said, "meet war vessels in open sea near the European side and destroy one ves- Ch. 5) DOMICILE. 181 sel after another, so that none of them would be able to reach our shores." In the development of his invention Mr. Winans stated that he had incurred an expense nearly equal to four millions of dol- lars. Mr. Winans' confidence in this project remained unshaken to the end of his life, and -he kept an office in Beaufort Gardens where a staff of engineers and draftsmen was engaged in working out the problem. There was another scheme which Mr. Winans hoped to develop and work in connection with his fleet of spindle-shaped vessels. In 1859 a property in Baltimore, about SOO acres in extent, called Fer- ry Bar, was purchased on behalf of the Winans family originally for the purpose of being used, as Mr. Winans states in a letter of January 31, 1883, "for the service of the sea-going steamers of the spindle-shaped form." The scheme was that the water, frontage should be used for wharves and docks, while a portion of the property should be laid out for the building of first-class houses as a sort of Belgrav- ia. There Mr. Winans intended to build a big house for himself and control the undertaking, which would make the property, he thought, when developed, worth one million sterling. Nothing practical came of this scheme, because the members of the family could not agree among themselves how the property was to be developed. So Mr. Winans determined to wait until he could get the whole into his own hands. Then he would develop the property himself in his own way and according to his own ideas. He did not succeed in acquiring the entire interest until just before his death. At the date of his death, his son says, "he was working night and day on it." I find /that in the conveyances of th e last portion o f the Fe rry Bar property, ^vhich were prepared just befpre^^^his_J£ath,_j^nd_wluch^are dated June IQ, 1897, Mr, Winans is described as."oL_city of Baltimore^ but now sojourning m. the city of London, .England/^ Of course, to us these schemes of Mr. Winans appear wild, vision- ary, and chimerical. But I have no doubt that to a man like Mr. Winans, wholly wrapt up in himself, they were very real. They were the dream of his life. For forty years he kept them steadily in view. And o ne was anti-English and the other wholly American. It was in connection with these schemesjthat the latest and clear- est decJ^aHonjoT'inl^ention was made by A^^ Mr. H. Mon- tague Williams, who was his solicitor at Brighton, says that about two years before his death — a time which in cross-examination he fixed in the winter of 1895 or beginning of 1896 — Mr. Winans en- tered into rather a lengthy disquisition about the Ferry Bar prop- erty. Mr. Winans told him that he was making arrangements for buving the remaining shares in itj_that a good deal of it belonged to him, and that he intended when he had done that to go out to Amer- ica and live in lBi|tim.ore,.and develop the estate_ there_ himsS^ Williams says he remembers Mr. Winans particularly saying, "If I 182 GENERAL PROVISIONS. (Part 1 do that it will be worth a million pounds;" and he adds, "The de- cided way in which he said ' I shall go out to Baltimore' (or words to that effect) struck me at the time. ' The only other circumstance to be mentioned is that in his will dat- ed February 4, 1897, Mr. Winans describes himself as a "citizen of the United Sta tes.xt£-Ameiica." It was argued on behalf of the Crown that, although Mr. Winans may have been prevented by the state of his health from returning to America when he left Russia, and although he could not hav€ safe- ly attempted the voyage in the latter years of his life, yet there was a time in which he might have ventured to cross the Atlantic in an ordinary liner. The obvious answer is that at that time, when divid- ed counsels and family disagreements prevented the development of the Ferry Bar property, he had no object in goin g to Baltim ore. Then it was said that tEe~length of tTine"cluring which Mr. Winans resided in this country leads to the inference that he must have be- come content to make this country his home. Length of time is o f course a very important element in questions of domicile . An un- conscious change may come over a man's mind. If the man goes about and mixes in society that is not an improbable result. But in the case of a person like Mr. Winans, who kept h imself to him self and had little or no intercourse with his fellow men, it see ms to m e that "at the end of any space of time, however long, his mind would probably be iii..the state it was at the beginning. When he came to this country he was a sojourner and a stranger, and he was, I think, a sojourner and a_stianger.-in-it wlien he died. On the whole I am^unable to come to the conclusion that Mr. Wi - nans^ever formed a fixed and settled purpose of abandoni ng his Amer- ican domicile and settling finally in England. I think up to the very last he had an expectation or hope of returning to' AmericaTand see- "ing his grahd schemes inaugurated. To take the test proposed by Wi3cens, V. C, "if the question had arisen in a form requiring a de- liberate or solemn determination," I have no doubt Mr. Winans, who was, as his son says, "entirely American in all his ideas and sym- pathies/' would have answered it in favour of America. I am therefore of opinion that the Crown has not di scharged the o nus cast upon it, and I think that the order appeale3~from ought to be reversed. Lord LiNDLEY. * * * y[y i,ords, I take it to be clearly settled —by the Lauderdale Peerage Case (1885) 10 App. Cas. 692; Udny v. Udny, L. R. 1 H. L. Sc. 441 ; Bell v. Kennedy, L. R. 1 H. L. Sc 307— that the burden of proof in all inquiries of this nature lies upon tho se who assert that a domicile of origin has been lost, and that s ome other domicile has been acquired. Further, I take it to be clearly settled that no person who is sui juris can change his domicile with out a physical change of place, coupled with an intention to adop t the place to which he goes as his home or fixed abode or permanenf residence. Ch. 5) DOMICILE. 183 whichever expression may be preferred. If a change of residence £s_ proved, the intention necessary to establish a change o± domicile is an mtention to a dopt the second reHdence as home,'or7in other words an jntention to rema in without any intention of further change except possibly f or som e t emporary purpose. ~ See Story's Conflict of Laws, § 43, and In re Craignish [1893] 3 Ch., at page 192, Attorney General v. Pottinger (1861) 6 H. & N. 733, and Douglas v. Douglas, Iv. R. 12 Eq. 643, 644. My L ords, the change_of_resid£nce_ here is^pladn, enough, andjieed not be enlarged upon. The difficulty is about the intention of Mr . Winans with reference to the changed TFe exact "tmie wtien he ma3e up l liij mind t"o~seftte""here cannot be ascertained. "TEere" is no docu- ment or conversation which eiiablei any one to fix the date. But it by no means follows that when he died it cannot be inferred that he jnust have abandoned all' thoughts of going back to America and set- ^tTmg^ there, an d have ' graduall y become content to make hjsjipme in 'tHTscountry without contemplating any change. If this can be estab- ' liShed.'a change* of "3om.icile wHT be'thelegaL result. Haldane v'. Eckford (1869) L. R. 8 Eq. 631 ; Douglas v. Douglas, L. R. 12 Eq. 617. An intention to change nationality, to cease to be an American and to become an Englishman, was said to be necessary in Moorehouse V. Lord (1863) 10. H. L. C. 373 ; but that view was decided to be in- correct in Udny v. Udny, L. R. 1 H. L. Sc. 441. Intention may be inferred from conduct, and there are cases in which domicile has been changed, notwithstanding a clear statement ' that no change of domicile_jvas Jntended See Re Steer "(1858) 3 ""HT & M ."S^'and per ' Wickens," v!"C., in 12 Eq. 644. An expressed^ intention to return for a temporary purpose, or in some possiEIe'everiF " whTch iJeveTTSappens, will not prevail ovFr~ acleliF inference "from other circ iimstances of anjntehtion to remain. . See Attorney General V. Jr'ottlnger, a H. & N. 747, per Bramwell, B., and Doucet v. Geog- hegan (1878) 9 Ch. D. 441. My Lords, I do not propose to refer at length to the details of Mr. Winans' life. They were elaborately brought to your Lordships' attention by counsel, and have been most graphically described by my noble and learned friend who has just addressed the House. There is no real controversy about the facts. The quest ion is what inference ought to be d rawn fr om them.. Here I have the misfortune to differ Trom my" noble and learned friends who have just addressed the House. I have arrived at the same conclusion as that arrived at by Phillimore, J., and the Court of Appeal. I cannot myself draw any other inference than that which they have drawn: Where w as Mr. Winans' home;— his settl ed permanent hom e? He had one and o'fily one, and that one was~itiL th is country; an3 Jong "before he d ied 1 a m ~sat isfied that he had given up all serious id ea of returning to his Rative country. He was an American citizen"'permanently settled in this country. !But although so settled he was proud of his nationality 184 GENERAL PROVISIONS. (Part 1 and had no intention to change it. He may at one time have looked back on Baltimore as his possible ultimate home, but he had ceased to do so long before he died. In 1880 he proposed to build a house for himself in Baltimore; but this came to nothing, and none of his later schemes for developing his property there were carried out in his lifetime, nor did they involve any change of residence on his part. A dim hope and expectation_of being at s o me time able to ret urn to America when lie'~had"Tucceeded in constructing _a shipi__to his "TiKing— which he never did — is spoken to by_-his -sotLt- but ^wliea, last does not appear. I ^canjRnd. nothing to displace the^only inference ■wEiciri"can draw from Mr. Winans' conduct for the last twenty or twenty-five years of Jiisjife. In my opinion the appeal should be dismissed with costs. Orders of the Court of Appeal and Queen's Bench Division re- versed with costs here and below ; the respondent to repay to the ap- pellants the amount of the legacy duty paid by them. Cause remitted to the King's Bench Division.^ WHITE V. TENNANT. V\ (Supreme Coprt of Appeals of West Virginia, 1888. 31 W. Va. 790, 8 S E. 590. 13 Am. St. Rep. 896.) Snyder, J. This is a suit brought December, 1886, in the circuit court of Monongalia county by William L,. White and others against Emrod Tennant, administrator nf -M'"''hap^ Whitp, deceased, and Eu- cinda White, the widow of said Michael White, to set aside the sett le- ment anddistribution made bv_t he administra tor of the pers onal es- TatFoTsaid decedent, and to have the same settled and distributed ac- cofding" to "the' laws of the state oUPennsylvania, which state it is claimed was the dqniicile of said decedent at the time oFTiis death. The plaintiffs are the brothers and sisters of the decedehF,"who"3ied in this state intestate. On October 38, 1887, the court entered a decree dismissing the plaintiffs' bill, and they have appealed. The sole^ question presented for our determination is whether the said Michael White, at the time of his death, in May, 1885, ha^his Tegal domicile in this state or in the state of Pennsylvania. It is admitted to be the settled law that the Jaw of the state in which the decedent had his domicile at the time of his death will control Jhe succession and distribution of his personal estate. BefoTe referring to the facts proved in this cause, we shall endeavor to determine what in law is meant by "domicile." Dr. Wharton says : " 'Domicile' is a residence acquired as a final abode. To constitute it there must be 2Tlie Lord Chancellor (Earl of Halsbury) was unable to come to a satis- factory conclusion either way, and decided for reversal on the ground that the burden of proof was upon the Crown. Ch. 5) DOMICILE. / 185 (l) J^esidence , actual or incho ate; (2) t he (nonexistence) of any i nten- tion to tnake adomicile elsewhere." Whart. Confl. L,aw, § 21. " 'Domicile' is that place or country^ either (1) _in _yyhich a p erson in ^fact resides jagfli a n intention of residence — animus manendI7~of~X3) in which, having so reside d, he contmueTactually to reside, though no longer retaining the intention of residence — animus"manendi ; or (3) with regard to which, having so resided there, he retains the intention of residence — animus manendi — though he iri_fact no longer resides . there." Dicey, Dom. 44. Two thin gs must concur to establish domi- 'cile— the fact of residence, and the intention of remaining. T hese two J ' must exist, o r must nave ejtisted. in combination . TTiere'must hav e_ been an actual " residence. The charact er of the residence_is_Qf—no- importance; ancT, if domicile has once existed, mere , temporary ^absence "wtlT'nof'destroy it, howev'erTong continued, lyiunro v. Munro, 7 Claflc &" F; 843. The original domicile continues until it is fairly changed for another. It is a legal maxim that every person must have a domicile somewher e; and he can have but one at a time for the same purpo se! Prom thi s it follows that one cannot be lost or extinguished until another is acquired. Baird v. Byrne, 3 Wall. Jr. (U. b'.) 1, FedT Cas. No. 757. When one domicile is definitely abandoned, and a new one selected and entered upon, length of time is not important : one day will be sufficient, provided., J;he__aniraus , exists. Even when t he poin t of destination is not reached, domic ile may shift initinere, if t he abandonment of the old domicile, and the setting out tor the new-Z are-olaiDhL-shown. Munroe v. Douglas, 5 Madd. 405. Thus a constructive residence seems to b e suffic ient to give domicile^ though_ an actual residgncernaynot have begun. Whart. Conn. i-,aw, '§~58. A change of d omicile doe s not depend so muc h upon the int ention to_^remam. in the new place for a definite or an indefinite_ period, as upon its being without an intention to return . An intention to returnTTiowever, at a remote or indefinite period, to the former place of actual residence, will not control, if the other facts which constitute domicile all give the new residence the character of a permanent home or place of abode. The intention an d actual fact of i-esidence must concur, where s u ch residenc e is noTin^its nature ■temporafyT Hallet v. Bassett, 100 Mass. 170, 171; Long v. Ryan, 30 iGfTar-(Va::7718. In Bradley v. Lowry, 1 Speer, Eq. (S. C.) 1, 39 Am. Dec. 142, it is held that "change of domicile is consummated when one leaves the state where he has hitherto resided, avowing his intention not to return, and enters another state intending to permanently settle there." A domicile once acquired remains until a new one is acquired elsewhere, facto et animo. Story, Confl. Law, § 47 ; Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 597. Where a person removes from one state to another and establishes a fixed residence in the latter, it will become his domicile, although there may be a floating intention to return to his former place of abode at some future period. Ring- gold V. Barley, 5 Md. 186, 59 Am. Dec. 107. "If a man intending to 186 GENERAL PROVISIONS. (Part 1 remove with his family visits the place of removal beforehand, to make arrangements, or even sleeps there occasionally for convenience, and then transfers his family, the change of domicile takes effect from the time of removing with the family ; but if he has definitely changed his residence, and taken up his abode permanently in a new place, the fact that his family remains behind until he can remove them conven- iently, and that he visits them occasionally, will not prevent the new place being his domicile." Guier v. O'Daniel, 1 Am. Lead. Cas. (753) 902 ; Cambridge v. Charlestown, 13 Mass. 501. The material facts in the case at bar are as follows: Joseph S. White, the father of the plaintiffs and Michael White, died intestate in Monongalia county, seised of a tract of about 340 acres of land, of which about 40d acres lay in Greene county, Pa. ; the whole con- stituting but one tract or farm. The mansion house in which the father resided was located on the West Virginia side of the farm, and there was also a dwelling house generally occupied by tenants on the Pennsylvania part of the farm. After the death of the father, his widow and the plaintiffs remained together and occupied the home farm, residing in the mansion house in West Virginia. Michael White, several years before his death, married the defendant Lucinda White, a daughter of the defendant Emrod Tennant, and about that time purchased a farm on Day's Run, in Monongalia county, some 15 miles from the home place, to which he"move37~a.nd at which he and his wife resided. It is conceded that Michael was born and had his domicile in West Virginia all his life, until about April 1, 1885. In /the winter of 1884-85, Michael sold his Day's Run farm, and then rented or made an arrangement with his mother and brothers and sisters, the plaintiffs, to occupy the 40 acres of the home farm, in which he still had an undivided interest, and to live in the house on said 40 acres in Greene county. Pa. He was to give to the purchaser the possession of his Day's Run farm on April 1, 1885, and to have possession of the Pennsylvania house and 40 acres at the same time. In March, 1885, he moved part of his household goods into the Penn- sylvania house, and put them into one of the rooms by permission of the tenant who then occupied it, and who did not vacate it until be- tween the middle and last of March, 1885. About the same time he moved an organ and some grain to the old homestead, until he could get possession of the Pennsylvania house. On the morning of April 2, 1885, he finally left the Day's Run house with the remainder of his goods and his wife, he having no children, with the declared intent and purpose of making the Pennsylvania house his home that evening. He, with his team, wife, and goods, and live stock, passed into the state of Pennsylvania several miles before he reached said house, and continued in said state thence to said , Pennsylvania house, where they arrived that evening about sundown, and then and there unloaded their goods, and put them in the house, setting up one bed, and turning the fowls and other live stock loose at the house. Ch. 5) DOMICILE. 187 The said house had been vacated for several days. It was a damp, cool day, and the house was found to be damp and uncomfortable. The wife was complaining of feeling unwell, and in consequence of that fact and the uncomfortable condition of the house, on the invitation of her brother-in-law and others of the family who then resided at the man- sion house, but a short distance therefrom, the said Michael and his wife went to the mansion house in West Virginia to stay all night and return in the morning. Before leaving the Pennsylvania house the wife had gotten out of the buggy at the house, and the said Michael, after putting into it his household goods, locked the door, and took the key with him. On the following morning, the wife still feeling unwell, and the brother, who was to return the team which they had used in moving their goods, having taken sick, the wife, after going to the i'ennsyl- vania house to milk, returned to the mansion house, and Michael took the team back to Day's Run. On the return of Michael from this trip he found his wife so sick with typhoid fever that it was impossible ■ to move her, in consequence of which both he and she remained at the mansion house — she because she was unable to get away, and he to wait on her — but he went daily over to the Pennsylvania house to look after it, and to feed his stock there, calling it his "home." In 10 or 15 days, and before the wife had sufficiently recovered to leave her bed, Michael was attacked with typhoid fever, and about 10 days thereafter died intestate in the same house. The wife recovered, and the defendant Emrod Tennant, her father, administered on the estate of Michael, taking out letters of administration in Monongalia county, W. Va. The administrator settled his accounts before a commissioner of said county, and distributed the estate according to the laws of West Virginia ; that is, by paying over to the widow the whole personal estate remaining after the payment of the debts of the decedent. Jt is admitte d that if the distribution had been according to the laws of the state of Pennsylvania the wife would have been entitled to the one Kalf'only of said estate, and the plaintiffs would have been entitled to the other half. As the law of the state in which the decedent had his domicile at the time of his death must govern the distribution of his estate, the important question is, where, according to the foregoing facts, was the domicile of Michael at the time of his death? It is unquestionable that^prior to t he 2d dav of April^ 1885, his domicile was^and" had [always been in the state of West Virginia. Did he on tKaF~aay, or at any subsequent day, change his domicile_ to the. state 01 Jr-ennsylvama ? ~ Accbrdiiig* to "Thg"' autKorrETes hereinbefore cited, "~ff ITTs'g h ' O ' wn " thgf' a person has entirely abandoned his former domicile in~one"'state with the intention of making^ his home at a fixed place 'in aiioffier' state, "with no intention of returning" to his former" domicile, ~and 'then" establishes^ a residence in the new place for any period of ~tTme, howevefbrief , that will be in law a change of domicile, and the lattei- will "femiin" his cfomicile until changed in like manner. The facfs'in this case conclusively prove that Michael White, the decedent. 188 GENERAL PROVISIONS. (Part 1 abandoned his reside nce i n. West Virginia with the intenti on and pu r- pose not only of not returning to it, but for the expressed purpose o f making a fixed place in the state of Pennsylvania his honi e for ~an indefinite time. This fact is shown by all the circumsfaiices, as well as by his "declarations and acts. He had sold his reside nce in W est Virginia, and surrendered its possession to the purchaser, and thereby made it impossible for him to return to it and make 'itTiFTSome. He rented a dwelling in Pennsylvania, for which he had no use except fe~liveln7and make it his home. In addition to all this, he had m oved a part of his household goods into this house, and then on ttie'Z& ni ApriC 1885, he, with his family and the remainder of hi s goods and stock,"finariy left hjs_ former home, and the state of W est Virg inia, and moved into the state of Pennsylvania, to his house in that sta te, and there put his_ goods in the house, and turned his "stock loose' o n the"pFemises. At th e time he l eft his form e r home on t hat morning, ~and while he was on The 3yay to hi s new ho me, his declare d purpose "and intention were to makejhat his home from that very day, and to , 'occupy it that "night. He arrived'in Pennsylvania and at his new home with "tHat intention; and it was o nly after he arrived there, an d for reasons not before known, and which had no effect to change 'n is purpose ot makmg that his futureTome, that he failed to remain there from that time. There was no change in his purpose except that after he arrived at his new home, and unloaded and left his property there, he concluded, on account of the condition of the house and the illness of his wife, that it would be better to go with his wife to remain one night with his relatives, and return the next morning. When he left his former home, without any intention of returning,_andjjLp.ursuance of that intention did in fact "move with his family and effects to his new home with the intention of making it his residence for an indefi- nite time, it is my opinion that when he and his wife arrived at his new home it became eo instanti his domicile, 'and that his leaving th ere, under the circumstances^ith the intention of returning, the next day did not change the fact. The concurrence of his intention to make the Pennsylvania house his permanent residence with the fact that he had actually abandoned his former residence, and moved to and put his goods in the new one, made the latter his domicile. According to the authorities hereinbefore referred to he must of necess ity have ha d a domicile somewhere. If he did not have one in Pennsylvania , where did he have one ? "The fact that he left the Pennsylvania house after he had moved to it with his family and goods, to spend the night, did not revive his domicile at his former residence on Day's Run, because he liad. sold that, and left it without any purpose of returning there. ~By going from his new home to the house of his relatives to spend the night he certainly did not make the house thus visited his domicile; therefore, unless the Pennsylvania house was, on the evening of April 2, 1885, his domicile, he was in the anomalous position of being without a domicile anywhere, which, as we have seen, is a legal impossibility; Ch. 5) DOMICILE. 189 and that house having become his domicile, there is nothing in this case to show that he ever did in fact change or intend to change it, or to establish a domicile elsewhere. It follows, therefore, that that house remained his domicile up to and at the time of his de atlTf anCttiat house being in the state of Penn- 'syTvania, the laws oT that state must control the distribution of his personal estate, notwithstanding the fact that he died in the state of West Virginia. For these reasons the decree of the circuit court must be reversed, and the cause must be remanded to that court to be there further proceeded in according to the principles announced in this opinion, and the rules of courts of equity.* Appeal of HINDMAN. (Supreme Court of Pennsylvania, 187T, 1878. 85 Pa. 466.) Mercur, J. All the assignments of error relate to the question of the place of George Hindman's domicile, at the time of his death. They will therefore be considered together. Vattel defined domicile to be a fixed residence, with an intention of always staying there. This definition is too limited to apply to the migratory habits of the people of this country. So narrow a construction would deprive a large pro- portion of our people of any domicile. The better definition is, that place in which a person has fixed hi s_habitation, without any present 3 "It is jrohaMv nrvt npppHSfjTy that, In order to work a change of domicile from one state or country to another, the person whose ^omicile is in ques- tion sho ul d reach the parti c ular spot within the feFri torial limits "oT^Se' lat- ter at w hich ne intengsTSm g h is perman ent abode; arid indeed it may per- faaps be ^ a tha_tjj:2S„ not absolutely ne cesggpT f or such purpose tha\the per- gO fl sE'oulg' ever have, either in fact or in conte mplation. a_Dermaneht" Some withiri any particular municipal div ision of such stateL..Qrl5iim1Efy.'" Such cases "lllTisl iieceBsarilyl5e"r'are, but It is possible to conceive of a "Frenchman, for SSSmpre7 coming' to Eriglana~wTffi"' the ' intention of permanently reinaining TBBT^^bat" without ever .fixing a permanent abode in any particular part of tharcbuntry. In such ca se, while it would doubtless be much more difficult fnn>rgyg-*the requisite infenttgh than'^f he h]ad,~lfor example, purchased a dwelling house and fixed himself in it in an g,pparently permanent manner, "yBtr"agg1ffiiiig the requisite intention to be made out by other proofs, there is ITffle^bubT'mat his domicile would be held to .he changed." Jacobs on Dom- Icnsrf 133. "Accord: Marks v. Marks" (C. C.) 75 Fed. 321 (1896). Contra: Cooper V. Beers, 143 111. 25, 33 N. E. 61 (1892). See, also, Arnott v. Groom, (1846), 9 Dunlop, 142 ; In re Patience (1885), L. R. 29 Ch. D. 976 ; Dicey, Con- flict of liaws, 93-96. As to municipal domicile, where the boundary line passes through the dwell- ing house, see Abington v. North Bridgewater, 23 Pick. (Mass.) 170 (1839) ; East Montpelier v. City of Barre, 79 Vt. 542, 66 Atl. 100 (1906). It has been held that a shipmaster may acquire a domicile without actual presence by sending his wife to a state with the indent to make it his home. Bangs v. Brewster, 111 Mass. 382 (1873). But see Hart v. Horn, 4 Kan. 232 (1867). A party may have a separate "commercial domicile" which is based upon mere residence. It is of importance in case of war to determine whether a person is an alien enemy. See Dicey, Conflict of Laws, 740-745. IDO GENERAL PROVISIONS. (Part 1 intention of removing therefrom. 1 Bouv. Law Die. 499 ; Story's Confl. of La\vs, § 43; Putnam v. Johnson, 10 Mass. 488; Greene v. Windham, 13 Me. 325 ; Appeal of Carey, 75 Pa. 301. The evidence in this case shows that George Hindman w as born. in Brooke county, West Virginia, where, he ^resided till_1869. Then he movecTon a farm which he had purchased in Hancock county, of the same state. There he resided until March, 1871. H e then sold his farm, which was all the real estate he owned, and went to live witll his^'brother-in-law, McClurg, in Washington county, Pennsylvania. He ne ver married, and had no family. His property was all in per- ' sonal estate. He took wiTh TunTariiorse, a box containing his notes, bonds and valuable papers. Soon afterwards he brought his other ! horse to McClurg's leaving in Virginia only some farming implements ; of little value. He continued to live with McClurg, paying his board, and there made his home until April, 1873. He then went to live with Gibson, another brother-in-law, in Washington county, taking with him his box, a bureau, clock and table. There he continued to live 'until the time of his death, 33d June, 1873. All these facts appear by (the evidence and by the auditor's report, and are uncontradicted. Al- / though he thus resided, and made his home in this state for about i fifteen months, and died here, yet the auditor and court below, found that he was domiciled in West Virginia at the time of his death. They appear to have reached this conclusion, from his declarations madewhile he was residing in Pennsylvania; " Tiie evidence shows that after he thus removed from West Virginia, he at dififerent times made visits to friends in that state, yet he always returned to the room which he retained at the house of' his brotEer- in-law in Pennsylvania. Here was his property ^d his Jjiinie. He had no house, no residence, no property, no family in the state horn which he had moved. When he sold the farm on which he had lived, he gave up possession and removed therefrom. He thereby_gave up that ^dociicik, He then made no new abode, and establisHeS no other residence in that state. He gathered up his property, and with it departed, and located in another state. This unequivocal act of mov- ,ing from.the state and taking up his residence in" another sfafe" Isvery strong evidence of the establishment of a domicile in^the latter. Its effect is not destroyed by his expressed and indefinite intention to go 'baclT into West Virginia at some future time and there buy land. TSTotlii ng less than a present intention to retain his domicile jthere would prevent its transTerToTRFsTStTinto which he moved. He did no t come into Pennsylvania for his health, or as a traveller, nor for any other particular business of a temporary haTufe. No person can havelnore than one domicile at the same time in regard to succession to personal property. Abington v. North Bridgewater, 33 Pick. (Mass.) 170. It is true that a domicile once gained remains until a new one is actually acquired, facto et animo. Story on Conflict of Laws, § 47, The fact and intention must concur, yet the former may prove the Ch. 5) DOMICILE. 191 latten A mere intention to remove permanently, without an actual removal, worKS no cnange ot Qomicile; nor doe s a mere removar from the state, witJiouFan intention to re sige'elsewhere. But when a per- son sells all his land, gives up all his business in the state in which he had lived, takes his movable property with him and establishes his home in another state, such acts prima facie prove a change of domi- cile. Vague and uncertain evidence cannot remove the legal presump- tion thus created. Story on Conflict of ]>ws, § 46; Wilbraham v. Ludlow, 99 Mass. 587 ; Harris v. Firth, 4 Cranch, C. C. (U. S.) 710, Fed. Cas. No. 6,120. The evidence of Hindman's declarations shows he had a fickle and uncertain mind. Sometimes he expressed an intention to buy a farm in Brooke co unty, at other time s, in Hancock count y ,~ftiarifrWashing-~ ton county; sometimes complaining of the collaterar'ihheritance tax of -b^e nnsylvania, and decTarmgTRaT he did not want to become a citi zen of this state, but would go back and make Virginia his hom^, aSd that he_ n ever intended to pay any tax in this state. He refuse d to be assessed or registered, and did not vote in Fennsylvania._ It, however, does not appear after he moved here, that he was~either as- sessed or registered in West Virginia, or voted there. Soon after paying his taxes, the 1st of ISTovember 1871, assessed against him in Virginia prior to his sale, he said to Gardner it was the l ast tax he ever expected to pay in Virginia, and soon thereafter declared he did not want land, as he could do better with his money than by farming. Again, in January, 1872, he said to Samuel Hindman that he wanted no more land, and would make his home in Pennsylvania. After this he again talked of buying land in Virginia. Without giving more of the evidence in detail, the whole of it t ends t o show that Ee"^ave "up his domicile in West Virginia and acquired one in Pennsylvania ; that at first he intended" to purchase a farm, and wherever that should be, to" go and reside on it. Whilehe talked of purchasing in_e.acB state, yet his preference appeared to b e in favor of one in Virginia. He seeins~tO have avoided all assessments and all ta xes everywhere, Tor" the' time he "Kved' in Pennsylvania. He made no purchase anywhere. As time raii" onTieTecame less desirous of purchasing land. During the last two or three months of his life, he made no mention of land. As he had only indicated an intention of returning to Virginia in con- nection with his purchasing land there, when he ceased to talk about the purchase of land he said no more about returning to Virginia. It was said in Abington v. North Bridgewater, supra, " it depends not upon proving particular facts, but whether all the facts and circum- stances taEen" together, tending to show that a' man has his home"or ddfnicile m OTie place, overbalance 'all the Tike proofs tending to estab- lish "iFiri another!" , Applying this rule, which we believe a correct one, we think all the facts and circumstances proved clearly preponderate in favor of his domicile in Pennsylvania. The conclusion to which we have ar- 192 gi;nbral provisions. (Part 1 rived, must not be understood as changing the rule in regard to the force to be given to an auditor's finding of facts. When he reports facts directly proved by the witnesses, his report is entitled to great- weight. But when the fact is simply a deduction from other facts reported by him, his conclusion is the result of reasoning, the correct- ness of which we are as competent to judge as he. We will therefore review such result, and correct it if we discover error therein. Phil- lips' Appeal, 68 Pa. 130 ; Moyer's Appeal, 77 Pa. 482. The learned judge erred in the effect he gave to the declarations, followed by no corresponding action changing the domicile. The distribution must be made according to the intestate laws of Penn- sylvania. Decree reversed and record remanded with instructions to decree distribution conformably with this opinion.* REED'S WIEL. (Supreme Court of Oregon, 1906. 48 Or. 500, 87 Pac. 763, 9 L. R. A. [N. S.] 1159.) Bean, C. J.° * * * The animus or intent is, therefore, as es- sential to a change oj domicile as the fact of residence. To lose a domicile when once acquired, there must be an intention to do so. A mere change of the place of abode, howe ver long continued, is not s ufficient, unles s the proper animus or intention is present T his in- tention, it is truej^nia^jDeJriferr^ fr'oih circumstances, and the resi- aence may be of such a character and accompanie3"by such indices of a permanent home that the law will apply to the facts^a res ult contra ry , to the actual intention of the pa rtv. Thus one cannot make a perma- nent fixed commercial residence with all the surroundings of a perma- nent home in one place and a domicile in another b y a mere ment al _act. But a residence for mere plea sure or health is not regarded as of any great weight in determining the question of a change of domi- cile, for, in such case it is just as likely that the party intends to re- tain as to abandon his present domicile. The books abound in cases where absences fo r 20.^0. and even 40 years e ffect no change of domi- cile. White V. Brown, 1 Wall. C. C. (U. "B.) 217, Fed. Cas. No. 17,538 ; Re Domingo Capdevielle, 10 Jur. 1155 ; Jopp v. Wood, 4 De G. J. & S. 616 ; Hodgson v. Beauchesne, 12 P. C. 285 ; Cruger v. Phelps, 21 Misc. Rep. 252, 47 N. Y. Supp. 61. And Sir John Dodson says * "Where a person has either no fixed place of residence, or has two homes, and the scale is almost evenly balanced between them, the legal presumption is in favor of what is called 'domicile of origin,' by which is meant, not the place where he may chance to have been born, but the home of his parents." Comegys, O. J., in Prettyman v. Conaway, 9 Houst. (Del.) 221, 32 Atl. 151 (1891). bA part of the opinion only is given. Ch. 5) DOMICILE. 193 in Bremer v. Freeman, 10 Moore, P. C. 306 : "A person may live 50 years in a place, and not acquire a domicile, for he may have had all the time an intention to return to his own country." And Mr. Jacobs says : "Residence of itself, although decisive of the factum necessary for a change of domicile, is decisive of nothing further, and even when long continued, although per se evidence of intention, ,irill not supply its place. * * * Intention must concur with fact, and must clearly appear. On the one hand, the shortest residence is sufficient if the requisite animus be present, and, on the other, the longest will not suffice if it be absent." Jacobs, Domicile, § 136. The residence of Mr. and Mrs. R e ed at Pasadena admittedly w as for health and pleasure, and no t business. _ It was, therefo re, not of that perma nent commeraal or Jmsijiess^ character which wiTTTnTfew constitute a chahge of domicile_regardless of the intention of the par- ities. Nor was it of such a character as will over c ome the presumpt ion that their former domicile at^^rtlandcojitinued. We must, therefore, "rooK to th e evidence to ascertain whether in fact they~nitende3~ to abandon their Portland domicile and acquire a new one jn JJalTforriia, and in doing sojt is important to bear in mind their situation at the time of their r emoval, the causes which prompted it, its purpose and the placeTo whic Ji. they .removed. Mr. Reed was in failing health and had been compelled to cease active participation in his business affairs. It was necessary, as he thought, and as he was advised by his physi- cians, to seek a more congenial climate than that of Oregon. For this purpose he visited California, and, after examining several places or localities, finally selected Pasadena, which, as one of the witnesses testified is "a health resort." A large part of its population "come there and away again"; "two-thirds of it was temporary." "The temporary class is composed largely of people who come in search of health." To this character of a location Mr. and Mrs. Reed moved, because its climatic conditions and general surroundings would, it v;as thought, conduce to their personal comfort and the improvement of Mr Reed's health. They did not make any investments in Pasaden a except s uc h as seemed to them necessary for their co mfort_and pleasure. Mr. Reeddid not dispose of his Portland property, or mak e any change in his business affairs. He retained his office and ba nk account in Portland, and his enti re cond uct negati ves an intention to abandon his Portlan d domicile or to acquire another. Mr. Reed's health did not improve, a nd he died in 1895, de vising and bequeathing his property to his wife. Mrs. Reed continued to reside in Pasadena as before, without making any change in her business affairs or in- dicating in any way a purpose to change her domicile. She continued her church connection in Portland, making regular contrib utions for its support and to its charities. She described herself in numerous documents and in her will as a resident of Portland ^temporarily residing at Pasadena, and the very terms of the will itselT indicate that she considered Portland as her home, and entitled to receive her LOB.CONF.L.— 13 194 GENEEAL PROVISIONS. (Part 1 charitable bequests. The acts of Mr. and Mrs. Reed, and the un- disputed facts surrounding and characterizing their removal from Portland to California, and their subsequent residence in Pasadena, show to our minds quite clearly that they at all times deemed and considered their residence there as temporary rather than permanent, and that Portland was their legal domicile. The decided weight of the testimony as to their purposes as declared by them is to the same effect. * * * 8 UDNY V. UDNY, "^"^ (House of Lords, 1869. L. B. 1 H. L. [Sc] 441.) The late Colonel John Robert Fullerton Udny, of Udny, in the county of Aberdeen, though born at Leghorn , where his father was consul, had by paternity his domicile in Scotland. At the age of fif- teen, in the year 1794, he was sent to Edinburgh, where he remained for three years. In 1797 he became an officer in the Guards. In 1803 he succeeded to the family estate. In 1813 he married Miss Emily Fitzhugh, retired from the army, and took upon lease a house in Lon- don, where he resided for thirty-two years, paying occasional visits to Aberdeenshire. In 1844, having got into pecuniary difficulties, he broke up his es- tablishment in London and repaired to Boulogne, where he remained for nine years, occasionally, as before, visiting Scotland. In 1846 his wife died, leaving the only child of her marriage, a son, who, in 1859, died a bachelor. Some time after the death of his wife Colonel Udny formed at Boulogne a connection with Miss Ann Allat, which resulted in the birth at Camberwell, in Surrey, on the 9th of May, 1853, of a son, the 6 See Dicey, Conflict of Laws, 149-153. " 'Residence' is the favorite term employed by the American legislator to express the connection between person and place, its exact signification being le ft to cons truction, to be determined from the context and the apparent ob- ject sought to be attained by the enactment. It is to be regretted that these lights are often very feeble, and that not a little confusion has been intro- duced into our jurisprudence by the different views held by different courts with regard to the exact force of this and similar words when applied to sub- stantially the same subject-matter. 'Residence,' when used in statutes, is gen- erally construed to mean 'domicile.'' In fact, the great hulk of th¥~cases of domicile reported In the American books are cases of statutory residen ce. This is especially true with regard to the subjects of votin g, eligibility to office, taxation, jurisdictionin divorce, probate, and administration, etc. With re- gpe ct'to t'hese'sub ; ^ecT:s there is substant lalunaniimty in this country in holding tstaLUtOry "residence to mean domi cller TITcases or pauper settlement, limita- tions, etc., there is much conflicToT opinion, and In those of attachment the weight of authority is the other way." Jacobs on Domicile, § 75. Statutory inhabitancy is often held to be equivalent to domicile. Otis v. City of Boston, 12 Cush. (Mass.) 44 (1853) ; Harvard College v. Gore, 5 Pick. (Mass.) 370 (1827); Borland v. City of Boston, 132 Mass. 89, 42 Am. Rep. 424 (1882) ; Jacobs on Domicile, § 76. Ch. 5) DOMICILE. 195 above respondent, whose parents were undoubtedly unmarried when be came into the world. They were, however, united afterwards in holy matrimony at Ormiston, in Scotland, on the 3d of January, 185-i, and the question was whether the respondent, under the circumstances pipetent to him to elect and as'auttie a J)(>flTCr"dbrnicile.the_jEonti nuance of w hich depends upon his will and act. When another domicile is put on, the domicile of origin isTor IHat purpose relinquished, an d rem ains, in abeyance during the continuance ot the domicile of cEoTee; but as the domicile of origin is the creatur e of law] "and itidepen dent of ^ e will of the party, it would be inconsistent with the principles on wKicITit is by law created and ascribed, to suppose that it is capable of being by the act of the party f The concurring opinions of the Lord Chancellor, Lord Chelmsford, and Xord Colonsay have been omitted. 196 GENERAL PROVISIONS. (Part 1 entirely obljt erajxd and f^yting-nishe.d.. It revives and exists wheneve r there is no other domicile, and it does not require to be re gained or reconstituted animo et facto, in the manner which is nec^essa fylor the ■acquisitTon oiTa domicile of choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief resi- dence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any"exSrnal necessity, such as the duties of office, the demands of ■cfeaTfors"6r" the relief from illness7~and it must be residence fixed not' for i. limited period or particular purpose, but ^eiieral_and indef- inite in its future contemplation. It is true that rTsidence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of pur- pose, or animus manendi, can be inferred the fact of domicile is es- tablished. The domicile oforigin may be extinguished by ac t of la Wj_^s, for example, by sentence of~^eafh~or^xile tor life, which puts an end_to the status civilis of the criminal: but it cannot be destroved by t he will and act of the party. Domicile of choice, as it is gained animo et facto, so it may be put an end to in the same manner. Expressions are found in some books, and in one or two cases, that the first or existing domicile remains until another is acquired. This is true if applied to the domicile of origin, but can no t be true if such general words were intended ("which is no t probable) to convey the co nclusion that a domicile of choice, though u nequivocal ly relin quished and^banLd!a a £,d^clings, in despite of jiis will and acts, to the party, until another domi _cile._has a nimo et factp-bgen acquired. The cases to which I have referred are, in my opinion, met and controlled by other decisions. A natural-born Englishman may, if he domiciles himself in Holland, acquire and have the status 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 Hol- land, 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 be said that he carries his Dutch domicile, that is, his Dutch citizenship, at his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country? Such a conclusion would be ab- surd; but there is no absurdity and, on the contrary, much reason, in holding that an acquired domicile may be effectually aSanHoned by unequivocal intention and act; and that when it is so determined the "domicile of origin revives until a new domicile of choice be"acquir- " ed. According to the dicta in the books and cases referred toT'if the Ch. 5) DOMICILE. 197 Englishman whose case we have been supposing lived for twenty years after he had finally quitted Holland, without acquiring a new domicile, and afterwards died intestate, his personal estate would be administered according to the law of Holland, and not according to that of his native country. This is an irrational consequence of the supposed rule. But when a proposition supposed to be authorized by one or more decisions involves absurd results, there is a great reason for believing that no such rule was intended to be laid down. In Mr. Justice Story's Conflict of Laws (the last edition) it is stated "that the moment the foreign domicile (that is the domicile of choice) is abandoned, the native domicile or domicile of origin is re- acquired." And such appears to be the just conclusion from several decided cases, as well as from the principles of the law of domicile. In adverting to Mr. Justice Story's work, I am obliged to dissent from a conclusion stated in the last edition of that use fill book, and which is thus expressed : "The result of the more recent English cases seems to be, that for a change of national domicile there must be a definite and effectual change of nationality." In support of this prop- osition the editor refers to some words which appear to have fallen from a noble and learned lord in addressing this House in the case of Moorehouse v. Lord, 10 H. L. C. 373, when in speaking of the ac- quisition of a French domicile, Lord Kingsdown says: "A man must intend to become a Frenchman instead of an Englishman." These words are likely to mislead, if they were intended to signify that for a change of domicile there must be a change of nationality, that is, of natural allegiance. That would be to confound the political and civil status of an individ- ual, and to destroy the difference between patria and domicilium. The application of these general rules to the circumstances of the present case is very simple. I concur with my noble and learned friend that the father of Colonel Udnv. t he_c onsul at Leghorn, and atte r- wards at Venice, and again at Leghorn, did not by his residence~there m that capacFfy^ lose h is Scotch domicile. Coloner'Udny w as, there- fore, a Scotchman by birth. But I am certainly inclined to think that when Colonel yonylnarried, and (to use the ordinary phrase)_ settled i n life an d took a long lease of a house in Grosvenor street, and made that a place of abode of himself and TiTs'^ wife and children, becoming, In point" of fact, subject to the municipal duties of a. resident in ' that locality; and when he had remained there for a period, I think, of thirt)M:wo years, there being no obstacle m poinTof forfinTe^ occupa- tion, or duty, to Ins going to reside in "HiFnative country;" under these <;ircumstan(iei5, i Should come- to the ■ conclusion, if it were necessary to decicie the point," that "Colonel Udny deliberately chose and acquired an English domi cile? But if he did so, he as^certainly relinquished that English doini cil e in the most effectual way by selling or surrender- ing the lease of his house, selling his furniture, discharging his serv- 198 GENBEAL PROVISIONS. (Part 1 antSj^ qnrl leaving T.ondon in a manner which remove s all doubt of his ever intending to re turn there for the purpose of residence . If, there- Fore, he acq uTred"an English domicile, he abandoned it ah cnlntelv ani- mo et facto. It s acquisition be ing a thing of choice, it was. equally put an end to by^choice. He lost it the moment he set foot on the steamer to go to Boulogne, and at th^^ame time_^s_doini£il£_of ori- gm revived^ ThFrest is plain. The marriage and the consequences of 'that marriage must be determined by the law of Scotland, the country of his domicile.* FIRST NAT. BANK OF NEW HAVEN v. BAI.COM. ^"^ ' (Supreme Court of Errors of Connecticut, 1868. 35 Conn. 351.) Park, J.* The principal question in this case is in regard to the domicile of Mrs. Lewin at the time of her death. Sh e died in t he state of New York, and the administrator of her estate claims that her domicile at the time was in Connecticut; while the administrator of the estate of her husband claims that it was in the state of New York. It appears by the finding of the court that her husband was a native of the state of New York; that he married Mrs. Lewin while temporarily residing in Connecticut ; that immediately after their mar- riage they went to the state of Missouri, and resided there till the spring of 1862, when they returned to Connecticut, and after residing at various places in the state, became permanently located in the town of Branford. While their domicile continued there, Mrs. Lewin re- ceived a bequest that had been left her by her brother. Sometime in the spring of 1866 Mr. Lewin and his wife left Branford with the in- tent to abandon his residence there, and went to Geneseo in the state of New York, where he remained till the death of his wife, which oc- curred in the month of July of the same year. The character of Mr. Lewin's residence at Geneseo is thus described in the report of the committee : "He did not go to Geneseo with the intent to adopt that place as a place of permanent residence. He and his wife, being in feeble health, went to Geneseo for the purpose of spending the summer there in the house of his brother-in-law, in the hope that the health of himself and wife might be benefited by the change of air, and by the use of the water of certain mineral springs near Geneseo. From the time he left Branford until the death of his wife he had no definite intentions in regard to the selection of any sAccord: Bremme's Estate, 2 Pa. Dist. R. 455 (3893). In favor of doc- trine that the domicile of origin reverts upon the abandonment of a domicile of choice with the intent of resuming the native domicile, see Allen v. Thom- ason, 11 Humph. (Tenn.) 536, 54 Am. Dec. 55 (1851) ; Reed's Appeal, 71 Pa. 378 (1872). 8 The statement of facts has been omitted. Ch. 5) DOMICILH. 199 place as the place of his future residence. So far as he had any in- tention on the subject it was, during the whole period of time, an in- tention conditional and uncertain, whereby all decision in his mind upon the question was left in abeyance, to be determined in the future by the turn which his wife's disease might take, and by other circum- stances which might or might not arise." In the month of August of the same year he left Geneseo and re- turned to Connecticut, and not long afterwards became permanently settled in tlie town of Windham. These facts render it apparently clear that Mr. Lewin was not domiciled in the state of New York at the time his wife died. But it is claimed that, inasmuch as he was a native of the state of New York, and inasmuch as he left Branford with no intention of re- turning to that place to reside, and went to the state of New York, and remained there, in fact, for a time, no matter 'what the character of his abiding may have been, he became domiciled there, on th.ejpnn-_ ciple that a na tjye_dpmii;^ilp pa-s.iJy rpvprtg Would it be cla imed that if Mr . Lewin ha d lef t Branford with the intent to take up'hisl-esi- dence in the state of Ohio, and on his way sojourned a few days in the state of New York, that would be sufHcient ? .And what real differ- ence is there between that case and the present? In both cases Mr.^ L,ewin had no intention of permanently remainin g in the state of New YorEr ~'ATI~fKe' ditterenc e there is consists in the fact, that in one case his mind is m adhg_us^in._reg;anlJoJiig tutilreTesTdence and in the_other\ it is not. His abiding in both cases is temporary. We said in another case upon the present circuit, that a temporary residence did not ' change its character by mere lapse of time. Whether it is longer or shorter it is temporary still. But t he principle that a native domicile easily reverts applies onl y to cases where anative citizen of one couhtry goes t o reside in a foreign country, and there acquires a domicile by "reiidenc e withou t renouncing h is original allegiance. In~su ch "cases' his native domicile reverts as soon as he begins to execute an inten- tion of returning ; that is, Irom" the time that he^puts" himself in" mo- tion Fona fide to quit the country sine animo revertendi, because the foreign domicile was merely adventitious, and de facto, and prevails "only wEne~actuara53~coiiipIete. The Indian Chief, '6 Rob. A dm. R. fy, 24; The Venus, 8 Cranch (U. S.) 353, 280, 301, 3 L. Ed. 553; State V. Hallett, 8 Ala. 159; In re Miller's Estate, 3 Rawle (Pa.) 312, 319, 24 Am. Dec. 345; The Ann Green, 1 Gall. (U. S.) 275, 288, Fed. Cas. No. 414; Catlin v. Gladding, 4 Mason (U. S.) 308, Fed. Gas. No. 2,530 ; Matter of Wrigley, 8 Wend. (N. Y.) IM^JjO- This principle has reference to a national domicile in its enlarged sense, and grows out of native allegiance or citizenship. It has no agglication when the question is between a native and acquired dom- icile^ where both are under Jth fi-aamfi—national jurisdiction. It was "so held m the case of Monroe v. Douglas, 5 Maddock, 379. In that case the question was between the native domicile of a party in Scot- 200 GENERAL PROVISIONS. (Part 1 land, and a domicile of residence acquired by the same party in India, and the Vice Chancellor said he could find no difference in principle between the original domicile of the party and the acquired one in In- dia. See, also, 1 American Leading Cases, 742. If this principle does not apply to the case in question, then it follows from this finding that Mr. Jvewin had no domidle in th e stat e of New York when his wife died, but his domicile at that time re- "mainedln the town of Branfqrd, in accordanc e w ith t he tnaximrtKat universally prevail in relation to this subject, that every person mus t 'havVa domicile somewhere, thatjhe_ can jiave, but one domicilejor_one and The same purpose, and that a dornicile once acquired continues uhfiT anoth er is" establis hed. Abington v. North Bridgewater; "33 Pick. (Mass.) 170 ; Tjiorndike v. City of Boston, 1 Mete. (Mass.) 242; Crawford v. Wilson, 4 Barb. (N. Y.) 504; In re High, 2 Doug. (Mich.) 515 ; Somerville v. Lord Somerville, 5 Vesey, 750 ; Greene v. Greene, 11 Pick. (Mass.) 410; Walke v. Bank of Circleville, 15 Ohio, 288. It is claimed further, that the bonds in question became the property of Mr. Lewin by donatio causa mortis. But it is clear that no gift was intended by Mrs. Lewin, as plainly appears by her letter to the officers of the bank, and besides, a gift of this nature must be made in contemplation of the approach of death and must be given to take effect only in case the donor dies. Raymond v. Sellick, 10 Conn. 480. Nothing of this kind appears in the case. Again, it is claimed that the court of probate for the district of New Haven granted letters of administration on the estate of. Mr. Lewin, as domiciled in the state of New York; and it is insisted that this is conclusive on the subject. But the judgment of a court of limited ju- risdiction is never conclusive of a jurisdictional question. Its juris- diction may always be controverted. Sears v. Terry, 26 Conn. 273; Jochumsen v. Suffolk Sav. Bank, 3 Allen (Mass.) 87; 2 Redfield on Wills, 49. We advise the superior court that the administrator of the estate of Mrs. Lewin is entitled to the property.^" 10 See Minor, Conflict of Laws, §§ 65, 66. "Domicile may be either national or domestic — ^the former, in whicli nation- ality a man is domiciled ; and the latter, in which subdivision of the nation. And in this respect the law of domicile in Louisiana, in relation to its differ- ent political subdivisions, may be applied to the change of domicile from one state to another. In not keeping in view the distinction between the two kinds of domicile, in some cases in this country, the domicile of birth, as rec- ognized in England, has been given too much weight in estimating the value of the floating intention to return to the first domicile. The conditions which control the destinies of families in the two countries are materially different. In one it is a rule to keep families together. They grow up for generations on the same spot. Local traditions control them, and there are not entirely ob- literated some influences of the feudal period. Here, the customs, the habits of the people, their ceaseless energies, their continuous change from locality to locality, the sudden and dense population of new places, the desertion and abandonment of old ones, all show that the people are migratory, and no! much influenced by birth, locality, or the local history of families, pence we conclude that it will require the same facts only to show a change of domicile Ch. 6) DOMICILE. 201 HARRALI. V. WALLIS. (Court of Chancery of New Jersey, 1883. 37 N. J. Bq. 458.) See post, p. 593, for a report of the case. ,• , ' A i In re YOUNG JOHN ALLEN. (United States Court for China, 1907. 1 Am. J. of Int. Law, 1029.) WiivFLEY, J. 1. In view of the well-established principle of law that the personal property of a deceased person must be administered ac- cording to the law of his domicile, it becomes necessary at the outset to determine where the testator in the will here presented for probate was domiciled at the date of his death. The facts in this case are as follows : Dr. Young J. Allen was born in the year 1836 in the state of Georgia. In 1860 he moved to China, where he lived continuously for a period of forty-seven years. He died in Shanghai on May 30, 1907. China was the chosen field of his activities, and the instruction of its people in the principles of Christian civilization was his life work. Here his family was reared and now lives. Here his estate, consisting solely of personal property, was ac- cumulated, and it was his oft expressed intention to make China his permanent home. The will which his legal representatives now pre- sent for probate is wholly in his own handwriting, and was duly attest- ed by two witnesses. Neither of these witnesses, however, is within the jurisdiction of the court. This being the case, the instrument be- fore the court must be regarded as a holographic will, which, under the common law now in force in China, is valid, but the court is not informed that such a will is recognized by the law of Georgia. These -facts present for consideration one of the most complex and important subjects connected with the operation of the law of extrater- ritoriality. Succinctly stated, the legal question here involved is : Can an American citizen acquire what may be termed an extraterritorial domicile in China? Can he have a domicile out of the United States in which he is nevertheless governed by the laws of the United States, or must he retain that of the state where he was domiciled before set- tling in China? In investigating this subject, it will be necessary to have a clear conception, first, of the American law of domicile, and, second, of the true meaning of extraterritoriality. 3. That a person must always have a domicile somewhere, that no person may have more than one domicile at a time, that every natural ■ from the domicile of ^^irfh that it would regulre to show a. change from one selecte d'^domici] e to another. The revival of^the intentidiT to return to the ^pm'icnS'of birth does "notapply when tK^ domicile of origin and of selection arF botT" domestic. Giiier v. OTDaniel. flm. Lead'. Gas. TS4." McEnery, J., in Successlon'of Steers, 47 La. Ann. 1551, 18 So. 503, 504 (1895). 202 GENERAL PROVISIONS. (Part 1. person free and sui juris may change his domicile at pleasure, and that civil status, with its attendant rights and disabilities, depends, not upon nationality but upon domicile, are propositions upon which the author- ities are universally agreed. While domicile has been defined by law writers in a variety of ways, yet there are two elements which are found in all definitions, namely, -residence and animus manendi, or intention of continued residence. In recent years, however, there has been a ten- dency on the part of the courts to modify this definition by substituting' for the animus manendi, or intention of residing permanently in a cer- tain place, the absence of the animus revertendi, or the intention of returning to the place of former residence. Vattel defines domicile as "an habitation fixed in some place with the intention of remaining there always." Savigny says, "That place is to be regarded as a man's domicile which he has freely chosen as his per- manent abode (and thus for the center at once of his legal relations and his business)." According to Judge Story, "That place is properly the domicile of a person in which his habitation is fixed without any pres- ent intention of removing therefrom." Phillimore defines it as "Res- idence at a particular place accompanied with (positive or presumptive proof of) an intention to remain there for an unlimited time." The definition of Vice Chancellor Kindersley, while lacking in precision, is perhaps more comprehensive than any. of the foregoing. It is as fol- lows : "That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or uncertain) shall occur to induce him to adopt some other permanent home." Dicey, Conflict of Laws (American Notes by Moore) p. 738. Mr. Webster, while Secretary of State, had occasion to consider the law of domicile,. and expressed his views on the subject as follows: "The general rule of the public law is, that every person of full age has a right to change his domicile; and it follows, that when he re- moves to another place, with an intention to make that place his per- manent residence, or his residence for an indefinite period, it becomes instantly his place of domicile ; and this is so, notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period. * * * In questions on this sub- ject, the chief point to be considered is the animus manendi, or inten- tion of continued residence; and this must be decided by reasonable rules and the general principles of evidence. If it sufficiently appear that the intention of removing was to make a permanent settlement, or a settlement for an indefinite time, the right of domicile is acquired by a residence even of a few days." Thrasher's Case, Moore, Interna- tional Law Digest, vol. 3, p. 818. The feature here prominently brought out, that domicile will pot be lefeated by a mere "floating intention" to remove from the locality at Ch. 5) DOMICILE. 203 some future date, has been adopted by American courts in recent years. Oilman y. Oilman, 53 Me. 165, 83 Am. Dec. 503. In view of the foregoing we feel warranted in stating that under American law a person's domicile is that place which he has freely cho- sen for his abode and from which he has no present intention of re- moving. 3. It now becomes necessary to ascertain if there be any reason why the foregoing principles may not be applied to American citizens residing in a country with which the United States has a treaty of ex- traterritoriality. This leads to an investigation of the real meaning of extraterritoriality. It is well-nigh impossible to give an exact defi- nition of the term, yet its practical application is not difficult of com- prehension. Broadly speaking, extraterritoriality is a term used to de- scribe the act by which a state extends its jurisdiction beyond its own boundaries into the territory of another state, and exercises the same over its nationals who, for the time being, may be sojourning in the territory of the other state. It is usually based upon treaty, but the rights and privileges arising therefrom are frequently amplified by usage and sufference. Extraterritoriality is put in operation mainly by Western states in oriental countries where it signifies principally the exemption of the nationals of said Western states from local jurisdic- tion, and a corresponding exercise of jurisdiction over them by their own national authorities. For the purpose of ascertaining the practical operation of the law of extraterritoriality, we shall now trace in brief outline the history of its application in China by two prominent Western nations, the United States and Great Britain, under their treaties of extraterritoriality with that country. It will be observed that the treaties under which these two nations operate in China are substantially the same. Oreat Britain, however, has exercised its rights and privileges under the treaties and developed its law of extraterritoriality in China to a far greater extent than has the government of the United States. The first treaty of extraterritoriality between the United States and China was entered into on July 3, 1844, and a second treaty was con- cluded on June 18, 1858. Articles XXV and XXVII, respectively, of said treaties provide : "All questions in regard to rights, whether of property or of person, arising between citizens_of the United States in China, shalTbF subject to the jurisdictfon and regulated by the atithor- Tties^f their own government." Congress in 1848 and in 1860 enacted statutes for the purpose of car- rying into full force and effect the provisions of these treaties, and to that end extended certain laws to China and created consular courts, vesting them with authority to apply and execute said laws. The body of laws which Congress has extended to Americans in China consists of those statutes of the United States suitable to carry the treaties into effect, the common law, including the law of equity and admiralty, and certain regulations of the American Minister to China promulgated to 204 GENERAL PROVISIONS. (Part 1 supply the deficiencies in these laws. Rev. St. U. S. § 4086 (U. S. Comp. St. 1901, p. 2769). On June 30, 1906, Congress passed the act creating this court and vested it substantially with the jurisdiction formerly exercised by the consular courts. (For a complete statement of the history of the Amer- ican law of extraterritoriality in China, see Hinckley, American Con- sular Jurisdiction in the Orient). Great Britain, on the other hand, by successive foreign jurisdiction acts from 1843 to 1890, by numerous orders in council, by regulations promulgated by the British Minister at Peking, and by the decisions of the British Supreme Court at Shanghai, has amply provided for the protection and government of its subjects in China, and has probably carried the law of extraterritoriality in China to a higher degree of de- velopment than any other foreign power. The extent to which Great Britain has exercised its power under the treaties will appear from an examination of what is known as the foreign jurisdiction act of 1890, and an examination of the jurisdiction possessed by the British Su- preme Court at Shanghai. Section 1 of the foreign jurisdiction act, provides : "It is and shall be lawful for Her Majesty the Queen to hold, exer- cise and enjoy any jurisdiction which Her Majesty now has or may at any time hereafter have within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory." Section 3 of the act provides : "Any act or thing done in pursuance of any jurisdiction of Her Maj- esty in a foreign country shall be as valid as if it had been done accord- ing to the local law then in force in that country." And paragraph 2 of section 5 provides : "Thereupon those enactments (described in the first schedule of this act) shall, to the extent of that jurisdiction, operate as if that country were a British possession and as if Her Majesty in Council were the Legislature of that possession." 53 and 54 Victoria, chapter. 37. The British Supreme Court in Shanghai, which was established in 1866, is vested with jurisdiction to execute the laws which Great Brit- ain has extended to its subjects' in China. This court is in fact a Brit- ish court, and in addition to ordinary civil jurisdiction, exercises juris- diction in cases involving admiralty, bankruptcy and lunacy, and in ad- dition to the ordinary criminal jurisdiction, it exercises jurisdiction in some special statutory offences such as offences against the patents and trade-marks acts. Piggott, Extraterritoriality, p. 40. To such an extent has the British jurisdiction in China been developed that there is almost no legislative or judicial phase of the law in force in England which, if necessary in China, has not its counterpart here. On the other hand, "common law" and "equity" form the vague and indefinite description of the main law in force in respect to Americans in China. Ch. 5) DOMICILE. 205 From the foregoing it will be seen that while the Emperor of China exercises nominal sovereignty over all Chinese territory including that occupied by the nationals of the United States and Great Britain, yet the jurisdiction of these two countries over their own citizens who re- side in China is, for all practical purposes, as full and complete as if China were in fact territory belonging to these nations. 4. We come now to the consideration of the main question in this case, namely, whether there be anything in the practical operation of the law of extraterritoriality fatal to the application of the principles of the American law of domicile to Americans residing in China. So far as we are able to ascertain, this question has not been passed upon by the courts of the United States, nor has it been made the subject of discussion by the executive branch of the government. It has, how- ever, received the careful consideration of the courts of last resort of Great Britain with the unlocked for result that there is now no such thing known to the British law of extraterritoriality as an Anglo-Chi- nese domicile. The leading case on this subject originated in Shanghai, and is known as Tootal's Trusts. The facts in this case were as follows: After some previous changes of residence, Tootal, a subject of Great Britain, in 1863 came to reside in Shanghai, and with the exception of some short visits to England for health and business, he continued to reside at Shanghai until 1878, the date of his death. It was admitted that some years before his death he had determined to reside permanently at Shanghai, had relinquished all intention of ever returning to Eng- land and had expressed this intention on a number of occasions. In his will he described himself as a resident of Shanghai in the Empire of China. The decision of the court was written by Mr. Justice Chitty, who held tha t British ^_subj£ cts in E astern cou ntries in all cases retain. their domicil e in thatportion of the_BriMsh.£mBire. iti ,Bfhigh_thev were domiciled p reviously tojiaking up their abodeJnja.Eastern state. The "decision is basedon the proposition that r esidence in a "terri torylLis an essential part of the legal idea of dom icilej^amf^olds that "there is no authority that an individual can become domiciled as a member of "a_communitj^ w&iCh'is nOTa commanityjposs^^sin^th^ejugreme^^pr ereig n territorial power." Re Tootal's Trusts, L. R. 23 C. D. 533. The doctrine thus laiH'down was followed by the court in the case of Abd-ul-Messih v. Farra, 13 App. Cas. 431. The decision in this case was written by L,ord Watson. "Their L,ordships," he says, "are sat- isfied that there is neither principle nor authority for holding that there is such a thing as domicile arising from society and not from connec- tion with a locality. In re Tootal's Trusts is an authority strictly in point, and their Lordships entirely concur in the reasons by which Mr. Justice Chitty supported his decision in that case." See, also, Maltass V. Maltass, 1 Rob. Ecc. 80, and The Indian Chief, 3 Rob. Adm. 39. While these decisions fix the law of Great Britain on this subject for the present, the doctrine here laid down has not commended itself to :^06 GENERAL PKOVisioNS. (Part 1 the judgment of the leading British commentators on the subject of ex- traterritoriality. Sir Francis Piggott, Chief Justice of Hongkong, in a work which has just come from the press, expresses the opinion "that when the question is again raised it will be found that the principles established by the most recent cases necessitate a reconsideration of the law laid down on the subject by Mr. Justice Chitty." The learned jus- tice then enters upon an exhaustive examination of the principle upon which the foregoing decisions are based, and discusses the same in the following manner: "At the time when many of the definitions were framed, the law ap- plicable to extraterritoriality was little known, and in some cases was not present in the minds of the judges who framed them. 'Locality' and 'territory' were obviously the terms which would be used ; the commu- nity among which a person settled being as obviously identified with the locality. But it attached undue importance to the word to insist that because 'locality' is used in the definitions in cases where there ■could be no questions as to its fitness, therefore it excluded the idea of 'relationship to a community' in the first case that came up for argu- ment, in which the point was whether 'relationship to a community' is •or is not involved in domicile. * * * The community referred to is of course the community which inhabits a country, or a definite local- ity; in other words, a community which has laws and customs of its own, which the government of the locality imposes on all members of it ; but the question is whether the reason of the rule, the whole prin- ciple on which it is based, do not render it as applicable to an extrater- ritorial community as to a territorial one. On the hypothesis the cir- cumstances may be the same in the one as in the other. A man may set up his home in a treaty port, he may have banished forever the idea >of returning to his native country; the animus manendi may be clear, without shadow of doubt. On the hypothesis, too, there is a body of law regulating the community. Why is it impossible, then, for the or- dinary principles of the law to be applied, and for the personal rela- tions of the permanent members of the community to come under thaf law permanently as the law of the domicile of their choice; of those who are born members of the community as the law of the domicile of their origit;i? * * * Linking these two propositions together, it is suggested that the inevitable result is a modification of Lord Watson's interpretation of the law of domicile referred to above on the following lines: The law which regulates a man's personal status must be that of the governing power in whose dominions his intention is permanent- ly to reside, or must be so recognized and established by that governing power as to be in fact the law of the land." Piggott, Extraterritorial- ity, pp. 338, 330, 333, 233. The subject has also been carefully gone into by Hall, the celebrated autliority on International Law, in his work on the Foreign Jurisdic- tion of the British Crown. Pie also takes issue with the court in the "Ch. 5) DOMICILE. 207 Tootal's Trusts Case, and expresses his views on the subject as fol- lows: "It is perhaps to be regretted that a change in the law is not made which a short order in council could easily effect. Anglo-Oriental dom- icile has its reasonable, it may also be said, its natural, place. Conflicts between the differing laws of England, of Scotland, of the various self-governing colonies, are inevitable within British jurisdiction in the East ; but it is unnecessary to multiply the points of collision. So long .as persons have not identified themselves with the life of a new com- munity, they must keep each his own law ; but as soon as t hey have ^sliown their wish and intention to c ut themselves adrift from Ihe^asso^ ■ciation of birth, they prove their indifference to the personal law at- tendant oti their_domicile of origin. There is, therefore, no reason why sitfipli city and unity of law should not be_ gained for British subjects by attributing comrnunity in the laws of England to all of European blood. There is also every reason for avoiding very grave difficulties of an- other kind, which are opened through invariable preservation of the domicile of origin. English families, even in the present day, often re- main through more than one generation in Oriental countries as their permanent place of abode. Formerly the history of persons whose domicile might become a matter of importance was generally known sufficiently well. Many are now of obscure antecedents and of an origin uncertain among the numerous places from which British subjects can derive. As no domicile can be acquired in an Anglo-Oriental commu- nity, it becomes every year more probable that cases will occur in which the determination of the domicile of a father, perhaps of a grandfather, may become necessary, and in which it may be equally impracticable to impute an English domicile or to attribute any other with fair probabil- ity. It would be a great advantage that in such cases there should be a fixed rule which should correspond with the obvious facts, and that the courts, instead of searching with infinite trouble and expense for an ancestral domicile should be enabled to find that a domicile had been acquired in the Eastern country which carried with it the application of English law ; that, in other words, residence in China under English law, with the animus manendi, should imply domicile in China under the condition of the applicability of the special law of the English commu- nity established there, as that law is defined by order in council. The- oretically the conception of such a domicile is unobjectionable if once the mind is cleared of the notion, at present dominant, that domicile is the creature of place and intention alone. In Europe it is so, because residence in a place impHes subjection to the common territorial law, and to no other ; in the East it is not necessarily so, because residence there implies subjection to the law of one or other of several different communities, the personal laws of which receive equal recognition from the territorial sovereign power. Association with place is necessary to domicile ; but it is not always the sole determinant factor. In any case, even if the conception of domicile here suggested be anomalous, the 208 GENERAL PROVISIONS. (Part 1 convenience of 'giving effect to it is large enough to excuse a certain sacrifice of logical principle." Hall, Foreign Jurisdiction of the Brit- ish Crown, pp. 184-186. After a careful consideration of the principles of law on this subject as well as the practical demands of the situation, this court is inclined to give greater weight to the foregoing argument of Mr. Hall than to the line of reasoning adopted by Mr. Justice Chitty in the Tootal's Trusts Case. We ca n see no good reason for holding that a citizen of the United States cannot be domiciled in China. MrTJustice Cliitty'F decisionf destroys in their application to China all the deHnilions^of domicile contained in the books. It ignores both of the essetitial ele- Inents of residence and intention. The British courts were correct when they stated that there was no authority for holding that an iiidi- vidual could not become domiciled as a member 6i'¥Tornmunity which was not a community possessing the supreine or sovereign territorial ^owerT" T his fact, however, is with out significance when it is noted that the rourtswere^ considering the first "ciTs^" of thiFcnara cter which ■had ever been presented- for judicial determination. AT the time the Tootal's Trusts Case came up for consideration, the British law of ex- traterritoriality was not so well developed as it is now, and the subse- quent trend of events has given it a different meaning from what it had at the time the decision was rendered. It was quite natural for the courts thirty years ago to announce that the immiscible character of the two races and the radical difference between the religions, customs, habits and laws of peoples of the two countries raised a strong presump- tion against a British subject becoming domiciled in China. At that time it was doubtless the fixed purpose of the majority of those who came to China to sojourn here only a few years and then to return to the country from which they came. This is not the case at present. Many families dwell here now with the fixed purpose of making ^hina their permanent home. There are abundant examples of families per- manently located hers, and this is likely to become more common in'flie future. In view of this fact, the number of heirs and distributees bi foreign citizens decedent in China who live in China in proportion to those who dwell in the countries from which said foreigners came, is rapidly growing larger, thus necessitating the adoption of arule wKicH will rneet the practical demands of the situation. " ~ From the standpoint of expediency. Hall has very clearly pointed out that conflicts between the laws of England, Scotland and various self- governing colonies are inevitable within British jurisdiction in the East. This proposition is too clear to require the support of argument. If this court should adopt the rule laid down by the British courts, such conflicts would be perhaps more numerous and more pronounced in the administration of American law in China than in administration here of the law of Great Britain. The adoption of such a rule would put this court to the necessity in the matter of probating wills of applying the laws of forty-six different commonwealths, to say nothing of the Ch. 5) DOMICILE. 20& laws of our territories and insular possessions. This would be prac- tically impossible. Furthermore, the adoption of the British rule would require this court not only to hold that Dr. Allen, who had resided in China for forty-seven years and who had expressed his intention of residing here permanently, was domiciled in Georgia, but also to hold that his children and grandchildren, some of whom have never been in Georgia, and who never expect to reside there, are nevertheless dom- iciled in that state. This proposition is too extravagant to be main- tained. It requires a greater stretch of the imagination and the adop- tion of a greater fiction of law to hold that a person can be domiciled in a country where he does not reside and has no intention of residing at any future time than to hold that a citizen of a foreign state can ac- quire an extraterritorial domicile in a community which is not the com- munity possessing the sovereign territorial power. Every considera- tion of reason and convenience demands that the American law of dom- icile be applied by American courts in China. We hold therefore: First : ,_ That there is nothing in the theory or practical operation of the law of extraterritonality^ inconsistent with or repugnant to the ap- " plication "bf^the^American law of, domicile Jo American citizens resid- iiigln countries with which the United States has treaties of extrater- ritomlity_._,_.^„. Second : That Dr. Young J. Allen, having lived in China for a pe- riod of forty-seven yeafFahd having expreised his intention to live here " pefmatrentlyTTB ereby' acquired aii extraterritorial domicile in China ; consequently thiis'couri in the administration ofhis estate will be guid- ed'IbjTtheTaw which Congress has extended to Americans in China, which is the common law."_ _^ 11 As to Anglo-Indian, Anglo-Turkish, and like domiciles, see Westlake, Priv. Int. Law, 309-322. See, also, O. H. Huberich, Domicile in Countries Granting Extraterritorial Privileges to Foreigners, 24 Law Quar. Key. 440-448. For law governing acts in uncivilized countries, see Dicey, Conflict of Laws, 724-726. Lob. Con F. L.— 14 210 GENERAL PROVISIONS. ' , (Part 1 SECTION 2.— DOMICILE OF MARRIED WOMEN. TOWN OF WATERTOWN v. GREAVES. (Circuit Court of Appeals, First Circuit, 1901. 112 Fed. 183, 50 0. C. A. 172, 56 L. R. A. 865.) In Error to the Circuit Court of the United States for the District of Massachusetts. Brown, District Judge.^^ This writ of error is brought to review the ruHngs of the Circuit Court for the District of Massachusetts in an action of tort for the recovery of damages for injuries caused by a defective sidewalk. The first question to be considered is that of jurisdiction. The plaintiff below sued as a citizen of Rhode Island. It is contended for the town that upon the evidence the plaintiff below was not a citizen of Rhode Island, and that the court erred in the instructions to the jury as to the right of a married woman, deserted by her husband, to establish an independent domicile. That the plaintiff below went to Rhode Island before the date of the writ, April 3, 1900, with the intention of living there permanently, must be taken as a fact established by a special finding of the jury; Other relevant facts are that the plaintiff and her husband resided together at Lowell, Mass., and were citizens of that state until some time in 1893 or 1893, when her husband deserted her, and has never since lived in Lowell or contributed to her support; that she has not seen or heard from him since, and that at the date of trial she did not know whether he was alive or dead; that she never had procured a divorce, and, So far as she knew, her husband had never made applica- tion for a divorce. The record contains no evidence of the circum- stances under which the husband of the plaintiff below deserted her ; but, inasmuch as it is the ordinary duty of the husband to abide with the family, there is, in the present case, a sufficient presumption that the wife was guilty of no fault, in the absence of any suggestion to the contrary based on the evidence. The evidence was insufficient to establish a presumption of death. Neither was there any" evidence thai" the husband had left the state of Massachusetts, or had changed the citizenship which he had at the date of desertion. It appeared that the plaintiff was obliged to support herself by her own exertions. The third assignment of error is as follows : "The court erred in instructing the jury that, while the general rule of law is that the domicile and citizenship of a wife follow that of her husband, still, if a husband deserts his wife, as there is evidence tending to show was 12A part of the opinion relating to questions other than domicile has been omitted. Ch. 5) DOMICILE. 211 the fact in this case, the wife's domicile would not necessarily follow, that of her husband ; that plaintiff might acquire a domicile and citizen- ship in Rhode Island, independent of that of her husband, if he were living; that if the husband deserted his wife and abandoned his resi- dence, and went to parts unknown, and there remained for years with- out having any communication with his wife, and without making any contribution to her support, the wife had the right to acquire a domicile and citizenship, if she choose so to do, in a place different from that of the domicile and citizenship of her husband at the time he deserted her, or from the place of the domicile or citizenship of the husband after such desertion." It is well settled that each state has the right to determine the civil status and capacities of its inhabitants. Pennoyer v. Neff, 95 U. S. 714, 723, 24 h. Ed. 565; Hekking v. Pfaff (C. C.) 82 Fed. 403. An examination of the decisions of the Supreme Court of Rhode Island upon the question of the right of a deserted wife to establish for herself an independent domicile satisfies us that there was no error in the instructions above set forth. In Ditson v. Ditson, 4 R. I. 87 (a leading case in this country; see Atherton v. Atherton, 181 U. S. 166, 21 Sup. Ct. 544, 45 L. Ed. 794), Chief Justice Ames said, on page 107 : "Although, as a general doc- trine, the domicile of the husband is, by law, that of the wife, yet when he commits an offense, or is guilty of such dereliction of duty in the relation as entitles her to have it either partially or totally dis- solved, she not only may, but must, to avoid condonation, establish a separate domicile of her own. This she may establish — -nay, when de- serted or compelled to leave her husband, necessity frequently compels ' her to establish — in a different judicial or state jurisdiction than that of her husband, according to the residence of her family or friends. Under such circumstances she gains, and is entitled to gain, for the purposes of jurisdiction, a domicile of her own, and, especially if a native of the state to which she flies for refuge, is, upon familiar principles, readily redintegrated in her old domicile." The court says also: "Whatever was the former domicile of the petitioner, we are satisfied that she is, and has, for upwards of the last three years, been a domiciled citizen of Rhode Island, her only home, in the house of her father; and that as such citizen, and upon such notice, we have power and jurisdiction over her case, and to. change her condition from that of a married to that of a single woman, granting to her the relief which, under like circumstances, the law and policy of Rhode Island accords to all its citizens." From this decision it would appear to be the law of Rhode Island that a married woman, unlawfully deserted by her husband, may establish an independent domicile, and thus become a citizen of the state of Rhode Island. It is contendejd that this decision is inerely to the effect that she may estabhsh a domicile for the purposes of divorce. We regard it, 212 GENERAL PEOVisiONS. (Part 1 however, as a clear and learned statement of limitations, upon the .general rule that the domicile of the husband is that of the wife. The learned Chief Justice, after stating the general doctrine, pro- ceeds: "A more proper case for the application in favor of a peti- tioner for divorce of the foregoing principles relating to the jurisdic- tion of the court over her case, and to the question of her domicile in this state, can hardly be imagined." From this decision, it is apparent that the court did not consider a judicial decree essential as a condition precedent to the establish- ment of citizenship, since it is in express terms stated that the peti- tioner, for upwards of three years, had been a domiciled citizen of Rhode Island. For the town it is contended that the right of a married woman is limited to a quasi domicile for the purposes of divorce, and that this decision goes no further. But the question of citizenship was directly passed upon, and citizenship was held to exist upon a state of facts showing unjustifiable desertion. Moreover, the case of Rowland v. Granger, 22 R. I. 2, 45 Atl. 740, contains a statement by the Supreme Court of Rhode Island which seems to us satisfactory evidence that the domicile which the wife may acquire upon desertion is not merely a quasi domicile for the purposes of divorce, leaving her general rights as a citizen of the state in abeyance until the pronouncement of a decree of divorce, a vinculo or a mensa et thoro, but a full and independent domicile for all purposes. This case was an action brought by a married woman to recover the amount of a personal property tax paid under protest. The husband, on the day of the assessment, was a domiciled inhabitant of the state of Rhode Island. The wife was at that time living in Asheville, N. C, for her health, with the intention of making said place her permanent home, and contended that she was a citizen of North Carolina, and therefore not liable to a personal tax in Rhode Island. There was no abandonment. The persons were living apart, but the unity of the marriage relation existed undisturbed. No ques- tion of divorce was involved. The court said : "After a careful ex- amination of the authorities, however, we have come to the conclusion that though a wife may acquire a domicile distinct from that of her husband whenever it is necessary or proper for her to do so, as, for instance, where the husband and wife are living apart by mutual con- sent (In re Florance, 54 Hun, 328, 7 N. Y. Supp. 578) ; or where the wife has been abandoned by the husband (Shute v. Sargent, 67 N. H. 305, 36 Atl. 282) ; or for purposes of divorce (Ditson v. Ditson, 4 R. I. 87) ; or, in short, whenever the wife has adversary interests to those of her husband — she cannot acquire such a domicilfe so long as the unity of the marriage relation continues, notwithstanding that from considerations of health, as in the present case, or of expediency, one of the parties, with the consent of the other, is actually living in a Ch. 5) DOMICILE. 213 different place from the other." See, also, White v. White, 18 R. .1.393, 37 Atl. 506. The defendant, now plaintiff in error, contends that "the proposi- tion that the exception made in divorce cases to the common-law rule, as to the domicile of the wife following that of the husband, does not extend to proceedings other than a suit for divorce, was ex- pressly declared by the Supreme Court in Barber v. Barber, 31 How. 583, 16 L. Ed. 336." We do not so read this opinion. The point there involved was whether a woman who had been divorced a mensa et thoro might establish an independent domicile. It was decided that she could. It was neither decided nor intimated in the opinion that an independent domicile could not be established without a Judicial decree. The court seems, however, to have recognized the following principles: The rule that the domicile of the wife is that of the husband is probably found to rest upon the legal duty of the wife to follow and dwell with the husband wherever he goes. That, upon the commission of an offense which entitles her to have the marriage dissolved, she is discharged thereby immediately, and without a judicial determination of the question, from her duty to follow and dwell with him. That if the husband abandons their domicile and his wife, and re^ linquishes altogether his marital control and protection, he yields up that power and authority over her which alone make his domicile hers. Upon page 594, 31 How., and page 330, 16 L,- Ed., of the opinion, in a quotation from Bishop, appears this language : "Courts, however, may decline to recognize such domicile in a collateral proceeding; that is, a proceeding other than a suit for divorce." It may be considered, in some jurisdictions, that the appropriate proceeding for establishing the wrongs which entitle a wife to an independent domicile is a proceeding for divorce a vinculo or a mensa et thoro, and that, in consequence of the diificulties of establishing these wrongs in a collateral inquiry, the courts should require an adjudication by a divorce court which determines finally and for all purposes the status of the wife. See Minor, Conf. Laws, § 47. But this is rather a rule of procedure or of evidence than a rule of right, and is analogous to the rule of equity that a creditor shall establish his right by a judgment of law, before attacking in equity a fraudulent conveyance. There seems to be no conflict of authority as to the point that, by the delictum of the husband, the wife is immediately absolved from her duty to follow and dwell with him, and that she is thereafter entitled, as a matter of right, to choose her own domicile. We are of the opinion that the question whether, in order to assert or establish this right in a collateral proceeding, she must first procure 214 GBNBEAL PROVISIONS. (Part 1 a judicial decree establishing her status, as against her husband and all the world, is a distinct question. If a plea in abatement had raised the question of the wife's dbmi- cile, and, before a hearing on the plea, she had applied to the divorce courts of Rhode Island and procured a decree of divorce, that decree, so far as the question of citizenship was concerned, would give her no new rights, but would furnish her with judicial evidence that before the bringing of her action she was a citizen of Rhode Island. The rulings of the circuit court as to the legal rights of a deserted wife, in the case at bar, were in accordance with the law as stated in Cheever v. Wilson, 9 Wall. 108, 124, 19 L. Ed. 604, 609 : "The' rule is that she may acquire a separate domicile whenever it is necessary or proper that she should do so. The right springs from the neces- sity for its exercise, and endures as long as the necessity continues. The proceeding for a divorce may be instituted where the wife has her domicile." This implies that the domicile may be acquired prior to and inde- pendently of proceedings for divorce. And this implication is in agree- ment with the express decision of the Rhode Island court. Moreover, various expressions of the Supreme Court seem to recog- nize that, if the wife is living apart by the fault of the husband, the rule that his domicile is her domicile is inapplicable. Thus, in Ather- ton V. Atherton, 181 U. S. 155, 21 Sup. Ct. 544, 45 L. Ed. 794, are re- peated the expressions of the court in Cheely v. Cla3d:on, 110 U. S. 701, 705, 709, 4 Sup. Ct. 328, 330, 28 L. Ed. 298, 299 : "If a wife is living apart from her husband without sufScient cause, his domicile is in law her domicile," and "it is hard to see how, if she unjustifiably refused to live with her husband, * * * she could lawfully acquire in hig lifetime a separate domicile in another state," etc. The question whether the wife, in order to bring suit as a citizen of another state from that in which her husband is domiciled, must establish her right to acquire a separate domicile by the judgment of a proper tribunal in a direct proceeding for that purpose, is one that presents difficulties. It may be said that there are practical diiificulties in trying collaterally the relations of husband and wife, and in determining whether or not the husband has been guilty of such a delictum as justifies a separate domicile. But similar difficulties do not preclude a husband from asserting, in defense of an action for supplies furnished to a wife, the adultery or other misconduct of the wife. Such cases involve a col- lateral inquiry into the rights of husband and wife arising from a breach of the obligations of marriage, yet it has never been held that the husband must establish the fact of the wife's delictum in a direct proceeding for that purpose. Gill v. Read, 5 R. I. 343, 73 Am. Dec. 73. The wife may not desire a divorce a vinculo or a mensa et thoro ; she may be ready to condone the fault of the husband in case he shall Ch. 6) DOMICILE. 215 return; she may desire, for her own sake or that of her family, to avoid pubhcity; or she may die before she has estabUshed her rights by a judicial decree. The difficulties that might arise frorn, adopting a rigid rule tljat the wife's domicile shall, be. presumed to be her husband's, ujitili she over- comes this presumption by a judicial decree seem more serious than those that would arise from trying the question of domestic relations collaterally. We should hesitate Iqing before deciding- that the only exception to the rule that the domicile of the wife follows that of herhijsbaiid; is in judicial proceedings whose express object is to show that the rela- tion itself ought to be dissolved or modified, since there is grave danger that serious injustice might arise. See Le' Sueur v. Le Sueur, 1 Prob. Div. 139-14-2 ; Eversley, Dom. Rel. (1896) p, 167. 2 Bish. Mar. & Div. §§ 114, 115, upon which counsel for the town relies, seems to recognize that the rule should not always prevail in non-divorce cases. Furthermore, upon principle, it is difficult to see why a wife who is completely abandoned by her husband, even in consequence of her own fault, should be precluded from establishing an independent domi- cile. If the husband, justifiably or unjustifiably, renders it impossible for her to dwell with him, and voluntarily relinquishes altogether his marital control and protection, so that the abandonment is a com- pleted fact, it cannot be said, in strictness, that her dwelling apart from him is her continuous fault. Her original fault may have justified the abandonment, but his renunciation of his former obligations keeps her from his home, and if she must find for herself another home, and from necessity or convenience goes to another state, it is difficult to see why she should be precluded from the ordinary rights of a citizen of that state. The expressions of the supreme court in Ather- ton V. Atherton, 181 U. S. 165, 31 Sup. Ct. 544, 45 L. Ed. 794, which • relate to a wife living apart without sufficient cause, or through an unjustifiable refusal to live with the husband, do not cover a case in which the living apart is caused by the husband's total abandonment of the wife. In the present case, however, we are relieved from a consideration of this question by the presutnption that the wife was guilty of no fault which justified either the original desertion or its long continu- ance. We are of opinion especially that in the present case, and upon the present assignments of error, the defendant is not entitled to make the objection that the proper evidence of the right of the wife to an independent domicile is a judicial decree. No objection was made to the introduction of evidence of facts upon which, according to the general law as well as the law of; Rhode Island, the wife became entitled, as a matter of legal right, to establish an independent domicile. 216 ' GENERAL PROVISIONS. (Part 1 The defendant below was content to rely upon the proposition that upon all the evidence the plaintiff was not a citizen of Rhode Island. No objection was made to trying the question of the relations of hus- band and wife collaterally. The objection that she had not established her rights by a judicial decree, and that the defendant should not be compelled to try the question of the relations of husband and wife in this action, was not made, and must be held to have been waived. * * * The judgment of the Circuit Court is affirmed, with interest and with costs.^* SECTION 3.— DOMICILE OF MINORS. LAMAR V. MICOU. NN\ (Supreme Court of the United States, 1884. 112 U. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751.) See post, p. 716, for a report of the case.^* 13 See Gordon v. Yost (C. C.) 140 Fed. 79 (1905) ; McKnlght v. Dudley, 148 Fed. 204, 78 C. C. A. 162 (1906). "It is an open question whetlier even a judicial separation (not amounting to a divorce) would give a wife the power to acquire a domicile for herself." Dicey, Conflict of Laws, 132. See, also, Westlake, Priv. Int. Law, 325. As to capacity of a married woman to acquire a separate domicile from her husband, see 59 L. E. A. 146-149, 84 Am. St. Eep. 27-37; Minor, Conflict of Laws, §§ 47-51. 14 A legitimatechild takes the domicile of his father. Lamar v. Micou, 112 U. S. 452, 5 SupT^t. 221, 28 L. Ed. 751 (1884) ; AUgood v. Williams, 92 Ala. 551, 8 So. 722 (1891). And after the death of his father ordinarily that of his m other. Potinger v. Wightman, 3 Meriv. 67 (1817) ; Brovm v. Lynch, 2 Braarr-Snr. (N. Y.) 214 (1852). But it ceases to follow that of the mother upon her remarriage. School Directors of Borough of Westchester v. James, 2 Watts & S. (Pa.) 568, 37 Am. Dec. 525 (1841) ; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am. Dec. 55 (1851). Contra: Succession of Lewis, 10 La. Ann. 789, 63 Am. Dec. 600 (1855). See Minor, Conflict of Laws, §§ 38, 39. The domicile of an Illegitimate child follows that of his mother. Udny V. Udny, L. R. 1. H. L. Sc. 441 (1869) ; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40 (1892). If legitimated, he takes that of his father. See Minor, Conflict of Laws, § 33. As to emancipated and abandoned children, see Jacobs on Domicile, §§ 231- 237. It has been held that a married minor cannot acquire an independent domi- cile. Robertson v. Robertson, 30 Vict. L. R. 546 (1905). See Minor, Conflict of Laws, § 45. iAn orphan will not acquire the domicile of his guardian unless he Is taken into the guardian's family. School Directors of Borough of West Chester v. James, 2 Watts & S. (Pa.) 568, 37 Am. Dec. 525 (1841). , An a ppointed gna rfUnn Is generally regarded as possessing no authority to I change his ward's domicile beyond the territory of the state In which he was \ appointed. See Lamar v. Micou, 112 U. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751 Ch. 5) DOMICILE. 217 (1884). See, also, 89 Am. St. Bep. 278-280; 58 L. R. A. 931-941; Minor, Con- flict of Laws, §§ 40, 41. As to the acquisition of a domicile by an insane person placed under guard- lansbip, see Talbot v. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254 (1889) ; Mowry v. Latham, 17 B. I. 1180, 23 Atl. 13 (1891) ; Minor, Conflict of Laws, § 55. Continental Law. — The law of nationality determines the civil status ol a person. Prance, article 3, Civ. Code; Oermwny, articles 7, 13-15, 17-22, Law Intr. Civ. Code ; Italy, article 6, Prel. Disp. Civ. Code. The law of domi- cile plays, therefore, a comparatively subordinate role. It will govern where a party is not a subject of any country. Framce, App. Alger, June 7, 1906 (34 Clunet, 409); Trib. Civ. Seine, Feb. 14, 1908 (35 Clunet, 813). And never has been the subject of any country. Oermany, article 29, Law Intr. Civ. Code. In both France and Italy a domicile once acquired will continue until the acquisition of a new domicile. France, article 103, Civ. Code; Cass. March 24, 1896 (S. 1897, 1. 100); Italy, article 17, Civ. Code: Cass, Rome, March 17, 1893 (La Legge 1893, 1, 685). In Germany a domicile will be lost if it Is given up animo et facto though no new domicile is acquired. A person may, therefore, be without a domicile. On the other hand, it is recognized that a person may have several domiciles. Section 7, Civ. Code. If a party has neither a known nationality nor a known domicile, the ter- ritorial law will be applied. App. Pau, May 14, 1907 (84 Clanet, 1109). French Authokized Domicile. — "A foreigner authorized by decree to es- tablish his domicile In France shall enjoy all civil rights. The efEect of such authorization shall cease after the expiration of five years if the foreigner does not apply for naturalization, or if such application be denied." Article 13, Civ. Code. Consult, also, A. Chausse, Du role international du domicile, 24 Clunet, 5- 31 ; and, as to nationality, see A. Weiss, Traitg de droit international prlvg, vol. I. Before the law of February 6, 1893, a married woman of French nationality though legally separated from her husband, could not, without his authoriza- tion, acquire a foreign nationality. Cass. March 18, 1878 (D. 1878, 1, 201) — BaufCremont Case. Domicile and Taxation. — A personal tax may be assessed against a per- son at his domicile. Borland v. City of Boston, 132 Mass. 89, 42 Am. Rep. 424 (1882). The devolution of personal estate may be taxed, irrespective of the actual situs of such property in the jurisdiction where the deceased had his last domicile. In re Swift, 137 N. Y. 77, 32 N. E. 1096, 18 L. R. A. 709 (1893); Frothingham v. Shaw, 175 Mass. 59, 55 N. E. 623, 78 Am. St Rep. 475 (1899). As to taxation of transfers int«r vivos, see People v. Reardon, 184 N. T. 431, 77 N. B. 970, 8 L. R. A. (N. S.) 314, 112 Am. St. Rep. 628 (1906), affirmed 204 U. S. 152, 27 Sup. Ct 188, 51 L. Ed. 415 (1907). 218 GENERAL PEOVI8IONS. (Part 1 CHAPTBE VI. CAPACITY. SECTION 1.— NATURAL PERSONS. ROSS V. ROSS (1880) 129 Mass. 243, 246, 37 Am. Rep. 321, Gray, C. J. : "It is a general principle that the status or condition o f a person, the relation in which he stands to another person, ana~ by which he is qualified or made capable to take certain rights in that other's property, is fixed by the law of_the domicile ," "ang~tEirThi s status and capacity are_ to be recognized and uphelT in every other state, so far as they are not inconsistent with its own la ws and policy . Subject to this limitation, upon the death of any man, the status of those who claim succession or inheritance in his estate is to be ascer- tained'bytEe law under which that status was acquired. His persona l property is indeed to be distributed according to the law of h is do mi- cile a t the time of his death, and his real estate d escend^ according to 'tne law o f the place in which it is situated; but^^n_either case, it is according to those provisions of that law wrtich regulate t he succes - sion or the innentan ce or persons naving such a status ^ ~~~ ' "Thfe (;:gpacity or qualification to inherit or succee d to propert y, which is an incidgntof the status or condition, requi ring no action t o give iF ~eff6c t,,is to^be distinguished from the capacity o r competenc y to enter into contracts that confer rights upon others. A capacity ,"lu lake aiiti'have differs from a capacity to do and contract^ i n snort, a capacity of holding from a capacity to act. Generally speaking, the validity of a personal contract, even as regards the capacity ot jhe party^ t o make it, as in the case of a married woman or an intant, is tojbe d "etermiii ed.. fey the law of the state in which it is ma de. MiHiSien v. ''ratt, 125 Mass. 374, 28 Am. Rep. 241, and authorities cited." EXTRACT FROM FOOTE, PRIVATE INTERNATIONAL JURISPRUDENCE, 363, 366: "Capacity is obviously in theory a quality — one of those qualitates personales impressse of which Huber speaks — and may be taken as equivalent to a legal power of doing an act which can admittedly be done by some persons. If the act to which the capacity is referred cannot legally be done at all, it is a misuse of words to speak of a legal capacity or incapacity to do it. Speak- Ch. 6) CAPACITY. 219 ing in this strict sense, capacity is only remarkable by its absence — it is invariably some incapacity that characterizes the exceptional case of which the law is called upon to take notice. Full capacity, in short, is the ordinary status or condition of mankind, which can never give rise to criticism or remark; and the only logical incapacities which exist in English law are those occasioned by infancy and insanity. A law which purports to impose a general incapacity does not impose an incapacity at all; it simply prohibits an act." EXTRACTS FROM ARTICLE BY V. BAR ON THE CON- FLICT OF LAWS IN V. HOLTZENDORFF'S ENCYCLOP^- DIE DER RECHTSWISSENSCHAFT (6th Ed. by J. Kohler) vol. II, 33-25: "Two attributes belong ordinarily to a person: (1) Ca- pacity to acquire, to possess and to exercise rights, and (2) capacity to act with legal effect. Both attributes, capacity for rights (Rechts- fahigkeit) and capacity to act (Handlungsfahigkeit), or to use the more exact expression of the present German Civil Code — Geschafts- fahigkeit — since the capacity to commit a tort must be regarded from a different point of view — were included. by Savigny, following the older theory, and are still included to a large extent in the foreign juristic literature, under the general name of status of the person; i. e., the condition (Zustand) and capacity of a person (etat et capaci- te), which, in accordance with the nature of things and at the same time in conformity with the traditions on the continent of Europe, should be governed by the domestic law of such person- (i. e., the lex domicilii, or the national law). This theory in regard to the status of a person, however, cannot be carried through. If, for example, in the native state of a person there are incapacities, based perhaps upon religious grounds, they cannot be given effect in a state where complete freedom in worship prevails. The logical effect of the statutory theory, which might show the incorrectness of the latter, is avoided by declaring that laws of this kind are imperative (Savigny) or are laws of public order, which have no effect beyOnd the territorial limits, but are absolutely binding within such territory. "Restrictions on the capacity for rights, on the one hand, and re- strictions on the capacity to act, on the other — for in the case of physi- cal beings we are dealing really with restrictions imposed by law, full and unrestricted capacity being the rule — rest, however, upon entirely different legislative aims. If certain classes of persons are restricted in their capacity for rights, the intent is to discriminate against them ; if their capacity to act is restricted the intention is pro- tection — protection against the injurious consequences of their own will, easily misled because of insufficient understanding; This funda- mental difference in aim requires, from an international' standpoint, an entirely different treatment. 220 GENERAL PROVISIONS. (Part 1 "1. The capacity for rights is to be governed by the law to which the transaction in question is subject in other respects. That is, the lex fori, contrary to Savigny's opinion, is not to be applied always, but the question, for example, whether somebody can acquire real estate is to be determined according to the lex rei sitae, and the person who is a slave according to his home law is to be regarded as free so long as he stays with us and cannot be recovered by means of the rei vin- dicatio in accordance with his national law. * * * "2. With respect to the laws restricting the capacity to act, on the other hand, it follows, from their aim to protect the person so restrict- ed in his capacity, that such protection should find its limits at all events in what has seemed necessary by the law of the state of which the person in question is a subject. A more extended protection, which a person might enjoy in another state, would only cause con- fusion; e. g., where, state A would regard a person within its terri- tory, who is a subject of state B and who is of age under the law of B, as a minor because he had not attained the age required for majority in state A. On the other hand, in the converse case, where a person not of age according to the law of his home state enters into legal transactions in a state in accordance with whose law he is of age, the nullity of the transaction does not necessarily follow. * * * "It is immaterial whether the incapacity to act has been imposed by law directly or, by the decree of a competent court. * * *" NICHOLS & SHEPARD CO. v. MARSHALL. (Supreme Court of Iowa, 1899. 108 Iowa, 518, 79 N. W. 282.) Dee;mi;e, J. Defendan t is a married woman domiciled in this state. On or about the 9th day of July, 1894, slie"'signed^ the no te in suit, in the_state of Jndiana,, at which place she was temp orarilv vislfitig .~as surety for Milton W^ Gregory.^ The note was made payable at the Indiana National Bank of Indianapolis. The laws of Indiana (section 6964, Burns' Rev. St.) provide that "a married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall be void." It js insisted on ^jjehalf of appellant that, as defendanFwaT^domiciled lii this state^t the time she made the note, her capacit v to contra ct followed her into the state of Indiana, and validated^her contrac t made in that commonwealth, and that the right of a married woman to make a contract relates to her contractual capacity, and, when'^'ven by the law of the . domicile, follows the person. Our statutes permit the making of contracts of suretyship by married women, and, if ap- pellant's postulate be correct, it follows that plaintiff is entitled to recover. The general rule seems to be, however, that the validity, nature, obligation, and interpretation of contracts are to be governed Ch. 6) CAPACITY. 221 by the lex loci contractus and actus . Savary v. Savary, 3 Iowa, 272; Boyd V. Ellis, 11 Iowa, 97; Arnold v. Potter, 22 Iowa, 194; McDan- iel V. Chicago & N. W. Ry. Co., 24 Iowa, 417; Burrows v. Stryker, 47 Iowa, 477 ; Bigelow v. Burnham, 90 Iowa, 300, 57 N. W. 865, 48 Am. St. Rep. 442. The rule is also well settled that pe rsonal status is lo be determined by the lex, domicilii . Ross v. Ross, lay Mass. ZiSyST Am. Repr 321. Continental jurists have generally maintained that per- sonal laws of the domicile, affecting the status and capacity of all in- habitants of a particular class, bind them, wherever they may go, and that the validity of all contracts, in so far as the capacity of the parties to contract is involved, depends upon the lex domicilii. Thus, the Code Napoleon enacts, "The laws concerning the status and capacity of per- sons govern Frenchmen even when residing in a foreign country." See, also. Story, Confl. Laws (8th Ed.) §§ 63-66; Whart. Confl. Laws (2d Ed.) § 114. Some of the English cases have also followed this rule. Guepratte v. Young, 4 De Gex & S. 217, 5 Eng. Ruling Cas. 848 ; Sotto- mayor v. De Barros, 47 Law J. Prob. 23, 5 Eng. Ruling Cas. 814. But see, apparently to the contrary. Burrows v. Jemino, 2 Strange, 733 ; Heriz v. De Casa Riera, 10 Law J. Ch. 47. We do not think the con- tinental rule is applicable to onr .sitriatinn and condition . A state has the I undoubted right to define the capacity or incapacity of its inhabitants, / be they residents or temporary visitors ; and in this country where travel is so common, and business has so little regard for state lines . _ It IS more just, as well as more c onyenient ,_tojiavg_ regard to the _ laws of the place of contract, as a uniform rule operating on all' contracts, and wnicn tne contractmg parties may be presiimed to hav e had in contemplation when making their contracts, than to requir e them, at their peril, to know the domicile of those with whom tAey deal, and to ascertain t ne law ot that domicile, ho wever remote. .which in many cases could not he done without such delay as would greatly cripple the power of contracting abroad at j^ll._ _Indeed, it is a rule ol almost univef sal appiicatron "that t he law of the state where the contract is made and where it is to be performed enters into, and becom es a part ot, tHat contract, to the same eytent and with the- !i^ ,me. ett'ect ag tt written in to the contract at length. Each state must pre- scribe tor itselt wtio ol its residents havecapacity to contract, and wha t changes shall b^ ttlaae, ii any, in the di sabilities imposed hv the c ommon law , i nus, in 'i'hompson v. Ketchum, 8 Johns. 1 92, the note was made in Jamaic a. The defense was infancy , a ccording to the laws of New YorET It was determined that the transaction was sub- 1 iect to th e la ws oFthe place of contract, and'tHaTifrfancy was a d e- 1 lense. or not, a ccording to the laws of Jamaica. Mr. justice Story, in his commentaries on Cohllict of Lawi7s'i^sT~"rn regard to questions of minority or majority, c ompetency or incompetency to marry, inca - pacities incident to coverture, guardianship, emancipation, an d other personal qualitie s an d disabilities, the law of the domicile of birth, o r the law of any other acquired and fixed domicile, is not generally to 222 GENERAL PEOVisioNS. (Part 1 govern, but the lex loci co ntractus aut act us, where the contract is made or the act done." glory, Contl. .Uaws, §§ loa, :<;4i. aee, also, 3 KTent, Comm. 2'6'6, note ; Id. 458; Id. 459, note. It will be observed that Chancellor Kent, in some passages of his text, seems to incline to the civilian doctrine, yet the notes clearly indicate that he concurs with Justice Story. See further, on this subject. Story, Confl. Laws /4th Ed.) §§ 101, 102. The case of Pearl v. Hansborough, 9 Humph. (Tenn.) 436, is almost exactly in point. In that case a married wo- man, domiciled with her husband in the state of Mississippi, by the law of which a purchase by a married woman was vaHd, and the property purchased went to her separate use, bought personal property in Tennessee, by the law of which married women were incapable of contracting. The contract was held void and unenforceable in Tennessee. See, also, Male v. Roberts, 3 Esp. 163 ; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Carey v. Mackey, 82 Me. 516, 20 Atl. 84, 9 L. R. A. 113, 17 Am. St. Rep. 500; Baum v. Birchall, 150 Pa. 164, 24 Atl. 620, 30 Am. St. Rep. 797; 3 Pars. Cont. (8th Ed.) *574, note; Id. *575-*578. Saul v. Creditors, 5 Mart. (N. S.) 569, 16 Am. Dec. 212, seems to be opposed to this rule. But as the" case is from Louisiana, which state follows the civil law, it is not an au- thority. We may safely affirm, with Chancellor Kent, that while the continental jurists generally adopt the law of domicile, supposing it to come in conflict with the law of the place of contract, the English common law adopts t he lex Joci._c.Qntractu s, Lord Eldon, In Male v. koberts, supra, samT'""it appears from tlie evidence in this case that the cause of action arose in Scotland, and the contract must be there- fore governed by the laws of that country, where the contract arises. Would infancy be a good defense by the laws of Scotland, had the action been commenced there? What the law of Scotland is with respect to the right of recovering against an infant for necessaries, I cannot say; but, if the law of Scotland is that such a contract as the present could not be enforced against an infant, that should have been given in evidence, and I hold myself not warranted in saying that such a contract is void by the law of Scotland because, it is void by the law of England. The law of the country where the contract arose must govern' the contract, and what that law is should be given in evi- dence to me as a fact. No such evidence Tias been given, and I cannot take the fact of what that law is without evidence." It would seem in this case, though not distinctly stated, that both parties were domi- ciled in England. The result of the application of these rules is that the con tract was void where executed, and cSinoF be "enlorced by the courts of this state. Affirmed.^" 1 The law of the place of nfifformance la of no Rffeot nnon the que stion of capacT^: Garrigue v. Kellar, l(i4 Ind. tiT.O, 74 JST. E. 523, ,69 L. R. A. "870, 108 SmTSt. Eep. 324 (1905). In Sottomayor v. De Barros, L. R. Prob. & Div. 1 (1877), it is said to be "a well-recognized principle of law" that the question of personal capacity to Ch. 6) CAPACITY. ' 223 THOMPSON V. TAYLOR. ^ t the citizens of Tenn essee, and would therefore not be recognized in th e courts of this state ; that the said guardian is lawfully in possession o f said funds under th e laws of this state, and has been g uilty of no "Breach ot auty in relation thereto ; and that said petitioner, beins^ a minor, canno t main tain this action in her own namp The probate judge sustained the demurrer, and dismissed the peti- tion. Petitioner has filed the record for a writ of error in this court. There are certain general principles which control the disposition of this case. They are, in the main, well settled ; the difficulty lies in their application to the particular facts of the case in hand. It is elementary that " everv state has an undoubted right to determine the st atus, or domestic or social condition, of persons domiciled within its territory . except in so far as the powers in this respect are restrained bv dutie s or obligations imposed upon them by the constitution of the Unite d States." Strader v. Graham, 10 How. (U. S.) 93, 13 L. Ed. 33T. Again, the civil status is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining the civil status ; for it is on this basis that the personal rights of a party — that is to say, the law which determines Ch. 6) CAPACITY. 238 his majority or minority, his marriage, succession, testacy, and intes- tacy — ^must depend. Udny v. Udny, L. R. 1 H. L. Sc. 457. It is not seriously controverted by counsel for defendant that the judicial decree under which the disabilities of minority were removed I in Louisiana had the same effect as though, bv direct statute, the ape , of majority had been fixed at 18, s o far as the status of minors dom i- ciled in that state is conce rned ; t he main contention in this connectio n bemg that, th e domicile or origin of petitioner having been in Ten - nessee, petitioner has acquired, and could acquire, no domici le in Xouisiana by reason o i her removal to that stat e b y Vier adoptiv e •lather. ' ' Before considering the question of removal, and of the right of the adoptive father to acquire for his adopted child a new domicile, or, what is the same thing, the right or privilege of the adopted child to acquire a new domicile with her adoptive father, let us settle, if we can, what would be the proper disposition of the case had the petitioner I been born, and eve r after domiciled, in the state of Louisiana . In such I cases we regard it as well settled that, under unquestionable principles I of private international law, one state will recognize and give force and effect in its ow n tribunals to the legislation of another state in so tar as it hxes the status and capacity of married women and minors. 'i'his is frequently spoken of as a principle of comity, and, while it doubtless has its origin in considerations of comit y, it has been so. re- peatedly and emphatically re cognized by the courts of all civilized coun- tries that it is now tho roughly, crystallized into rules and principles of -private international law . As is said in Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321, in the elaborate discussion of the subject by Chief Justice Gray: "The status or condition of any person with the in- herent capacity of succession or inheritance, is to be ascertained by the law of the domicile which creates the status, at least when the status is one which may exist under the laws of the state in which it is called in question, and when there is nothing in those laws to prohibit giving full effect to the status and capacity acquired in the state of the domi- cile. We are not aware of any case, in England or America, in which a change of status in the country of the domicile, with the formalities prescribed by its laws, has not been allowed full effect, as to the capac- ity thereby created, of succeeding to and inheriting property in any other country the laws of which allow a like change of status in a like manner, with a like effect, under like circumstances." This prin- ciple is illustrated by the decree made in Re Da Cunha, 1 Hagg. Ecc. 337, where administration was granted in England, limited to the re- ceipt of the dividend of a sum of English stock to a Portuguese lady, who, by the laws of her domicile, was emancipated from the disabilities of minority, but was, by the English law, still a minor. It was held that she was entitled to receive and receipt for the dividend on said stock in England. 234 GENERAL PKOVI8IONS. (Part 1 It is true, as insisted by counsel for defendant, that there is no elaboration of decision and of discussion made by the judges in the dis- position of this case ; but this fact in no manner detracts from its force and effect as authority. It does settle and determine that a perso n of full age by th e law of her domicile, though a minor by the laws"of "jj;ngland, i s entitled to recei ve and^giv e a valid acquittance for property to which she is entitled in Kngland ; and such receipt, though confineJ to the di vidend on the st oc k, is as conclusive of her right to act as~a maj or aTThough she had receiv ed_ihf rPTii° '^^ *'^'' pmpprty; the dividend being all that she was, under the circumstances, entitled to. In rule 32 of Dicey we find it stated that the capacity of a personr for the alienation of movables depends, so far as the question of in- fancy or majority is concerned, on the law of that person's domicile. So in Re He llmann/s Will (reported in L. R. 2 Eq. 363), Lo rd Romilly , the Mast er of the RollsTauthorized the payment of a legacy to a mm o'r aged iH,'nbecause she was of age according to the laws of Hamburg, where she was domiciled. The case is stated thus : "Hellmann, being- domiciled in England, by his will bequeathed the sum of £250 to each of the two children of .Charlatt Helsig. These children were a daughter aged 18, and a son aged 17, both residents and domiciled in Hamburg. According to the law of Hamburg girls become of age on completing their eighteenth year; boys on completing their twenty-second." The Master of the Rolls said : "I am of opinion that the legacy to the daugh- ter, who is of age according to the law of Hamburg, may be paid on her receipt. The legacy to the son may be paid on his attaining full age according to English law, or according to the law of Hamburg, whichever first happens." It is suggested, however, in response to this case, that the fact that the property going to the minor was, by the will, given to the mino r by name, is indicative of the purpose to have the same paid over to t he minor according to the law of the place of her domicile, where her majority was reach e d at an earlier age than in E ngland, and that for this reason it should not be controlling in a case where the propert y was inherite d generally, in one state, where 21 is the lawful age, an d the lull age at an eailiei' period is had bv reason of the domicile in an- other state ! We cannot appreciate the force of this suggestion. The court, in disposing of the case, indicates in no wise that its judgment or conclu- sion was influenced by any such consideration, and, so far as the case goes, it is merely an announcement and application of the general prin- ciples contended for by petitioner. Had any special regard been given to the fact that property was devised by will, instead of passing by law, it would have been more reasonable to have supposed that the testator intended it to be paid over according to the law of his own domicile, requiring guardians to receive and receipt for the fund devised to mi- nors. That the court gave no attention to such considerations is shown by the order made with reference to the boy, in directing that the fund Ch. 6) CAPACITY. 235 should be paid to him when he attained his majority either under the law of England or under the law of his domicile, whichever first hap- pened. This court has recognized the doctrine contended for by peti- tioner in the case of Roberson v. Queen, decided at Nashville, and re- ported in 87 Tenn. 445, 11 S. W. 38, 3 L. R. A. 214, 10 Am. St. Rep. 690, where it is held th at the judicial proceedings, under the laws of the state of Ken tucky7~ emancipating married women from the dis-^ ability ot covert u re, would be recognized and enforced in this state J o the exten t ot allowing an action to be brou ght and maintained in thg courts o t mis state against such married woman, on a note made bv_ her in tlie state ot Kentucky as suretv tor her husb and, dear1v_j:£ cop- nizing that her status as a person sui juris, fixed by judi i'ial prnrperl- ings in the state of her domicile, would have full force and effect in this stat ed To the same eifect is the text in Wharton's Conflict of Laws- ' ( section 114), where the learned author says: "A foreigner who is capable of business at his domicile must be recognized as so capable by our laws, even though, if domiciled among us, he would be incapable." A near analogy to the present case, with reference to the recognition in one state of the status fixed by the law of the domicile, is to be found in the case of ch ildren born out of wedlock, but made legitimate after- wards, a ccording to tne laws ot ttieir domicile, by the subsequent mar- riage of their parents ,^ iney are deemed every where legiti mate lor the purposes ot inheritance, e tc. Andros v. Andros, L,. R. !i4 Ch. Uiv, 637; Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669 ; Scott v. Key, 11 La. Ann. 233. This doctrine is generally subject to exception con- * cerning real estat e, which is governed by the lex rei sitae. The liW U"f divorce also furnishes a close analogy. Thus a divorce, in a foreign ju risdiction, for a cause which is not competent in the state of mar- ria ge, is recognized as valid in the latter i t the former had jurisdiction of the parties, for the purposes ot the suit, bewail v. bewail, 122 Mass. 158, 23 Am. Rep. 299; Clark v. Clark, 8 Cush. (Mass.) 385; Barber v. Root, 10 Mass. 260. In Stephens v. McFarland, 8 Ir. Eq. 444, we have a case where a minor was insolvent in South Australia, by the laws of which a minor could be so adjudged. His assignee at- tempted in Ireland to obtain the real and personal property that passed to him under his father's will. The bill was demurred to, and the de- mui^rer overruled; the assignee being adjudged to have the title of the property coming to the insolvent minor. The converse of the present case is found in Kohne's Estate, 1 Pars, Eq. Cas. (Pa.) 399. The direct point was that the power of attorney of a minor, who had not reached her majority by the law of her domi- • cile, would not be recognized in Pennsylvania, although, by the law of Pennsylvania, she was then of full age. The judge delivering the opinion said, among other things, "that, according to our law, in common with those of the civilized world, questions of minority and majority in all controversies respecting personal estate are to be deter- mined according to the laws of the country in which the alleged mi- ■2'M'> GENERAL PKOVISIONS.' (Part 1 nor held his actual domicile, whether natural or acquired." See Story, Confl. Laws, §§ 64-66, 69. Pothier states the rule thus : "The change of domicile delivers persons from the empire of the laws of the place they have quitted, and subjects them to those of the new domicile they have acquired." Poth. Cout. d'Orleans, c. 1, art. 1, note 13. Mr. Justice Story, after presenting the several views of some of the civil law writers who discuss the subject, says, at section 71: "Boullenois, himself, does not hesitate to declare the general principle to be incontestable that the law of the actual domicile decides the state and condition of the person, so that a person, by changing his domicile, changes at the same time his condition." The effect of the statute of Louisiana, under which the disabilities of this minor were removed, has been adjudged by the highest court of that state. Thus, in Proctor V. Hebert, 36 La. Ann. 250, it is said: "It places the minor, thus freed, on the same plane with the major, and invests him with identically the same rights, and subject to equal responsibilities. In other words, instead of leaving him subject to the operation of the general law, and making him wait until he is twenty-one years of age, it virtually and in effect fixed and established his majority at an earlier period of life — that is, at any time when he shall have passed the age of eigh- teen years." So fully is his majority established that he is capable of filling the office of administrator, just as if 21 years of age. Suc- cession of Lyne, 12 La. Ann. 155. Under this legislative emancipa- tion the party's disabilities of infancy are all removed. Wilson v. Craighead, 6 Rob. (La.) 429; Succession of Lyne, 12 La. Ann. 155; Proctor V. Hebert, 36 La. Ann. 250. He is estopped by it, and those dealing with him need look no further than his free papers. Al- lison V. Watson, 36 La. Ann. 616. The case of State, to Use of Gil- breath V. Bunce, 65 Mo. 349, urged by counsel for defendant as fur- nishing strong authority for their contention here, is not, in our opin- ion, entitled to the weight insisted upon. The case is extremely brief in its discussion, and assumes the very point in controversy, without reference to the various authorities bearing thereon. Mr. Wharton, in his work on Conflict of Laws, at section 114, says of this case that it is "exceptional" and "arbitrary"; moreover, it may be distinguished from the case now before us in this, that the proceedings in Arkansas, the state of domicile of the minor, seems to have had for its object the emancipation of the minor only pro tanto — that is to say, the mi- nor's disabilities were removed to the extent of authorizing him to go into the state of Missouri, and there collect and receipt for the par- ticular fund in the hands of his Missouri guardian. It was not an out and out removal of all the disabilities of minority, but a special commis- sion, authorizing an incursion into the state of Missouri for the pur- pose of receiving and receipting for a particular fund. The Arkansas statute is not before us, and we only know its con- tents by the statement thereof, found in this Missouri case, from which it is apparent that it differs widely from the broad and comprehensive Ch. 6) CAPACITY. 237 proceedings in Louisiana, whereby the petitioner in the case at bar was thoroughly and entirely emancipated from all disabilities, and her status fixed as a major in Louisiana, from which she claims the right to have her status recognized in other sovereignties. So far we have traveled a broad and well-defined road, from which there is no variableness nor shadow of turning, every step of which is marked by well-considered authority of the highest repute. [The learned' justice here discussed the question of petitioner's domi-J cile. and concluded that it was in Louisiana at the time of the judicial q proceedings therein resulting in her emancipation.] With the question of change of domicile settled, we, upon author- ity and principle, hold that she has the right to rpppj-irp frnm lipr yrnarrl- ian in the state of Tennessee funds coming to her '"" rnn=;pqiipnre nf her majority b y the law of her domicile. In this connection it may be remembered that a capacity to take and to have differs from a capacity to do and contract: in short, "a capacity to hold, from a capacity to act." as was said by Mr. Chief Justice Gray in the case of Ross V. Ross, supra. We do not understand t hat, with the matter of removal and adop- tion out of the way, there is any serious question that a person of full age in Louisiana could receive and receipt for property belong- 'ing to such minor in this state . The receipt in such case, accom- panied with a discharge, is "aTc pntract . There are any number of ' cases holding that persons who~are of full age by the law of their domicile will be held bound by any contracts made by them in anoth- er state, where they would not otherwise be of age under the laws of such other state. It is true that it has been held that, where tjersons are of age in the state where thev make a contract, Siough not of full age in the state of t heir domicile, they will be held bound bv their contracts in the state where the contracts were made. This appar- ent exception to the general rule that the law of domicile fixes ca- pacity is predicated upon the idea that every state must protect its \ own citizens from the wrongful acts of the subjects of other states;) and, while it will always reco p-nize capaci ty, as furnished by the law | "ot domicile, it will not always recognize incapacity w here the perso n is capable, under the law of the state where the contract is made, where it wOUld allecL inj uriously our own citizens. A uthorities up- on this aspect of the case might be multiplied, but the law, as here stated, is too well settled, to render such citations necessary. It only remains to determine whether there is anything in the stat- utes of this state requiring guardians to hold funds in their hands until the ward attains 21 years of age that militates against the en- forcement of the conclusions we have already reached. On behalf of the defendant it is insisted that the language of the statute in the regard above mentioned is as imperative ^ as would be a provision in the will, or other instrument creating an estate, wherein it was di- rected that the trustees should hold the fund until the beneficiary 2'SS GENERAL PROVISIONS. (Parti should attain the age of 21 years. It would be competent for t he legislature to pass an act impressing s uch a trust upon funds in_ _tliis state, without regard to the laws ot tne state of the domicile of the ward . j3ut doe s the statute in"q ut!ijLiun do more than provide for wards dbmi ciled irTd ur own state . '' Is it aimed at non-resident war ds ? "WS do not so read iior linderstan our statute. We consider that the e gge" 6t ip aorp nF marojit^at common law, which is the law of this state on that sub- l ect, there bemg no statute declaring it; and the word twenty-on e" *'"is us ed as synonymous with "full age" or "coming of age." as shown 1?y the title to the article, and, as is ttltther shown by section 3358, under the same chapter, the title to which is "Guardian and Ward," and article 1, the title of which is "Who may be Guardian," where it enacts that such person, who fails to deliver up effects of the ward "upon majority or marriage," is guilty of a misdemeanor; showing that the terms are used convertibly. This is too plain for citation of authority or rules of construction, but it happens that in Re Kohne's Estate, 1 Pars. Eq. Cas. 399, we have an adjudication that the terms "arrival at twenty-one years" and "arrival at full age" are synony- mous, and convey to the mind identically the same idea. So that there is nothing in our statute -fixing 21 years as the age at which a guard- Ch. 6) CAPACITY. 239 ian shall settle with wards who are of full age in the state of their domicile. The only provisions on the subject are the two referred to, to wit : that the ward, on coming of age, shall give a receipt, and that if a guardian fails to turn over property to his ward at his "ma- jority" or "her marriage," he is guilty of a misdemeanor. So that under our law he is required to settle when the ward is of full age, and, under the jus gentium, the petitioner is of full age and he must settle. The enforcement of this rule of private international law only requires that the common-law age of majority of this state shall give way to the age of majority as fixed by the law of the domicile of the ward, unless there be something in our statutes or decisions which are to be understood as indicative of a policy or purpose to enforce the par- ticular law, without regard to the rules of private international law which asks its suspension in favor of the lex domicilii. There is nothing in our law on the subject in hand upon which can be predicated the demand that the jus gentium, shall not prevail. Under the view we take of the law governing this case, the petitioner has attained her majority under the laws of the state of her domicile, and this court, recognizing the status of capacity as thus fixed by the law of her domicile, will declare her of full age, so far as her right to de- mand and receive from any one having property in their possession belonging to her, to which she would be entitled upon attaining full age in this state. In other words, being of full age in Louisiana, the state of her domicile, she is of full age in this state, under the principles of private international law obtaining in such cases. Let the judgment be reversed, and the case remanded for further proceedings.' sAccord: Hiestand v. Ktms, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481 (1847). The domicile of origin was applied in Barrera v. Alpuente, 6 Mart. (N. S.) 69, 17 Am. Dec. 179 (1827). For the purpose of the statute of limitations. ma.ior-_ ity has been determined with reference to the igY fQrT Burgett v. WilUford, 56 Ark. 187, li) S. W. 750, 35 Am. St. Rep. 96 (l§52Tr^ The substantive law applicable to the right in question will determine ca- pacity Trvr rifrhts. CSristopher V. Norvell, 201 U. S. 216, 26 Sup. Ct. 502, 50 M. 732 (1906) capacity to become a shareholder in a corp nvati"!' ; SchUit- er V. Bowery Sav: 'Bank, 117 K. Y. 125, 22 N. E. 572, 5 L. rTa. 541, 15 Am. St. Rep. 494 (1889), capacitg _t.f be « tmsl-ee And the p ower of disposition over cert^i" riprh^^ s FirsTwat Bank v. National Broadway Bank, 156 JN. X. 4m, bl N. E. 398, 42 L. R. A. 139 (1898). A disability imposed by way of penalty has no extraterritorial effect. Com- monwealth V. Green, 17 Mass. 515 (1822). Nor a so-called "artificial inca- pacity" resulting from the judgment of a court. Gates v. Bingham, 49 Conn. 275 (1881) ; Worms v. De Valdor, 49 L. J. Ch. N. S. 261 (1880) ; In re Se- lot's Trusts, [1902 J 1 Ch. 488. Contra: France, Trib. Seine, Jan. 19, 1889 (17 Clunet, 870) ; Comp. App. Lyon, April 30, 1907 (4 Darras, 630). Continental Law. — The national law of the parties governs with respect to capacity to act. France, article 3, Civ. Code; Trib. Tunis, Jan. 25, 3906 ■ (35 Clunet, 161). Italy, article 6, Civ. Code. See art. 58, Com. Code. Ger- many, article 7, Law Intr. Civ. Code. A foreigner who, after reaching the age of majority, acquires the German nationality, will retain the status of a major, though he would not be of age under the German municipal law. Article 7, Law Intr. Civ. Code. In France the lex loci has been substituted for the national law where the foreigner concealed his nationality. App. Paris, Feb. 8, 1883 (S. 1883, 240 GENERAL PROVISIONS. (Part 1 SELL V. MILLER. (Supreme Court of Ohio, 1860. 11 Ohio St. 331.) 1°' By the Court. Where a married woman, over eighteen but under twenty-one years of age, has her domicile, and joins with her husband in the execution of a mortgage, within a foreign jurisdiction, where the age of majority is fixed at twenty-one years, upon real estate situ- ate in Ohio, held, that such morgage is not invalid for want of capaci- ty on her part to contract ; the capacity to contract, in respect to im- movables, being governed by the law of the situs, and not by the law of the domicile. Motion overruled.* AUGUSTA INS. & BANKING CO. v. l^EORTON. (Supreme Court of Louisiana, 1848. 3 La. An n . 417.) EuSTis, C. J. This suit was instituted on two prom issory no tes, ex e- oited by the defendant and his wife, iointlv. and secured by mortga. ge on immovable property situated in Louisiana. The defendants were domiciliated in Maryland, where they continued to resid e. The suit against them was commenced by attachment, under which the m art- gaged property was attached. There was judgment against the defend- ants with privilege of mortgage on the property attached, and they have appealed. The appellants have contended before us in argument: (1) That no property of the husband having been attached, no judgment could be lawfully rendered against him. (2) That Mrs. Morton, having bound her property and not herself personally, judgment could not be render- ed against her, but only against her property. (3) That a married woman cann ot bind h er immovable property in this s tate as surety for her husband's debts ; and that the mortgage being invalid, no judg- ment should have been rendered against her property. The first proposition is certainly tenable. No property of the hus- band having been attached, no judgment can be rendered against him. Hi^ appearance in court by a curator must be only considered as as- sisting his wife in the proceedings. It is established that a marr ied woman in Maryland, where these^ 2, 169). Or where the other contracting party was Ignorant of his national- ity. Cass. Jan. 16, 1861 (D. 1861, 1, 193); App. Bordeaux, April 11, 1906 (33 Olunet, 1119); App. Lyon, April 30, 1907 (35 Clunet, 146). And In Ger- many a foreigner will be held liable with respect to all legal transactions entered into in Germany other than those relating to foreign realty or those falling within the family law or the law of succession, if he has capacity according to German law. Article 7, Law Intr. Civ. Code. See, also, article 84, Bills of Exchange Act. 4 This doctrine was already taught by the Dutch jurist, Paul Voet, De Stat- utis, p. 138. Ch. 6) CAPACITY. 241 contracts were made, may become responsible for the debts o f her husband, so as to bind property settled on her for her separate use, but not so as to bind herself personally; and hence it is inferred that no judgment could be rendered against her personally. The question as to the validity of the mortgage granted by Mrs. Morton to secure the debt of her husband controls the case, and re- duces the point raised as to the personal effect of the judgment to a mere matter of form. The dist rict judge thought that the ground on which the mor tga ge was att empted to be invalidated was a matter pf personal disability, and depende d exclusively on the law of the domicile of the party grant- ing i t. The argument before us has been principally directed to this! question, whether the vali dity of the mortg age is to be tested by the , laws of this state, or those of Maryland. The art icle of the Code which provi des that th e wife cannot bind her- self f or tFe debts of her husband, according to the doctrine of the civilians, is a personal statute. It i s founded exclusively on the per- ^nal relation be t we en husband and wife, resulting from marriage un- der our laws, and of course is confined in its operation to married per- sons within our jurisdiction. True, it establishes an incapacity to con- tract, but this incapacity is merely relative, and it is settled by our jurisprudence that a wife cannot be relieved from the effect o'f a con- tract by which she became the surety for her husband, if the debt itself inured to her benefit. The disability to contract exists only in a ce r- tain conting ency, and that contingency is strictly persona l. The inca- pacity of a married woman to contra ct is of the s ame character as that _o f^a minor , and the laws creating those incapacities have always been classed amo ng those which are call ed persona l. This article does not evenpurport to affect the immov a ble Property of married women . Its operation upon such property is only indirect, as all property is affect- ed by lawsTelatmg to contracts. It renders voidabTe~contrarts mad e " by mar ned~^omen in -certain cases, by reason of the considera tion which it holds t o be in conflict with the relations of husband j.nd wife. It has no one 'characteristic of what is considered in jurisprudence as a real statute. Those laws are real, in contradistinction to personal stat- utes, which regulat e directly property, without reference to the condi - tion or the capacity oi its possessm\ The distinction between these "classes of laws, though their application is in many cases difficult, ap- pears to us to be obvious. 1 Duranton, §§ 79, 80. The contract entered into in the pre sent instance bound the property of the wife under the law of Maryland, where the contract was made, and where the husband and wife are domiciliated. The act of mort- gage IS valid in point of form. The property mortgaged was not dotal, • and she woul3 have had^ right to sell or mortgage it, with the consent oTher husband, in all but certain excepted cases, if her domicile had been in X^uisiana. If there be no objection to the validity of this mort- gage except that resulting from her incapacity as a married woman,] liOE.CONF.L.— 16 242 ' GENERAL PROVISIONS. (Part 1, we fin d no just ground for declaring it to be invalid. It conflicts with no law of the State, and there isjio reason of comity whi^3r"would aut horize a court in Louisiana to relieve the wife from its effect. It >' interferes with no real statute ; and the personal statute does'h ot re ach it, by reason of the person not being subject to our jurisdiction and ^ unaffected by our laws. Suppose that by the laws of Maryland the age of twenty years was fixed as that of majority, and a person domiciliated in that state, above that age and not twenty-one years old, should sell real estate in Louisi- ana, he could not be aided by our courts in setting aside the sale after- wards on the ground of his minority. The answer to such a pretension would be, as in this case. The dis ability resulting from the cond ition of persons is j)ersonal, and contracts valid at the place ofldpmicile, are valid without reference to the situation of the p roperty, so far as the capacity of the party to contract is concerned. Merlin, Rep. verbis Btatut, Majorite, Autorisation maritakt Sirey,~Rep. 19, 2, 140, case of Morris; Traite des Personnes, par Proudhon, c. 5, § 1; Mer- chants' Bank of Baltimore v. Bank of United States, 2 La. Ann. 659. We have examined with care the authorities cited in the learned ar- gument, submitted by the counsel for the defendants. A review of them in detail, would extend our observations beyond the length to be observed in judicial opinions. The counsel contends that the law of Maryland, by which a married womSiT^tEoughJgenerally incapacitated tolnaEe contracts, is enabled to bind her property for her husband's debts, is a real statute, and applies to property exclusively within the jurisdiction of that s|ate. Biit we understand the right of the wife to bind her separate property for her husband to be founded on a rule of equity, which regards her as a feme sole in all cases in which she, without any fraud or unfair advantage, and with a clear intention of affecting her separate property, enters into an agreement respecting it ; and this view, which a court of equity enforces in relation to her sepa- rate property, is independent of its character and situs, and removes every disability in respect to it, so far as a court of equity is called to act upon it. It is not p rete nded that our conclusions on this question harmonize with all that has been written or decided on this difficult subject; but our aim has been to adopt none which from their generality would con- flict with any recognized principle of jurisprudence, and we think we ^an safely rest the decision of the case on the authority of Merlin and Pothier. Merlin verbo Senatus-consult. Veil. Pothier, Ob. 389. It is therefore ordered that the judgment of the district court be re- versed, and that the plaintiffs recover judgment against the defendant Mary Ann Morton, wife of George C. Morton, to be paid exclusively out of the property mortgaged, for the sum of $24,824.82, with inter- est at six per cent, per annum on $12,334.23 from 6th March, 1843, and on the balance, $12,590.59, from 6th September, 1843, and that the property and rights attached in this suit, and described in the act Ch. 6) CAPACITY. 243 of mortgage on file therein, be sold by the sheriflf in satisfaction of this judgment, with costs of the court below; the plaintiffs to pay the costs of this appeal. THOMSON V. KYIvE (Supreme Court of Florida, 1897. 39 Fla. 582, 23 South. 12, 63 Am. St. Bep. 193.) Bill by J. C. Kyle against Delia K. Thomson a nd another to fore- close a mortgage. Decree of foreclosure granted, and a money decree for deficiency rendered against defendant John M. Thomson. Defend- ants appeal. The appellee (complainant below), on November 14, 1891, filed a bill in equity in the circuit court of Alachua county, ]^^3^ix^.fQX^clQsme: of a jnortgage on certain real estate situated in ^!t count y^ The mortgage debt wa s evidenced b yj. note^executed by the appellants (defendants below) to complajnant^jmder date January 1S7-TSFD7T6F"$2;932; due April 10,^ 1890, and payable ii? the city of Birming ham, Ala. The mortgage given to secure this note was exe- cuted on the saine day by the defendants. The defendant Delia K. Thornson filed her plea on January 4, 1892, whereby she alleged that prior and subsequent to, and at the time of, the execution of the note and mortgage, she was a married woman, the wife of her co-defend- ant, and seiseH and possessed of a statutory separafe^estate in her own ■"individuar right and control, part of which was embraced in the mort- gage; that the note andjnortgage were executed in the state of Ala - ■^ama, ^d that all transactions "out of which the mortgage debt aroTe " occuffid ~in said state ; that the mortgage debt was the debt of her husband exclusively, and she executed the note and mortgage as se- cuiTty only, and upon no other consideration ; that by the laws of Ala - bama the ob li gation o f a mar ried w oman executed fo r her husband 's debt was null and void, arid incapable of enforcemen t^ and that the note a nd^inortgage , being void as tojier in the _sta,te o f Alabama, were like- ^ise void in the state of Floriga 7~"TEi's plea was, upon argumeritTover- ruleci".*' Cartbe, J." The question presented by the plea of Delia K. Thom- son is an interesting one, and one upon which the authorities are not in entire accord. It is not denied by appellants that, had_thejnortgage sought to be foreclosed in this case beenjexecuted in this state, it would haye_be^rvaHd, and enforceable under our laws. Indeed, it has been held by this court, on more than one occasion, that a mortgage properly executed by a married woman and her husband, conveying the wife's separate statutory real estate as security for her husband's debt, is valid. Dzialynski v. Bank of Jacksonville, 23 Fla. 346, 2 South. 696 ; Ballard v. Lippman, 32 Fla. 481, 14 South. 154. It is insisted, how- •Statement of facts taken from 23 South. 12. • Only so much of the opinion is given as relates to the issue of capacity. 344 GENERAL PKOVI8IONS. (Part 1 ever, that under the laws of Alabama a married woman is w ithout c a- pacity to bind herself or her property as security for the debt of her _husban~d, and, as the mortgage sought to be enforced in thi s case^ as executed, and the debt secured thereby^ was., payable, in that state, and all the parties were there domiciled, that those laws necessarily entere d into and became a part of the contract, rendering it void in that^tate; and that, being void in Alabama, it is, by virtue of interstate law, void , in Florida. It may be admitted that this_ argument has strong applica- I tion to the note executed by Mrs. Thomson with herTiusband, wfitoh" the mortgage was given to secure, for, _the note being a ge neral pe r- sonal obligation, if void by the laws of the state in which it was exe- cuted and made payable, it ought likewise to be void in every other state where it is sought to be enforced. But it does not follow that because Mrs. Thomson is not bound by the note it is for tEat reason totally void."" It still remains a valid obligation of her husband, which she caii^ in this state, secure by a mortgage of her separate statutory property. DziaTynski v. Bank of Jacksonville, 23 Fla. 5iS^~T~Sbnth. 696. We_do_ not understaiid that any principle of i nterst ate law re- quires us to test the validity or sufficiency oi conveyances of or liens upon real estate in this state by the laws of other states or~nations, even though such contracts may have been executed, or giveii to secure 1 the performance of some act, within their jurisdiction. The "r^sons why we should not are obvious. The subject-matter, with reference to the title of which the conveyance or lien is executed, being at the time of such execution an immovable thing, not only located beyond the control of that sovereignty within whose jurisdiction the contract is executed, and forever so to remain, but then within the exclusive ju- risdiction of another independent sovereignty, and forever so to re- main, the parties to such conveyance are presumed to have contracted, at least so far as the immovable thing is concerned, with reference to fhe'laws of that jurisdiction within whose borders the thing is situated. And_no sovereign state, without express legislative sanction, is pi^esiim- ed to surrender to owners of immovable property within its limits the power to incumber or change the title thereto in any other manner than tHaFpointed out by its laws. It is, therefore, almqst_ universally held that, so far as real estate or immovable property is concerned^jwe must look to the laws of the state where it is situated for the" rules which govern its descent, alienation, and transfer, and for the constructron, validity, and effect of conveyances thereof (United States v. Crosby, 7 •Cranch (U. S.) 115, 3 L. Ed. 28?; McGoon v. Scales, 9 Wall. (U. S.) 23, 19 L,. Ed. 545; Brine v. Hartford Fire Ins. Co., 96 U. S. 627, 24 L. Ed. 858 ; Gault v. Van Zile, 37 Mich. 22 ; Bissell v. Terry, 69 111. 184 ; West V. Fitz, 109 111. 425 ; Fessenden v. Taft, 65 N. H. 39, 17 Atl. 713 ; Curtis v. Hutton, 14 Ves. 537 ; Frierson v. Williams, 57 Miss. 451 ; Crolly v. Clark, 20 Fla. 849 ; Frazier v. Boggs, 37 Fla. 307, 20 South. 245) ; and it is to the same law that we must look for the rules govemngJhe_capacity~ortEe parties to such contracts of conveyances. Ch. 6) CAPACITY. 245 and their r ights under the sam e (Doyle v. McGuire, 38 Iowa, 410; Batim V. JBirch-all, 150 Pa. leO* Atl. 620, 30 Am. St. Rep. 797; Chapman v. Robertson, 6 Paige (N. Y.) 637, 31 Am. Dec. 364; Suc- cession of Larendon, 39 La. Ann. 953, 3 South. 219 ; Succession of Cassidy, 40 La. Ann. 827, 5 South. 293 ; 3 Pars. Cont. *573 ; Story, Confl. Laws, § 431 ; Ror. Interst. Law, p. 363). It would seem there-^. fore, that upo n principle thejnortgage .itLihiS-_c.aS£..shQuld.be subjected to the laws of thFs^ state, in order to_ ascertain its validity, construction, arid the capaHty^f the parties to .execute it^ rather than to the laws of tBe'sTate of Alabama, within whose borders the real estate is not situ- ated,' and as_to__which her^ laws can have no extraterritorial, effect. While a contrary opinion was entertained in Ohio (Evans v. Beaver, 50 Ohio St. 190, 33 N. E. 643, 40 Am. St. Rep. 666), it has been held in several well-considered cases that, although by the laws of the state of a married woman's domicile she has no capacity to execute a mortgage upon her separate estate as security for the debt of her hus- band, yet if she, in that state, executes a mortgage of that character upon real estate situated in another state, whose laws permit a married woman to mortgage Ker property to"secure"such"a debt, the mortgage will, in the latter state, be held valid, and enforceablejn its courts by agp.ro£nafejgroceedings. Tost v. First Nat. Bank, 38 111. App. 359, af- firmed 138 111. 559, 38 N. E. 978 ; Cochran v. Benton, 136 Ind. 58, 35 N. E. 870 ; Johnston v. Gawtry, 11 Mo. App. 332. See, also, Erierson v. Williams, 57 Miss. 451; Goddard v. Sawyer, 9 Allen (Mass.) 78; Swank V. Hufnagle, 111 Ind. 453, 12 N. E. 303,— where the same principles were applied to a different state of facts. We hold that, notwithstanding Mrs. Thomson's incapacity by the laws of Alabama to exe'ctite^thFrnortgage sought fo'be foreclosed here, she was capable, under ourl awsj of "executing, in Alabama.a,mortgage, upon her separate statutoirylreal property in this state to securejher husband's__debt, and "that her plea was £rogeriy_ oyerruled. This conclusion also disposes of those portions of the cross bill and answer of the defendant John M. Thomson which cover the same matters as this plea. * * * a « The lex rei sitae does not govern the capacity to transfer personal prop- erty. Huey's Appeal, 1 Grant's Oases (Pa.) 51 (1854) ; Koihne's Estate, 1 Pars. Bq. Gas. (Pa.) 399 (1850). It may be imposed, however, by statute. Loftus v. Farmers' & Mechanics' Nat. Bank, 133 Pa. 97, 19 Atl. 347, 7 L. R. A. 313 (1890). CoNTiiTENTAL LAW. — Capacity to act with respect to realty is governed by the national law of the parties. Germany, article 7, Law Intr. Civ. Code, subject, however, to renvoi (article 27, Law Intr.) ; Italy, article 6, Prel. Disp. Civ. Code; Cass. Rome, Jan. 5, 1906 (34 Clunet, 1205); Cass. Turin, May 10, 1867 (Giurispr. Tor. 1867, 1, 395). Contra: France, article 3, Civ. Code, providing for the application of tlie law of the situs ; App. Paris, March 5, 1901 (28 Clunet, 775). See App. Paris, March 12, 1881 (8 Clunet, 355). 246 GENERAL PROVISIONS. (Part 1 SECTION 2.— CORPORATIONS. BANK OF AUGUSTA v. EARLE. "^ / (Supreme Ctourt of the United States, 1839. 13 Pet. 519, 10 L. Ed. 274.) Taney/ C. J.t * * * Xhe questions presented to the court arise upon a case stated in the Circuit Court in the following words : "The defendant defends this action upon the following facts, that are admitted by the plaintiffs: that plaintiffs are a corporation, in- corporated by an act of the Legislature of the state of Georgia, and have power usually conferred upon banking institutions, such as to pur- chase bills of exchange, etc. That the bill sued on was made and in- dorsed, for the purpose of being discounted by Thomas McGran, the agent of said bank, who had funds of the plaintiffs in his hands for the purpose of purchasing bills, which funds were derived from bills and notes discounted in Georgia by said plaintiffs, and payable in Mo- bile; and the said McGran, agent as aforesaid, did so, discount and purchase the said bill sued on, in the city of Mobile, state aforesaid, for the l^enefit of said bank, and with their funds, and to remit said funds to the said plaintiffs. "If the court shall say that the facts constitute a defence to this ac- tion, judgment will be given for the defendant, otherwise for plain- tiffs, for the amount of the bill, damages, interest, and cost; either party to have the right of appeal or writ of error to the Supreme Court upon this statement of facts, and the judgment thereon." Upon this statement of facts, the court gave judgment for the de- Ifendant; being of opinion that a bank incorporated by the laws of Georgia, with a power' among other things to purchase bills of ex- I change, could not lawfully exercise that power in the state of Alabama, I and that the contract for this bill was therefore void, and did not bind the parties to the payment of the money. * * * The nature and character of a corporation created by a statute,, and the extent of the powers which it may lawfully exercise, have upon several occasions been under consideration in this court. In the case of Head v. Providence Ins. Co., 3 Cranch, 127, 2 L. Ed. 229, Chief Justice Marshall, in delivering the opinion of the court, said, "without ascribing to this body, which in its corporate capacity is the mere creature of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort; it may correctly be said to be precisely what the incorporating act has made it; to derive all its powers from that act, and to be T The statement of facts, a part of the opinion, and the dissenting opinion of McKinley, J., have been omitted. Ch. 6) CAPACITY. 247 capable of exerting its faculties only in the manner which that act au- thorizes. "To this source of its being, then, we must recur to ascertain its powers ; and to determine whether it can. complete a contract by such communications as are in this record." In the case of Dartmouth College v. Woodward,, 4 Wheat. 636, 4 L. Ed. 629, the same principle was again decided by the court. "A corporation," said the court, "is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of the law, it possesses only those properties which the charter of its crea- tion confers upon it, either expressly, or as incidental to its very ex- istence." And in the case of the Bank of United States v. Dandridge, 13 Wheat. 64, 6 L. Ed. 552, where the questions in relation to the powers of corporations and their mode of action, were very carefully consider- ed, the court said: "But whatever may be the implied powers of ag- gregate corporations by the common law, and the modes by which those powers are to be carried into operation ; corporations created by statute must depend both for their powers and the mode of exercising them, upon the true construction of the statute itself." It cannot be necessary to add to these authorities. And it may be safely assumed that a corporation can make no contracts, and do no acts either within or without the state which creates it, except such as are "authorized by its charter; and those acts must also be done, by ~strdr officers oi- agents, and in such manner, as the charter authorizes. And if the law creating a cqrporatiori, does not, by the true construc- tioii of the words used in the charter, give it the right to exercise its povversB^blnd the limits of the state, all contracts made by it in other sfates would be void. The" charter oj the Bank of Augusta authorizes it, in general terms, to deal in bills of excharige; and consequently, gives it the power to purchase foreign bills as well as inland'; in other words, to purchase bills payable in another state. The power thus given, clothed the cor- p oration wit h the right to^ake contracts out oTtfieFtate, iii'so far as Georgi a could co nfeirlt, Eor whenever it purchased a foreign bill, and tbrwarded' it to an agent to present for acceptance, if it was honor- ed by the drawee, the contract of acceptance was necessarily made in another state; and the general power to purchase bills without any restriction as to place, by its fair and natural import, authorized the bank to make such purchases, wherever it was found most convenient and profifable to the institution; and" also to employ suitable agents for that purpose. Th e purchase of the bi ll in question was, therefore, the exercise of oneot the powers which the bank possessed under its cha^F;''^d" wa|3i|SSiofie3rby the' law of Georgia creating the cor- poration, so far as that statg_coujd.authoriz.e a. cojporation to exercise ftTpowers beyond the limits of Jts. own jurisdiction. " Fut ifTias been urged in the argument, that notwithstanding the 248 GENERAL PROVISIONS. (Part 1 powers thus conferred by the terms of the charter, a corporation, from the very nature of its being, can have no authority to contract out of the limits of the state ; that the laws of a state can have'" tio exffa^terri- torial operation; and that, as a corporation is the mere creature. of a law of the state, if can have no existence beyond the limits in which that law operates ; and that it must necessarily be incapable of making a contract in another place. ' / It is very true that a corporation can have no legal existence out of the , boundaries of the sovereignty 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 obligatory, the corporation can have no existence. It must dwell in the place of its creation, and can- not migrate to another sovereignty. But althotigh 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; and its residence in one state creates no insuperable objection to its power of contracting in another. It is indeed a mere artificial being, invisible and intangible; yet it is a person, for certain purposes in contempla- tion of law, and has been recognized as such by the decisions of this court. It was so held in the case of United States v. Amedy, .11 Wheat. 412, 6 L. Ed. 502, and in Beaston v. Farmers' Bank of. Dela- ware, 12 Pet. 135, 9 L,. Ed. 1017. Now natural persons, through the intervention of, agents, are continually making contracts in countries in which they do not reside ; and where they are not personally present when the contract is made; and nobody has ever doubted the validity of these agreements. And what greater objection can there be to the capacity of an artificiaTperson, by its agents, to make a contract_with- in the scope of its limited powers, in a sovereignty in which it does not reside; provided such contracts are permitted to be made by them by the laws of the place ? The corporation must no doubt show that the law of its creation '[gave it authority to make such contracts, through such agents. Yet, as in the case of a natural person, it is not necessary that it should ac- tually exist in the sovereignty in which the contract is made. It is suf- ficient that its existence as an artificial person, in the state of its crea- tion, is acknowledged and recognized by the law of the nation where the dealing takes place ; and that it is permitted by the laws of that place to exercise there the powers with which it is endowed. Every j jower, however, of the description of which we are speaking, Yh}S^3.S°^P9^^^^°^ exercises in another TfateTdepends" for ttr validity upon the laws of the sovereignty in which it is exercised ; "aruTa^CDr- poration can make no valid contract without their sanction, 'express oFiinpned'. And this brings us to the question which has been so'elsb^ orately discussed; whether, by th e comity of nations and between these states, the corporations of one state are ~permTffea"to mak e con- tracts in another. It is needless to enumerate here the Instances in which, by the general practice of civilized countries, the lawToTthe Ch. 6) CAPACITY. 249 one, will, by the comity of nations, be recognized and executed in an- other, where the right of individuals are concerned. The cases of con- tracts 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 nation by which it is offered ; and is inad- missible 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 sovereignties 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, 36, 37, that: "In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume tl]e tacit adoption of them by their own government; unless they are repugnant 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 principles of municipal law are as- certained and guided." Adopting, as we do, the principle here stated, we proceed to inquire whether, by the comity of nations, foreign corporations are permitted to make contracts within their jurisdiction; and we can perceive no sufficient reason for excluding them^ when" they are not contrary to -^ theTcnown policy of the state, 'or injurious to its interests. It is noth- ing morTthah the admission of the existence of an artificial person cre- ated by the law of another state, and clothed with the power of mak- ing certain contracts. It is but the usual comity of recognizing the law of another state. In England, from which we have received our general principles of jurisprudence, no doubt appears to have been entertained of the right of a foreign corporation to sue in its courts; since, the case of Henriques v. Dutch West India Company (decided in 1729) 2 L,. Raymond, 1533. And it is a matter of history, which this court are bound to notice, that corporations, created in this coun- try, have been in the open practice for many years past, of making contracts in England of various kinds, and to very large amounts ; and we have never seen a doubt suggested there of the validity of these contracts, by any court or any jurist. It is impossible to imagine that any court in the United States would refuse to execute a contract, by which an American corporation had borrowed money in England; yet if the contracts of corporations made out of the state by which they were created, are void, even contracts of that description could not be enforced. It has, however, been supposed that the rules of comity between foreign nations do not apply to the states of this Union; that they extend to one another no other rights than those which are given by 250 GENERAL PROVISIONS. (Part 1 the Constitution of the United States; and that the courts of the general government are not at liberty to presume, in the absence of all legislation on the subject, that a state has adopted the comity of nations towards the other states, as a part of its jurisprudence; or that it acknowledges any rights but those which are secured by the Constitution of the United States. The court think otherwise. Thc- intimate union of these states, as members of the same great political family; the deep and vital interests which bind them so closely to- gether should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume be- tween foreign nations. And whe n (as without doubt must_occasion- ally happen) the interest or policy of any sjate requires it to^ restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this court refuse to'administer the law of international comity. be- tween these states? They are sovereign states; and the history of the past, and the events which are daily occurring, furnish the strong- ' est evidence that they have adopted towards each other the laws of comity in their fullest extent. Money is frequently borrowed in one state, by a corporation created in another. The numerous banks es- tablished by different states, are in the constant habit of contracting and dealing with one another. Agencies for corporations engaged in the business of insurance and of banking have been established in other states, and suffered to make contracts without any objection on the part of the state authorities. These usages of commerce and trade have been so general and public, and have been practiced for so long a period of time, and so generally acquiesced in by the states, that the court cannot overlook them when a question like the one before us is under consideration. The silence of the state authorities, while these events are passing before them, show their assent to the ordinary laws of comity which permit a corporation to make contracts in an- other state. But we are not left to infer it merely from the general usages of trade, and the silent acquiescence of the states. It appears from the cases cited in the argument, which it is unnecessary to re- capitulate in this opinion; that it has been decided in many of the state courts, we believe in all of them where the question has arisen, that a corporation of one state may sue in the courts of another. If it may sue, why may it not make a contract? The right to sue is one of the powers which it derives from its charter. If the courts of another country take notice of its existence as a corporation, so far as to allow it to maintain a suit, and permit it to exercise that power, why should not its existence be recognized for other purposes, and the corporation permitted to exercise another power which is given to it by the same law and the same sovereignty ; where the last- mentioned power does not come in conflict with the interest or policy of the state? There is certainly nothing in the nature and character Ch. 6) CAPACITY. 251 af a corporation which could justly lead to such a distinction; and which should extend to it the comity of suit, and refuse to it the com- ity of contract. If it is allowed to sue, it would of course be permitted to compromise, if it thought proper, with its debtor ; to give him time, to accept something else in satisfaction; to give him a release, and to employ an attorney for itself to conduct its suit. These are all mat- ters of contract, and yet are so intimately connected with the right to sue, that the latter could not be effectually exercised if the former were denied. * * * We think it is well settled, that by the law of comity among nations, a corporation created by one sovereignty is permitted to make con- tracts in another, and to sue in its courts; and that the same law of comity prevails among the several sovereignties of this Union. The public and well known and long continued usage of trade ; the general acquiescence of the states; the particular legislation of some of them, as well as the legislation of Congress; all concur in proving the truth of this proposition. But we have already^said that this comity is presumed from the silent acquiescence of the state! Whenever a state sufficiently" indicates 'thaf^contracts' which derive their validity from its comity are repug- nant t o its jKilicy, or are considered as injurious to its interests ; the presumption in favor of its adoption can no longer be made. And itTenfairis "to inquire, whether there is any thing in the Constitution or laws of Alabama, from which this court would be justified in con- cluding that the purchase of the bill in question was contrary to its policy. * * * It is but justice to all the parties concerned to suppose that these contracts were made in good faith, and that no suspicion was enter- tained by either of them that these engagements could not be en- forced. Money was paid on them by one party, and received by the other. And when we see men dealing with one another openly in this manner, and making contracts to a large amount, we can hardly doubt as to what was the generally received opinion in Alabama at that time in relation to the right of the plaintiffs to make such con- tracts. Everything now urged as proof of her policy, was equally public and well known when these bills were negotiated. And when a court is called on to declare contracts thus made to be void, upon the ground that they conflict with the policy of the state, the line of that policy should be very clear and distinct to justify the court in sus- taining the defence. Nothing can be more vague and indefinite than that now insisted on as the policy of Alabama. -It rests altogether on speculative reasoning as to her supposed interests, and is not sup- ported by any positive legislation. There is no law of the state which attempts to define the rights of foreign corporations. We, however, do not mean to say that there are not many subjects upon which the policy of the several states is abundantly evident, from 252 GENERAL PROVISIONS. (Part 1 the n \ture of their institutions and the general scope of their legis- lation, and which do not need the aid of a positive and special law to guide the decisions of the courts. When the policy of a state is thus manifest, the courts of the United States would be bound to no- tice it as a part of its code of laws, and to declare all contracts in the state repugnant to it to be illegal and void. Nor do we mean to say whether there may not be some rights under the Constitution of the United States which a corporation might claim under peculiar cir- cumstances, in a state other than that in which it was chartered. The reasoning, as well as the judgment of the court, is applied to the mat- ter before us; and we think the contracts in question were valid, and that the defence relied on by the defendants cannot be sustained. The judgment of the circuit court in these cases must therefore be reversed, with costs. sAs to doctrine of English courts, see E. Hilton Toung, Status of For- eign Corporations and the Legislature, 23 Law Quar. Rev. 290-303. The status of a corporation will in general be determined in accordance with the law of the state creating it. Mumma v. Potomac Co., 8 Pet. 281, 8 L. Ed. »45 (1834) ; Remington & Sons v. Samana Bay Co., 140 Mass. 494, 5 N. E. 292 (1886). See Liverpool Ins. Co. v. Massachusetts^ 10 Wall. 566, 19 L. Ed. 1029 (1870). This law will govern also the status of a stockholder. Nashua Sav. Bank v. Anglo-American Land Mortgage & Agency Co., 189 U. S. 221, 23 Sup. Ot. 517, 47 L. Ed. 782 (1903) ; McKim v. Glenn, 66 Md. 479, 8 Atl. 130 (1887); Electric Welding Co. v. Prince, 195 Mass. 242, 81 N. E. 306 (1907). And the powers of a corporation. Canada Southern E. Co. v. Gebhard, 109 U. S. 527, 3 Sup. Ct. 363, 27 L. Ed. 1020 (1883); Supreme Council of American Legion of Honor v. Green, 71 Md. 2(53, 17 Atl. 1048, 17 Am. St. Rep. 527 (1889). But the general laws of the state creating a corporation do not form a part of its charter, and hence have no extra- territorial effect. Mutual Life Ins. Co. v. Cohen, 179 U. S. 262, 21 Sup. Ct. 106, 45 L. Ed. 181 (1900) ; White v. Howard, 38 Conn. 342 (1871) ; Borton v. Brines-Chase Co., 175 Pa. 209, 34 Atl. 597 (1896). But see Starkweather v. American Bible Soc, 72 111. 50, 22 Am. Rep. 133 (1874). The rights ot a foreign corporation being dependent upon comity, it fol- . lows that it may be excluded by a state or admitted upoii' terms. Paul v. ■*' Virginia, 8 Wall. 168, 19 L. Ed.' 357 (1868). As to the effect of noncompli- ance with the local statutes, see J. H. Beale, Jr., Foreign Corjwrations, §§ 212-214; 1 L. R. A. (N. S.) 1041-1042. "j, It also follows that no power granted by the charter can be exercised in ''the face of a prohibitive statute or a clearly defined local policy. White V. Howard, 46 N. T. 144 (1871); Falls v. United States Sav. Loan & Build- ing Cq., 97 Ala. 417, 13 South. 25, 24 L. R. A. 174, 38 Am. St Rep. 194 (1892) ; Lancaster v. Amsterdam Imp. Co., 140 N. Y. 576, 35 N. E. 964, 24 L. E, A. 322 (1894) ; Van Steuben v. Central R. Co. of New Jersey, 178 Pa. 367, 35 Atl. 992, 34 L. R. A. 577 (1896). And it is held that certain special privileges ■ granted by the lex domicilii will not be recognized in another jurisdiction. People V. Coleman, 135 N. T. 231, 31 N. E. 1022 (1892). Nor will comity be carried so far as to recognize a foreign corporation not authorized to transact business in the chartering state. Land Grant Ry. 6 Trust Co. V. Board of Com'rs of Coffey County, 6 Kan. 245 (1870); My- att V. Ponca City Land & Improvement Co., 14 Okl. 189, 78 Pac. 185, 68 L. R. A. 810 (1903). The mere fact, however, that a corporation is formed un- der the law of a state by citizens of another jurisdiction who Intend to car- ry on the principal part of their business or all their business In their home state, will not deprive it of recognition by such state. Demarest v. Flack, 128 N. T. 205, 28 N. E. 645, 13 L. R, A. 854 (1891) ; Lancaster v. Amsterdam Imp. Co., 140 N. Y. 576, 35 N. E. 964, 24 L. R. A. 322 (1894). But see Hill v. Ch. 6) CAPACITY. 253 Beach, 12 N. J. Eq. 31 (1858) ; Montgomery v. Forbes, 148 Mass. 249, 19 N. E. 342 (1889). By transacting business in a foreign jurisdiction, a corporation becomes subject to its laws. Shannon v. Georgia State Buijding & Loan Ass'n, 78 Miss. 955, 30 South. 51, 57 L. B. A. 800, 84 Am. St. Rep. 657 (1901) ; Abraham V. Mutual Reserve Fund Life Ass'n, 183 Mass. 116, 66 N. E. 605 (1903). In many cases, however, the local law will be deemed to have no application to foreign corporations. Rumbough v. Southern Imp. Co., 106 N. C. 461, 11 S. E. 528 (1890); Vanderpoel v. Gorman, 140 N. T. 563, 35 N. E. 932, 24 L. R, A. 548, 37 Am. St. Rep. 601 (1894). Continental Law. — a. In general. — No jurisdiction will be taken for the purpose of dissolving a foreign corporation. Cass. Florence, June 25, 1896 (26 Clunet, 624). But when a corporation is formed in another country in order to evade the local law. It will be annulled by the courts of the state whose law has been evaded. Trib. Com. Seine, Aug. 26, 1902 (31 Clunet, 189). See, also, A. LainS, Des personnes morales en droit international priv6 (20 Clunet, 273-309). b. Oerniany. — ^Foreign corporations may sue and be sued. 22 R. O. H. G. 147 (April 28, 1877). Article 10, Law Intr. Civ. Code, is held inapplicable to foreign business corporations. O. L. G. Kiel, March 21, 1902 (12 Niemeyer, 469). Their right to carry on business depends, however, upon the law of the particular states (see section 12, Industrial Law of Empire), which ordinarily presupposes governmental authorization. Their capacity to acquire realty may liljewlse he made dependent upon the law of the particular states. See article 88, Law Intr. Civ. Code. See, also, E. Wolff, De la condition des soclgtSs Stranggres en AUemagne, 13 Clunet, 134^145, 272-285, 641-656. Julius Plotke, Die Rechtsfahigkeit auslandischer juristischer Personen nach dem Burgerllchen Gesetzbuch und einzelnen Ausfuhrungsgesetzen zum B. G. B., 10 Niemeyer, 211-218, 269-277. c. Fronce.— Foreign corporations may be sued. Oass. May 19, 1863 (S. 1863, 1, 353) ; Cass. Aug. 10, 1875 (3 aunet, 459). Since the treaty of May 30, 1857, concluded between France and Belgium, foreign corporations, in the absence of treaty, are authorized to sue and to contract In Prance only If the conditions under which they are organized have been approved by a decree of the French government. Cass. Aug. 1, 1860 (S. 1860, 1, 866). See, also, Maurice Moutier, Du droit pour les socigtgs commerclales 6trang6res d'ester en justice en France, 21 Clunet, 954r-978. d. Italy. — ^A foreign corporation may sue and be sued. Cass. Florence, June 21, 1894 (Glurlspr. Ital. 1894, 1, 839) ; App. Venice, July 11, 1893 (Giurlspr. Ital. 1893, 2, 540) ; App. Catania, Mch. 6, 1899 (GiuMspr. Ital. 1899, 2, 406). Foreign corporations intending to establish an agency or branch in Italy must comply with articles 230-232, Com. Code. If their principal place of busi- ness is In Italy, Italian law will govern, even as to the validity of their creation. Article 230, Com. Code. See Cass. Turin, March 15, 1906 (35 Clunet, 909). See, also, G. Danleli, De la condition des soclfit^s 6trang6res en Italie, 15 Clunet, 17-32, 330-343; Charles Le£6vre, De la condition des socI6t6s 6tran- gcJres en Italie, 11 Clunet, 234r-246. 254 GENERAL PROVISIONS, (Part 1 ^ CHAPTER Vn. -V FORM. ^aV, LEROUX V. BROWN. (Court of Ctommon Pleas, 1852. 74 Eng. Com. Law, 801.) An oral agreement was entered into at Calai s, France, betw een the plaintiff and the defendant, under which the latter, who res ided in E ngland, contrac ted to employ the former, who was a British subject residing_at Calais, at a salary of_ £100. per __annum, to collect poultry and eggs in that n eighborhoo d fo r transmission to the defendant in England, the^ employment to_ commence at a future day_ and__to con- _tinue for a j^ear certain. Evidence was given on the part of the plain tiff to show th at b y the law of France such an agreement is capable of beijig_enforced,_alz- though not in writ ing. Th e defendant insisted that the contra ct, be ings a contract not to be performed within a vear, was unenforceable in England. The court directed a verdict for plaintiff; leave being reserved to the defendant to move to enter a nonsuit or a verdict for him, if the court should be of opinion that the contract could not be enforced in England. A rule nisi was obtained accordingly.^ Jervis, C. J.^ I am of opinion that the rule to enter a nonsuit must be made absolute. There is no dispute as to the principles which ought to govern our decision. My Brother Allen admits, that, if th e fourth sec tion of the statute of fra uds applies, not to the validity of the contract, but only to the proc edure, the plaintiff can not maintain this ^cHqn^_becaii^se_there_is no_ agreement, nor any^memoraadum or note thereof, in writing. . On the other h and, it is not denied by Mr . Honyman, who has argued this case in a man ner for which the court i s much indebted t o Jiim, that, if the fourth section applies to the contr act itse lf, or, as Boullenois expresses it, to the solemnities of the contract^ inasmuch as our law cannot regulate^ foreign contracts, ^contract like this may be enforced here^ I am of opinion that jthe fourth section applies not to the solemni ti es of the contract. but~tt? the procedure ; and therefore that the contract in question cannot ^be sued upon here. The contract may be capable of being enforced in the country where it was made : but not in England. Looking at 1 This statement of facts has been substituted for that of the original report. 2 The concurring opinions of Maule and Talfourd, 33., have been omitted. Ch. 7) FOEM. 255 t he words of the fourth section of the statute of frauds, and contrast - ing them with those o f the_first,_Uiird, and seventeenth sections, this conclusion seems to me to be inevitable. The words of .section 4 are, " No action shall be brought^ up on .any agreement, which is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereto by him lawfully authorized." The statute, in this part of it, does not say, that, unle ss those requisites are complied with, _ the contract shall be void, but merely that no action sh all be JbrougJitjipon_it; and, as was put with great force by Mr. Honyman, the alternative, "unless the agreement, or some memorandum or note thereof, shall be in writing," words which are satisfied if there be any written evidence of a previous agreement, ^hows_ that the stat ute contemplated that the agreement may b e goo^ though not capable of being enforced if not evidenced by writing. _ This therefore may be a very good. agreement , though, for want of a compliance with the jequisites of the statute, not enfo rc eable in a^n_English court of justice. This view seems to be supported by the authorities; because, unless we are to infer that the courts thought the agreement itself good, though not made in strict compliance with the statute, they could not consistently have held, as was held in the cases referred to by Sir Edward Sugden, that a writing subsequent to the contract, and addressed to a third person, was sufficient evidence of an agreement, within the statute. It\ seems, therefore, that both authority and practice are consistent with the words of the 4th section. The cases of Carrington v. Roots and Reade v. Lamb, however, have been pressed upon us as being inconsistent with this view. It is sufficient to say that the attention of the learned judges by whom those cases were decided, was not invited to the particular point now in question. What they were con- sidering was, whether, for the purposes of those actions, there was any substantial difference between the 4th and 17th sections. It must be borne in mind that the meaning of those sections has been the subject of discussion on other occasions. In Crosby v. Wadsworth, 6 East, 603, L,ord EHenboroughj speaking of the fourth section, says : "The statute does not expressly and immediately vacate such con- tracts, if made by parol. It only precludes the bringing of actions to enforce them." Again, in Laythoarp v. Bryant, 2 N. C. 735, 3 Scott, 238, Tindal, C. J., and Bosanquet, J., say distinctly that the contract is good, and that the statute merely takes away the remedy, where there is no memorandum or note in writing. I therefore think we are correct in holding that the contract in this case is incapable of being enforced by an action in this country, because the fourth section of St. 29 Car. II, c. 3, relates only to the procedure, and not to the right and validity of the contract itself. As to what is said by BouUeriois in the' passage last cited by Brother Allen, it is to be ob- 256 JENERAL PROVISIONS. (Part 1 served that the learned authdr is there speaking of what pertains ad vinculum obligationis et solemnitatem, and not with reference to the mode of procedure. Upon these grounds, I am of opinion that this ac- tion cannot be maintained, and that the rule to enter a nonsuit must be made absolute.' HOUGHTALING v. BALIv. ' ' V^ ^/ V (Supreme Court of Missouri, 1855. 20 Mo. 563.) ' ' This was an action brought to recover the price of wheat alleged in the petition to have been sold and delivered at Chicago, 111., to be paid for on its arrival in St. Louis. ScoTT, J.* This case is here a second time, and on the same ques- tion that was determined when it was here before. 19 Mo. 84, 59 Am. Dec. 331. The real question is one of fact, and the aim of the plain- tiff is, to have that fact tried by a jury, viz. whether the contract set out in the petition was not so completed in the state of Illinois by a delivery of the wheat, as to avoid the objection to it arising from the statute of frauds, as it does not a ppear f rom the_record that there is any statute in that jtate which affects the contrac F stated in the plaintiff's petition. * * * Without determining whether the case of Leroux v. Brown, 7i Eng. C. L. 801, would be recognized as law here, it is sufficient to say in relation to it, that it is founded on the fourth section of the English statute of frauds (St. 29 Car. II, c. 3), which enacts, "that no action shall be brought," etc. These words are made to control the judgment rendered in that suit. But the contract sued on here is not under the fourth section of the Engljsh^ statute, nor under the fifth section of our law (Rev. St. 1845, c. 68) which corresponds with the fourth section of the English statute. But the actio n is un- s The distinction between tlie fourth and seventeenth sections of the stat- ute of frauds was approved in Third Nat. Bank v. Steel, 129 Mich. 434, 88 N. W. 1050, 64 L. R. A. 119 (1902). Only the fourth section, however, was in question. It was rejected expressly in Heaton v. Eldrldge, 56 Ohio St. 87, 46 N. E. 638, 36 L. E. A. 817, 60 Am. St. Rep. 737 (1897), and by Town- 'send V. Hargraves. 118 Mass. 325 (1875). which hold that despite a difference of phraseology, both sections relate to the remedy. In the former case, how- ever, only the fourth section was Involved. The latter turned upon the seventeenth section, but involved no conflict. The seventeenth section has been superseded in England by section 4 of the Sales of Goods Act of 1893, in which the expression "shall not be en- forced by action" has been substituted. A similar distinction has been made with reference to the stamp laws of a country. If under the local law the want of a stamp relates merely to evidence, the contract Itself being valid, the lex fori will govern; but, if the contract under the law of the place where It is made is void for want of a stamp, no action will lie In any jurisdiction. Alves v. Hodgson 1797, 7 T. R. 241 ; Bristow v. Sequeville, 1850, 5 Exch. 275 ; Ludlow v Van Ren- sselaer, 1 Johns. (N. T.) 94 (1806) ; Fant v. MUler, 17 Grat, (Va.) 47 (1866). *A part of the opinion only is given. Ch. 7) FORM. 257 der the sixth section of our statute, which corresponds with the seven- teenth section of the English statute. The words of these correspond- ing sections are different from those of the fourth in the English, and the fifth section in the Missouri, statute. They are, "that no contract shall be good," ^ tc. So they leave application for the rule oF'law that a_contract, j^aUd-^thc- place where made, shall be valid , everywhere, except when it contravenes the policy, or is in dero- ^fion of the rights of the country where it is sought to be enforc- ed. * * *» COCHRAN V. WARD. ^' ^-^•^ (Appellate Court of Indiana, 1892. 5 Ind. App. 89, 29 N. B. 795, 51 Am. St. Eep. 229.)6 Crumpacker, J. This action was commenced by Cochran against Ward to recover damages for the breach of a parol lease for lands in Jhe state of Illinois. The complaint alleges, in substance, that the defendant was the owner and in possession of a tract of 400 acres of farm land, situated in Lawrence county, in the state of Illinois, and on the 20th day of April, 1888, said defendant rented said land to the plaintiff for the term of one year, beginning on the 1st day of July, 1888, and agreed to surrender the possession thereof to the plaintiff on that day; that plaintiff was to yield and pay a specified share of the crop as rental ; that plaintiff relied upon said agreement, and failed to procure other land to cultivate until it was too late in the season to obtain any, and stood ready and willing to perform said lease, but the defend- ant wrongfully refused to surrender the possession of said premises, as he had agreed, and refused to permit plaintiff to cultivate said land, but rented a great portion of it to another, whereby plaintiff was thrown out of employment, and lost the benefit of said lease, to his damage, e tc. An answer of five paragraphs was filed to the complaint, the first of which was the general denial. The fifth alleged that the agreement sued upon was in parol, and that it was made in the state of Illinois, wh ere the defendant lived, and the real estate was situate, and that under the Illinois statute of frauds the agreement was not en forceable. A copy of section 1 and 2 of the statute was pleaded with this para- graph. They are as follows : "Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, that no a ction shall be brought w hereby to charge any executor or adminfs- trator upori""any special promise" to answe'r"any"a'ebt or damages out "Accord: Allen v. Sehuchardt, Fed. Cas. No. 236 (1861); F. W. Brockman Commission Co. v. Kilbourne, 111 Mo. App. 542, 86 S. W. 275 (1905). The law of the place of performance seems to be immaterial. Perry v. Mt. Hope Iron Co., 15 B. I. 380, 5 Atl. 632, 2 Am. St. Bep. 902 (1886). sAflSrmed on petition for rehearing, 5 Ind. App. 97, 31 N. E. 581, 51 Am. St. Rep. 229. LOB.CONF.L.— 17 258 GENERAL PROVISIONS. (Part 1 of his own estate, or whereby to charge the defendant upon any special, promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made upon consid- eration of marriage, or upon an agreement that if is not tobe perform- ed within the space of one year from the making thereof, unless_ the jpromise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. Sec. 2. ^o action _shaljjb£ brought „,to charge ■ any person upon any contract for^the sale of landSj^ tenements, or her- editaments,, or any interest in or concerning jthem for a longer t erm than one year,"~unless such contract, or some memoranSum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party. This section shall not apply to sales upon executions, or by any officer or person pursuant to a decree or order of any court of record in this state." The issues were closed by reply, and the cause tried by a jury, and resulted in a verdict for the plaintiff. At the request of the defendant the court submitted in- terrogatories to the jury, which they answered, and the court gave judgment in favor of the defendant upon the interrogatories, not- withstanding the general verdict. A number of questions relative to the rulings of the court in making the issues were reserved by counsel for appellant, but the issues of fact out of which such questions arose, having been all decided in appellant's favor by the jury, we cannot regard such questions as material under section 658, Rev. St. 1881. The controlling question in the case relates to the action of the court in awarding appellee judg- ment upon the special findings. The jury found in answer to the interrogatories that the agreement was by parol, and was completed in the state of Illinois on the 30th day of April, 1888, and purported to lease'the real estate described in the complaint for one year from the 1st day of July, 1888 ; that said real estate was in the state of Il- linois, and the agreement was to have been performed in that state. They also found the first section of the Illinois statute, as set out with the answer, to have been in force at the time the agreement was made. It is admitted by both parties in the argument that under the law in ■ Illinois a parol agreement to lease real estate for the term of a year, to "Begin at some definite time in the future, comes within the pro- visions of section 1 of the IlHnois statute, and consequently^is^not en- 1 forceable. So tested by the Illinois law, the agreement in suit in the case 'Before us is voidable, and damages could not be,i£CQYefe3r fori its breach. Wheeler v. Frankenthal, 78 111. 124; Comstock v. Ward, 22 111. 248 ; Olt v. Lohnas, 19 111. 576. The fifth clause of section 1 of our statute of "frauds and perjuries" (section 4904, Rev. St. 1881j provides that no action shall be brought "upon any agreement that is not to be performed within one year from the making thereof," unless Ch. 7) FORM, , 259 in writing, etc. This is substantially the same as the Illinois provision, and is taken from the English statute of 29 Car. II. c. 3. But our -^statute permits parol leases for a_ term npt^^exceeding three years, and '\i is the settled law of this State that the clause above quoted has no ref- erence to contracts relating to real estate. Railsback v. Walke, 81 Ind. 409', Baynes v! Chastain, 68 Ind. 376; Fall v. Hazelrigg, 45 Ind. 576, 15 Am. Rep. 378. So it is seen that the agreement in controversy is not repugnant to any"provision of the statute of this state, and must " B'e~he ig' good if the laws of this state are applicable. With considerable Torce' arfd" irigehurty 'counseT for appellanr contend that the statute of frauds relates entirely to the remedy and procedure, and that the rule is universal that the lex fori always controls in such inatters. This doctrine was announced by the courts as applicable to personal contracts in L,eroux v. Brown, 12 C. B. 801, and Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29. It seems to be generally admitted that the statute of frauds does not render an agreement absolutely void, but simply witholds the power of enforcement and prevents the collection of damagesfor non-performance. The rule in Indiana and Illinois is the same in this respect. Lowman v. Sheets, 124 Ind. 416, 24 N. E. 351, 7 L.'RV A. 784 ; Schierman v. Beckett, 88 Ind. 52; Wills v. Ross, 77 Ind. 1, 40 Am. Rep. 279; Morris v. Goodwin, 1 Ind. App. 481, 27 N. E. 985; Wheeler v. Erankenthal, supra; Collins v. Thayer, 74 111. 138; Chicago Attachment Co. v. Davis Sewing Mach^o. (111.) 25 N. E. 669. A contract made in another state, and which is^o^ under the laws of that state, will not be enforced iii this state, even though it would have been good if made here. Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206. But it is claimed that the rule applied to contracts relating to. real estate is different from that applied to persona l contracts, and that the former are governed by the lex loci r ei sitae. There can be no doubt of the correctness of this rule in. so far as it relates to questi ons of con- struction, title, covenants real, mode and form ality of execu tion, and all things else which the la ws_ of^ Jhe _situ.s.Jmpress_jupQji., the xiatur-e- of the property, and the character of the tenure and mode of trans- mission. But Where a conveyance is executed in this state, between citizens of this state, for lands in another state, in So far as ittreats I of covena nts which never attach to^the soil, but are essentially persoiial, j the laws of this state control. Jackson v. Green, 112 Ind. 341, 14 N.l E. 89; Bethell v. Bethell, 92 Ind. 318; Fisher v. Parry, 68 Ind. 465; Craig V. Donovan, 63 Ind. 513. But it is insisted that as to mere matters of procedure every forum must apply its own laws and rules, regardless of the character of the action, and to a certain extent we think this must be true. In the case before us, however, under the findings of the jury, the place of the contract and the situs are the same, and the judgment of the. trial court must be upheld, unless we regard the statu te of frauds as rela t- ing merely to the procedure, and not as affecting the obligatory ch arac- leFof the agreement. It is impossible to consider a contract separafH"- 260 GENERAL PROVISIONS. (Part 1 ly from the remedy given by the law for its enforcem£fli._hecause it is this 'that supplies it with legal vitality. The law is an essenti_al factor in every contract, and is presumed to be considered iby^the par- ties in their deliberations. If the law of the place stamps upo n an "agreement the quality that it shall be voidable, and that its peFform- fance shall be a pure matter of conscience or grace with the parties, I that "quality becomes a part of the substance' of the 'agreement, and '.characterizes it wherever it may be. A right without a remedy for its enforcement is a mere fiction. Thus it was said by Swayne, J., for the court, in Edwards v. Kearzey, 96 U. S. 595, 34 L- Ed. 793: "It is also the settled doctrine of this court that the laws which subsist at the time and place of making a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, dis- charge, and enforcement." At another place in the opinion the learned judge said : "The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than its means of enforcement. This is the breath of its vital existence. Without it the contract, as such, in the view of the law, ceases to be, and falls into the class of those 'imperfect obligations,' as they are termed, which depend for their fulfillment upon the will and conscience of those upon whom they rest. The ideas of right and remedy are in- separable. 'Want of right and want of remedy are the same thing.' " ' There can be no doubt, we think, that to the extent that the remedy affects the validity and obligation of a contract it is importedjntoand becomes an essential part of it, and characterizes it wherever it is the subject-matter of litigation. T he Illinois statute of frauds became part of the agreement in suit, and the provision that no action should \>e maintained for damages for the breach of the agreement becamFas much a part of its character and substance as if specifically incorpo- rated therein. The right to defend against a contract growing out of any of its inherent qualities becomes vested, and a right of prop- erty, as much as the right to enforce any other beneficial provision. Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 103, 27 L,. Ed. 104 ; Cooley, Const. Lim. 362-369. This doctrine does not conflict with the general rule that in matters of procedure the lex fori controls. "Procedure," in this connection, applies to the nature of the action ; as, whether it shall be covenant, assumpsit, debt, etc., to the rules of plead- ing and evidence, the order and manner of trial, and the nature and effect of process, and perhaps to all other matters of remedy only, which are not incorporated into the contract as affecting its nature ^ and obligatory character. The case of Leroux v. Brown, supra, hold- ing a different doctrine, was questioned in a later English case, and is criticised by a recent English writer. Gibson v. Holland, L. R. 1 C. P. 1 ; Maxw. Int. St. (3d Ed.) p. 180. The case of Downer v. Chese- brough, supra, decides only that the lex fori should supply the rules of evidence. In the case of Low v. Andrews, 1 Story (U. S.) 38, Fed; Ch. 7) FORM. 261 Cas. No. -8,559, it was held that a contract for the sale of goods in France, if valid there, would be enforced in this country, though with- in the statute of frauds here. In Scudder v. Union Nat. Bank, 91 U. S. 406, 23 ly. Ed. 345, it was held that in an action upon the parol ac- ceptance of a bill of exchange to be performed in Missouri, the stat- ute of frauds of the place of the contract should control, as it affected the formality necessary to create a legal obligation. The case of Kling V. Fries, 33 Mich. 276, was an action in Michigan upon a con- tract for the sale of goods in Ohio. It was held that the Ohio stat- ute of frauds applied. The case of Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331, was an action in Missouri upon a contract for the sale of wheat to be delivered in the state of Illinois. It was decided that the Illinois statute of frauds obtained. The case of Anderson v. May, 10 Heisk. (Tenn.) 84, was an action in Tennessee upon a lease for lands in Arkansas. The court decided that the statute of frauds of the latter state should be allowed to control the contract. Denny v. Williams, 5 Allen (Mass.) 1, was an action in Massachusetts, upon a contract for the sale of wool in New York, and the defendant set up the New York statute of frauds. The court held the answer good, say- ing: "As the contract was made in the city of New York, and was to be performed there, the laws of the state of New York must govern us in respect to its construction and performance." The Supreme Court of Louisiana, in Vidal v. Thompson, 11 Mart. (La.) 23, said: "An instrument, as to its form and the formalities attending its execu- tion, must be tested by the laws of the place where it was made." In the case of Pickering v. Fisk, 6 Vt. 103, the court used this language : "As to the requisites of a valid contract, the mode of authentication, the fonns and ceremonies required, and, in general, as to everything which is necessary to perfect or consummate the contract, the lex loci contractus governs, though with respect to conveyances or other con- tracts relating to real estate the statutory regulations of the place where such estate is situated must be observed." The same principle was ap- plied in the following cases: Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433 ; Dacosta v. Davis, 24 N. J. Law, 319 ; Gross v. Jordan, 83 Me. 380, 23 Atl. 250 ; Butters v. Glass, 31 U. C. Q. B. 379 ; Van Reimsdyk v. Kane, 1 Gall. 630, Fed. Cas. No. 16,873 ; R. Co. v. Glenn, 28 Md. 387, 93 Am. Dec. 688 ; Fox v. Matthews, 33 Miss. 433 ; Young V. Pearson, 1 Cal. 448; Wilcox Silver Plate Co. v. Green, 73 N. Y. 17. There is no analogy between cases like the one before us and cases in which the bar of prescription has become complete against a demand. In the latter it is a question of presumptive payment or extinguishment, and such presumption, while evidential, is made con- clusive as a measure of public policy, while in the former it is a ques- tion whether there ever was a legal liability. It should be kept in mind in this case that the controversy is between the lex fori upon the one hand and the lex loci contractus and the lex rei sitae upon the other; consequently we have maintained no distinction between the latter, 262 GENERAL PROVISIONS. (Part 1 nor between actions real and persdnal. There was no error, in award- ing appellee judgment upon the special findings. Nor was there any error in permitting the law to be read from the statute book purport- ing to have been printed by authority. This is authorized by section 457, Rev. St. 1881. The judgment is affirmed.' ^^ SCUDDER V. UNION NAT. BANK OF CHICAGO, ^^i^r ■^(Supreme Court of the United States, 1875. 91 U. S. 406, 23 L. Ed. 245.) " Error to the Circuit Court of the United States for the Northern District of Illinois. Hunt, j.s * * * Upon the merits, the case is this : The plain- tiff below sought to recover from the firm of Henry Ames & Co., of St. Louis, Mo., the amount of a bill of exchange, of which the fol- lowing is a copy, viz. : "$8,125.00. Chicago, July 7, 1871. "Pay to the order of Union National Bank eight thousand one . hundred and twenty-five dollars, value received, and charge to account of Leland & Harbach. "To Messrs. Henry Ames & Co., St. Louis, Mo." By the direction of Ames & Co., Leland & Harbach had bought for them, and on the 7th day of July, 1871, shipped to them at St. Louis, 500 barrels of pork, and gave their check on the Union Bank to Hancock, the seller of the same, for $8,000. Leland & Harbach then drew the bill in question, and sent the same by their clerk to the Union Bank (the plaintiff below) to be placed to their credit. The bank declined to receive the bill, unless accom- panied by the bill of lading or other security. The clerk returned, and reported accordingly to Leland & Harbach. One of the firm then directed the clerk to return to the bank, and say that Mr. Scudder, one of the firm of Ames & Co. (the drawees), was then in Chicago, and had authorized the drawing of the draft; that it was drawn 7 Accord: Miller v. Wilson, 146 111. 523, 34 N. E. 1111, 37 Am. St. Rep. 186 (1893). Where the lex rei sit£e and the lex loci contractus do not coincide, the ^forsier has been held to apply. Meylink v. Rhea, 123 Iowa, 310, 98 N. W. 779 (1904). The lex loci contractus et fori, however, has been held to ex- clude the lex rei sitse et solutionis with regard to personal property. Da- costa V. Davis, 24 N. J. Law, 319 (1854). The statute of frauds of the forum may establish a policy which a foreign contract will not be permitted to override. Emery v. Burbank, ~163 Mass. 326, 39 N. E. 1026, 28 L. R. A. 57, 47 Am. St. Rep. 456 (1S95). As to the statute of frauds in general, see 19 L. R. A. 792-794; 64 L. R. A. 119-124. 8 The statement of facts and a part of opinion have been omitted. Ch. 7) FORM. 203 against 500 barrels of pork that day bought by Leland & Harbach for them, and duly shipped to them. The clerk returned to the bank, and made this statement to its vice president; who thereupon, on the faith of the statement that the bill was authorized by the defendants, discounted the same, and the proceeds were placed to the credit of Leland & Harbach. Out of the proceeds the check given to Hancock for the pork was paid by the bank. The direction to inform the bank that Mr. Scudder was in Chicago and had authorized the drawing of the draft was made in the presence and in the hearing of Scudder, and without objection by him. The point was raised in various forms upon the admission of evi- dence, and by the charge of the judge, whether, upon this state of facts, the firm of Ames & Co., the defendants, were liable to the bank for the amount of the bill. The jury, under the charge of the judge, held them to be liable; and it is from the judgment entered upon that verdict that the present writ of error is brought. The question is discussed in the appellant's brief, and properly, as if the direction to the clerk had been given by Scudder in person. The jury were authorized to consider the direction in his name, in his pre sence and hearing, witHout objection by him, as made by himself. The objection relied on is, ,that the transaction amounted aTmost" tD~ a parol promise to accept a bill of exchange then in exisfeiice. It is insisted that such a promise does not bind the defendants. The suit to reco ver upon the alleged acc eptance, or upon th e refusal to accept, being in the state of Illinois, and the contract having been made in that state, the judgment is to be given accordingHio^the'Taw of that state. The law o f the exp ected place of performance, should < there be aT diflferencCj^ yields to the lex fori and the lex loci contractus. in wheaton on Conflict of Laws, § lOlp, the rule is thus laid down : "Obligations, in respect to the mode of their solemnization, are sub- ject to the rule locus regit actum; in respect to their interpretation, to the lex lqcj_contractus ; in respect to the mode of their performance, to'thelaw of the place of their performance. But the jex fori deter- mines when and how such laws, when foreign, are to be adopted, p,nd, ln"5ircases not specified above, supplies tlie appHcatory law." Miller V. Tiffany, 1 Wall. 310, 17 L. Ed. 540; Chapman v. Robertson, 6 Paige (N. Y.) 634, 31 Am. Dec. 364; Andrews v. Pond, 13 Pet. 78, 10 L. Ed. 61 ; Lanusse v. Barker, 3 Wheat. 147, 4 L. Ed. 343 ; Adams V. Robertson, 37 111. 59; Ferguson v. Fufife, 8 C. & F. 121; Bain v. Whitehaven & Furness Junction Ry. Co., 3 H. L. Cas. 1; Scott v. Pilkington, 15 Abb. Prac. (N. Y.) 380; Story, Confl. Laws, 203; Dc Wolf V. Johnson, 10 Wheat. 383, 6 L. Ed. 343. The rule is often laid down, that the law of the place of performance governs the contract. Mr. Parsons, in his treatise on Notes and Bills, uses this language: "If a note or bill be made payable in a particular place, it is to be 264 GENERAL PROVISIONS. (Part 1 treated as if made there, without reference to the place at which it is written or signed or dated." Page 334. For the purposes jof^ payment, and the incidents of payment, thi s is ^ sound proposition. Thus the bill in question is directed to par- ties residinglrr'St.''L6uis, Mo., and contains no statement whether it is payable on time or at sight. It is, in law, a sight draft. Whethe r a sight draft is payable i mmedi ately upon prese ntation, or wheth er days of grace are allow;ed, and tp„ what extent, as._differently_h£ld_Jn different"statesr The law of Missouri, where this draft is^ayable, determines that question in the pr esent instance. The tim e, manner, and circumstances of presentation for accepta nce or protestT lHF'rat'e^tTnterest^when this is not specified JiLthe bill ^Young V. Harris, 14 B. Mon! [Ky.] 556, 61 Am. Dec. 170; Pomeroy V. Ainsworth, 32 Barb. [N. Y.] 118), are points connected with the payment of the bill, and are also instances to illustrate the meaning of the rule, that the place of perforniance governs the bill. The same author, however, lays down the rule, that the place of making the contract governs_as_ to_the formaliti es necessary to the validity of tiie_ contract. Page 317. Thus, whether a contract shall bejn writing, or may be made by parol, is3_formality^ to be determined by_the law of Jhe place whereit is madg. If valid there, the contract j_s binding, although the law of the place of performance may require the contract to be in writing. .Dacosta v. Davis, 34 N. J. L,aw, 319. So when a note was indorsed in New York, although drawn and made payable in France, the indorsee may recover against the payee and indorser upon a failure to accept, although by the laws of France such suit cannot be maintained until after default in payment. Aymar v. Sheldon, 13 Wend. (N. Y.) 439, 37 Am. Dec. 137. f So if a note, payable in New York, be given in the state of Illinois ( for money there lent, reserving ten per cent, interest, which is legal jin that state, the note is valid, although but seven per cent, interest is allowed by the laws of the former state. Miller v. Tiffany, 1 Wall. (310, 17 L. Ed. 540; Depeau v. Humphreys, 8 Mart. (N. S.) 1; Chap- [man v. Robertson, 6 Paige (N. Y.) 634, 31 Am. Dec. 364; Andrews 'v. Pond, 13 Pet. 65, 10 L. Ed. 61. Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought. A careful examination of the well-considered decisions of this country and of England will sustain these positions. Th_ere,isJio atatute^pf the state of Illinois that requires an acceptance of a bill of exchange to be in writing, or that prohibits a pard prom- i i-se to accept a bill of exchange: on the contrary, a parol acceptance Ch. 7) FORM. 265 and a parol pr omise to accept are valid in that state, and the deci- sions of its highest court hold that a parol promise to accept a bill is an acce ptance. thereo f . If this be so, no question of jurisdiction or of conflict of laws arises. The contract to accept was not only made in Illinois, but the bill was then and there actually accepted in Illinois, !as- perfectly as if Mr. Scudder had written an acceptance across its face, and signed thereto the name of his firm. The contract to accept the bill was not to be performed in Missouri. It had already, by t he promise, been performed in Illinois . The contract to pay was, indeed, \ to be "performed in Missouri ; but that was a different contract from ihat of^acceptance. "Nelson v. First Nat. Bank, 48 111. 39, 95 Am. T)ec.TW; "TSTaSOli v. Dousay, 35 111. 434, 85 Am. Dec. 368; Jones v. Council Bluffs Branch of State Bank, 34 111. 319, 85 Am. Dec. 306. Unless forbidden by statute, it is the rule of law generally, that a promise to accept an existing _bill is an acceptance thereof, whether the promise be in writing or by parol. Wynne v. Raikes, 5 East, 514; Bank of Ireland v. Archer, 11 M. & W. 383; Hough v. Loring, 24 Pick. (Mass.) 254; Ward v. Allen, 2 Mete. (Mass.) 53, 35 Am. Dec. 387; Bank of Rutland v. Woodruff, 34 Vt. 92; Spaulding v. An- drews, 48 Pa. 411 ; Williams v. Winans, 14 N. J. Law, 339 ; Storer V. Logan, 9 Mass. 56 ; Byles on Bills, § 149 ; Barney v. Worthington, 37 N. Y. 112. See the Illinois cases cited, supra. * * * These principles settle the present case against the appellants. It certainly does not aid their case, that after assuring the bank, through, the message of Leland & Harbach, that the draft was drawn against produce that day shipped to the drawees, and that it was drawn by the authority of the firm (while, in fact, the produce was shipped to and received and sold by them), and that the bank in reliance upon this assurance discounted the bill, Mr. Scudder should at once have telegraphed his firm in St. Louis to delay payment of the draft, and, by a subsequent telegram, should have directed them not to pay it. The judgment must be affirmed. M ^ (Supreme Court of the United States, 1891. 142 U. S. 116, 12 Sup. Ct. 154, 35 L. Ed. 956.) The case was stated by the court as follows : This was an action of assumpsit. It was based upon an allege d verbal agreement made on or about April 1, 1886, at Marshall, Mo., between the defendants in error, plaintiffs below, doing business at that place as bankers, under the name of Cordell & Dunnica, and the plaintilifs in error, doing business at the Union Stockyards, Chicago, 111., under the name of Hall Bros. & Co. There was a verdict and judgment in favor of the plaintiffs for $5,785.79. 266 K GENERAL PROVISIONS. (Part 1 The a lleged agreement was, in substance, that Hall Bros. &_Co. would accept and pay, or pay on presentation, all drafts made upon them by one George Farlow, in favor of Cor dell & Dunnica, for the cost of any live stock bought by. Farlow and shipped by him from Mis- souri to Hall Bros. & Co. at the Union Stockyards at Chicago. There was proof before the jury tending to show that, on or about July 13, 1886, Farlow shipped from Missouri 9 car loads of cattle and 1 car load of hogs, consigned to Hall Bros. & Co. at the Union Stock- yards, Chicago; that such cattle and hogs were received by the con- signees, and by them were sold for account of Farlow; that, out of the proceeds, they retained the amount of the freight on the shipment, the expenses of feeding the stock on the way and at the stockyards, the charges at the yards and of the persons who came to Chicago with the stock, the commissions of the consignees on the sale, the amount Far- low owed them for moneys paid on other drafts over and above the net proceeds of live stock received and sold for him on the market, and $2,000 due from Farlow to Hall Bros. & Co. on certain past-due promissory notes given for money loaned to him ; _that , at the tim e of the above shipment, Farlow, at Marshall,..Mo..,_±he place. of agreement, luiaeTiis" draft, of date JulyJ.3, 1886, upon Hall Bros. & Co., at the Union 'STocfeyafds, Cbicago^ in favor of Cordell & Dunnica, for $11,- 27'4, the draft stating that it was for the 9 car loads of cattle and 1 car load of hogs ; that this draft was discounted by Cordell & Dunnica, and the proceeds placed to Farlow's credit on their books; that the proceeds were paid out by the plaintiffs on his checks in favor of the parties from whom he purchased the stock mentioned in the draft, and for the expenses incurred in the shipment ; that the jdr aft cover ed only the cost of the stock to Farlow; that, upon its., prese ntation to__ Hail Bros^ & Co., they refused^ to^pay^Jti^ and the same was protested for nonpayment; and that subsequently Cordell & Dunnica received from Hall Bros. & Co. only the sum of $5,936.55, the balan ce pf the proceeds of the sale of the above cattle and hogs, consigned to them as stated, after deducting the amounts retained by the consignees out of such proceeds on the several accounts above mentioned. The contract sued upon having been made in Missour i, the defend- ant contended that it was invalid under the statutes of that state whic h are cited in the opinion of the court, infra, and c ould not be made t he basis for a recovery in Illinois. This contention being overruled, the defendant excepted, and, judgment having been given for the plain- tiff, sued out this writ of error. Harlan, J. There was evidence on behalf of the defendants tend- ing to show that no such agreement was made as that alleged. But the issues of fact were fairly submitted to the jury, and we must as- sume, on this writ of error, that llie^jury found from the evidence that the alleged agreement was made between the parties. Our examinatioii must be restricted to the questions of law involved in the rulings of the court below. And the only one which, in our Ch. 7) FORM. 2G7 judgment, it is necessary to notice, is_that arising upon the instruc- < tions ask ed-bty— th£.jdej£ndant. and which the court refused to give, to the e ffect that the agreanent in ^estion, having been made in Mis- souri, andjnot having been reduced to writing, was invalid under the statutes of that state, and couldnot. be recognized in Illinois as the basis oFan act ion there against.the defendants. The statute of Missouri referred to is as follows: "Sec. 533. No person within this state shall be charged as an acceptor of a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent. Sec. 534. If such acceptance be written on a paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who. upon the faith thereof, shall have received the bill for a valuable con- sideration. Sec. 535. An unconditional promise, in writing, to ac- cept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person to whom such written promise shall have been shown, and who upon the faith thereof shall have received the bill for a valuable consideration. Sec. 536. Every holder of a bill, present- ing the same for acceptance, may require that the acceptance be written on the bill ; and a refusal to comply with such request shall be deemed a refusal to accept, and the bill may be protested for non-acceptance. Sec. 637. The preceding sections shall not be construed to impair the right of any person to whom a promise to accept a bill may have been made, and who on the faith of such promise shall have drawn or nego- tiated the bill, to recover damages of the party making such promise, on his refusal to accept such bill." 1 Wag. St. 1873, p. 314; 1 Rev. St. Mo. 1879, p. 84; 1 Rev. St. Mo. 1889, p. 253. The conte ntion of the plaintiff s^jn. error Js that the _ rights of the <' parties are to be determined by the law of the place where the alleged agreetSenFwas jnadCTTTf tHis~be so, it may be that the judgment could not be sustained; for the statute of Missouri expressly declares that no person within that state shall be charged as an acceptor of a bill of exchange unless his acceptance be in writing. And the statute, as construed by the highest court of Missouri, equally embraces within its inhibitions an action upon a parol promise to accept a bill, except as provided in section 537. Plato v. Mulhall, 73 Mo. 533, 536 ; Rousch V. Duff, 35 Mo. 313, 314. But, if the law of Missouri governs, this action could not be maintained under that section, because, as held in Flato v. Mulhall, above cited, the plaintiffs, being the payees in the bill drawn by Farlow upon Hall Bros. & Co., could not, within the meaning of the statute, be said to have "negotiated" it. The Mis- souri statute is a copy of a New York statute, in respect to which Judge Duer, in Blakiston v. Dudley, 5 Duer (N.,Y.) 373, 877, said: "We think that to negotiate a bill can only mean to transfer it for value, and that it is a solecism to say that a bill has been negotiated by a payee who bas never parted with its ownership or possession. The fact that the plaintiffs had given value for the bill when they 208 GENEEAL PROVISIONS. (Part 1 received it only proves its negotiation by the drawer — its negotiation to, and not by, them. * * * Their putting their names upon the back of the bill was not an indorsement, but a mere authority to the agent whom they employed to demand its acceptance and payment. The manifest intention of the legislature in section 10 [similar to sec- tion 537 of the Missouri statutes] was to create an exception in favor of those who, having transferred a bill for value, on the faith of the promise of the drawee to accept it, have, in consequence of his re- fusal to accept, been rendered liable, and been subjected to damages, as drawers or indorsers." The plaintiffs in error, therefore, cannot rest their case upon section 537. "yVe are, however, of opinion that, upon principle and authority, the rights of the parties are not to be d.eterrnine,(i; by the Jaw of TVlis- Isouri. The statute of that state can have no application to^an jiction I brought "to charge a person in Illinois, upon a parol promise to accep t and pay a bill of exchange payable in Illinois. The agreement to ac- cept and pay, or to pay upon presentation, was to be entire1v"per forme d mTllinois, which was the state of the reside nce and place of business , 'STthe defe'ndants. They were" not bound To' acc ept or pay"elsewhe re than at the place to which, by the~i:erms of the agreem ent, the stoc k was to be shipped. Nothing in the''ca se shows that the parties hadjn /view7 in res pect to the execution_ of„ the contract, any other law than /th e law of the place o f performance. That law, c onsequently, must determine the rights of thejgarties. Coghlan v. South Carolina R. Co7l42TJTS.' 101, iXSup.'Ct. 150, 35 L. Ed. 951, and the authorities there cited. In this connection it is well to state that in New York & Virginia State Stock Bank v. Gibson, 5 Duer, 583, a case arising under the statute of New York above referred to, the court said: "Those provisions manifestly embrace all bills, wherever drawn, that are to be accepted and paid within this state; and, were the terms of the statute less explicit than they are, the general rule of law would lead us to the same conclusion — that the validity of a promise to accept a bill of exchange depends upon the law of the place where the bill is to be accepted and paid." Citing Boyce v. Edwards, 4 Pet. Ill, 7 L. Ed. 799. Looking, then, at the law of Illinois, there is no difficulty in holding that the defendants were liable for a breach of their parol agreement, made in Missouri, to accept and pay, or to pay upon presentation, iii Illinois, the bills drawn by Farlow, pursuant to that agreement, in favor of the plaintiffs. It was held in Scudder v. Union Nat. Bank, 91 U. S. 406, 413, 23 L,. Ed. 245, that in Illinois a parol acceptance of, or a parol promise to accept, upon a sufficient consideration, a bill of exchange, was binding on the acceptor. Mason v. Dousay, 35 111. 424, 433, 85 Am. Dec. 368 ; Nelson v. First Nat. Bank, 48 111. 36, 40, 95 Am. Dec. 510; Sturges v. Fourth Nat. Bank, 75 111. 595; St. Louis Nat. Stock-Yards v. O'Reilly, 85 111. 546, 551. The views we have expressed were substantially those upon which Ch. 7) FOKM. 209 the court below proceeded in its refusal of the defendants' requests for instructions, as well as in its charge to the jury. The suggestion that there was a material variance between the averments of the orig- inal and amended declaration, and the proof adduced by the plaintiffs, is without foundation. The real issue was fairly submitted to the jury, and their verdict must stand. Judgment affirmed.' < UNITED STATES v. CROSBY. (Supreme Court of the United States, 1812. 7 Cranch, 115, 3 D. Ed. 287.) Story, J. A writ of intrusion wa^ brought _byjthe_ United States against the defendant in~erfor t o recover pos sesgion^J an undivided part of certain land lying within thejdistri ct of Majne. Upon the triaTof tKe~cause in the District Court of that district, a special ver- dict was found by the jury, upon which the same court gave judg- ment in favor of the defendant in erro r. This judgment was after- wards affirmed in the Circuit Court of Massachusetts, and is now be- fore the Supreme Court for a final decision. By the special verdict it appears that the claim of the United States to the land in controversy is under one Nathaniel Dowse, who derived his title, if any, from an instrument stated at large in the same ver- dict, and executed in his favor by one John Nelson. The instrumen t is without a sea j_and was e xecuted at the Island ol Grenada, in the West Indies, before a notary public, according to the mode prescribed, by the existi ng laws, to .pass real estate in that colony — and both par- ties were at that time residents therein. 7" By the laws of Massachusetts, no estate of freehold in land can be^conveyed^^unless by a deed or conveyance under the hand and seal "olthe party — and to perfect the title as against strangers, it is further requisite that tEe~deednTould be acknowledged before a proper magis- » See, also, Wilson v. Lewlston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680 (1896). In ^^'ol•cestel• Bank v. Wells, 8 Mete. (Mass.) 107, 112 (1S44), the court. per Wilde, J., said: "It was argued, for the plaintiffs, that the defend- ants' letter, promising to accept the hill, was not a completion of the con- tract, until it was received by the drawers, Farnum & Wright (in Massachu- setts). But we do not so consider it. When the defendants agreed to their request, and put their letter in the mall, the contract, we think, was com- plete If the defendants made any binding promise, it was made in New York, and to be performed there. A presentment of the bill here would not have been a good presentment. If the validity of the contract Is to be de- termined by the law of New York, it is clear that the defendants are not liable as acceptors. By the statute referred to, a promise to accept in a letter, or on any other paper than the bill itself, is not an acceptance, where the party has not taken the bill on the faith of such promise. And it is agreed that this bill was discounted by the plaintiffs without any knowledge of the letter of acceptance." As to mode of acceptance of a bill of exchange, see, in general, 61 li. R. A. 196-199. 270 GENERAL PROVISIONS. (Part 1 trate, and recorded in the registry of deeds for the county where the land lies. The question presented for consideration, is whether the lex loci contractus or the lex loci rei sitae is to govern in the disposal of real estates. The court entertain no doubt on the subject; and are clearly of opinion that the title to land can be acquired and lost only in the manner prescribed "by the law of the place where such land is situate. The judgment of the Circuit Court must, therefore, be affirmed." 10 So as to power of attorney to convey land. Morris v. Linton, 61 Neb. 537, 85 N. W. 565 (1901) ; Linton v. Moorliead, 209 Pa. 646, 59 Atl. 264 (1904). ■^ In a number of jurisdictions it is now provided by statute that tbe rule "locus regit actum" may be followed. Stimson, Am. St. Law, § 1568. Continental Law. — France. — The rule that the formal requirements of a legal transaction must conform to the law of the state where the transac- tion takes place (locus regit actum) appears to have an imperative force. Cass. June 14, 1899 (S. 1900, 1, 225), and note by A. Pillet; Cass. Feb. 23, 1864 (S. 1864, 1, 385); Cass. Aug. 18, 1856 (D. 1857, 1, 39). There seems to be a. tendency, however, in favor of the optional character of this rule. See App. Douai, Jan. 13, 1887 (S. 1890, 2, 148) ; Trlb. Civ. Rouen, July 22, 1890 ; App. Rouen, May 7, 1898 (26 Clunet, 578). It is said to be applicable also to conveyances of and contracts relating to real estate. Weiss, Traite de droit int. privg, iv, 195-196. Matters concerning publicity (registration, etc.) must conform, however, to the law of the situs. Cass. Feb. 20, 1894 (22 Clunet, 615). Certain requirements (called "formalitSs habilitantes") are deemed to re- late to capacity and not to form; e. g., the necessity of a preliminary ju- dicial authorization to the validity of a gift. App. Alger, May 2, 1898 (26 Clunet, 385). Oermany. — ^A compliance with either the lex loci or the law applicable to the substance of the transaction suffices. Transactions involving the cre- ation or the transfer of real rights form an exception to this rule. Article 11, Law Intr. Civ. Code. In 63 R. G. 18 (March 3, 1906), it seems to be held that the law of the situs will control the formal requirements of "obligatory" as well as "real" contracts with respect to immovables. See, however, note to case in 16 Nie- meyer, 331. See, also, Rundstein, Die Regel "locus regit actum" im Biirgerlichen Ge- setzbuche, 20 Archiv fiir Btirgerliches Recht, 192-203. Italy. — According to article 9, Prel. Disp. Civ. Code, it is Sufficient that a legal transaction in formal respects complies with the law of the place where it is made, or with the common national law of the parties. This rule seems to apply also to conveyances of and contracts relating to real es- tate. See App. Genoa, Dec. 22, 1894 (Temi Genovese 1895, p. 82). It is held by some courts, however, that in view of article 1314, Civ. Code, a power of attor- ney relating to Italian real estate must conform to Italian law and be in writ- ing. Cass. Turin, Aug. 24, 1892 (La Legge 1892, 2, 588); App. Palermo, Oct. 6, 1894 (23 Clunet, 910). Contra: Cass. Rome, March 21, 1887 (La Legge 1887, 2, 509). See, also, E. Naquet, La r6gle "locus regit actum" est-elle im- perative ou facultative? 31 Olunet, 89-58; A. Laing, Esqulsse d'une thSorle de la forme des actes instrumentaires en droit international priTfi, 35 Clunet, 321-343, 674-693. PART 11. PARTICULAR SUBJECTS. CHAPTER I. PROPERTY. SECTION 1.— IMMOVABLES.- FRIERSON V. WILLIAMS. (Supreme Court of Mississippi, 1879. 57 Miss. 451.)' GeorgB, C. J. The plaintiff in error filed his bill in the chancery court of Coahoma county against J ohn Williams and his w ife for the pur- pose of collecting out of the separate estate of Mrs. Williams a note for SIX t housand and fifty dollars, niade_hK_Williams and wife, in Feb- ruary, 1873, payable to the Qrd,erx)£ Williams, the husband, and by him m3orse3j:o the plaintiffJn_grror. for .money-then advanced by the latter to said WTniams. The note was m ade at Ne w Orleans , in the state of Louisiana , where Williams and" his wife reside. The property sought to be charged with the debt is land^ situated in Coahoma, countyTanxT is the separate'estate of.Mrs. Williams, under a devise made to her by lier sister7"Mrs. McGuire, who died in 1863., By her will she provid- ed as'follows : "My whole estate, real and personal, shall go to my sis- 1 From an international standpoint tangible property Is divided into mov- ables and immovables, the latter including leasehold estates. Freke v. Lord Carbery [1873] L. R. 16 Eq. 461 ; In re Gentili, 1875, Ir. L. R. 9 Eq. 541 ; Dun- can V. Lawson [18891 41 Ch. D. 394 ; In re Moses [1908] 2 Ch. 235 ; Sneed v. Ewlrig, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41 (1831). But see Despard v Churchill, 53 N. Y. 192 (1873). See, also. Dicey, Conflict of Laws, 74-77 ; West- lake, Prlv. Int. Law, 206. A state may impress upon movable things within its jurisdiction the char- acter of Immovables. McOollum v. Smith, Meigs (Tenn.) 342, 33 Ain. Dec. 147 (1838). But such property will resume its natural attributes upon its remov- al from such jurisdiction. Minor v. Cardwell, 37 Mo. 350, 90 Am. Dec. 390 (1866). A state creating intangible property may assign to it for certain pur- poses a iactitioiis situs within the state. Tappan v. Merchants' Nat. Bank, 19 Wall. (U. S.) 490, 22 L. Ed. 189 (1873); Corry v. Baltimore, 196 V. S. 466, 25 Sup. Ct. 297, 49 L. Ed. 556 (1905). (271) 272 PARTICULAR SUBJECTS. (Part 2 ters, Ellen Mayes, wife of R. B. Mayes, and L/Ouisa Williams, the wife of John Williams, for and during their natural lives ; and this bequest is to their sole and separate use, in which their husbands respectively shall have no right or interest." The will then proceeds to dispose of the remainder, after the termination of the life estate, to the children of the two devisees. [The learned Chief Justice discussed here the nature of the estate acquired by Mrs. Williams under the devise and continued as follows:] It is next insisted that by the law of Louisiana the promissory note of the wife, made as surety for her husband, is void for want of the capacity of the wife to enter into such a contract, and that, being void by the lex loci contractus, it is void everywhere. This position is true, if the giving of the note has no other effect than what it purports to have on its face, viz., a personal obligation of the wife. But it is charged in the bill and admitted by the demurrerj jthat _at „the time tfils notewa s made in Louisiana the wife had a_jeparat£-estate in realty, sit- uated iOTiis state, and that she contracted with refer ence to this sep - arate esjate, and intended to charge it by the promissor y note in con- , troversy. Whether, this purpose can be carried ou t with reference to realty here^ notwithstanding the fact that the note is v oid by the law of Louisiana, is the question presented for our consideration. The note, if made here, would be equally void by our laws .to. bin d the wi fe personally ; yet, notwithstanding this, it would be held, if jnade_^with tKe intent and purpose alleged in the bill, to be a yali d charge against her separate estate situated here. It is generally true that the capacity of a married woman to make a contract will be determined by the law of her domicile; but "this is not the rule when her contract relates to her estate in realty, situated in another jurisdiction. Judge Story says: "The general principle of the common law is that the laws of the place where such [immovable] property is situated exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnities which should ac- company them. The title, therefore, to real property can be acquired, passed, and lost only according to the lex rei sitae." Story, Confi. Laws, § 424. And quoting from Sir William Grant: "The validity of every disposition of real estate must depend upon the law of the coun- try in which that estate is situated ;" he says : "The same rule would also seem equally to apply to express liens and to implied liens upon im- movable estate." Mr. Burge, as quoted by Judge Story, in a note to sec- tion 445 of the same work, says : "The power to alienate immovable property by contract was a quality impressed on the property ; that the law from which it was derived, or by which it is regulated, was a real law ; and that the existence of this power and the validity of its exer- cise must be decided by the law of the country in which the property was situated." And it is said by a learned author: "No sovereignty can. permit the intrusion on its soil of a foreign law. Such a law may be accepted by comity in cases in which a contested issue, the law ap- Ch. 1) PROPERTY. 273 plicable to which is foreign, comes up for determination in a home court. But the imposition of any other law than the lex rei sitae as to property, would be to give foreign subjects and foreign laws an ab- solute control, unchecked by, any discretion of the home courts, over a subject-matter essential not merely to the independence, but the vitality of the state. * * * fhe mischief is cured by the adoption of the rule lex rei sitae regit ; whoever may be the owner, or wherever the contract was made, the law of the land reigns. No other law, either as to the transfer or control of the property, is to intrude." ' Wharton, Confl. Laws, §§ 278, 280. These rules apply to marital rights in realty. Judge Story, after speaking of the rights of husband and wife as to personal property situated beyond the matrimonial domicile says : "But real or immovable property ought to be left to be adjudged by the lex rei sitje as not within the reach of any extra-territorial law ;" and in Vertner v. Humphreys, 14 Smedes & M. 130, 143, this court said that: "As to immovable property, the law of the place where it is situated fixes the rights of husband and wife in it." The application of these principles will furnish a safe solution of the question under consideration. The capacity of Mrs. Williams to take this property, and he r rights an d powers over it, are derived from and regulated by the law" of this state. Her p ower of dispositTon and " gealing" witir"it"are7 by our~lawSj^ impressed on the property itself. As to none of these things has the law of Louisiana the slightest in- fluence. If she had made a contract expressly disposing of this prop- "erty, it will not be denied that, though void by the laws of Louisiana, either for TTer want of capacity to act, or the want of the observances of the forms a nd solemnities prescribed by those laws, vet if valicf 1jv the law of this st ate^ it would ha ve be en g ood. The contract here is not strictly of 4:haf character, yet the making of it is the exercise of the power of the wife to dispose of her estate ; for whenever that power is denied, the power to charge it with her debts is denied also, and the charge can only be made effectual by the actual or threatened alienation of the estate, under a decree of the chancery court. The charging of her separate estate for the payment of money does not pass any actual interest in the land, but it is the first and essential step for a judicial disposition of the estate to satisfy the charge, and the exercise of a power of administration and control over it, which, as we have seen, is governed solely by the lex rei sitae. To show that this is its true nature, we have only to suppose that, by the law of Louisiana, the note was a charge on her realty situated there, and was not by our law a charge on the realty situated here. In such a case, it would be evident that an attempt to enforce it here against her real estate could not suc- ceed. If success could attend such an effort, then the several rights and powers of husband and wife, as to realty, would not be fixed and governed by the laws of the situs ; and the act of a wife, done in a for- eign state, would have the effect of disposing of her realty here, con- trary to our laws. LOE.CONF.Ii.— 18 274 PARTICULAR SUBJECTS. (Part 2 But there is no real conflict btetween the laws of Louisiana and Mis- sissippi in reference to the contract. By both, laws the note is void for what it purports to be on its face — a personal obligation of the wife; and it is void for the same reason in both, viz., the personal in- capacity of the wife. The difference between the two laws is as to the effect on the real property of the wife in the respective j uHi^iction s of the two states, and as to which, as we have, above seen, the law o f the state in which the realty is situated is the exclusive test. If the note had not been void by our laws, as the personal obligation of the wife, we should nevertheless, out of comity to a sister state, adjudge it void to that extent, if attempted to be enforced here; but the prin- ciple of comity does not reiquire a state to regard the laws of any other state, so far as they may affect contracts in relation to real estate sit- "uated in the former state. "" Decree reversed, demurrer overruled, and cause remanded.^ FESSENDEN v. TAFT. i^ (Supreme Court of New Hampshire, 1889. 65 N. H. 39,' 17 Atl. 713.) Bill_m_equity to foreclos e a m ortgage of land in New Hampshi re. given to secur e. a, promissory note for $4,000, made in Massachu setts by George Taft, and payable to the plaintiff ; bot h Taft and the plain tiff being at the time residents of Massachusetts. The consideration of the note was in ^aFE~a"pn'or indebtedness of $2,200 fit)m said Taft to the plaintiff, and it was agreed that the balance of $1,800 should be retained by the plaintiff until the release of an attachment upon the premises made in a suit brought by one Roberts against said Taft. Afterwards, said Roberts having prevailed in the suit, the plaintiff paid him the $1,800, and the attachment was dissolved. In pursuance of a verba l agreement between said Taft and the plaintiff, interest was reck- oned and paid on the note at various rates higher than 6 per cent.' dur- ing various periods ending April 28, 1883, when the last payment was made. Pub^StM.ass^l882, c. 77, § 3, provides as follows: "When there ■ is no agreement for a different rate, the interest of money shall be at the rate of six dollars upon each hundred dollars for a year, but it shall be lawful to pay, reserve, or contract for any rate of interest or of disr count; but no greater rate than that before mentioned shall bej££QV-er- 2 The valid ity of^ every disp osition o f real estate depen ds upon the law of the state^liTwEicE the property is situatedT^ergTrtge validity Of k mui -tga ge. "Go'ddard v. Sawyer, 9 Allen (Mass.) 78 0864). Or the vaTidit.7. of a trust . 8ea- man v. Cook, 14 111. 501 (1853) ; Acker v. Priest, 92 Iowa, 610^ 61 N. W. 235 (1894). So jis to what, constitutes delivery of a deed. Freeland v. Charnley, 80 Ind. 1S2 (1881). It determines, also, the nature of the interest created. Gault V. Van Zile, 37 Mich. 22 (1877) ; In re Kellogg (D. C.) 113 Fed. 120 (1902), affirmed 121 Fed. 333, 57 C. C. A. 547 (1903). And the efCect of the in- strument. McGoon V. Scales, 9 Wall. (U. S.) 23, 19 L. ^A. 545 (1869) ; Rob- ards V. Marley, 80 Ind. 185 (1881) ; Bronson v. St. Croix Lumber Co., 44 Minn. 348, 46 N. W. 570 (1890). Ch. 1) PROPERTY. 275 ed in any action, unless the agreement to pay such greater rate is in writing." ^ Clark^ J. The no te, being a^Ma^ssachusetJ;s contract, is governed by the law o f Massachusetts. T he mo rtgage, although executed in JVLassachusettTby citizens of t hat state, being a conveyance of land in New Ha mpshire, is controlled by thejaw of New Hampshire. The consideration of the liote being an indebtedness of the maker to the payee of $2,200, and a promise of the payee to pay to the maker $1,800 when the mortgaged premises were released from attachment, was sufficient, and the mortgage is valid by the law of New Hampshire. The amount of the advapce ($1,800), the contingency upon which it was to be made, and the obligation of the mortgagee to make it, were definitely agreed upon at the execution and delivery of the note and mortgage, and the agreement was afterwards performed, and the mort-! gage is not within the New Hampshire statute prohibiting mortgages ' to secure future advances. Stearns v. Bennett, 48 N. H. 400 ; Abbott V. Thompson, 58 N. H. 256.* The law of Massachusetts allowed the parties to contract for any rate of interest, (St. Mass. 1867, c. 56, § 2,) and the payments of interest at the rate agreed upon were legal and binding. Marvin v. Mandell, 125 Mass. 562. It is immat erial that the agreement was not in writing. The statute does not declare~such an agreement illegal ; ft merely "declares "that no greater rate of in- terest than six per centum per annum shall be recovered in any action, except when the agreement to pay such greater rate of interest is in writing." The question is not whether, under the law of Massachu- setts, an oral executory agreement to pay interest at a higher rate than 6 per cent, can be enforced by action, but whether such an agreement is valid when fully executed. Money paid as usurious interest is al- lowed to be recovered back on the theory that the law regards the pay- ment ag made under duress, (Albany v. Abbott, 61 N. H. 158,) but the general rule is that pa3anents voluntarily made, with a full knowl- edge of all material facts,, cannot be recovered back, even though made upon an illegal consideration, which the law would not enforce. Cald- well V. Wentworth, 14 N. H. 431. * * * The plaintiff is entitled to a decree of foreclosure of the mortgaged premises, exceptmg'fhere- f rom' the barn on the Jordan lot,'''fOTThe~amount due on the mortgage note, be ing- the sum of $3,300^ with interest at 6 per cent, from April 28, 1883. Decree accordingly.^ " sA part of the reporter's statement of facts and of the opinion, not relat- ing to the Conflict of Laws, has been omitted. * The statute provided as follows: "No estate conveyed in mortgage shall he holden by the mortgagee for the payment of any sum of money, or the per- formance of any other thing, the obligation or liability to the payment or per- formance of which arises, is made or contracted after the execution and de- livery of such mortgage." Rev. St. N. H. 1842, c. 131, § 3. 5 Nor will the situs as such govern the question of damages for the breach of a contract made in one state for the purchase of land located in another state. Atwood v. Walker, 179 Mass. 514, 61 N. E. 58 (1901), ante, p. 78; Finnes v. Selover, Bates & Co., 102 Minn. 334, 113 N. W. 883 (1907). 276 PARTICULAR SUBJECTS. (Part 2 POLSON V. STEWART. A'*^/r'Ji»S^'^vX^^ (Supreme Judicial Court of Massachusetts, 1897. 167 Mass. 211, 45 N. E. 737, 36 L. R. A. 771, 57 Am. St. Rep. 452.) HoLMESj J.' This is a bill t o enforce a covenant made by the d e- fendant to his wife, thejjlaintiJPs intesFate, in North Car olina, to su r- render all his marital rights in certain land o f hers. The land is Tn Massachusetts. The parties to the covenant were domicil ed in North Carolina. According to the bill, the wife took steps which, under the North Carolina statutes, gave her .the. right„to„.cPntiact as ja JsmFiQle with her husband as well as with others, and afterwards released her dower in the defendant's lands. In consideration of this release, and "to induce his wife to forbear suing for divorce, for which she had just cause, and for other adequate considerations, the defendant executed the covenant. The defendant demurs. The argument in support of the demurrer goes a little further than is open on the, allegations of the bill. It suggests that the instrument which made the wife a "free trader," in the language of the statute, did not go into effect until after the execution of the release of dower and of the defendant's covenant. But the allegation is that the last- mentioned two deeds were executed after the wife became a free trad- er, as they probably were in fact, notwithstanding their bearing date earlier than the registration of the free trader instrument. We must assume that at the date of their dealings together the defendant and his wife had as large a freedom to contract together as the laws of their domicile could give them. But it is sa id that the laws of the parties' domicile could not au- thorize a contract between them as tolands In Massachusetts, Ob- viously, this is not true. If istrue^Ratjthe law's^ other states cannot render vahd conveyances~or property within our borders which our laws say are void, for the -plain reason that we have exclilsive powe r over the res". Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321 ; Hallgarten v. Oldham, 135 Mass. 1, 7, 8, 46 Am. Rep. 433. Butjh e same reason inverted establishes that t he lex r ei sitae cannot confr ol personal "covenants not purporting to be conveyances, b etween perso ns outside the jurisdiction, although concerning a thing witWn it. What- ever the_coyenant, the laws of North Carolina could subjiect tKe~de- fendant's property to seizure orT execution, and his person to im- prisonment, for a failure to perform it. Therefore, on principle^ th e/ law of North Carolina determines the validity of the contract. Such precedents as there are, are on the same side. The most important in- timations to the contrary which we have seen are a brief note in Story, Confl. Laws, § 436, and the doubts expressed in Mr. Dicey's very able and valuable book. Lord Cottenham stated and enforced the rule in the clearest way in Ex parte Pollard, 4 Deac. 27, 40, et seq. ; Id., Mont. « The statement of facts and a part of the opinion not relating to the Con- flict of Laws have been omitted. Ch. 1) ,, PROPBETT. 277 & C. 239, 350. So Lord Romilly, in Good v. Good, 33 Beav. 314, 332. So in Scotland, in a case like the present, where the contract enforced was the wife's. Findlater v. Seafield (Feb. 8, 1814) 17 Fac. Gol. 553. See, also, Guninghame v. Semple, 6 Mor. Diet. 4463 ; Ersk. Inst. bk. 3, tit. 2, § 40; Westl. Priv. Int. Law (3d Ed.) § 173; Ror. Int. St. Law (2d Ed.) 289. If valid by the law of North Garolina, there is no reason why the< contract should not be enforced here. The general principle is famil- iar. Without considering the argument addressed to us that such a contract would have been good in equity if made here (Holmes v. Win- chester, 133 Mass. 140 ; Jones v. Glifton, 101 U. S. 335, 35 L. Ed. 908 ; Bean v. Patterson, 132 U. S. 496, 499, 7 Sup. Gt. 1398, 30 L. Ed. 1126), we see no ground of policy for an exception. The statutory limits which have been fou nd to the power of a wife to release dower (Mason v. Mason, 140 Mass. 63, 3 N. E. 19; Peaslee vrPeaslee,-~147 Mass. 171, 181, 17 N. E. 506), do not prevent a husband from making a valid covenant that_he will not claim marital rights with any_per&Mi competen t to receive a covenant frorn him (Charles v. Charles, 8 Grat." LVa.J 486, '56" Am. Dec. 155; Logan v. Birke'tt, 1 Mylne & K 330; Marshall v. Beall, 6 How. [U. S.] 70, 13 L. Ed. 347). The com- , petency o f the wife to r eceive the covenant is established by the law of / her do mTHIe^ and of the place of the contract. The laws of Mas sa- I cEusetts "gp'no t make it impossible for ^KimT specifically to gerformTTTs undertaking . He ^can give a release which will be. good by Massachu- setts law . If it be said that the rights of the administrator are only derivative from the wife, we agree, and we do not for a moment regard any one as privy to the contract except as representing the wife.. But, if then it be asked w h.etligr_.sh e could hav e enforc ed the contract dur- ing her life, an answer in the affirmative is made easy by considering exactly wTiarffie defendant undertook to ^o. So far as occurs to us, / he~undertook three things : First, not to disturb his wife's enjoyment while she kept her property; second, to execute whatever instrument was necessary in order to release his right if she conveyed; and third, to claim no rights on her death, but to do whatever was necessary to clear the title from such rights then. All these things were as capable of p erformance in M assachusetts as they would have been in , .J^ortH"" Carolinsu Indeed, alfthe purposes" of TfieTovenant could have been secure3~at once in the lifetime of the wife by a joint conveyance of the property to a trustee upon' trusts properly limited. It will be seen that the case does not raise the question as t o what I the co mmon law and the presumed Taw of North Carolina wo uld be a s to a North C arolina contract callin g for acts in Massachusetts , or con- cernmg p ro perty in Massachusetts, w hich could not be done _cpnsist- ently with Massachusetts law. * * * Demurrer overruled! FiBLDj C. J. (dissenting). I cannot assent to the opinion of a ma- jority of the court. By our law, husband and wife are under a general disability or incapacity to make contracts with each other. The deci- 278 PAETicuLAB SUBJECTS. (Part 3 sion in Whitney v. Closson, 138 Mass. 49, shows, I think, that the con- tract sued on would not be enforced if the husband and wife had been domiciled in Massachusetts when it was made. As a conveyance made directly between hu sba nd and wif e of an interest in Massachu setts land would be void although the parties were domiciled in JSIorth Caro- lina when it was made, and by the laws of North Ca rolina were au- thorized to make such a conveyance, so Ijhink that a contrac t for suc h a'cSiveyance between the same persons also would TjeyQid. it seems Eo me illogical to say thaf we will not permit a conveyance of Massa- chusetts land directly between husband and wife, wherever they may have their domicile, and yet say that they may make a contract to con- vey such land from one to the other, which our courts will specifically Ijenforce. It is possible to abandon the rule of lex rei sitae, but to keep jit for conveyances of land and to abandon it for contracts to convey land seems to me unwarrantable. ' The question of the validity of a mortgage of land in this common- wealth is to be decided by the law here, although the mortgage was executed elsewhere, where the parties resided, and would have been void if upon land there situated. Goddard v. Sawyer, 9 Allen, 78. "It is a settled principle that 'the title to and the disposition of real es- tate must be exclusively regulated by the law of the place in which it is situated.' " Cutter v. Davenport, 1 Pick. 81, 11 Am. Dec. 149 ; Os- born V. Adams, 18 Pick. 345. The testamentary execution of a power of appointment given by will in relation to land is governed by the lex situs, or the law of the domicile of the donor of the power. Sewall v. Wilmer, 132 Mass. 131. The plaintiff, merely as administrator, cannot maintain the bill. Caverly v. Simpson, 132 Mass. 462, 464. The plaintiff must proceed on the ground that Mrs. Henry Stewart, Jr., acquired by the instruments executed in North Carolina the right to have conveyed or released to her and her heirs by her husband all the interest he had as her husband in her lands in Massachusetts ; that this right descended on her death to her heirs, according to the law of Massachusetts ; and that the plaintiff, being an heir, has acquired the interest of the other heirs, and therefore brings the bill as owner of this right. The plaintiff, as heir, claims by de- scent from Mrs. Stewart, and, if the contract sued on is void as to her, it is void as to him. It is only on the ground that the contract conveyed an equitable title that the plaintiff, as heir, has any standing in court. His counsel, founds his argument on the distinction bet ween a convev - ^^SSJSiS^.thS^l '^^^'? *° ^^"-^ and a contract to convey it. If the instru- ment relied' on " purported to convey the legal title, his co unsel in effect admits that jiwouJd be void by our Jaw. He accepts the doctrine stat- ed in Ross V. Ross, 129 Mass."243, 2l6; 37 Am. Rep. 321, as follows: "And the validity of any transfer of real estate by act of the own- er, whether inter vivos or by will, is to be determined, even as re- gards the capacity of the grantor or testator, by the law of the state in which the land is situated." As a contract purporting to convey a right Ch. 1) PROPEETT, 279 in equity to obtain the legal title to land, he contends that it is valid. I do not dispute the cases cited with reference to contracts concern- ing personal property; but the rule at common law in regard to the capacity of parties to make contracts concerning real property, as I read the cases and text-books, is that the lex situs governs. Cochran V. Benton, 126 Ind. 58, 35 N. E. 870; Doyle v. McGuire, 38 Iowa, 410 ; Sell v. Miller, 11 Ohio St. 331 ; Johnston v. Gawtry, 11 Mo. App. 382; Frierson v. WilHams, 57 Miss. 451. Dicey on the Conflict of Laws is the latest text-book on the subject. He states the rule as follows : Page Ixxxix.: "(B) Validity of Contract, (i) Capacity. Rule 146. Subject to the exceptions hereinafter mentioned, a person's capacity to enter into a contract is governed by the law of his domicile (lex domi- cilii) at the time of the making of the contract: (1) If he has such capacity by that law, the contract is, in so far as its validity depends upon his capacity, valid. (2) If' he has not such capacity by that law, the contract is invalid. Exception 1: A person's capacity to bind himself by an ordinary mercantile contract is (probably) governed by the law of the country where the contract is made (lex loci contractus) (?). Exception 2: A person's capacity to contract in respect of an immovable (land) is governed by the lex situs." Page xcii. : "(A) Contracts with Regard to Immovables. Rule 151. The effect of a contract with regard to an immovable is governed by the proper law of the contract ( ?). The proper law of such contract is, in general, the law of the country where the immovable is situate (lex situs)." On page 517 et seq. he states the law in the same way, with numer- ous illustrations, but with some hesitation as to the law governing the forms of contracts to convey immovables. See page xc, rule 147, ex- ception 1. For American notes with cases, see page 527 et seq. In the Appendix (page 769, note B) he discusses the subject at length, and with the same result. Some of the cases cited are the follow- ing: Succession of Larendon, 39 La. Ann. 952, 3 South. 219; Besse V. Pellochoux, 73 111. 285, 24 Am. Rep. 242 ; Fuss v. Fuss; 24 Wis. 256, 1 Am. Rep. 180; Moore v. Church, 70 Iowa, 208, 30 N. W. 855, 55 Am. St. Rep. 439; Heine v. Mechanics' & Traders' Ins. Co., 45 La. Ann. 770, 13 South. 1 ; First Nat. Bank v. Hughes, 10 Mo. App. 7 ; Ordronaux v. Rey, 2 Sandf. Ch. (N. Y.) 33; Adams v. Clutterbuck, 10 Q. B. Div. 403; Chapman v. Robertson, 6 Paige (N. Y.) 627, 630, 31 Am. Dec. 264. Phillimore states the law as follows (4 Phillim. Int. Law, 3d Ed., p. 596) : "DCCXXXV. (1) The case of a contract respecting the transfer of immovable property illustrates the variety of the rules "which the foreign writers upon private international law consider applicable to a contract to which a foreigner is a party : They say that : ( i) The ca- pacity of the obligor to enter into the contract is determined by refer- 280 PARTICULAR SUBJECTS. (P^ft 3 ence to the law of his domicile, (ii) The like capacity of the obligee by the law of his domicile, (iii) The mode of alienation or acquisition of the immovable property is to be governed by the law of the situation of that property, (iv) The external lorm of the contract is to be gov- erned by the law of the place in which the contract is made. It is even suggested by Foelix that sometimes the interpretation of the contract may require the application of a fifth law. "DCCXXXVI. The law of England and the law of the North American United States require the application of the lex rei sitae to all the four predicaments mentioned in the last section. "DCCXXXVII. But a distinction is to be taken between contracts to transfer property and the contracts by which it is transferred. The former are valid if executed according to the lex loci contractus ; the latter require for their validity a compliance with the forms prescribed by the lex rei sitae. Without this compliance, the dominium in the property will not pass." To the same effect as to the capacity of the parties are Nels. Priv. Int. Law, 147, 260; Ratt. Priv. Int. Law, 138 ; Whart. Confl. Laws (3d Ed.) § 296; Story, Confl. Laws (8th Ed.) §§ 424-^31, 435; Ror. Int. St. Law, 263. See Westl. Priv. Int. Law (3d Ed.) §§ 156, 167, et seq. On reason and authority I think it cannot be held that, although a deed between a husband and his wife domiciled in North Carohna, of the rights of each in the lands of the other in Massachusetts, is void as a conveyance by reason of the incapacity of the parties under the law of Massachusetts to make and receive such a conveyance to and from each other, yet, if there are covenants in the deed to make a good title, the covenants can be specifically enforced by our courts, and a convey- ance compelled, which, if voluntarily made between the parties, would be void. I doubt if all of the instruments relied on have been executed in accordance with the statutes of North Carolina. By section 1828 of the Statutes of that state, set out in the papers, the wife became a free trader from the time of registration. This, I understand, is Jan- uary 7, 1893. Exhibit B purports to have been executed before that time, to wit, January 4, 1893. There does not appear to have been any examination of the wife separate and apart from her husband, as re- quired by section 1835. If Exhibit B fails, there is at least a partial failure of consideration for Exhibit C. It is said that an additional consideration is alleged, viz. the wife's forbearing to bring a suit for divorce. Whether this last is a sufficient consideration for a contract, I do not consider. It is plain enough that there was an attempt on the part of the husband and wife to continue to live separate and apart from each other without divorce, and to release to each other all the property rights each had in the property of the other. If the release of one fails, I think that this court should not specifically enforce the release of the other. Mutuality in this respect is of the essence of the transaction. If the husband owned lands in Massachusetts, and had died before his wife, I do not think that Exhibit B, even if it were Ch. 1) PROPERTY. 281 executed according to the statutes of North Carolina, and the wife duly examined, and a certificate thereof duly made, would bar her of her d9wer. Our statutes provide how dower may be barred. Pub. St. c. 124, §§ 6-9. Exhibit B is not within the statute. See Mason v. Mason, 140 Mass. 63, 3 N. E. 19. Antenuptial contracts have been en- forced here in equity so as to operate as a bar of dower, even if they did not constitute a legal bar. Jenkins v. Holt, 109 Mass. 261. But postnuptial contracts, so far as I am aware, never have been enforced here so as to bar dower, unless they conform to the statutes. Whit- ney V. Closson, 138 Mass. 49. Whatever may be true of contracts between husband and wife made in or when they are domiciled in other jurisdictions, so far as personal property or personal liability is concerned, I think that contracts affecting the title to real prop- erty situate within the commonwealth should be such as are authoriz- ed by our laws. I am of opinion that the bill should be dismissed.'' ' SECTION 2.— MOVABLES. ^ I. Tangible;. I t^^ 'x' CAMMELL V. SEWELU ^^W^-^ ^ i) (In the Exchequer Chamber, 1S60. 5 Hurl. & N. 728.) j ^ Trover for deals, with a count for money had and received. At the trial a verdict was taken for the plaintiffs, subject to a special case. The material facts were in substance as follows : The plaintiffs are underwriters at Hull ; the defendants, merchants in London. The ac- tion is brought to recover a part of a cargo of deals shipped on board a Prussian ship at Onega, Russia, by the Onega Wood Company, for ' As to law governing covenants in a deed, see Fisher v. Parry, 68 Ind. 465 (1879) ; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650 (1876) ; Oliver v. Loye, 59 Miss. 320 (1881) ; Snccession of Cassidy, 40 La. Ann. 827, 5 So. 292 (1888) ; Calton v. Taliafero, 101 111. App. 592 (1902). Mechanics' Liens. — The existence of a mechanic's lien for building ma- terials is determined by the law of the situs of the land, and not by the law of the state in which the contract under which the materials are furnished is made. Campbell v. Coon, 149 N. Y. 556, 44 N. E. 300, 38 L. R. A. 410 (1896). Compare Midland Valley R. Co. v. Moran Bolt & Nut Mfg. Co., 80 Ark. 399, 97 S. W. 679 (1906). Continental Law. — It is admitted that, excepting questions of capacity and form, the situs of realty will necessarily govern the creation of real rights therein. No rights can therefore be created which are either unknown to the law of the situs or are otherwise opposed to its public order. France, Cass. April 4, 1881 (S. 1883, 1, 65), and note by L. Renault. The law of the situs determines also whether the property is to be deemed movable or immovable. France, Cass. April 5, 1887 (16 Clunet, 827) ; Trlb. Civ. Seine,, March 14, 1894 (21 Clunet, 815). 282 PARTICULAR SUBJECTS. (Part 2 Messrs. Simpson & Whaplate, of Hull, and by them insured with the plaintiffs for £1,150. The vessel in the course of her voyage went ashore near a place called Molde in Norway. The cargo was sold at public auction at Molde by the master of the vessel against the protest of Jervell, a representative of Messrs. Simpson & Whaplate, and was bought by Hans Clausen. Suit was brought by Jervell in the Diocesan Court of Trondjhem to set aside the sale, but failed. A considerable portion of the cargo was shipped for London under a bill of lading, deliverable to the order of Hans Clausen, and by him indorsed to the defendants, who had made advances on the cargo. Defendants sold the cargo at public auction, the net proceeds received by them being il,470. 4s. 3d. The damage sought to be recovered in the present action is that sum, with interest. Plaintiffs, who upon the abandonment of the cargo to them by Simpson & Whaplate had paid them as for total loss, thereupon brought this action against the defendants for the recovery of the above sum, with interest. There was evidence that by the law of Norway a sale by the master would transfer the property in the cargo. The Court of Exchequer, Martin, B., delivering the opinion, held that the parties to the suit were concluded by the judgment of the Diocesan Court of Trondjhem. It ordered the verdict for the plain- tiff to be set aside afid a verdict to be entered for the defendants. Writ of error by plaintiffs to the Exchequer Chamber.^ CrompTon, J.* In this case the majority of the court are of opin- ion that the judgment of the Court of Exchequer should be affirmed. At the same time we are by no means prepared to agree with the Court of Exchequer in thinking the judgment of the Diocesan Court in Norway conclusive as a judgment in rem, nor are we satisfied that the defendants in the present action were estopped by the judgment of that court or what was relied on as a judicial proceeding at the auction. It is not, however, necessary for us to express any decided opinion on these questions, as we think that the case should be deter- mined on the real merits as to the passing of the property. If we are to recognize the Norwegian law, and if according to that law the property passed by the sale in Norway to Clausen as an in- nocent purchaser, we do not think that the subsequent bringing the property to England can alter the position of the parties. The difficul- ty which we have felt in the case principally arises from the mode in which the evidence is laid before tis in the mass of papers and dep- ositions 'Contained in the appendix. We do not see evidence in the case sufficient to enable us to treat the transaction as fraudulent on the part of Clausen, although there are 8 This statement of facts has been substituted for that of 3 Hurl. & N. 617. " The dissenting opinion of Byles, J., has been omitted. Ch. 1) PEOPEETY. 2SJ circumstances which would have made it better for him not to have become the purchaser. Treating him, therefore, as an innocent pur-( chaser, it appears to us that the questions are — did the property by the law of Norway vest in him as an innocent purchaser? and are we to recognize that law? The question of what is the foreign law is one of fact, and here again there is great difficulty in finding out from the mass of documents what is the exact state of the law. The con- clusion which we draw from the evidenc e is, that by the law'ofJSIor-" way_tfie_captain,__under circumstances such "a^existed in this case, ^could not, as between himself and, his _owners, or the owners of the ~*^' go, "justrTy^ the sale, but that he rema ined l iable and^ responsible to them for a sale not justified under_th.e_circunistances ; whilst, on the other hand, an innocent purchaser wauld _have a_,^.Q0jd title to. the "pfopefty bought by him from the agent of the owners. It does not appear to us that there is anything so barbarous or monstrous in this state of the law as that we can say that it should not be recognized by us. Our own law as to market overt is analogous ; and though it is said that much mischief would be done by uphold- ing sales of this nature, not justified by the necessities of the case, it may well be that the mischief would be greater if the vendee were only to have a title in cases where the master was strictly justified in selling as between himself and the owners. If that were so, purchasers, who seldom can know the facts of the case, would not be inclined to give the value, and on proper arid lawful sales by the master the property would be in great danger of being sacrificed. There appears nothing barbarous in saying that the agent of the owners, who is the person to sell, if the circumstances justify the sale, and who must, in point of fact, be the party to exercise his judg- ment as to whether there should be a sale or not, should have the power of giving a good title to the innocent purchaser, and that the latter should not be bound to look to the title of the seller. It appears in the present case that the one purchaser bought the whole cargo ; but suppose the farmers and persons in the neighbourhood at such a sale buy several portions of the goods, it would seem extremely in- convenient if they were liable to actions at the suit of the owners, on the ground that there was no necessity for the sale. Could such a purchaser coming to England be sued in our courts for a con- version, and can it alter the case if he resell, and the property comes to this country? Many cases, were mentioned in the course of the argument, and more might be collected, in which it might seem hard that the goods of foreigners should be dealt with according to the laws of our own or of other countries. Amongst others our law as to the seizure of a foreigner's goods for rent due from a tenant, or as to the title gained in them, if stolen, by a sale in market overt, might appear harsh. But we cannot think that the goods of foreigners would be protected against such laws, or that if the property once passed by virtue of 284 PARTICULAR SUBJECTS. (Part 2 them it would again be changed by being taken by the new owner into the foreigner's own country. We think that the law on this subject was correctly stated by the Lord Chief Baron in the course of the argument in the court below, where he says "if personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere." And we d6 not think that it makes any difference that the goods were wrecked, and not intended to be sent to the country where they were sold. We do not think that the goods which were wrecked here would on that account be the less liable to our laws as to market overt, or as to the land- lord's right of distress, because the owner did not foresee that they would come to England. ' Very little authority on the direct question before us has been brought to our notice. The only case which seems at variance with the principles we have enunciated is the case of The Eliza Cornish or Segredo, 1 Eccl. & Adm. 36, before the judge of the Court of Ad- miralty. If this case be an authority for the proposition that a law of a foreign country of the nature of the law of Norway, as proved in the present case, is not to be regarded by the courts of this coun- try, and that its effect as to passing property in the foreign country is to be disregarded, we cannot agree with the decision ; and, with all the respect due to so high an authority in mercantile transactions, we do not feel ourselves bound by it when sitting in a Court of Error. We must remark also, that in the case of Freeman v. East India Com- pany, 5 B. & Aid. 617 (E. C. E. R. vol. 7), the Court of Queen's Bench appears to have assented to the proposition that the Dutch law, as to market overt, might have had the effect of passing the property in such case if the circumstances of the knowledge of the transaction had not taken the case out of the provisions of such law. In the present case, .which is not like the case of Freeman v. East India Company, the case of an English subject purchasing in an Eng- lish colony property which he was taken to know that the vendor had no authority to sell, we do not think that we can assume on the evi- dence that the purchase was made with the knowledge that the sellers had no authority, or under such circumstances as to bring the case within any exception to the foreign law, which seems to treat the master as having sufficient authority to sell, so as to protect the in- nocent purchaser where there is no representative of the real owner. It should be remarked also, that Lord Stowell in the passage, cited in the case of Freeman v. East India Company, from his judgment in the case of The Gratitudine, states that if the master acts unwisely in his decision as to selling still the foreign purchaser will be safe un- der his acts. The doctrine of Lord Stowell agrees much more with the principles on which our judgment proceeds than with those re- ported to have been approved of in the case of The Eliza Cornish, as, on the evidence before us, we cannot treat Clausen otherwise than as an innocent purchaser, and as the law of Norway appears to us, on Ch. 1) PROPERTY. 285 the evidence, to give a title to an innocent purchaser, we think that the property vested in him, and in the defendants as subpurchasers from him, and that, having once so vested, it did not become divested by its being subsequently brought to this country, and, therefore, that the judgment of the Court of Exchequer should be affirmed. CocKBURN^ C. J. Concurring in the judgment delivered by my Brother Crompton, it further appears to me that the case may also be put upon another and a shorter ground. Although the goods in question were at one time the property of English owners, the property in them was transferred to others by a sale valid according to the law of Norway, a country in which the goods were at the time of such sale. Even if it were admitted, for the purpose of argument, that by the law of the country to which the ship belonged the master would not have had the power to dispose of the ship or cargo in case of wreck, which the law of Norway gives in such a ■case, and that the law of Norway would be overridden by the law of the nation to which the ship belonged, then it is to be observed that, the ship having been a Prus- sian ship, and the carriers, the shipowners, Prussians, and the goods having been shipped in Russia, the power of the master must depend on the law either of the country to which the ship belonged, or of the place where the contract to carry was entered into. The law of England, never having attached to the goods, as they never were on board an English vessel or reached British territory, cannot apply to the case. The law of nations cannot determine the question, for the international law is. by no means uniform as to the powers of a master, as abundantly appeared from the various codes which were brought to our notice during the argument. But no evidence was adduced to show what was the law of Prussia or that of Russia in the matter in question. The case therefore stands nakedly thus — a good contract of sale to transfer the property in Norway, without anything to show that by the general law of nations, or by the law of any nation which can possibly apply to the present case, the sale valid in Norway can be in- validated elsewhere.^" r^^ 4 vr^ OLIVIER V. TOWNES. -m - p "^ "" *" ,T-0- (Supreme Court of Louisiana, 1S24. 2 Mart. [N. S.] 93.) '' , (^ Defendant, John D. Townes, owned one-half interest in the vessel Averick, which arrived in the port of New Orleans on July 32, 1823. The vessel which was insured by the L,ouisiana State Insurance Com- pany was lost on the way to Liverpool. A creditor of Townes there- upon brought this action by attachment, praying that the attachment 10 See, also,, Inglis v. TJsherwood, 1 East, 515 (1801), and Alcock v. Smith. [1892] 1 Ch. 238. Compare Northwestern Bank v. Poynter, [1895] A. C. 56. 128G PAETicuLAE SUBJECTS. (Part 3 be levied on the debt owing to Townes by the insurance company and that the company be made a garnishee. The attachment was levied, and in its answer the garnishee set up that the inte rest of Townes in the vessel had been conveyed to R. C. War d & Co.. wh o intervened in the action. The bill o f sale was execute d by Towne s in the state of Virginia on'^uly 34,1823, and'containecl a clause th at the vessel was to"be' delivered in Liverpool. The court below gave judgrhent for Ward & Co., and the petitioners appealed.^ ^ Porter, J.^^ * * * On the facts, therefore, we have presented the case of a creditor attaching property of his debtor, before j_t w as transferred by sale and deHvery, and it has been so re peatedly decide d iiTthis 'Coiirt that this may be done, and that nothing short of actual delivery ^wiir^defeat this right, that it would be "sufEoe nrto reter to this jurisprudence as setthng the right of the parties now before us, were it no t for the great pains taken by the counsel to show thatrthis doctrine is incorrect, if extended to cases when the^v endor and~v endee both live inlT country where a different rule on tEe subject of the sale of movable property prevails. This point is not new. It was taken in the case of Thuret v. Jenk- ins, 7 Mart. 318, 12 Am. Dec. 508, and after a very close attention to the arguments now urged by the counsel, and the authorities relied on, we are obliged to confess that we prefer the reasoning and the law which the counsel for the appellee favored us with in the case just cited, when his professional duty required him to support the opposite doctrine from that for which he now contends. The position assumed in the present case is that by the laws of all civilized countries, tiie_aHenation of movable property^ must_be deter- mined according to the laws, rules and regulations, in iorcejv-h^cgjthe owner's domicile is situated: hence it is insisted that, as by the law existing 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 con- tract, rules which are peculiar to our jurisprudence, and different from those contemplated by the parties to the contract. We readily yield an assent to the j[eneral^ doctrine for which the ap- pellee contends. He has supported 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 citizen of the countries where the parties to the con- tract seek to enforce it, as one or other of them must give way, those prevailing where the rehef is sought must have the preference." Such is the language of the English book to which we have been referred, and Huberus, whose authority is more frequently resorted to on this 11 The statement of facts has been abstracted from the opinion, 12A part of the opinion has been omitted. Ch. 1) PROPERTY. 287 subject than any other writer, because he has treated it more extensive- ly and with greater ability, tells us in his treatise De Conflictu Legum : "Effecta contractuum certo loco initorum, pro jure loci illius alibi quoque observantur si nullum inde civibus alienis creetur prejudicium, en jure sibi qusesito." "The effects of a contract entered into at any place will I be allowed accor3ing~to the TavTbf Iha^place, in other countries, if noi inconv enience results therefrom, to the citizens" of that other countryl ^withjespecFtq the law which they demand." This distinction appeafsj to us founded on the soundest reasons. The rnunicipal laws of a coun- try have no force beyond its territorial limits and when another gov- ernment 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 injury is inflicted on her own citizens, otRerwtse justice would be sacfiEcecT to courtesy, nor can tlie foreigner or stranger complain of this. __ If he sends his property within a jurisdiction~"dif- j ereHT from th at where he resides, he implie dly submits it to^he rulesi and r eg ulatioiis" i n force in the country where he places TF. What ( the law protects it has a right to regulate. A strong evidence of this is furnished by the doctrine in regard to successions. The, general principle, is, thatjh e personal prope rty must be distributed according to. the la w of the state whe re the testator dies, but so far as it con-^ cerns credi torsTTFls ^.goyern ed by~Eie law ot the country where" the [property is jituated.^ If an Englishman 'or~a'Frenchnmrdie abroad 'and leaves effects here, we regulate the order in which his debts are paid, by our jurisprudence, not that of his domicile. * * * We proceed to examine whether giving effe ct to the law of Vir- ginia, o n the con tract now set up, would be working ^^S^injury 'to tnis state, or its citizens. In doing tEii^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 case. If we held here that this sale can defeat the attachment, we should, on the same principle, he 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. McNeill v. Glass, 1 Mart. (N. S.) 261. In relation to mov - able property, our law has provided that deliverv is essen tiaj_to com- plete the contract of sa le 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 subject, were they liable to be affected by previous contracts 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, we should carefully maintain. This 288 PAKTicuLAE SUBJECTS. (Part 2 city is becoming a vast storehouse for merchandise sent from abroad, owned by nonresidents, and deposited here for sale, and our most important commercial transactions are in relation to property so situ- ated. If the purchasers of it should be affected by all the previous contracts made at the owner's domicile, although unaccompanied by delivery, it is easy to see to what impositions such a doctrine would lead, to what inconvenience it would expose 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 cannot indulge our feelings so far as to give a deci- sion that would let in such consequences as we have just spoken of. jit 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 incon- venience to the citizens of this state, and therefore we cannot sanc- tion it. On looking into the record, for the purpose of giving final judg- ment, we observe that the proceedings have been carried on below without an attorney being appointed to represent the absent debtor. The case must therefore be remanded for trial between the peti- tioner and defendant. It is therefore ordered, adjudged, and decreed, that the judgment of the parish court be annulled, avoided, and reversed, and that the claim of the intervening creditor be overruled, and that the case be remanded for a new trial between the petitioner and defendant, the appellee paying costs of this appeal. •<^" SCHMIDT V. PERKINS. "^-^^^ (Court of Errors and Appeals of New Jersey, 1907. 67 Atl. 77, 11 Tj. R. A. [N. S.] 1007.) SwAYZg, J. This is an action of replevin involving the title to cer- tain engines, formerly the property of the Whitehead Machinery Com- pany, an Iowa corporation. Th e plaintiffs claim under a sale made to them in Iowa on Octob er 171905, the defendants undei" ah attacli- m ent out of the Hudson circuit levied at J eTsey Citv October 7. 1905'. The plaintiffs are residents of lowaT The residence of the plaintiff in attachment is not shown, but seems to have been in Illinois , and the applying creditor is a resident of that state. The a ctual situ s of the engines from the time they were bought J)y theJA^hitehead Ma- chinery Company early in 190? to the date of the aTtachrnent, more than a year and a half, was in Jersey City, where they were, in„the custody of the Pennsylvania Railroad They had been bought by the Whitehead Company, which dealt in secondhand machinery, for Ch. 1) PEOPEETY. 289 purpose of resale, and the evident intent was to leave them in Je r- sey City until they were actually sol d. Notice of the sale to the"""plarn - tiffs wa ? immprlir ^telv fflven to the Pennsylvania Railroad_ Compan;^. The sale was for the purpose of satisfying a note of the Whitehead Company dated November 1, 1904:, payable one year after date and indorsed by the plaintiffs. This note was held by an Iowa bank, and was paid by the plaintiffs October 4, 1905. Jhe day of the salt to them. One of the plaintiffs was a director of the Whitehead Company at the tiniCjj^ one had been but had resigned some time before, and two had acted as directors upon the supposition that five were required, but had discovered previous to October 4th that only three were au- thorized. All, however, took part in the transaction. At the trial the solution of the question at issue was treated^, by coun sel on botii_sides as dependent" uponThe law of Iowa as to.tr.ans^- lEIL.^lP^iEPEESLPL^J'H^^xlHr'-^^'-'^^tion to its directors, an(i,eyi- dence , w as _takgn„Qn. that subject by. the plaintiffs and defendants. \ The trial judge directed a verdict for the plain tiffs, to which excep- tion was duly taken. At the argument in this court it was for the first time suggested that the ti tle was governed byjhe^aw of New Jersey,,, and counsel were allowed to submit supplemental briefs. We think the case was tried by counsel upon an erroneous theory. The title to tangible pers onal property is ordinarily _ goy.emed— by- the la w of its situ s. ^The maxim, Mobilia personam sequuntur," s tjtes a mere fiction of law which it is sometimes necessary to applj in ' order to"~3o justice, BJiF it ought noFto be_extended beyond that neces- sity.. Our Supreme" Court long ago recognized the absurdity_of af- firming that goods found _within the jurisdiction, of the state are not subject to "its laws (Varnum v. Camp, 13 N. J. Law, 336, 25 Am. tJec. 47677'and'rnore than 50 years later, in Cronan v. Fox, 50 N. J. Law, 417, 14 Atl. 119, this court said: "The rule that the title to movable property is to be judged of and determined by the lex rei sitas (which is not without exceptions) has prominent application and adoption where personal property is seized under process issued from the courts of the state where the property is." The learned judge who wrote the opinion in that case did not state the exceptions to which he referred. He may have had in mind cases of choses in ac- tion, sometimes classed as movables and subject to the maxim above quoted (Moore v. Bonnell, 31 N. J. Law, 90) ; cases where both claimants have the same domicile (Runyon v. Groshon, 13 N. J. Eq. 86; Northwestern Bank v. Poynter, [1895] A. C. 56, 64 L. J. H. L. 37) ; cases where the conveyance is itself sufficient to pass title, and the only invalidity arises out, of the proposed method of distribut- ing the proceeds, and the objection is made by creditors not resident in New Jersey (Bentley v. Whittemore, 19 N. J. Eq. 463, 97 Am. Dec. 671) ; or cases where the goods are merely in transitu (Savigny on Private International Law [Eng. translation] 135, of which rule Know- les Loom Works v. Vacher, 57 N. J. Law, 490, 31 Atl. 306, 33 L. LOK.CONF.L. — 19 290 PAKTicuLAE SUBJECTS. (Part Z R. A. 305, affirmed 59 N. J. Law, 586, 39 Atl. 1114, seems the near- est illustration in our Reports. We have recently reviewed the cases in Cooper v. Philadelphia Worsted Co.,i^ 68 N. J. Eq. 622, 60 Atl. 352. None of the exceptions are applicable to the present case. The cases of an assignment with preferences and of goods in transitu are most like it. The latter exception is not in point, since the goods were stored in Jersey City for more than a year and a half and with- out any present intent of removal, unless in the event of a resale. The former exception, which was the case of Bentley v. Whittemore, is not in point, since in that case the conveyance itself was sufficient under our law. It was only the method of distribution to which the conveyance was ancillary that militated with the provisions of our statute. -It was therefore quite possible to sustain the conveyance in that case, and disregard the provision for a preference among cred- itors in the distribution. In the present case it is the conveyance it- self which is voidable by creditors for reasons to be stated hereafter. The court took pains to point out in Bentley v. Whittemore the dis- tinction between a defect in the conveyance itself and a defect in the scheme to which the conveyance was ancillary^ Such a distinction was quite essential to the decision of that case, since the title to land came in question. The court said : "No doubt is intended to be hint- ed as to the settled existence of the rule that the validity of every disposition of real estate must depend upon the law of the country in which that estate is situated." Cronan v. Fox was decided 20 years after Bentley v. Whittemore, and in our judgment enunciates the rule that must govern the pres- ent controversy. This case is, indeed, the converse of that. The re the_ conveyance was invalid in: Maryland, but valid in, Newjersey. Here th e conveyance is said tg be valid in Iowa, but inyal id in New Jerse^ In "tKa|~case^ we protected the grantee against the process of our own ,£mirts. If_there is any diflference, it is in favor oi sus- taining^ a seizure under, the process of our, courts, as we are now as k- ed to do. One of the attaching creditors, and probably both, are not residents of Iowa, and hence are not to be held as bound by the law of that state. We therefore se e no difficulty in the w ay of holding that the title toJhe_goods is to be determined by the law of New Jer- sey. " "' "— " ■ - ■ ■ - • ■■ _™-.-- The law of this state, independent of section 64 of the corporation j-act (P. L,. 1896, p. 298), is that dii-ectors of an insolvent corpora- tion are trustees of its funds for its creditors, a nd subject to the_rule that a trustee cannot use property for his own,.,benefit to the .disad- vantage of the cestui que trust. It follows that directors, who are creditors, stand upon the same footing as any other creditor, and j cannot by any act of their own obtain a position superior to that of other creditors for whose benefit they hold the trust assets. This i« By mistake for Lees v. Harding, Whitman & Co. Ch. 1) PROPERTY. 291 wholesome doctrine was established at a time when our statute did not contain the provisions now emibodied in section 64. Montgom- ery V. Phillips, 53 N. J. Eq. 203, 317, 31 Atl. 633. The rule applies only to directors. Savage v. Miller, 56 N. J. Eq. 433, 36 Atl. 5'!'8, 39 Atl. 665. The facts of this case suggest the query whether the same rule would be applicable to directors who are such only .de facto ; but it is not necessary to decide this question. One of the four to whom the engines were sold was actually a director. All seem to have taken part in the transaction and to have known of what our law deems a breach of trust. If so, they can no more profit thereby than the director himself. A conveyance of -property held in trust, by which a trustee attempts to secure an advantage for himself as against his cestui que trust, is voidable by the cestui que trust. Staats v. Bergen, ,17 N. J. Eq. 554, 558; Romaine v. Hendrickson's Ex'rs, 37 N. J. Eq. 163, affirmed 38 N. J. Eq. 375 ; Bassett v. Shoemaker, 46 N. J. Eq. 538, 30 Atl. 53, 19 Am. St. Rep. 435. The question usually arises in equity, but there is no reason why the sale should not, like other fraudulent sales of personal property, be avoided at law. In this case the attaching creditors occupy the position of._cestuis que trustent and the plain- tiffs the position' of trustees or_vendees with notice. The^attachment was in itself^^irelection to avoid the ^salej,__The rule of Montgomery ■V. Phtfflps" applies "only to insolvent corporations, and, unless there was evidence of insolvency on October 4, 1905, the direction of ver- dict for the plaintiffs was correct. We tiiink there was persuasive evidence of insolvency within the meaning of the word in our law. National Bank of the Metropolis v. Sprague, 31 N. J. Eq. 530, 538 ; Skirm V. Eastern Rubber Mfg. Co., 67 .N. J. Eq. 179, 184, 40 Atl. 769. It is unnecessary to recite the evidence which leads us to this view, since the question is one of fact, which mu5t be determined by a jury. The judgment must be reversed, and the record remitted for a new trial. ^* 1* The actu al. si tpg deter mines also the jurisdiction of courts over proceed- ings in rem , and a .iud|menl refiaerertiy^ such a court will be recognized in every o!Eer jurisdiction. "Castrique v. I'mrie; L. R. 4 H. L. 414 (1870). — Tanrgtlrte property can be attached only in the jurisdiction where it is ac- tually situated. Bowen v. Pope, 125 111. 28, 17 N. B. 64, 8 Am. St. Rep. 330 ' (1888). Tangible personal estate may be taxed in the jurisdiction where it is situ- , ated, irrespective of the nonresidence of its owner. Pullman's Palace Car Co. V. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876, 35 L. Ed. 613 (1891) ; Ayer & Lord Tie Co. v. Kentuc&y, 202 U. S. 409, 26 Sup. Ct. 679, 50 L. Ed. 1082 (1906). Provided, however, that such property has not . Ed. 1155 (1906). As to gifts causa mortis, see Emery v. Clough, 63 N. H. 552, 4 Atl. 796, 56 Am. St. Rep. 543 (1886). Continental liAw. — Italy. — "Personal property shall be governed by the national law of the owner, excepting dispositions to the contrary in the law of the country where it is situated." Article 7, Prel. Disp. Civ. Code. See, also, P. Esperson, 8 Clunet, 210-214. In Prance and Germany the law of the situs is held to control. App. Douai, Dec. 11, 1891 (D. 1894, 2, 193), and note by Ch. de Boeck. To the effect that it governs even as between the parties, see R. G. Feb. 24, 1897 (8 Niemeyer, 46) ; O. L. G. Hamburg, May 18, 1894 (5 Niemeyer, 286). It determines, al- so, what constitutes delivery. 11 R. G. 52 (Feb. 15, 1884). If the title has not passed under the lex rei sitoe, and the chattel is brought into a jurisdiction under whose law it would have passed, efCect will be given to the original contract, provided the intent of the parties to transfer title has not changed in the meanwhile. O. L. G. Zwei-brticken, July 13, 1898 (10 Niemeyer, 220). Gifts causa mortis are not recognized in France. Article 893, CSv. Code; Cass. May 14, 190O (D. 1900, 1, 358). In Germany the rules relating to succes- sion apply to them. If such gifts are actually executed in the lifetime of the donor, tEe provisions with respect to donations govern. Section 2301, Civ. Code. Ch. 1) PROPERTY. 293 and before the mortg a ge; from Bates to h hnjyas recorded, and before notice of its existen ce^,. *" Van BusHrkafterwards sued Green, in the New York courts, for the value of the safes thus sold under his attachment, jand |]|^een plead ed the pro ceeding in thejcourt_ofllHinois in bar of the action. In this suit thusbrougKFby^im in the New York courts, \an_Buskirk obtained j udgment, and the jjjdgmeat„ was_ aifirmed in JhgJEighest court ofT5e~state"ofJ;Tew_Xa£lc:. From this affirmance Green t ook a writ oT erroFto'this court, assuming the case to fall within the twenty- tifth section~oFlHe~judtciarjr act, whiclf^ives'such writ in any case wHerEtiris dTawirin question a clause of~"the Constitution of the United "StaFesTaiici the deosibn is agaiiist theTitle, right, or privilege special- ly ^f'up. His assumption was that the faith and credit which the judicial proceedings in the courts of the state of Illinois had by law and usage in that state, were denied to them by the decision of the courts of New York, and that in such denial, those courts decided against a right claimed by him under the above-mentioned section 1, art. 4, of the Constitution, and the act of Congress of May 36, 1790, on the subject of it. Miller, J.^^ The section of the Constitution discussed in this case declares that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And that Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." The act of 1790 was intended to be an exercise of the power confer- red upon Congress by this .section. In the leading case of Mills v. Duryee, 7 Cranch, 481, 3 L. Ed. 411, this court held that the act in question did declare the effect of such judicial records, and that it should be the same in other states as that in which the proceedings were had. In the case of Christmas v. Russell, 5 Wall. 390, 18 L. Ed. 475, decided at the present term of the court,, we have reaffirmed this doc- trine, and have further declared that no state can impair the effect thus to be given to judicial proceedings in her sister state, by .a stat- ute of limitation intended to operate on demands which may have passed into judgment by such proceedings, as though no such judg- ment had been rendered. The record before us contains the pleadings in the case, the facts found by the court, and the conclusions of law arising thereon. And notwithstanding the inverted manner in which the court has stated its legal conclusions, it seems clear that it did pass upon the effect of the judicial proceedings in Illinois upon the title of the property in I contest. The case is not varied by declaring that the mortgage made! and delivered in New York overreached the subsequent attachment 16 The dissenting opinion of Nelson, J., with whom concurred Swayne, J., has been omitted. 294 PAETictJLAK SUBJECTS. (Part 2 in Illinois. According to the -vriew taken by that court, Van Buskirk, the plaintiff, had title to the property under the laws of New York by virttie of his mortgage, and {be question to be decided was whether the proceedings in Illinois were paramount in their effect upon the title to the New York mortgage. It is said that Vaft Buskirk being no party to the proceedings in fllinois was not bound by them, but was at liberty to assert his claim to the property in any f of Um that might be open to him ; afld, strictly speaking, this is true. He was not boufld by way of estoppel, as he would have beefl if he had appeared and submitted his claim, and con- tested the pfoeeedings in attachment. He has a right to set up any title to the pfoperty which is superior to that conferred by the attach- ment proceediflgs, and he has the further right to show that the proper- ty was not liable to the attachment— a right from which he would have been barred if he had been a party to that suit. And this question of the liab ility Of the property in controversy to that attachment is the question wHich was raised by the suit in New York', andwhi£iiljiyas TBefS decided. That court said that this question mtisf^eldecided by_ the laws of the state of New York, because that was the domicile of the owner at IKe ti me'the conflicting claims to the propeHy^flginaEed." We are of opinio n that the questiorijs to "Fe decided by tfiS~effect given by the lawsof Illinois_^h£i:fiL.Jt]lg..pro pertv was~situated, to the proceedings in the courts-.o f thpt State, under which it was sold . " I'liere is no little conflict of authority on the general question as to how far the transfer of personal property by assignment or sale,, made in the country of the domicile of the owner, will be held to be valid in the courts of the country where the property is situated, when these are in different sovereignties. The learned author of the Com- mentaries on the Conflict of Laws, has discussed the subject with his usual exhaustive research. And it may be conceded that as a ques- tion of comity, the weight o f his auth ority is in favor of the proposi- tion that Such tra n sfers wtiTgene r allv be "respected bv the courts of the cotintry where the property is located, although t he mode of trans- fei" rflfty Brgifferjairfrom'tliarpFescribed'by tlie local law ' The courts ot Vermont and Louisiana, which have given this question the fullest consideratiottj have, however, either decided adversely to this doctrine or essentially modified it. Taylor v. Boardman, 35 Vt. 589; Ward V. Morrison, 25 Vt. 593; Emerson v. Partridge, 27 Vt. 8, 62 Am. Dec. 617; Olivier v. Townes, 2 Mart. (N. S.) 93; Norris V. Mum- ford, 4 Mart. (N. S.) 20. Such also seems to have been the view of the Supreme Court of Massachusetts. Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119. But after all, this is a mer e principle of comity bet ween the cou rts, which jnust^giye way when the statutes of the cou nFry where p rop- ertyTs situated, or the established policy of its laws prescrib e to its courts' a different rule. "^The learned commentator, already referred to, in speaking of the law in Louisiana which gives paramount title Ch. 1) PEOPEETT. 295 to an attaching creditor over a transfer made, in another state, which is the domicile of the owner of the property, says : "No one can seri- ously 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 territorial limits. 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." Story on the Conflict of Laws, § 390. Again, he says : "Every nation, having a right to dispose of all the property actually situated within it, has (as has been often said) a right to protect itself and its citizens against the inequalities of foreign laws, which are injurious to their interests." Chancellor Kent, in commenting on a kindred subject, namely, the law of contracts, remarks (2 Commentaries, 5&&): "But, on this sub- ject of conflicting laws, it may be generally observed that there is a stubborn principle of jurisprudence that will often intervene and act with controlling efficacy. This principle is, that where 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 posi- tive law of the land." In the case of Milne v. Moreton, 6 Bin. (Pa.) 353, 6 Am. Dec. 466, the Supreme Court of Pennsylvania says, that "every country has a right of regulating the transfer of all personal property within its territory; but when no positive regulation exists, the owner transfers it at his pleasure." The Louisiana court, in a leading case on this subject, gives, in the following language, a clear statement of the foundation of this prin- ciple: "The municipal laws of a country have no force beyond its territorial 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 injury is inflict- ed on her own citizens, otlierwise justice would be sacrificed to com- ity. * * * If a person sends his property within a jurisdiction different from that where he resides, he impliedly submits it to the rules and regulations in force in the country where he places it." Apart from the question of authority, let us look at some of the con- sequences of the doctrine held by the court of New York. If the judgment rendered against the plaintiff in error is well ' founded, then the sheriff who served the writ of attachment, the one who sold the property on execution, any person holding it in custody pending the attachment proceeding, the purchaser at the sale, and all who have since exercised control over it, are equally liable. If the judgment in the state of Illinois, while it protects all such persons against a suit in that state, is no protection anywhere else, it follows that in every case where personal property has been seized un- der attachment, or execution against a nonresident debtor, the officer whose duty it was to seize it, and any other person having any of the 296 PARTICULAR STJBJBCTS. (Part 2 relations above described to the proceeding, may be sued in any other state, and subjected to heavy damages by reason of secret transfers of which they could know nothing, and which were of no force in the jurisdiction where the proceedings were had, and where the prop- erty was located. Another consequence is that the debtor of a nonresident may be sued by garnishee process, or by foreign attachment as it is sometimes called, and be compelled to pay the debt to some one having a demand against his creditors; but if he can be caught in some other state, he may be made to pay the debt again to some person who had an assign- ment of it, of which he was ignorant when he was attached. The article of the Constitution, and the act of Congress relied on by the plaintiff in error, if not expressly designed for such cases as these, find in them occasions for their most beneficent operation. We do not here decide that the proceedings in the state of Illinois have there the effect which plaintiff claims for them; because that must remain to be decided after argument on the merits of the case. But we hold that the effect which these proceedings have there, by the law and usage of that state, was a question necessarily decided by the New York courts, and that it was decided against the claim set up by plaintiff in error under the constitutional provision and statute referred to, and that the case is therefore properly here for review. Motion to dismiss overruled. Davis, J. That the controversy in this case was substantially ended when this court refused (5 Wall. 312, 18 L. Ed. 599) to dismiss the writ of error for want of jurisdiction, is quite manifest by the effort which the learned counsel for the defendants in error now make, to escape the force of that decision. The question raised on the motion to dismiss was, whether the Su- preme Court of New York, in this case, had decided against a right which Green claimed under the Constitution, and an act of Congress. If it had, then this court had jurisdiction to entertain the writ of error, otherwise not. It was insisted on the one side, and denied on the other, that the faith and credit which the judicial proceedings in the courts of the state of Illinois had by law and usage in that state, were denied to them by the Supreme Court of New York, in the decision which was rendered. Whether this was so or not, could only be properly considered when the case came to be heard on its merits ; but this court, in denial of the motion to dismiss, held that the Supreme Court of New York necessarily decided what effect the attachment proceedings in Illinois had by the law and usage in that state ; and as it decided against the effect which Green claimed for them, this court had jurisdiction, un- der the clause of the Constitution which declares "that full faith and credit shall be given in each state to the public acts, records, and ju- Ch. 1) PROPERTY. 297 dicial proeeedings in every other state," and the act of Congress of 1790, which gives to those proceedings the same faith and credit in other states, that they have in the state in which they were rendered. This decision, sup ported as it was by j-easonand authority^ left for considera tion, on the hearing of the case, the inquiry, whether the ffupreme Cou rFoTTSrew Yofg~gTa~give~to~the attachmgnt^roceedings in Illinois, th"e ~saTnT effect Ihey woiiig have" received in the courts of thatstat^ --™-.. -. - . ■ - ~- • - By the statutes of Illinois, any creditor can sue out a writ of attach- ment against a nonresident debtor, under which the officer is required to seize and take possession of the debtor's property, and if the debtor cannot be served with process, he is notified by publication, and if he does not appear, the creditor, on making proper proof, is entitled to a judgment by default for his claim, and a special execution is issued to sell the property attached. The judgment is not a lien upon any other property than that attached ; nor can any other be taken in exe- cution to satisfy it. These statutes further provide , that mortga ges on persona l property havetio_va lidity against the rights and interests ot third pers on s, witho ut^^^being^^a cknowled ged.. and recorded,^ unless the property be deliveremo"andremain with the mortgagee. And sS"strict have the courts' of Tninois"15een"in construing the stat- ute concerning chattel mortgages, that they have held, if the mortgage cannot be acknowledged in the manner required by the act, there is no way of making it effective, except to deliver the property, and that even actual notice of the mortgage to the creditor, if it is not properly recorded, will not prevent him from attaching and holding the prop- erty. Henderson v. Morgan, 26 111, 431; Porter v. Dement, 35 111. 479. The policy of the law in Illinois will not permit the owner of person- al property to sell it and still continue in possession of it. If between the parties, without delivery, the sale is valid, it has no effect on third persons who, in good faith, get a lien on it; for an attaching creditor stands in the light of a purchaser, and as such will be protected. Thornton v. Davenport, 1 Scam. (111.) 296, 29 Am. Dec. 358; Jones' Estate V. Jones, 16 111. 117. But it is unnecessary to cite any other judicial decisions of that state but the cases of Martin v. Dryden, 1 Oilman (111.) 187, and Burnell v. Robertson, 5 Oilman (111.) 282, which are admitted in the record to be a true exposition of the laws of Illi- nois on the subject, to establish that there the safes were subject to the process of attachment, and that the proceedings in attachment took precedence of the prior unrecorded mortgage from Bates. If Oreen , at the date of the levy of his attachment, did n ot know o f this mortgage, and subsequen%_gerfected his attachment by judgment, execution, an a sale, the attachme nt held the property, although at the date "5 1 the l evy of th e execution he: djd^o;^feniajK.jpf_it. The lien he acquired, as a bona fide creditor, when he levied his attachment without notice of the mortgage, he had the right to perfect and se- cure to himself, notwithstanding the fact that the mortgage existed, 298 PAETicuLAR SUBJECTS. (Part 2 was known t© him, before the judicial proceedings were complete' of Illin^i^, andthesg^^roceedings arejproduced for his own- justifica- tion, it oughi to" require n o argfument to show that when sued in the court o f another jitatejbr^the sarne transaction, and he justifies in the same maimer, that he is also protected. Any other rule would destroy air safety uT derivative titles, and deny to a staste the power to regulate the transfer of personal property within its limits and to subject such property to legal proeeedings. Attachment law s, to use the words of Chancellor Kent,, " are lega l mod es or aequiri 'ng title to £rqpei:ty by operation of law." They exist in every state for™Sie~furtherance of justice, with more or less of liberality to creditors. And if the^title acquired under the attach- ment laws of a state, and which is valid there, is not to be held valid ■ "ifi every "offlSrgfSTfe;' it were better that those laws were abolished, for they would 'prove to be but a snare and a delusion to the creditor. The Vice Chancellor of New York, in Cochran v. Fitch, 1 Sandf. Ch. (N. Y.) 146, whea discussing the effect of certain attachment pro- ceedings in the state of Connecticut, says: "As there was no fraud shown, aTid the court in ConnecticHt had iirKtoubted jurisdiction in rem against the complainant, it follows that I am bound in this stace to give to the proceedings of that court the same faith and credit they would harve in Connecticut/' As some of the judges of New York- had spoken of these proceedings in another state, without service of process or appearance, as being nullities in that, state and void, the same Vice Chancellor says : "But these expressions are all to be re- ferred to the cases then under consideration, and it will be found that all those were suits brought upon the foreign judgment as a debt,, to enforce it against the person of the debtor, in which it was attempt- ed to set up the judgment as one binding on the person." The distinction between the effect of praceedings by foreign at- tachments, when offered in evidence as the ground of recovery against the person of the debtor, and their effect when used in defence to^ justify the conduct of the attaching creditor, is manifest and supported by authority. Cochran v. Fitch, 1 Sandf. Cb. (N. Y.) 146; Kane v. Cook, 8 Cal. 449. Chief Justice Parker, in Hall v. Williams, 6 Pick. (Mass.) 233, 17 Am. Dec. 356, speaking of the force and effect of judgments recovered . in ether states, says : "Such a judgment is to conclude as to everything over which the ccmrt which rendered it had jurisdiction. If the property of the citizen of another state, within its lawful jurisdiction, is condemned by lawful process there, the decree is final and conclusive." It would seem to be unnecessary to continue this investigation fur- ther, but our great respect for the learned court that pronounced the judgment in this case, induces us to notice the ground on which they rested their decisicwi. I^t is, that the law of the state of New York is tO' gcyycr n this transaction, and not the laiA? ,of_ tte state of JlMneriis where the prope rty was situated ; an d as, by the l|w_of_New: YotK, Bates ^a9 noproperty" in the safes at the date of the levy of the writ of 300 PARTICULAR SUBJECTS. (Part 2 attachment, therefore none could be acquired by the attachment. The theory of the caseTs, that the voluntary transferJoFpersonal p roperty isTo_5e governed everywhere by the law of the owner' s domicile, an d this theory proceeds on the fiction of Jaw that Jhe domicile of_the owner draws to it the personal estate which he^ owns wherever it may happen to be located. But this fiction is by no means of universal application, and as Judge Story says, " vields whenever it is neces sary for the purposes of justice that the actual situs of the thing should be examined." It has yielded in New'TofFon The power of the state to tax the personal property of one of her citizens, situated in a sister state (People v. Commissioner of Taxes, 33 N. Y. 225) and always yields to "laws for attaching the estate of no nresidents, because stielT laws necessarily "assiime that property has a situs entirely distinct from *lEe owner's domicile." If New York cannot compel the personal prop- erty of Bates (one of her citizens) in Chicago to contribute to the ex- penses of her government, and if Bates had the legal right to own such property there, and was protected in its ownership by the laws of the state; and as the power to protect impli es the right to regulate. it would seem to followTHatTHe dominion of Jllinois^ over the pro p- erty was complete,' and her right perfect to regulate its transfer and sub- Jecr it To^ process and execution in her own way and by her own laws. ""We do not piropose to discuss the question liow"far tlie "transfer of personal property lawful in the owner's domicile will be respected in the courts of the country where the property is located and a differ- ent rule of transfer prevails. It is a vexed question, on which learned courts have differed; but after a ll there is no absolute right to have such transfer respected, and it is only on a grinc ijle of comity that it 'is ever allowed. "And this principle of^ comky jilwavs yields when the laws and policy of the state ^Yhere the proper ty:. is located has pre- scribed a different rule of transfer with that of t he state where tKe ownei^ lives. We have been referred to the case of Guillander v. Howell, 35 N. Y. 657, recently decided by the Court of Appeals of New York, and as we understand the decision in that case, it harmonizes with the views presented in this opinion. A citizen of New York owning personal property in New Jersey made an assignment, with preferences to creditors, which was valid in New York but void in New Jersey. Cer- tain creditors in New Jersey seized the property there under her for- eign attachment laws and sold it, and the Court of Appeals recog- nized the validity of the attachment proceeding, and disregarded the sale in New York. That case and the one at bar are alike in all respects except that the attaching creditor there was a citizen of the state in which he applied for the benefit of the attachment laws, while Green, the plaintiff in error, was a citizen of New York; and it is insisted that this point of difference is a material element to be considered by the court in determining this controversy, for the reason that the parties to this suit, as citizens of New York, Ch. 1) PKOPERTY. 301 were bound by its laws. But the right under the Constitution oi..lke United States and the law of Congre ss wh^ch^ Gre,gji.in3>:pke.d_t.o.- his aid IS noTaFaii raffecteg^y the question of citizenship. We cannot sec why, 11 illmois,'in the spirit oT enlightened legislation, concedes to the citizens "of 'otltgr ~sTatgs" equa l "privil eged w ith "her own in her foreign attachmenriaws, that the juH^nerit_agani^lthe personal estate locat- ed* inTierHmitso fa nonresident debtor, which a citizen of New York lawtullyiglJi am ' e jnil^igJtt^ Hare' a different effect given to it under the provisions of the Constitution* and the law of Congress, because the debtor, against whose property it was recovered, happened also to be a citizen of New York. The judgment of the Supreme Court of the state of New York is reversed, and the cause remitted to that court with instructions to enter judgment for the plaintiff in error. SHAPARD V. HYNES. ^^ (Circuit Court of Appeals, Eighth Circuit, 1900. 104 Fed. 449, 45 C. C. A. 271, 52 L. R. A. 675.) In error to the United States Court of Appeals in the Indian Terri- tory. This was a suit for the wrongful seizure and conversion under a writ of attachment of a marble soda fountain and the general outfit of a confectionery establishment which had been moved from Texas to the Indian Territory about 18 months before the seizure. The writ of attachment was levied at the instance of the defendants, the Shap- ard Grocery Company, a copartnership, to which J. E. Cottraux, against whom the writ was directed, was indebted. Plaint iffs cl aimed title to the chattels under a bill o f sale execu ted^y CoHra,ux'j._„par- ents "JrrTexa'sr^iyfagr e it wa s'^fnrrlprl J W~Pnttrgiiii- claimed to have the chattel in his possession as lessee of the plaintiffs. The _Shapard Grocery Company contend ed thatjjie bill oi sale was . in jeality a mortgage, and that plaintiffs, if rnOTtgag.ees,— could - not iQllgwJhe property into the I ndian T er ntoryT The trial resulted in a judgment ior plaintiffs whicTTwas affirmed by the Court of Appeals in the Indian Territory.^* Thayer, Circuit Judge.^^ * * * There has been much discus- sion concerning the effect of the removal of mortgjiged goo ds and chattels from the state where the mortgage wa s made a nd recorded, to another state. The general consensus of judicial opinion seems to _^eUiat when personal property, which at the tiihe TF^situated in "a" givenstate, is there mortgaged by the~owner, andThe mortgage is" i« The statement of facts has been abridged. 17A part of the opinion has been omitted. 302 PAETicuLAE SUBJECTS. ^ (Part 3 duly executed and recorded i-n thejn ode required by the local law, so as to create a valid lien/tEe lien remain s good and effectual, alt liaugh ¥ie propCTty i s'removed tQ aaiother state, either with or with out the .consent of tlie .mortgagee, and a lthougfh the mortgage is not re-r ecord- ,ed in the state tojwhidi th e removal is made. The mortgage lien is given effect; however, in the statFto which the property is removed, solely by virtue oi the doctrine of comity. Heace a state may by^ ap.- propriate l^islation decUme to observe the rule of com it y, and may re- qaiireall mortgages affecting personal property which is situated th ere- in or iba-PHght therein to be ^re recorded, as a condition "prec edent to the recognition of their validity in that stat e. iSnt the statutes of a state which prescribe liow mortgagee on personal property shall be executed and recoiided are generaUy, ii not universally, regarded as speaking with respect to mortgages made within the state upon property there rsituated, and as having no reference to personalty brought within the state which is at the time incumbered with a valid lien created else- where. These propositions are fully sustained by the following au- thorities : Hornthal v. Burwiell, 10.9 N. C. 10, 13 S. E. 731, 13 L. R. A. 740, 36 Am. St. Rep. 556 ; Smith v. McLean, 34 Iowa, 333, 338, 339; Handley v. Harris, 48 Kan. 606, 39 Pac. 1145, 17 L. R. A. .703. 30 An}. St. Rep. 332 ; Bank of Commerce v. Morris, 114 Mo. 355, 31 S. W. 511, 19 JL. R. A. 463 ; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 63; Langworthy v. Little, 13 Cush. (Mass.) 109; Whitney v. Heywood, 6 Cush. (Mass.) 83; Ames Iron Works v. Warren, 76 Ind. 513, 40 Am. Rep. 358 ; Feurt v. Rowell, 63 Mo. 534, 536 ; Cool V. Roche, 20 Neb. 550, 556, 31 N. W. 367 ; Keenan v. Stimson, 32 Minn. 377, 30 N. W. 364; Offutt v. Flagg, 10 N. H. 46; Lathe v. Schoff, 60 N. H. 34 ; Barrows v. Turner, 50 Me. 137 ; Hall v. Pillow, 31 Ark. 32 ; Mumford v. Canty, 50 111. 370, 99 Am. Dec. 525 ; Bal- lard V. Winter, 12 Am. Law Reg. (N. S.) 759; Jones, Chat. Mortg. (4th Ed.) § 360. So far as our research has extended. Michigan is th e . .pnly state which declines to recognize the validity of a mortgage_ lien upon personal property brought within its borders that was created elsewhere, and which maintain s the superiority of an attachme nMien acquired, in a suit commenced in t hat state against the mortgagor, who has the property in his possession. 'CofBett vrDiFtTeEeld^ 84 Mich. "so, 4y N. W. 581, 11 L. R. A. 95, 33 Am. St. Rep. 681 ; Boydson v. Goodrich, 49 Mich. 66, 13 N. W. 913.^^ The decision in Green_ v. Van Bii<^kir1<-, y Wall. 139, 150, 19 L. Ed. 109, is not in conflic t with the doctrines s tated above, si nce the mortgaged property that was involved in~that case was located in Illinois at~Th"e date of the mort- gageTwliich was executed in Nevr^¥T5rk7"and ^he-'court was unable to give to the legal hction that~fhr "domicile of the owner draws to it all of his personal property such force and effect as to remove the 18 See, also, Snyder v. Yates, 112 Tenu. 309, 79 S. "W. 796, 64 L. R. A. 353, 105 Am. St. Rep. 941 (1904). Ch. 1) PROPERTY. 303 property in controversy from the operation of the laws of the state of Illinois, and subject it to the operation of the laws of New York. Sections 4743 and 4743 of Mansfield's Digest of the L,aws of Arkan- sas (sections 3-053, 3054, Ind. T. Ann. St. 1899), relative to the exe- cution and recording of mortgages, which were in force in the In- dian Territory until modified, as to the place where mortgages of per- sonal property shall be recorded, by the act of congress a,pproved February 3, 1897 (39 Stat. 510, c. 136), have reference only to mort- gages made in that territory upon property there located (Bank of United States v. Lee, 13 Pet. 107, 120, 10 L. Ed. 81); and, within the doctrine above stated, they cannot be given effect to destroy the l ien of the inst rument under whi ch the p laintiffs claim title to the | property in controversy, that was executed and recorded in Texas, where the property was^ifthe time located, aJMTjyherelMtiriihe mort- gagors and t helnortgagees atThat time resided. Eyen_if jthaLinstnir- ment was intended a s a mortgage^ and not as an absolute bill of sale, -tlie_l ien thereb y created followed the property into the Indian Terri- tory, and was rightly given effect~6y^^jm|zZ]5I^-l^^°'^15I^^^^ given ettect even lT the a ttaching c reditors did jiot _have_actual notice of the existence and record o f the instrument at the date of the levy, since no effort was made in the trial court to impeach the instrument ipr-frand, or to question the co nsideration upon which it was~lQund~ -^g__ ^ ^ ^ . EDGERLY v. BUSH. V^ 3" ji^vr La (Court of Appeals of New York, 1880. 81 N. Y. 199.) Appeal from order of General Term of the Supreme Court, in the Third Judicial Department, reversing a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 16 Hun, 80.) This action was brought for the alleged conversion of a span of horses. The facts, as found by the referee, are as follows: One Stephen Baker was born in Lower Canada and resided there till 1873. In that year he went to Moriah, in New York, engaged there in business and resided there. While a resident of Moriah he executed to the plaintiff, a resident also of Moriah, on the 9th day of March, 1875, a chattel mortgage on property including the span of horses in question. This mortgage was duly filed March 10, 1875. The sum was payable in monthly installments, the first payment to be made June 1, 1875. The mortgage contained a clause that in case of non- payment, or in case the mortgagor or any other person should remove, i»As to effect of coHsent of mortgagee to the removal, see Jones v. Xorth Pac. Fish & Oil Co., 42 Wash. 332, 84 Pac. 1122, 6 L. R. A. (N. S.) 940, 114 Am. St. Eep. 131 (1906). 304 PAETicuLAE SUBJECTS. (Part 3 secrete or dispose of the property, or if the mortgagee deemed it neces- sary, he might take possession, otherwise the property was to remain in the mortgagor's possession until the time for the first payment. No part of the sum secured has ever been paid. On the 10th of May, 1875, Baker returned to Lower Canada, taking the property with him, and there he has resided ever since. In November, 1875, at St. Jean Chrysostom, in Lower Canada, one Francis De Lisle, of that place, a regular trader, dealing in horses, sold the horses in question to one Bromley, a resident of Plattsburgh in this state. Bromley made the purchase in good faith and in ignorance of the plaintiff's claim. The horses were in De Lisle's possession at the time and were at once de- livered to Bromley and immediately brought by him to Plattsburgh. It does not appear how the horses came into the possession of De Lisle. On the 10th of December, 1875, Bromley learned that the plaintiff claimed to have a mortgage on the horses. To prevent their seizure, by the plaintiff, he immediately removed them to Canada for the purpose of trading back with De Lisle. On the 13th of December, 1875, in Canada, Bromley sold the horses to the defendant. At that time the defendant was a resident of this state. The horses in ques- tion remained in Canada, and since then they had not been brought 'into this state up to the time when this action was commenced. The 'defendant was informed by Bromley that he had run the horses into I Canada to avoid a claim or seizure under a mortgage. Plaintiff made a demand for the horses but defendant refused to deliver. Plaintiff did not reimburse, or offer to reimburse to defendant, the amount paid by him or by Bromley for the horses. Under the laws of Lower Cana- da, if an article of personal property, lost or stolen, be sold in a fair or market, or at a public sale, or purchased from a trader dealing in similar articles, the owner cannot reclaim it without reimbursing to the purchaser the price paid by him. FoivGERj C. J. 'This is an action for the conversion of chattels. It is clear that if the plaintiff had the title to them, or the right to take immediate possession of them, the defendant exerted such dominion over them as was in law a conversion of them. It is also clear that the plaintiff had the title to the property by the laws of this state, and the right to the immediate possession of it. The defendant must make his defense, if he may at all, upon a title got by Bromley from De Lisle, to which he has succeeded. De Lisle was a resident of Canada, and a trader dealing in articles like the property in contest, and had actual possession of this property there as the proprietor of it. Bromley bought it of him in good faith, gave value for it, and had not actual notice of the plaintiff's right to it. The plaintiff has never reimbursed to Bromley or to the defendant the price paid for it by Bromley, nor has he offered so to do. We think that these facts make a title in Bromley that the law of Lower Canada would uphold in that jurisdiction. We~deem it un- necessary to go into the detail of the interpretation. The question re- Ch. 1) PROPERTY. 305 maining is, which law is to prevail in determining this contest — that of Lower Canada, or that of this state? We take note that the plaintiff, and Baker from whom the plaintiff 'got title, were residents of this state when the transfer was made be- tween them; that it was a transfer of property which was then here, whence it was taken without the consent of the plaintiff; that the transfer was made by mutual consent, and was executed and valid here ; that the consideration for the transfer existed and passed here ; that the plaintiff and defendant were and are residents of this state ; and that the forum in which they stand is here. Thus the law of the domicile, and the law of the then situs of the property, and the Iaw"orTlie~fDTnm- in which the remedy is sought, alt^cuucur-to- sustain the right of the plaint iff. Thg_l aw of thfe'ttOTfridte uf O he-o ^wner of personal _gro2erty, as a general rule, det ermines the validity of every transfer made of it by him. " By&JSr TSwl as it ex ists in this case, the plaintiff became the owner of this property before it was taken beyond its operation. By that law too, an owner of property may not be divested of/ it wifhout his consent, or by due process of law ; plainly not by a caealing with it by others without his knowledge, assent, or procurement. Still, another st ate may m ake provision by statute in respect to personal "prope rty actually within "its jurisdiction. Though a transfer of .per- _sci nal pr o perty, valid by the law of the clomicile, is valid everywhere as a g eneral principl e^here is to be excepted that territory in which it "is situated and wh ere a differ ent law has been set up, when it is neces- sary tor the purpose of justiceTliaF the actimrsitus oT the thing "be ex- l amirKtr iSregrrv: Van Buskirk,"7 Wair(U. S.) 139, 19' L. Ed. 109. "ygr~fHe statutes of that land have no extra-territorial force proprio vigore, though often permitted by comity to operate in another state ■"tor'the~promoHori of justice, where_ neither the state nor its citizeiis wTir suff'ef any"inconvenience from the application of them. The ex- ercise of"comity in admitting or "restraining the application ot the laws of another country must rest in sound judicial discretion, dictated yby"~the circumstances of the case. Per Parker, C. J., Blanchard v. nRusseil, 13 Mass. 6, 7 Am. Dec. 106. It is plain that on no principle applicable to this case could the sale of the plaintiff's property by another having no authority from him, to his wrong indeed, be upheld, save that it was authorized by the statute of Lower Canada. So that the questionis_one_jnrtire]yuaf--tlie..comi to Ja.e shown by the courts ~o?"this"state to the enactments of another country. _Thqse statutes not ■"only eifact the rule of market-overt as it prevails in general in England, But carry iFTutther, and make, as in "the city of London, every sale by a trader dealirig^ in like articles as good as a sale at market-overt. "That rule does not obtain in this state. It has not been our policy to establish it. Our policy has been, and is, to protect the right of ownership, and to leave the buyer to take care that he gets a good title. It would be to the contravent ion of tha t policy, and t o the in- convenience of our citizens, if we should^give effect to these statutes of " LUli.C ' UiNi. ' .L.^ 20 ~ ' ^ 306 PARTICULAR SUBJECTS. (Part 2 Lower Canada^to the d ivesti ng of titles to movablesJawfullx_acauired "aMTield by our general and statuteJaw,_without the assent or inte r- vention, and against the will of the owner by our law. Notions of "property are slight, when a bona fide purchase of stolen goods gives a good title against the original owner. Per Kent, C. J., Wheelwright ,v. Depeyster, 1 Johns. 470, 3 Am. Dec; 345. We are not required to I show comity to that extent ; especially as it is to our citizens alone I :hat we are administering- justice. There are judgments to the end that the law of the situs of the movable property will determine who is entitled to it, and the matter of comity is not taken into account. A notable one is Cammell v. Sewell (In the Exchequer Chamber) 5 H. & N. 738. But there the property had not been in England until after the sale in Norway, and had never been in the possession of the English owners. We doubt whether, in a case like this, where, after a title to property has been acquired by the law of the domicile of the vendor, and of the situs of the thing, and of the forum in which the parties stand in a con- test between citizens of the state of that forum, it has ever been adjudged that such title has been divested by the surreptitious removal of the thing into another state, and a sale of it there under different laws. There are decisions that it has not, however. See Taylor v. Boardman, 35 Vt. 581 ; Martin v. Hill, 13 Barb. 631 ; French v. Hall, 9 N. H. 137, 33 Am. Dec. 341 ; Langworthy v. Little, 13 Cush. (Mass.) 109. It is sought to distinguish these cases from that in hand; but they went upon a principle that is not inapplicable here. Inthem, as here^_right_to movable property had been ^acqu ired in one state in a mode efficient thereto by JtsJLaws. The property had been taken into 'another" state where that mode was not sufficieiif by itslawjto'cfeate U right. But the right acquired by that mode was upheld, in all the cases the property was taken away from under the law^ which gave the right, and placed under the operation of laws that denied the right. We perceive no difference in those cases from this that weTiave, save that in those a creditor was seeking to recover his debt out of the property, in ii^vitum the right thus acquired. Here there is a sale of the property between third parties despite the right. In those it was sought to take away the right by a public judicial sale. In this it is urged that the right has been destroyed by a private sale. By the laws of those other states the creditors would have succeeded. So here the third parties would succeed by the law of Lower Canada. But in those cases the law of the state where the right was acquired was recognized, and force given to it in another state and under differ- ent law. Why should it not be in this case? Such cases as Grant v. McLachlin, 4 Johns. (N. Y.) 34, and The Helena, 4 Rob. Adm. 3, do not conflict. In them there were in the foreign country legal proceedings in rem, or analogous thereto, so that ^the question was of respect for the judicial proceedings of anothef coun- try. The case of Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145, ■Ch. .1) PROPERTY. :',07 recognized the principles upon which our judgment proceeds, but held that the facts did not call for the application of them. The order of the General Term should be reversed, and judgment ■on report of the referee be affirmed. ^ Order reversed and judgment affirmed."' j^.*^ ^ >■* HERVEY V. RHOEJE ISLAND LOCOMOTIVE WORKS. ' i (Supreme Court of the United States, 1876. 93 U. S. 664, 23 L. Ed. 1003.) Error to the Circuit Court of the United States for the Southern District of Illinois. The Rhode Island Locomotive Works sold to J. Edwin Conant & Co. a locomotive, title to remain in the vendor until the payment of the purchase price. The agr eement of sale^ was executed by the Rhode Island Locomotive Works^ at _its place of business in Rhode' Island an"dT^'Conant & Co. in New York, where they resided.^ The ToCOmotive jwas^ delivered to Conant & Co. to be used by thenPln TTlinois, and was so removed to and used byjhem in that state. Be- fore~EEF' agreement was recorded the locomot ive_jBas„seiz.e-d-as- the p"ropeft3r~of IDonaiit & Co. and sold to Herve v. The Rh ode Island Locomotive Works sued out a writ of r eplevin in the Circuit CourFof the United States lorthe Southern District o fTITinois . Judgment was given for the plaintiff.^^ Davis, J. It was decided by this court, in Green v. Van Buskirk, 5 Wall. 307, 18 L. Ed. 599 ; Id., 7 Wall. 139, 19 L. Ed. 109, that the liability of property to be sold under legal process, issuing from the courts of the state where it is situated, must be determined by the law there, rather than that of the jurisdiction where' the owner lives. These decisions rest on the ground that every state has the right to Tegulate~tEe^arisTef"o? property within its limits^_and that whoever iends^p fopef tyto^t impliedly jubmits^tojthe Re gulations concerning its. transfer in force there, although_a different rule of transfer prevails in jhe jurisdiction wh^re he resides, He has no absolute right to have the transfer of property, lawful in that jurisdictiot^ respected in the courts of the state where it is found, and itis only on a principle of comitythat^ it is ever allowed. But this principle yields when the laws and^^dicy pi the. latter state_conflict with those of the former. The poHcy of the^law in Illinois will not permit the owner of per- sonal prdperfy to sell it, either absolutely or conditionally, and still con- 2 As to chattel mortgages in general see Marion Griffin, the Effect of For- eign Chattel Mortgages upon the Rights of Subsequent Purchasers and Cred- ifiT-s, 4 Mich. Law Rev. 358-370; also 70 Am. Dec. 67-72; 64 L. R. A. 353- 366. 21 This statement of facts has been substituted for that of the original re- port. 308 PARTICULAR SUBJECTS. (Part 2 tinue in possession of it. Possession is one of the strongest evidences "of title to this class of property, and cannot be rightfully separated from the title, except in the manner pointed out by Jfatute. ""The courts of Illinois say that to suffer without notice to the world the real ownership to be in one person, and the ostensible ownership in another, gives a false credit to the latter, and in this way works an injury to third persons. Accordingly, the actual owner of personal property creating an interest in another, to whom it is dehvered, if desirous of preserving a lien on it, must comply with the provisions of the chattel mortgage act. Rev. St. 111. 1874, pp. 711, 713, c. 95. It requires that the instrument of conveyance, if it have the effect to preserve a mortgage or lien on the property, must be recorded, whether the party to it be a resident or nonresident of the state. If this be not done, the instrument, so far as third persons are concerned, has nO' validity. S^ecret liens which treat the vendor of personal property, who has delivered possession of it to the purchaser, as the owner jjntiljhe pay- ment of the purchase-money, cannot be maintained in Illinois. They are held to be constructively fraudulent as to creditors, and the prop- erty, so far as their rights are concerned, is considered as belonging to the purchaser holding the possession. McCormick v. Hadden, 37 111. 370; Ketchum v. Watson, 24 111. 591. Nor is the transaction changed by the agreement assuming the form of a lease. In determining the real character of a contract, courts will always look to its purpose, rather than to the name given to it by the parties. If that purpose be to give the vendor a lien on the property until payment in full of the purchase money, it is liable to be defeated by creditors of the purchaser who is in possession of it. This was held in Murch v. Wright, 46 111. 488, 95 Am. Dec. 455. In that case the purchaser took from the seller a piano at the price of $700. He paid $50 down, which was called rent for the first month, and agreed to pay, as rent, $50 each month until the whole amount should be paid, when he was to own the piano. The court held, "that it was a mere subterfuge to call this transaction a lease," and that it was a conditional sale, with the right of rescission on the part of the vendor, in case the purchaser should fail in payment of his installments — a contract legal and valid as between the parties, but subjecting the vendor to lose his lien in case the property, while in possession of the purchaser, should be levied upon by his creditors. That case and the one at bar are alike in all essential particulars. The engine Smyser, the only subject of controversy in this suit, was sold on condition that each and all of the installments should be regu- larly paid, with a right of rescission qn the part of the vendor in case of default in any of the specified payments. It is true the instrument of conveyance purports to be a lease, and the sums stipulated to be paid are for rent ; but this form was used to cover the real transaction, as much so as was the rent of the piano in Ch. 1)' PROPERTY, 309 Murch V. Wright, supra. There the price of the piano was to be paid in thirteen months, and here, that of the engine, $12,093.96, in one year. It was evidently not the intention that this large sum should be paid as rent for the mere use of the engine for one year. If so, why agree to sell and convey the full title on the payment of the last installment ? In both cases, the stipulated price of the property was to be paid in short installments, and no words employed by the parties can have the effect of changing the true nature of the contracts. In the case at bar the agreement contemplated that the engine should "^removed to the state of Illinois, and used by Conant & Co., in the prosecution of their business as constructors of a railroad. It was accordingly taken there and put to the use for which it was purchased ; "BuF while iiTthe possession of Coriant & Co., who exercised complete ownership over it, it was seized andsold, in the local courts of Illinois, as their property. These proceedings were valid in the jurisdiction where they too k place, and must be respected by the federal tribunals. The Rhode Island Locomotive Works took the risk of losing its lieif in ~case tfie~property, while in the possession of Coriant & Co., ihouI3~Ee~Ievled' On^by their creditors, and it cannot complain, as_ the laws otTllinois pointed out a way to preserve and perfect its lien. By~stipulation the judgment of the court below is affirmed as to the locomotive Olney, No. 1. As to the locomotive and tender called Alfred N. Smyser No. 3, judgment reversed. LEES V. HARDING, WHITMAN & CO. {Court of Errors and Appeals of New Jersey, 1905. 68 N. J. Eq. 622, 60 Atl. 352.) This case involves the ownership of machinery of the Philadelphia Worsted Company, an insolvent corporation of this state. The re- ceiver makes no claim and submits himself to the judgment of the court. The controversy is between the executors of Daniel Lees, de- ceased, formerly of Lenni, Pa ., and Harding, Whitman & Co., a co- partnership, the members of^hich do not reside in the state of New Jersey. The ina chinery was form erly owned by^L.ees_. at Lenni.^ On November 34, 1899, an agreerhent was entered into between Lees and the Philadelphia Worsted Company which purported by its terms to lease the machinery in question to the company for the term of two and one-half years for a rental of $6,000, payable $2,000 6n the execution of the agreement, $1,000 in 12 months, $1,000 in 18 months, $1,000 in 2 years, and $1,000 at the expiration of the term; the deferred pay- ments to bear 1 per cent, interest. The company agreed to pay the rent, and to surrender the property at the expiration of the lease. The agreement then provided that if, upon surrendering the property, the rent having been fully paid, the company desired to purchase the leased 310 PARTICULAR SUBJECTS. (Part 2 property, I,ees would sell the same for $6,000, with 6 per cent, interest, and that the amount received for rent should be applied upon the purchase price. In case of default in payment of the rent or perform- ance of the covenants by the company, the vendor might take possession of the property. The machinery was delivered at the date of the ex- ecution of the agreement to the company at Lenni for use in its mill at that place, and was there used by the company continuously until April, 1901. In April and May, 1901, it was moved into this state,, with the knowledge, but against the will of Lees. Lees died May 30, 1901. The corporation was adjudged insolvent, and a receiver ap- pointed in this state October 33, 1903. At the time of his appointment a suit by Harding, Whitman & Co. against the corporation was pend- ing. Judgment was entered October 36, 1903, execution issued, and a levy made October 30, 1903. The judgment creditors were without notice of the lease or agreement for conditional sale. That agreement was recorded in Camden county, in this state, Oct ober 37, 190 3. SwAYZE, J. The agreement in question uMer I'ennsylvania law constituted a bailment, and the title of Lees was good in Pennsylvania. Stadtfeld v. Huntsman, 93 Pa. 53, 37 Am. Rep. 661 ; Ditman v. Cottrell, 135 Pa. 606, 17 Atl. 504 ; Brown v. Billington, 163 Pa. 76, 39 Atl. 904, 43 Am. St. Rep. 780 ; Lippincott v. Scott; 198 Pa. 283, 47 Atl. 1115,. 83 Am. St. Rep. 801 ; Marvin Safe Co. v. Norton, 48 N. J. Law, 410,, 7 Atl. 418, 57 Am. Rep. 566. For the purposes of this case we may assume that the contract would here be construed as a contract for con- ditional sale, which, under the New Jersey statute, if it is applicable, would be void as against judgment creditors not having notice thereof,, unless recorded as directed by the statute. The question to be jie- cided is whether the validity of the appellants' title Ts tQ, be determined' according to the law of Pennsylvania or the law of New Jer sey. ^ The general rule is that the assignment of a movable, wherever situate, in accordance ' with the law of the owner's domicile, is valid (Dicey on Conflict of Laws, 535, rule 143) ; but this is subject to the rule that "an assignment of a movable which can be touched, giving a good title thereto according to the law of the country where the movable is situ- ate at the time of the assignment, is valid." Rule 140. These rules have been the settled law of the English courts since the decision of Cammell v. Sewell in the Exchequer Chamber in 1860. 5 H. & N. 738; 5 English Ruling Cases, 891; 39 L. J. Ex. 350. Cammell v- Sewell was approved in the House of Lords in 1870. Castrique v. Imrie, 39 L. J. C. P. 350, L. R. 4 H. L. 414; 5 English Ruling Cases, 899. See especially the opinion of Lord Blackburn. See, also. In re Queensland Mercantile & Agency Company (1891) 1 Ch. 536, 60 L. J. Ch. 579, affirmed on a different ground (1893) 1 Ch. 319, 61 L. J. Ch. 145, but without dissent on this point. The rule has been applied to bills of exchange transferred in a foreign country. Alcock v. Smith (1893) 1 Ch. 338, 61 L. J. Ch. 161, and in the most recent case Embericos v. Anglo-Austrian Bank (1904) 3 K. B. 870, 73 L. J. K. B. Ch. 1) PROPERTY. 311 993. In Hooper v. Gumm, L,. R. 2 Ch. 283, 36 L. J. Ch. 605, the general rule was recognized, but the holder of the incumbrance, which was valid by American law, intentionally concealed it, and was not per- mitted to assert it against a bona fide purchaser for valuable considera- tion under an English contract. The cases in our own courts are not in conflict with the rule of the Enghsh courts. In Varnum v. Camp (1833) 13 N. J. Law, 326, 25 Am. Dec. 476, two classes of goods were involved. Some were goods in the store at Paterson, in this state, at the time the assignment was made in New York; some were in the store in New York, and were sent to Paterson after the assignment. It was held that the assign- ment did not transfer the title to the goods then at Paterson, but did transfer the title to the goods then in New York; and accordingly it was held that the plaintiff was entitled to a portion of the articles replevied and the defendant to the residue. The court thus clearly reco gnized tha t the validity^ of the transler_depended upon the actual situs of_the goods. The opinion of Chief Justice Ewing and his cita- tions from other cases show that this was the view held by him. Thus he says at page 331 of 13 N. J. Law (26 Am. Dec. 476) : "Every country has the right of regulating the transfer of all personal property within its territory; but when no pOisitive regulation exists the owner transfers it at his pleasure." And on page 332 of 13 N. J. Law (25 Am. Dec. 476) he quotes with approval the following language of Justice Johnson in Smith v. Union Bank of Georgetown, 5 Pet. (U. S.) 518, 8 L. Ed. 212: "That personal property has no situs seems rather a metaphysical position than a practical and legal truth." "In point of fact it cannot be questioned that goods found within the limits of a sovereign's jurisdiction are subject to his laws. It would be an absurdity, in terms, to affirm the contrary." In Frazier v. Fredericks (1853) 24 N. J. Law, 162, it was held that a voluntary assignment made in Pennsylvania for the benefit of creditors would pass the^ title to a boat lying at a wharf in New Jersey as against an attaching creditor ; but in that case there was no conflict between the law of Pennsylvania and the law of New Jersey. Chief Justice Green said: "Admitting the- assignment to be valid by the laws of Pennsylvania, where the assignment was executed, there is nothing in its terms repugnant to the provisions of our statutes or to the policy of our laws." In Runyon v. Groshon (1858) 12 N. J. Eq. 86, the original owner of the picture and both claimants were domiciled in New Jersey, and the complainant was foreclosing his mortgage in our courts. There was no difficulty in the way of following the law of the domicile. The chancellor recognized the right of New York to declare how personal property situated there should be transferred, and added: "The' prop- erty is protected by her laws, and it is but reasonable that it must iDe held and transferred agreeable to such regulations as that state may see fit to adopt." In Moore v. Bonnell (1864) 31 N. J. Law, 90, an assignment made in New York by a resident of that state was held to 312 PARTICULAR SUBJECTS. (Part 2 transfer a debt due from a resident of this state, although the assign- ment made preferences, and would have been invahd under our law. The case did not involve the title to tangible goods situate in New Jer- sey, and the citation by the learned Chief Justice from Story on the Conflict of I^aws recognizes the difference in a case where the particu- lar property, from its nature, has a necessarily implied locality. More- over, the question in Moore v. Bonnell arose between an attaching creditor whose domicile was the same as the domicile of the assignor, and in this respect the case resembled Runyon v. Groshon. The New Jersey cases thus far cited were either in the Supreme Court or in the Court of Chancery. Bentley v. Whittemore (1868) 19 N. J. Eq. 462, 97 Am. Dec. 671, was in this court. In that case a resident of New York made an assignment with preferences for the benefit of his creditors, and executed in due form a conveyance to his assignees of land in this state. The assignees sold the land to Bentley, who paid $6,000 in cash and assumed a mortgage for $2,000. Another subsisting mortgage was canceled at the time of the sale. Subsequent- ly creditors of the assignor, all of whom were nonresidents of this state, obtained judgments here, and levied upon the land. We held that the conveyance to the assignee passed title to land in New Jersey, although the preferences were forbidden by our law. The ground of the deci- sion, however, was that the deed was sufficient to pass the title in New Jersey. It was only the method of distribution of the assets of the assignor among his creditors that was inimical to our laws. That this was what Chief Justice Beasley had in mind is shown by his statement that "no doubt is intended to be hinted as to the settled existence of the rule that the validity of every disposition of real estate must de- pend upon the law of the country in which that estate is situated." He added: "The deed in question has been regularly executed, ac- knowledged, and recorded, and is in due legal form. In all cere- monious parts, therefore, the transaction is a compliance with our land regulations. What, then, is to render this title defeasible? I can imagine nothing that can be set up to invalidate it, except the idea that the distribution of the assignment, to which this conveyance is an- cillary, militates with the provisions of our statute upon that subject." And it was properly held that creditors not resident in New Jersey could not object to a method of distribution of the estate which was' legal by the law of the domicile. In Parr v. Brady (1874) 37 N. J. Law, 201, a chattel mortgage was executed by a resident of New York upon a coach then in New York, and filed in New York in accordance with the laws of that state. The coach was subsequently brought by the owner — the mortgagor — into New Jersey, and sold here to a bona fide purchaser. The mortgage was not filed in this state, as then re- 1 quired by our statute. The case therefore involved a conflict between ]!the laws of two states, in both of which the chattel had at different ! times its situs, and the court properly sustained the title under the earlier transfer. The opinion stated the general rule, as stated in the Ch. 1) PROPERTY. 313 beginning of this opinion, that th e law of the owner's domicile must govern, but recognized that "this rule has its exceptions when tlie laws ot "different jurisdictions are in conflict, and particularly in cases where the situs rei at the time of the contract is in another state." In Marvin Safe Co. V. Norton (1886) 48 N. J. Law, 410, 7 Atl. 418, 57 Am. Rep. 566, in the Supreme Court, the title was determined according to the law of the situs. The title reserved by the safe company was valid in Pennsylvania as long as the goods were in that state. The title acquired by Norton in New Jersey, under New Jersey law, was only such title as his vendor, Schwartz, then had, which was only a condi- tional title; and it was held that this title could not be made absolute as to tangible goods in New Jersey by a provision of the Pennsylvania law. There was no conflict between the title to the goods in Penn- sylvania and the title to the goods in New Jersey ; on the contrary, it was the very title acquired in Pennsylvania which subsequently passed by the transfer in New Jersey. In Cronan v. Fox (1889) 50 N. J. Law, 417, 14 Atl. 119, the title acquired by Fox in Maryland was at the time a valid title. It was invalid in Maryland in the event of failure to record as against creditors or purchasers ; but no rights of creditors or purchasers intervened while the cdttle were in Maryland, and this court held that the liability of the property to be seized and sold under writ of attachment must be determined by the law of the state where the property then was, notwithstanding the domicile of all the claimants was in another state. In Knowles Loom Works v. Vacher (1895) 57 N. J. Law, 490, 31 Atl. 306, 33 L. R. A. 305, the Supreme Court held that the situs of the property, and not the lex loci contractus, determined the validity of the sale. The contract in that case was between a Massachusetts corporation which owned the looms then located in Worcester, sold them under a contract made in New York, and delivered them in Paterson. It was held that the situs of the looms was in this state. That was the place where the parties themselves contemplated that the looms should be permanently located. The judgment was affirmed in this court upon Justice Van Syckel's opinion. In Woolley v. Geneva Wagon Co. (1896) 59 N. J. Law, 278, 35 Atl. 789, the wagons were at the time of the contract in New York. The vendee, and apparently the vendor also, was a resident of that state, and the property was brought into New Jersey without the knowledge of the vendor.' Chief Justice Beasley held that our statute did not apply. Manifestly the situs of the wagons had never been lawfully in New Jersey. They had been brought here without the owner's consent. In the federal courts, also, it is held that the title of tangible chattels is determined by the law of the situs. Green v. Van Buskirk, 5 Wall 1^ 307, 18 L. Ed. 599 ; Id., 7 Wall. 139, 19 L. Ed. 109 ; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 33 L. Ed. 1003. In the present case the vice chancellor held that the law of the domi- 314 PARTICULAR SUBJECTS. (Part 2 cile of the purchaser must control; that the purchaser _waja^_New Jersey corporation, and the transaction was governed by our statute. The case exhibits the difficulty which arises in determining the ques- tion by the law of the domicile. Not only may the parties have differ- ent domiciles, as in the present case, but several persons may be inter- ested either as vendors or vendees, each ' with a different domicile. The difficulty is not met by adopting the law of the domicile of the owner as the rule, for the very question to be decided is, who is the owner? The rule which looks to the law of the situs has the merit of adopting the law of the jurisdiction which has the actual"control "of the goods and the merit of certainty. It is not necessary to the deci- sion of the present case to go as far as the English cases have gone in following the law of the situs. The contract now in question was made in Pennsylvania, and was intended by the parties to be performed there. The chattels were at the time in Pennsylvania, and were re- moved to this state without the consent of the vendor. In Penn- sylvania there was no transfer of title, but a mere contract of_bailment.~ WeTEnlcTn such a case the law of Pennsylvania must control. The vice chancellor relied upon the case of Kriowles" Loom Works v. Vacher, 57 N. J. Law, 490, 31 Atl. 306, 33 L. R. A. 305, but that case was not decided upon the ground that the vendee was a New Jersey corporation, but upon the ground that the property was to be deHvered, and was delivered to and held by, the purchaser in this state. Justice Van Syckel said that the situs of the property, and not the lex loci contractus, determined the validity of such sales. What the court held was that the situs, under the circumstances of that case, was in New Jersey. In the present case the place of contract and the situs at the time was itTPennsylvania. It is not necessary to de- cide whether or not the state of New Jersey, "by "vrftuF'orTEe"'p6wer it may exert over property within its jurisdiction, might divest a iitle which was good in Pennsylvania; for, in our view of the case," the Taw of this state does not have that effect. The contract between Lees and the Philadelphia Worsted Company was valid at common law. Cole V. Berry, 43 N. J. Law, 308, 36 Am. Rep. 511. This rule wasrnodified by a statute in 1889 (P. L. 1889, p. 421 ; Gen. St. p. 891, §§ 185-191), which now appears in the act respecting conveyances (Revision of 1898) P. L. 1898, pp. 699, 700, §§ 71, 72. We think that this act is intended^to affect contracts for goods subject to the jurisdiction of New Jersey at thg^.timg the contract is made, or intended by the parties at that time to Be"brought within the jurisdiction of this state. ""We are led to this conclusion by the provisions of the seventy-second section, which require the contract to be recorded in the office of the clerk of the court of common pleas of the county wherein the party contracting to buy, if a resident of this state, shall reside at the time of the execution thereof, and, if not a resident of this state, then in the clerk's office of the county where the property bought shall be at the Ch. 1) PROPEETY. 315 time of the execution of such instrument. It would be of no avail to require record in the county where the vendee resides at the time of the execution of the instrument unless it were meant that the record should be substantially contemporaneous with the date of the instru- ment. To require record in that county two years later, when the vendee might then reside elsewhere^ would not serve the statute's pur- pose of constructive notice to judgment creditors and subsequent pur- chasers and mortgagees in good faith. There is another difficulty in the way of applying our statute to the present case. The statute _apj)lies_ only to conditional saks. The contract now in question was a contract of bailment, but not a con- tract ot~conditional sale as long as the goods were subject to the juris- diction of Pennsylvania. Taking the view of the case most favorable totihejudgment^ creditors, the contract jdid nof&come a contract of con3iHonal sale until the goods were moved to ISTew Jersey, a year and a half after_its execution. It would b e a singular construction which would require a contract to be recorded in a county where one of the ■partiesTesides iT'year and a half before the contract subject to the opera- tio n otthe statute. The authorities sustain the view we have adopted. In Varnum v.'Camp, 13 N. J. Law, 326, 35 Am. Dec. 476, the title of the assignee to the goods in New York at the time of the assignment was sustained notwithstanding the goods were afterward brought to Pater- son, and there levied upon. In Parr v. Brady, 37 N. J. Law, 201, the title under the N'ew York chattel mortgage was sustained, although the goods were afterwards brought to this state and sold, and although the mortgagee had not complied with the provisions of our chattel mortgage act requiring the filing of the mortgage in the same language used in section 72 of the act respecting conveyances as to recording contracts of conditional sale. The Supreme Court said : "The inten- tion to do so [i. e., to prevent a foreign mortgage from having effect in this state] ought to be clearly manifested when the object is to abridge the validity of a common-law contract." In Woolley v. Geneva Wagon Co., 59 N. J. Law, 278, 35 Atl. 789, it was the im- possibility of complying with the statute that led the court to hold it not applicable. The courts of other jurisdictions are almost unanimous in sustaining a title good under the law of the original situs, although not good under the law of the jurisdiction to which the property may be removed by one party without the consent of the other. Bank of United States v. Lee, 13 Pet. (U. S.) 107, 10 L. Ed. 81 ; Shapard v. Hynes, 104 Fed. 449, 46 C. C. A. 271, 52 L. R. A. 675 (a well-con- sidered opinion in the United States Circuit Court of Appeals) ; Edger- ly V. Bush, 81 N. Y. 199 ; Nichols v. Mase, 94 N. Y. 160 ; Cleveland Mach. Works v. Lang, 67 N. PI. 348, 31 Atl. 20, 68 Am. St. Rep. 675. In our judgment^_the dtle^of Lees^jex'ecutors to the machinery in question "was valid, and the order should have directed Th e rec eiver to 316 PARTICULAR SUBJECTS. (Part 2 surrender possession thereof to them. It must therefore be reversed, with costs, and the cause remitted to the Court of Chancery for pro- ceedings in conformity with this opinion. ^^ ^'^'^^..'^' BARNETT V. KINNEY. ' 1^ (Supreme Court of the United States, 1893. 147 U. S. 476, 13 Sup Ct. 403, 37 Tj. Ed. 247.) M. H. Lipman, a resident of the territory of Utah, made a voluntary assignment on November 23, 1887, to Barnett, covering real and per- sonal property in Utah and personal property in Alturas county, Idaho, _ preferring certain creditors. Such preferences were valid according to the laws of Utah, but not valid accordingto the Jaws of Idaho. On November 25, 1887, Barnett, as assignee, tookactual posse ssion of Bie personal pifoperty in Idaho, and on November 26th filed, the _asslgn- ment for record in the proper office in Alturas county. _ On the same day, but after the filing of the assignment and with knowledge there- ^ of, the sheriff of Alturas county, Kinney, took possession ot tfie prop- erty under a writ of attachment in favor of the St. Paul Knitting Works, a J^Iinnesota corporatio n, against Lipman. Barnett thereupon ■ ^jQ Ught replevin . The judgment rendered in favor ofjthe defendant An the lower court was reversed by the Supreme Court of the territory. 22 See Weinstein v. Freyer, 93 Ala. 257, 9 South. 285, 12 L. R. A. 700 (1891). As to conditional sales, see, in general, 64 L. R. A. 833-836. As to validity of warehouse receipts, see In re St. Paul & K. C. Grain Co., 89 Minn. 98, 94 N. W. 218, 99 Am. St. Rep. 549 (1903). "No sale, mortgage, hypothecation, or conveyance of any vessel or part ot any vessel of the United States is valid as to third parties unless it is recorded in the office of the collector of customs where such vessel is registered or en- rolled." Section 4192, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2837). See, also, Thuret v. .Tenkins, 7 Mart. (La.) 318, 12 Am. Dec. 508 (1820) ; Minor, Conflict of Laws, § 120. As to maritime liens, see, in general, 19 Am. & Eng. Encyc. Law, 1079-1137, and 26 Cyc. 743-816 ; and as to law governing, 26 Cyc. 809-810. Continental Law. — ^A mortgage, conditional sale, pledge, or other proper- ty right validly created by the lex rei sitae will be recognized in another ju- risdiction to which the chattel has been removed. R. G. Feb. 28, 1893 (3 Nie- raeyer, 622). But not in the face of some pronounced local policy ; e. g., where general liens or reservations of title are unknown to the law of such jurisdic- tion. Obertribunal, Berlin, April 8, 1875 (31 Seuffert's Archiv. 237) ; R. G. Nov. 25, 1895 (6 Nlemeyer, 424). Or where a pledge without delivery of title is not recognized in the new jurisdiction. Cass. March 19, 1872 (D. 1874, 1, 465). The rank of maritime liens Is determined in Germany by the lex fori, R. G. Feb. 9, 1900 (10 Nlemeyer, 472) ; R. G. Nov. 25, 1890 (1 Niemeyer, 365) ; in France, by the law of the flag, App. Rouen, May 10, 1905 (21 Autran, 293). Consult, in general, Ch. Lyon-Oien, Etudes de droit international privS maritime, 4 Clunet, 489-495; 9 Clunet, 241-260, 488-500, 593-606. C. B. Lefebre, Des confllts des lois en miitifire de proprifitS de navires, d'hypothSctues •et autres droits reels, 20 Autran, 796-806. Ch. 1) PEOPEETY. 317 2 Idaho, 740, 23 Pac. 933, 24 Pac. 624. An appeal was taken to the Supreme Court of the United States.^ ^ r Fuller, C. J. The_Suprenie Court of the territory held that a non- I resident could not "make an assignment, with preferences, of personal j property situated in Idaho, that would be valid as against a nonres i- dent attaching creditor, the latter being entitled to the same rights as a / citizenondaho ; that the recognition by one state of the laws of anothe.r state governing the transfer of property rested on the prin- ciple of comity, which always yielded when the policy of the state where the property was located had ' prescribed a different rule of transfer from that of the domicile of the owner; that this assignment was contrary to the statutes and the settled policy of Idaho, ih'that it provided for preferences ; that the fact that the assignee had taken and was in "possession of the property could not affect the result; and that the distinction between a voluntary and an involuntary assignment was entitled to no consideration. Undoubtedly there is some conflict of authority on the question as to how far the transfer of personal property by assignment or sale, lawfully made in the country of the domicile of the owner, will be held to be valid in the courts of another country, where the property is situated, and a different, local rule prevails. We had occasion to consider this subject somewhat in Cole v. Cun- ningham, 133 U. S. 107, 129, 10 Sup. Ct. 269, 33 L. Ed. 538, and it was there said: "Great contrariety of state decision exists upon this general topic, and it may be fairly stated that, as between citizens^ of the state of the forum, and the assignee appointed under the laws of ¥riother state, the claim of the former will be held superior to that of the latter by the courts of the former; while, as between the assignee and citizens of his own state and the state of the debtor, the laws of such state will ordinarily be applied in the state of the litigation, unless forbidden by, or inconsistent with, the laws or policy of the latter. Again, although, in some of the states, the fact that the assignee claims under a decree of a court or by virtue of the law of the state of the domicile of the debtor and the attaching creditor, and not under a con- veyance by the insolvent, is regarded as immaterial, yet, in most, the distinction between involuntary transfers of property, such as work by operation of law, as foreign bankrupt and insolvent laws, and a volun- tary conveyance is recognized. The j-eason fo xJhg distinction is that a v oluntar y transfer, if jyalid where made, ought generaOy to be -^^Tid' everywhe re, being the exercise of the personal right of the owner to dispose of his own, while an assignment by operation of law has no legal operation out of the state in which the law was passed. This is a reason which applies to citizens of the actual situs of the prbperty when that is elsewhere than at the domicile of the insolvent, and the 23 This statement of facts has been substituted for that of the original re- port. 318 PAETicuLAE SUBJECTS. (Part 2 controversy has chiefly been as to whether property so situated can pass even by a voluntary conveyance." We have here a voluntary transfer of his property b y a citizen o f Utah for the payment of his debts, with preferences, which transfer was valid in Utah, where made, and was consummated by the deli very ■of the property in Idaho, where it was situated, and then taken on an attachment in favor of a creditor not a resident or citizen of_Jdaho. Was there anything in the statutes or established policy of Idaho in- vaHdating such transfer? Title 12 of part 3 of the Revised Statutes of the Territory of Idaho, entitled "Of Proceedings in Insolvency" (Rev. St. §§ 5875-5932), pro- vided that "no assignment of any insolvent debtor, otherwise than as provided in this title, is legal or binding on creditors"; that creditors should share pro rata, "without priority or pref erence whateve r" ; for the"discEarge of the^insolvent debtor upon compliance with the provi- sions of the title, by application for such discharge by petition to the district court of the county in which he had resided for six months next preceding, with schedule and inventory annexed, giving a true statement of debts and liabilities, and a description of all the insolvent's estate, including his homestead, if any, and all property exempt by law from execution. The act applied to corporations and partnerships, and declared that, if the partners, resided in different counties,' that court in which the petition was first filed should retain jurisdiction over the case. Nothing is clearer from its various provisions than that the statute had reference only to domestic insolvents. " As pointed out ^ Judge Berry in his dissenting opinion, the first section of the 58 upon this subject, in providing that "every insolvent debtor may upon com- pliance with the provisions of this title, be discharged from his debts f and liabilities," demonstrates this, ^he Legislature of Idaho certainly did not attempt to discharge citizens of otfiei^urisdictions from their liabilities, nor intend that personal property in Idaho, belonging to citizens of other states or territories, could not be applied to the pay-| meiit o? their debts unless they acquired a six months' residence in| some county of Idaho, and went through its insolvency court. \ The instrument in controversy did not purport to be executed under any statute, but was an ordinary • common-law assignment, with pref- erences, and as such was not, in itself, illegal. Jewell v. Knight, 123 U. S. 426, 434, 8 Sup. Ct. 193, 31 L. Ed. 190. And it was found as a fact that it was valid under the laws of Utah. While the statute of Idaho prescribed pro rata distribution, without preference, in assign- ments under the statute, Jt did not otherwise deal withJhe-^spasition of his property by a debtor, nor prohibit preferences between _nQar£si^ dent debtors and creditors through an assignment valid by tlieJavvs .of the debtor's domicile. No just rule required the courts of .Idaha,_aJ: ihe instance of a citizen of another state, to adjudge a trans fer, valij l at common law and by the law of the, place where it was made,_to be Mnvalid, because preferring creditors elsewhere, and therefo re in co n- > Ch. 1) PROPERTY. 319 travention of the Idaho statute and the public policy therein indicated i n respect of its own citizens, proceedi ng thereunder. The law of thei situs was not incompatible with the law of the domicile. In Halsted v. Straus (C. C.) 32 Fed. 279, which was an action in New Jersey, involving an attachment there by a New York creditor as against the voluntary assignee of a New York firm, the property in dispute being an indebtedness of one Straus, a resident of New Jersey, to the firm, Mr. Justice Bradley remarked : "It is true that the statute of New Jersey declares that assignments in trust for the benefit of creditors shall be for their equal benefit, in proportion to their several demands, and that all preferences shall be deemed fraudulent and void ; but this law applies only to New Jersey assignments, and not to those "made in other states, whfch affect property or creditors, in "New^ Jersey. It^ has-been distinctly held by the courts of New Jersey that a vol- Jintary assignment made by a nonresident debtor, wJhich is valid Sy the law of the place where made, cannot be impeached in New TSTseyJ with regard to property situated there, by ^nonresident debt- orsT Bentley V. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671; ^"Hoore v. Bonnell, 31 N. J. Law, 90. The execution of foreign assign- ments in New Jersey will be enforced by its courts as a matter of comity, except when it would injure its own citizens; then it will not. If Deering, Milliken & Co. were a New Jersey firm, they could suc- cessfully resist the execution of the assignment in this case. But they are not ; they are a New York firm. New York is their business resi- dence and domicile. The mere fact that one of the partners resides in New Jersey cannot alter the case. The New Jersey courts, in carrying out the policy of its statute for the protection of its citizens, by refus- ing to carry into effect a valid foreign assignment, will be governed by reasonable rules of general jurisprudence ; and it seems to me that to refuse validity to the assignment in the present case would be unrea- sonable and uncalled for." In May_v^rst N.at, Bank, 122 111. 551, 13 N. E. 806, the Supreme Court of Illinois held that the^prqvision in the statute of that state prohibiting all preferences in assignments by debtors applied only to those" made in the, state, andui9.t..tDj:.hp5e- made in other states; that the statute concerned. ODly_doxn£stic- assignments and domestic credit- ors ; and the court, in reference to the contention that, if not against the terms, the^assignment was against_the_RQlicy of the statute, said: "An assignment giving preferences, though made without the state, might, as against creditors residing in this state, with some reason, be claimed to be invalid, as being against the policy of the statute in re- spect of domestic creditors ; thal^it wg p the p nliVy nf the law that there should be an equal distribution in respect to them. But, as the statute has no application to assignments made without the state, we cannot see that there is any policy of the law which can be said to exist with respect to such assignments, or with respect to foreign creditors, and why nonresidents are not left free to execute voluntary assignments. 320 PAETicuLAE SUBJECTS. (Part Z with or without preferences, among foreign creditors, as they may see fit, so long as domestic creditors are not affected thereby, without objection lying to such assignments that they are against the policy of our law. The statute was not made for the regulation of foreign assignments, or for the distribution, under such assignments, of a debtor's property among foreign creditors." In Frank v. Bobbitt, 155 Mass. 112, 29 N. E. 209, a voluntary assign- ment made in North Carolina, and valid there, was held valid and en- forced in Massachusetts, as against a subsequent attaching creditor of the assignors, resident in still another state, and not' a party to the assignment. The Supreme Judicial Court observed that the assign- ment was -a voluntary, and not a statutory, one ; that the attaching cred- itors were not resident in Massachusetts ; that at common law, in that state,~an' assignment for the benefit of "creditors which created prefer- ences was not void for that reason ; and that there was no statute which rendered invalid such an assignment when made by parties living in another state, and, affecting property in Massachusetts; citing Train v. Kendall, 137 Mass. 366. Referring to the general rule that a con- tract, valid by the law of the place where made, would be regarded as, valid elsewhere, and stating that "it is not necessary to inquire whether this rule rests on the comity which prevails between different states and countries, or is a recognition of the general right which every one has to dispose of his property or to contract concerning it as he chooses," the court said that the only qualification annexed to voluntary ^assignments made by debtorsTTving m'another"state had Tjeen "that this court would not sustairi them if to do so would be pre judicial to ttie" ■■" interests of our own citizens, or opposed to public "p olicy,"_ and added : "As to the claim of the plaintiffs that they should stand as well as if (.they were citizens of this state, it may be said, in the first place, that I the qualification attached to foreign assignments is in favor of our own ' citizens as such, and, in the next place, that the assignment being valid by the law of the place where it was made, and not adverse to the in- terests of our citizens, nor opposed to public policy, 'no'cause appears for pronouncing it invalid." And see, among numerous cases to the -same effect, Butler v. Wendell, 57 Mich. 62, 23 N. W. 460, 58 Am. Rep. 329; Receiver of State Bank at New Brunswick v. First Nat. Bank, 34 N. J. Eq. 450 ; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466 ; Chafee v. Fourth Nat. Bank, 71 Me. 514, 36 Am. Rep. 345 ; Ocker- man v. Cross, 54 N. Y. 29 ; Weider v. Maddox, 66 Tex. 372, 1 S. W. 168, 59 Am. Rep. 617; Thurston v. Rosenfield, 42 Mo. 474, 97 Am. Dec. 351. We do not regard our decision in Green v. Van Buskirk, 5 Wall. 307, 18 L. Ed. 599 ; Id., 7 Wall. 139, 19 E. Ed. 109, as to the contrary. That case was fully considered in Cole v. Cunningham, supra, and need not be re-examined. The controversy was between two creditors of the owner of personalty in Illinois, one of them having obtained judg- ment in a suit in which the property was attached, and the other claim- Ch. 1) PEOPEETT. 321 ing under a chattel mortgage. By the Illinois statute such a mort- gage was void as against third persons, unless acknowledged and recorded as provided, or unless the property was delivered to and re- mained with the mortgagee; and the mortgage in that case was not acknowledged and recorded, nor had possession been taken. All par- ties were citizens of New York, but that fact was not considered sufficient to overcome the distinctively politic and coercive law of Illinois. . In our judgment the Idaho statute was inapplicable, and the assign- ment was in contravention of no settled policy of J;hat territory. It 'vva^valid at common law, and valid in Utah, and, the assignee having" Seen possession before the attachment issued, the district court was ~ri^t .in. the. conclusions of law at which it arrived. | The judgment is reversed, and the cause remanded to the Supreme Court of the state of Idaho for further proceedings not inconsistent with this opinion. Judgment reversed.''* 2* As to assignments for the benefit of creditors, see Bdson R. Sunderland, Foreign Voluntary Assignments for the Benefit of Creditors, 2 Mich. Law Rev. lia-126, 180-189 ; 65 L. R. A. 353-363 ; Minor, Conflict of Laws, §§ 133- 135. As to when an assignment is deemed voluntary, see Security Trust Co. V. Dodd, 173 U. S. 624, 19 Sup. Ct. 545, 43 L. Ed. 885 (1899), post, p. 741. A voluntary assignment, valid where made, will operate to pass title to per- sonal property wherever situated, even as to local creditors, provided it would not have been ineffective as to attaching creditors had it been made at the situs of the property. First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696 (1891) ; Train v.' Kendall, 137 Mass. 366 (1884) ; J. M. Atherton Co. v. Ives (C. C.) 20 Fed. 894 (1884). In IJlinflis, however, local creditors are always pre- ferred to the assignee under a foreign assignment. "In the absence of claims of domesUg creditors, the assignee under a valid foreign assignment may reduce fo his possession the property, and collect the debts assigned to him within this state ; and (JebtQjs .hergi owing the assignor, and having no set-off, will be compelled to pay the assignee. But if the for- eign assignment, if made here, would be set aside as fraudulent, or is contrary to the policy of our laws, our courts will not enforce It as against attachin,g creditors, whether forei gn nr dojofistic. although it may be valid in the state where made! May v. Wannemacher, 111 Mass. 202 (1872) ; Zipcey v. Thomp- son, 1 Gray (Mass.) 243 (1854) ; Fall River Iron Works Co. v. Croade, 15 Pick. (Mass.) 11 (1&S3) ; Kelly v. Crapo, 45 N. Y. 86, 6 Am. Rep. 35 (1871) ; Guillander v. Howell, 35 N. T. 657 (1866). As a voluntary foreign assign- ment, valid In the state where made, is enforced in this state as a matter of comity, our courts will not enforce it to the prejudice of our citizens who may have demands against the assignor. JUS-COatrary to the policy of our la ws_to allow the property or funds of a nonresident debtor to be withdrawn from this state before his creditors residing here have been paid, and thus cOmpel^lJiem ' to seek redress in a foreign Jurisdiction. So it was held in Bteyer~v; Alexander, 108 111. 385 (1884), that a voluntary assignment of a non- resident debtor's property, valid under the laws of the state where made, will not be enforced here as against domestic attaching creditors." Woodward v. Brooks, 128 111. 222, 227, 20 N. E. 685, 3 L. R. A. 702, 15 Am. St. Rep. 104 (1889). rrrrr The title acquired under a foreign assignment has been recognized, even as to local creditors, though such assignment would have been invalid if made- under the lex rei sitae et fori. Livermore v. Jenckes, 21 How. 126, 16 L. Ed. 55 (1858). Most courts under such circumstances prefer, however, r esident creditors, Zipcey v. Thompson, 1 Gray (Mass.) 243 (1854) ; Bryan v. Bris- "WnrZB Mo. 423, 72 Am. Dec. 219 (1858) ; In re Dalpay, 41 Minn. 532, 43 N. W. 564, 6 L. R. A. 108, 16 Am. St. Rep. 729 (1889). But not creditors of the LOB.CONF.L.— 21 322 PAKTicuLAE SUBJECTS. (Part 3 X II. Intangiblb. WILLIAMS V. COLONIAL BANK. (Court of Appeal, 1888. 57 L. J. Oh. [N. S.] 826, 38 Ch. D. 388.) John M. Williams, a resident of England, was the owner of 1,310 shares of stock in the New York Central & Hudson River Railroad Company. His executors, in order, as they alleged, to have the shares transferred to their own names, sent the certificates to Thomas & Co., brokers, who had usually acted for Mr. Williams, in order that they might send them to America. Upon the request of Thomas & Co. the executors signed the certificates in blank. Thomas & Co. deposited the certificates, with the transfers still in blank, with the defendants, the Colonial Bank, as security for the balance due from them to the bank. Later SO of the certificates were given up to Thomas & Co., state in which the assignment was made. Whipple v. Thayer, 16 Picls:. (Mass.) 2.5, 26 Am. Dec. 626 (1834) ; Bentley v. WWttemore, 19 N. J. Eq. 462, 97 Am. Dec. 671 (1868). Nor creditors of a third state. Bentley v. Whittemore, 19 N. J. Bq. 462, 97 Am. Dec. 671 (1868) ; May v. First Nat. Bank, 122 111. 551, 13 N. E. 806 (1887) ; Frank v. Bobbitt, 155 Mass. 112, 29 N. E. 209 (1891) ; Cook V. Van Horn, 81 Wis. 291, 50 N. W. 893 (1891). The Massachusetts doctrine is expressed by the following quotation from the opinion of Wells, J., in May v. Wannemacher, 111 Mass. 202, 208 (1872) : "An assignment made by the debtor himself in another state, which, if made here, would be set aside for want of consideration or delivery, or as fraudu- lent, or contravening the policy of the law of this CJommonwealth, will not be sustained here on attachment, although valid in the state or country where made. * * * But in each case the assignment is always sustained so far as it affects property which was at the time within the jurisdiction where it was made. Benedict v. Parmenter, 13 Gray (Mass.) 88 (1859) ; Wales v. Alden, 22 Pick. (Mass.) 245 (1839). And also as against all citizens of Jhat juris- diction, even when seeking a remedy here against property found here/' As to constitutionality "of discrimination between resident' and nonresident creditors, see Reynolds v. Adden, 136 U. S. 348, 10 Sup. Ct. 843, 34 L. Ed. 360 (1890) ; Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432 (1898) ; Belfast Sav. Bank v. Stowe, 92 Fed. 100, 34 G. 0. A. 229 (1899) ; The Diseonto Gesellschaft v. TJmbreit, 208 U. S. 570, 28 Sup. Ct. 837, 52 L. Ed. 625 (1908). See, also, Chafee v. Fourth Nat. Bank, 71 Me. 514, 36 Am. Rep. 345 (1880) ; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368, 49 Am. St. Rep. 627 (1891) ; Hilliard v. Enders, 196 Pa. 587, 46 Atl. 839 (1900). As to who are Included within the term "local" creditors, see Minor, Con- flict of Laws, § 8. As to the effect of a voluntary assignment upon vessels on the high seas or in foreign waters, see Crapo v. Kelly, 16 Wall. 610, 21 L. Ed. 430 (1872) ; Moore v. Willett, 35 Barb. (N. Y.) 663 (1861) ; Koster v. Merritt, 32 Conn. 246 (1864). If real estate Is embraced in a foreign assignment, title will pass to the assignee only under a deed executed in conformity with the law of the situs. King V. Glass, 73 Iowa, 205, 34 N. W. 820 (1887). In other respects, some courts apply the rules governing assignments of personal property. Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671 (1868) ; May V. First Nat. Bank, 122 111. 551, 13 N. E. 806 (1887) ; Memphis Sav. Bank v. Houchens, 115 Fed. 96, 52 C. C. A. 176 (1902). Others apply the lex rei sitae. Osborn V. Adams, 18 Pick. (Mass.) 245 (1836) ; Loving v. Palro, 10 Iowa, 282, 77 Am. Dec. 108 (1860) ; Van Winkle v. Armstrong, 41 N. J. Bq. 402, 5 Atl. 449 (1886); Keane v. Chamberlain, 14 App. D. C. 84 (1899); Manton v. J. F. Selberllng & Co., 107 Iowa, 534, 78 N. W. 194 (1899). Ch. 1) PliOPERTY. 323 who then deposited them with the London & Chartered Bank of Australia. Thomas & Co. were thereupon adjudicated bankrupts. Immediately after the bankruptcy the executors brought an action in England against the Colonial Bank and the trustee in bankruptcy of Thomas & Co., claiming a declaration that the deposit of the share certificates was made in fraud of the plaintiffs, and conferred no legal title on the bank, and claiming delivery to the plaintiffs of the certifi- cates. The executors also brought a similar action against the London & Chartered Bank of Australia. The two actions were heard together.^' IviNDLEY, L,. J.''^ * * * First of all, let me get rid of the American law, and I will point out before I have done to what extent that applies to the case. As I understand the evidence given by the American lawyers, if this transaction had taken place in America the banks would have got a good title to these shares, subject, possibly, to that question about the documents not being in order. I doubt very much whether the American lawyers would have attached much im- portance to that, and I shall assume throughout my judgment that if this transaction had taken place in America the banks would have suc- ceeded. Now the American law is important up to a certain point and not beyond that point. We must look to the American law for the pur- pose of understanding the constitution of this company, and the proper mode of becoming a shareholder in it and acquiring shares in it. Further than that, it may be that the consequence of having acquired a title to the certificate "may depend on American law, but the ques- tion how a title is to be acquired to a certificate by a transaction in this country does not depend on American law at all. One question, and to my mind the main question, resolves itself into this : who is entitled to the certificate? Now the certificate has been dealt with in England, and it has been dealt with by the executors in England, and the certificate is a chattel — and when considering who is entitled to a chattel bought or sold or pledged in England, it is English law and not American law that we have to deal with.^' * * * 2 5 This statement of facts has been substituted for that of the original re- port. 28 Only a part of the opinion of Lindley, L. J., is given. Cotton and Bowen, L. JJ., delivered concurring opinions. 27 See Black v. Zacharia, 3 How. (U. S.) 483, 11 L. Ed. 690 (1844) ; Masury V. Arkansas Nat. Bank (C. C.) 87 Fed. 381 (1898) ; London, Paris & American Bank v. Aronstein, 117 Fed. 601, 54 C. C. A. 663 (1902). The existence of a lien in favor of a corporation upon the shares of its capi- tal stock will depend upon the law of the state creating the corporation. Ham- mond V. Hastings, 184 U. S. 401, 10 Sup. Ct. 727, 33 L. Ed. 960 (1890). 324 PARTICULAR SUBJECTS. (Part 2 In re QUEENSLAND MERCANTILE & AGENCY CO. (Chancery Division, 1890, 1891. 60 L. J. C!li. 579, 1 Ch. 536. Adjourned summonses. The first summons was taken out by the Australasian Investment Company, who thereby asked that out of £34,730. New Consols, and any cash in the hands of the liquidator in the English winding-up of the Queensland Mercantile & Agency Company, or in court, repre- senting money received from Scotch shareholders in the Queensland Company, £12,660. might be paid to the Australasian Company in prior- ity to all other payments. ^ The other summons was taken out by the Union Bank of Australia, who thereby asked that the English liquidator might be ordered to transfer to the Union Bank the whole of the New Consols and cash standing in his name, representing the proceeds of calls in his hands in respect of shares Nos. 1 to 8,500 in the Queensland Company. The facts of the case as fully stated in the judgment were as follows: The Queensland Mercantile & Agency Company was registered in Brisbane, and for several years before it was wound up carried on business in Queensland. The bankers of the company were the Union Bank of Australia, who, on the 28th of June and the 9th of September, 1886, took from the Queensland Company two debentures for £10,000. and £50,000. respectively in similar form, whereby the payment of such debentures was made a first charge orf the uncalled capital re- ceivable in respect of 2,500 specified shares in the Queensland Com- pany, upon each of which shares £50. had been paid up, and £50. more remained uncalled. On the 14th of December, 1886, the company passed resolutions calling up the balance of £50. per share, payable by four equal install- ments in February, April, June, and August, 1887, respectively. No- tice of the call was given to the shareholders ; but they never had any notice of the charge effected by the said two debentures in favor of the Union Bank. On the 24th of February, 1887, a Scotch company, called the Aus- tralasian Investment Company, commenced an action in Scotland against the Queensland Company for negligence, and immediately afterwards, on the same day, issued a Scotch process, called "arrest- ment on the dependence of the action," against numerous holders of the Queensland Company's shares who were resident in Scotland, the effect of which, shortly, was that the calls payable by them to the Queensland Company were arrested in their hands, and the Austral- asian Company (the pursuers in the action) became secured creditors on the funds so arrested for the amounts for which they should es- tablish their claim in the action. In the months of May, July, and August, 1887, judgments were re- covered in England in twenty-seven actions by Drake and others Ch. 1) PEOPBETY. 325 against the Queensland Company. On the 3d of September, 1887, the Union Bank commenced an action in England against the Queens- land Company in respect of money due to them other than that secured by the said two debentures ; and on the 7th of September an order was made in all those actions for the appointment of a receiver to get in the calls from the shareholders in the Queensland Company. On the 38th of October, 1887, an order was made in Queensland for the winding-up of the Queensland Company, and thereupon the £60,- 000. secured by the two debentures above mentioned became payable. On the 14th of January, 1888, a similar order was made in England. By various proceedings and orders in England and in Scotland, to which it is not necessary to refer in detail, the Australasian Company were restrained from further prosecuting their action in Scotland, but without prejudice to the security^ if any, upon the amounts payable by the Scotch shareholders in the Queensland Company in respect of the said calls which the Australasian Company had acquired by the pro- ceedings taken by them in Scotland; and the official liquidator had received from the receiver, or had himself collected, and held on sep- arate accounts, the amounts paid for the calls by the Scotch and Eng- lish shareholders respectively, the receipts from the Scotch sharehold- ers being about £34,730., which sums remained to be distributed among the parties entitled thereto. By proceedings in the winding-up in Queensland the amount due from the Queensland Company to the Australasian Investment Company had been ascertained at £13,660. The claim of the Union Bank had in like manner been ascertained at upwards of £74,000. ; but it was a'dmitted that, after allowing for se- curities held by them, their claim was reduced to, in round figures, £31,000.; and they asked for an order upon the official liquidator to transfer to them on account of this claim the sums he had thus re- ceived. The Australasian Company claimed on the other hand to be first paid thereout the £13,660. due to them, the balance only going to the liquidator. The plaintiffs in the actions of Drake and others against the Queens- land Company also asserted a claim to the funds in hand against both the Union Bank and the Australasian Company. North, J. (on October 38 and 39, 1890), held that the debentures issued by the Queensland Company to the Union Bank created a valid charge on the unpaid calls on the shareholders in the Queensland Company, and that they consequently took precedence of the judg- ment debts. As to the question whether the Australasian Company or the Union Bank had priority. Sir Horace Davey, Q. C, Buckley, Q. C, and S. Dickinson, for the Union Bank. — The law of Scotland on the question now in dis- pute is not correctly stated in the affidavit of Mr, Blair filed on behalf of the Australasian Company; but in any event that law is irrelevant, for the law of Queensland, which is the same as the law of England, 326 PARTicuLAK SUBJECTS. (Part 3 is the governing law, being the law of the domicile of the Queensland Company, which is the creditor in respect of the calls. Hunter v. Potts, 4 Term Rep. 182 ; Sill v. Worswick, 1 H. Black. 665 ; Simp- son V. Fogo, 1 Hem. & M. 195, 33 Law J. Rep. Chanc. 349 ; Colonial Bank v. Cady, 60 L. J. Ch. 131, Law Rep. 15 App. Cas. 267 ; and Story's Conflict of Laws, c. 9, § 374. The English law gives priority to the Union Bank, which had a good charge on the calls before the Australasian Company came into question. Eyre v. McDowell, 9 H. L. Cas. 619 ; In re General Horticultural Company, Limited, Ex parte Whitehouse, 55 Law J. Rep. Chanc. 608, Law Rep. 32 Ch. D. 512; and Badeley v. Consolidated Bank, 57 Law J. Rep. Chanc. 468, Law Rep. 34 Ch. D. 536, 38 Ch. D. 238. Crackanthorpe, Q. C, and Rawlins, for the Australasian Company. —The law of Scotland ought to govern this case, seeing that these are Scotch calls and that the necessary steps to secure a charge on these calls have been taken in Scotland. What the Scotch law is, is proved by the uncontradicted evidence of Mr. Blair, and this by virtue of the arrestment duly intimated to , the Scotch shareholders, gives priority to the Australasian Company. Arden v. Arden, 54 Law -J. Rep. Chanc. 655, Law Rep. 29 Ch. D. 702. Everitt, Q. C, and Swinfen Eady, for the judgment creditors. Cozens-Hardy, Q. C, and Kenyon Parker, for the liquidator. Buckley, Q. C, in reply. Judgment reserved. North, J. (on January 14, 1891), after stating the facts as herein set forth, continued as follows : It is obvious that the charges cre- ated by the debentures and by the Scotch arrestment are both to be preferred to any claim by the mere judgment creditors in England of the Queensland Company, and I so decided on the hearing. The claim of the Australasian Company is founded upon the proposition that by the law of Scotland debts are assignable, and that an assign- ment of a debt is not complete or operative until notice or, as it is called, "intimation" thereof is given to the debtor, and that no such intimation of the Union Bank debentures was ever given before the Australasian Company had arrested the calls in question. The posi- tion of the company is stated in Mr. Blair's affidavit. [His Lordship here read several passages from this affidavit, and continued :] It is not satisfactory to find that the only evidence in this case of the Scotch law is contained in an affidavit of Mr. Blair, the legal adviser of the Australasian Company, and that although there is no evidence contradicting it, the Union Bank state that they will, if necessary, contend before the House of Lords that such affidavit lays down the Scotch law incorrectly. This may be open before their Lordships on appeal, but it is not open before me, for the question of Scotch law is he^e merely a question of fact, upon which the evi- dence is all one way ; and the Union Bank have not asked me to give them any opportunity of going into further evidence, or to send a Ch. 1) PROPERTY. 327 case for the opinion of the Scotch court. By such evidence it is es- tabHshed that there is, by virtue of the arrestment, what is equivalent to an actual assignment of the calls in question duly intimated, and that this, by the law of Scotland, is preferable to, and has priority over, the assignment to the Union Bank, of which, though prior in time to the arrestment, no intimation had been given at the date when the assignment by arrestment became complete; and this is what I feel bound to decide. It was contended on behalf of the Union Bank that the claim of the Australasian Company could only be valid as against "the sums attached," which were said to be what would remain of the calls after satisfying what was due to the Union Bank; but this is quite inconsistent with the language of the arrestment, whicii applies specifically to the whole sum due for calls from each of the shareholders on whom the arrestment is served. It was also stated that after the assignment to the Union Bank all that the Queensland Company had left was the surplus remaining over after paying the bank, that the rest of the calls belonged to the bank, and that 'it was contrary to principle and authority to bold that a process of law against the debtors could affect what was the property of the creditor, the Union Bank. But in the present case I have not to deal with a mere process of law such as a judgment or garnishee order, but with what is established as a fact to be equivalent to an actual assign- ment, and which, on the evidence, I must treat in exactly the same way as if such an assignment had been actually executed and inti- mated. But the Union Bank also put their claim to priority over the Aus- tralasian Company in another way. They say that, whatever the position of matters might have been if all the parties to these transac- tions had been domiciled in Scotland, the facts are not so; the Queensland Company was a creditor in respect of the debts due from the shareholders for calls; that company was domiciled in Queens- land, and, therefore, the validity of the assignments by them to the Union Bank depends upon the law of Queensland, and not on the law of the Scotch debtor's residence; that by the law of Queensland (which is admitted to agree with that of England) no "intimation" was necessary, and that a transfer of personal or movable property, valid by the law of the owner's domicile, is valid wherever the prop- erty may be situate. They rely upon the principle concisely expressed in the maxim "Mobilia sequuntur personam," anej more fully stated in numerous authorities, of which it is sufficient that I should refer to one — namely, the judgment of Lord Loughborough in Sill v. Wors- wock, 1 H. Black. 665. He there says: "It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality. The meaning 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 328 PARTICULAR SUBJECTS. (Part a respect to the transmission of it, either by succession or the act of the party, it follows the law of the person. The owner in any country may dispose of personal property. If he dies, it is not the law of the country -in which the property is, but the law of the country of which he was a subject that will regulate the succession." In my view, after full consideration, it is not now necessary for me to express any opinion upon this interesting and difficult question; for, assuming the principle above stated to include such a case as the present, there is another equally well known rule of law — namely, that a transfer of movable property duly carried out according to the law of the place where the property is situated, is not rendered in- effectual by shewing that such transfer was not in accordance with what would be required by law in the country where its owner is domiciled. To give an instance, according to Scotch law it is neces- sary, in order to create a charge on corporeal movables, that they should be delivered to, and placed in the possession of, the creditor. But if a domiciled Scotchman, resident in London, gave a duly regis- tered bill of sale of the furniture of his house, this would be a com- plete and effectual transfer of the property without its being delivered to the creditor, notwithstanding that such a disposition of furniture in Scotland would have been ineffectual without delivery. To apply this to the present case, the Queensland Company did certain acts of commission or omission, by virtue of which certain legal rights arose in Scotland, having identically the same effect in all respects (according to the evidence before me) as if the Queensland Company had, on the date of the arrestment, executed an assignment of these calls in question to the Australasian Company, and such assignment had been forthwith intimated to the persons in whose hands the calls were arrested. Such an assignment would, according to the evidence, clearly have been preferred to another assignment, bearing, indeed, an earlier date, but not yet completed by intimation; and, in my opin- ion, the right of those who have acquired an unexceptionable title to, and have recovered, the property according to the law of the coun- try where it is found and arrested, cannot be defeated by shewing that if the property had been elsewhere, the title of the Union Bank might have been the preferable one. I speak of the Australasian Company as having recovered the calls, although they have, as a matter of convenience, been received by the official liquidator, because they would actually have received them if the action had not been stayed, and the rights of the parties cannot be affected by the court having stayed the action, as, by the order staying it, their right or security was" expressly left unprejudiced. The terms of the order will require some care in dealing with figures, but in substance I accede to the summons of the Australa- sian Company, and only direct the payment of the balance of the pro- ceeds of the Scotch calls to the Union Bank. There will be one order on both summonses, and the Australasian Company and the Union Ch. 1) PKOPEETY. 329 Bank will add their costs to their respective securities. The official liquidator's costs must be retained by him out of the calls he has re- ceived.^* ,A ''''■" McSHANE V. KNOX. ^ttJ^foJc^i- (Supreme Court of Minnesota, 1908. 103 Minn. 268, 114 N. W. 955.) ,1/ Brown, J. This action was brought by plaintiff, a resident of North Dakota, against defendant, also a resident of "That state, to re- cover upon a promissory note theretofore executed by him to one EUis, and by Ellis transferred to plaintiff. At the time of its commencement a garnishee summons was duly issued therein against the Northern Pacific Railway Company, a corporation organized under the laws of Wisconsin, but maintaining an agency and doing business in this state. The summons in th e princi pal ac tion was personally served_upon the defendar it~in the city ^ofTloorhead, th is state, on June 17, 1907, to- gether with a copy of the garnishee summons, with the usual notice to defendant and proof of service upon the garnishee. The garnishee disclosed an indebtedness to defendant in the sum of $140.10. De- fendant made no appearance in the action, and on July 9, 1907, default judgment was rendered against him for the sum of $124.67. There- after application was made to the court for judgment against the garnishee upon its disclosure, on which defendant appeared specially and for the purposes of the motion only, and moved the court to dis- miss the garnishment proceedings on the ground that, as all the parties were nonresidents of the state, the court had no jurisdiction. The motion was granted, and plaintiff appealed. It is contended by defendant, in support of the order appealed from, that the case comes within the rule of Swedish- American Bank v. Bleecker, 73 Minn. 383, 75 N. W. 740, 43 L. R. A. 383, 71 Am. St. 28 See 20 Harv. Law Rev. 637; 22 Am. & Eng. Encyc. (2d Ed.) 1343; 4 Cyc. 68; Dicey, Conflict of Daws, 522-525; Westlabe, Priv. Int. Law, 196-198; Foote, Priv. Int. Jurispr. 261-264 ; Minor. Conflict of Laws. § 122: Story, Con- flict of Laws, §§ 395-399. As to assignmeiir'dl an insurance policy, see 63 L. R. A. 858-861. CoNTiNENTAi Law. — As between the assignor and assignee, the assignment of a debt is governed by the ordinary principles relating to contracts. Ger- many, R. G. Jan. 29, 1901 (12 Niemeyer, 113); O. L. G. Frankfurt (on the Main), March 4. 1892 (21 Clunet, 150) ; R. G. Dec. 3, 1891 (2 Niemeyer, 162). Italy, Cass. Rome, Nov. 7, 1894 (S. 1895, 4, 13) ; App. Venice, March 12, 1903, Annali 1903, 2, 261). But as to third parties and the debtor himself, the lex domicilii of the debtor or the lex solutionis of his obligation controls. Ger- many, 14 R. G. 235 (Nov. 13, 1885) ; 39 R. G. 371 (March 23, 1897) ; R. G. March 19, 1907 (18 Niemeyer, 174); O. L. G. Hamburg, Dec. 15, 1900 (56 SeufCert's Archiv, 260) ; O. L. G. Hamm, Jan. 29, 1906 (34 Clunet, 775) ; R. G. June 2, 1908 (18 Niemeyer, 449). For a contrary holding with regard to the case last cited, see FroMce, Trib. Civ. Seine, Mch. 15, 1907 (4 Darras, 182). Italy, Cass. Rome, Nov. 7, 1894 (S. 1895, 4, 13). See, also, F. Surville, La cession et la mise en gage des creances en droit international priv6, 24 Clunet, 671-689. 330 PAETicuLAR SUBJECTS. (Part 2 Rep. 493, and McKinney v. Mills, 80 Minn. 478, 83 N. W. 452, 81 Am. St. Rep. 278, and should be affirmed, for the reason that all th e parties — plaintiff, defendant, and garnishee — are nonresiden ts of this state ;That the indebtedness sought to be reached bylhe garnishee pro- "ceedings was not payable in this state, but in Nor"ffi"" I>akota, wh ere defendant was' in the employ of the railway company jland didaot arise out of a transaction occurring in thjs. state;. hen c e th at th fi co urt had no jurisdiction. The contention is not sound. The cases referred to are not here in point. Much has been said and written on the sub- ject of the jurisdiction of the courts in garnishment proceedings against nonresident parties, particularly in actions where the property sought to be reached is in the form of an indebtedness due the defendant from the garnishee. Many of the courts maintain with, pl ausible argument that for t he purposes of garnishment the situs of i ntangible propet ty. "such as debts, is at the domicile of the debtor, and may: be attached "wherever be'may be found, whether in the state of his actua l residence or elsewhere ; while other courts of equal prominence, and with eq ual lorcelmd earnestness, insist that the debt has its situs with the creditor, and cannot be reached by garnishment proceedings, _except in the state of his residence. The authorities are collected and re- viewed'Tn-anoteTo' Goodwin v. Claytor, 137 N. C. 234, 49 S. E. 173, 67 Iv. R. A. 209, 107 Am. St. Rep. 479 ; 7 Current I,aw, 1868. It is unnecessary to review them in this case, for the question is not here presented. They are a ll cases where no personal service of Jthe_ sum- mons was made uponTKe" principal defendant in the state where th e action was~Br6ught, and were actions or proceedings in rem, pure and simple. In acti ons of that nature, the jurisdiction of the court exte nds only to thejres, the money or property in the hands of the garnishee, and the court has no authority to proceed unless the subject-matter, by proper service of process, is brought within the control of the court. But we have found no case wherein it has been held that the court is without jurisdiction, thouglT it appear that all the parties are nonresi- dents of the state, where the summons was_perso n'allv served upon ihe principal defendant, as well as upon the garnishee, in the state where the action "was brought. In the case at bar, while the nonresidence of the parties is conceded, it appears that both the summons in the prin- cipal action and also the garnishee summons, with notice to defendant, were personally served upon defendant while within the state, and, fur- ther, that the garnishee, a Wisconsin corporation, is permanently engag- ed in conducting its business in this state, with an agency herein^ and that the garnishee summons was served upon it in the manner required by law. Such facts take the case without the rule of any of the cases" re- ferred to. The jurisdiction of the court in a case where personal serv- ice is had within the state is not, strictly speaking, in rem, but in pe r- s onam, a ndjyhether the situs of the debt be with the creditor, at his BomicilejlDr with the debtor, the debt in question in thislc tion had a itus in this state within all of the decisions ; for both creditor and Ch. 1) PROPERTY. 331 ^ debtor w ere found within the_borders thereof, and were therein per- sonally served with process in the action. There can be no doubt of the full and complete jurisdiction of the court in such case. Commercial Bank of CEIcago V. Chicago, M. & St. P. Ry. Co., 45 Wis. 173; East Tennessee, V. & G. Ry. Co. v. Kennedy, 83 Ala. 462, 3 South. 853, 3 Am. St. Rep. 755 ; Louisville & N. Ry. Co. v. Nash, 118 Ala. 477, 23 South. 825, 41 L. R. A. 331, 72 Am. St. Rep. 181; Young v. Ross, 31 N. H. 201 ; Harris v. Balk, 198 U. S. 215, 25 Sup. Ct. 625, 49 L,. Ed. 1023 ; Eouisville & N. Ry. Co. v. Deer, 200 U. S. 176, 26 Sup. Ct. 207, 50 L. Ed. 426 ; 1 Shinn on Garnishment, § 5. There is no suggestion that defendant was fraudulently induced to come within the state, to the end that the summons might be personal- ly served upon him ; and the rule laid down in Chubbuck v. Cleveland, 37 Minn. 466, 35 N. W. 362, 5 Am. St. Rep. 864, does not apply. The place of payment of the d gbt, j£Ji be conceded that it sufficiently ap- pears in this case that it was payable in North. Dakota, is not impor- tant ;_ for the garnishee makes no claim that it cannot be compelled to make payment elsewhere than at the place agreed upon with the cred- ■itor. "Krafve v. Roy & -Roy, -98 Minn. 142, 107 N. W. 966, 116 Am. Stn^ep. 346 ; Harvey v. Great Northern Ry. Co., 50 Minn. 405, 52 N. W. 905, 17 E. R. A. 84. Nor is it material that plaintiff is a non- resident of this state. He had an undoubted right to bring his action in the courts of this state, under the clause of the federal Constitution guaranteeing to the citizens of each state all the rights and privileges of citizens of the several states. 1 Shinn on Garnishment, § 76. The statement in McKinney v. Mills, supra, that garnishment proceedings should in all cases be dismissed where it appears that all the parties are nonresidents of the state, was not intended to apply to cases where per- sonal service was made upon both defendant and garnishee within the state. The learned trial court apparently relied upon the language of ' that decision in dismissing the proceedings ; but there was no personal ' service in that case, and the proceeding was one strictly in rem. In the case at bar there was personal service both upon defendant and the garnishee, and the case referred to is not in point. The order appealed from is reversed. HAR- r^^ (Supreme Court of the United States, 1905. 198 U. S. 215, 25 Sup. Ct. 625, 49 L. Ed. 1023.) Statement by Mr. Justice Peckham : The plaintiff in error brings the case here in order to review the judgment of the Supreme Court of North Carolina, affirming a judg- ment of a lower court against him for $180, with interest, as stated therein. The case has been several times before the Supreme Court of that state, and is reported in Balk v. Elarris, 122 N. C. 64, 30 S. E. 332 PARTICULAK SUBJECTS. (Part 2 318, 45 L. R. A. 257, and in 124 N. C. 467, 33 S. E. 799, 45 L. R. A. 257, 70 Am. St. Rep. 606. The opinion delivered at the time of en- tering the judgment now under review is to be found in 130 N. C. 381, 41 S. E. 940. See, also, 132 N. C. 10, 43 S. E. 477. The facts are as follows : The plaintiff in error, Harris, was a resi- dent of North Carolina at the time of the commencement of this ac- tion, in 1896, and prior to that time was indebted to the defendant in error. Balk, also a resident of North Carolina, in the sum of $180, for money borrowed from Balk by Harris during the year 1896, which Harris verbally promised to repay, but there was no written evidence of the obligation. During the year above mentioned one Jacob Ep- stein, a resident of Baltimore, in the state of Maryland, asserted that Balk was indebted to him in the sum of over $300. In Augustj 1896, Harris visited Baltimore for the purpose of purchasing merchandise, arid wKTle"he was in that city temporarily on August 6, 1896, E pstein caused to be issued out of a proper court in Baltimore a fOTeign;Or non- resTdent writ of attachment against Balk^ attadTinpMrlie, debt due Bajk from H arris, which" writ the sheriff at Baltirnore laid in the hand s_pf Harrij,"with a summons to appear in the court at a day na med. With "tKat attachment, a writ of summons and a short declaration against Balk (as provided by the Maryland statute) were also delivered to the sheriff, and by him set up at the courthouse door, as required by the law of Maryland. Before the return day of the attachment writ Harris left Baltimore, and returned to his home in North Carolina. He did not contest the garnishee process, which was issued to garnish the debt which Harris owed Balk. After his return Harris made an affidavit on August 11, 1896, that he owed Balk $180, and stated that the amount had been attached by Epstein, of Baltimore, and by his counsel in the Maryland proceeding Harris consented therein to an or- der of condemnation against him as such garnishee for $180, the amount of his debt to Balk. Judgment was thereafter entered against the garnishee, and in favor of the plaintiff, Epstein, for $180. fter the entry of the garnishee judgment, condemning the $180 in the hands of the garnishee, Harris paid the amount of the judgment to one War- ren, an attorney of Epstein, residing in North Carolina. On August 11, 1896, Balk commenced an action against Harris before a justice of the peace in North Carolina, to recover the $180 which he averred Har- ris owed him. The plaintiff in error, by way of answer to the suit, pleaded in bar the recovery of the Maryland judgment and his pay- ment thereof, and contended that it was conclusive against the defend- ant in error in this action, because that judgment was a valid judgment in Maryland, and was therefore entitled to full faith and credit in the courts of North Carolina. This contention was not allowed ,by the trial court, and judgment was accordingly entered against Harris for the amount of his indebtedness to Balk, and that judgment was affirm- ed by the Supreme Court of North Carolina. The ground of such judgment was that the Maryland court obtained no jurisdiction to at- Ch. 1) PKOPEETT. 333 tach or garnish the debt due from Harris to Balk, because Harris was but temporarily in the state, and the situs of the debt was in North Carolina. Peckham, J. The state court of North Carolina has refused to give any effect in this action to the Maryland judgment; and the fed- eral question is whether it did not thereby refuse the full faith and credit to such judgment which is required by the federal Constitution. If the Maryland court had jurisdiction to award it, the judgment is valid and entitled to the same full faith and credit in North Carolina that it has in Maryland as a valid domestic judgment. The defe ndant in error, contends .that, the Maryland court obtain- ed_ no junsdictTorTTo award the ju dgment .oi_condemnation, because the garmsnee, although at the time in t he, state of Maryland, and personally served with" "pr oc esT th erem^ was, a j.oiu::£SJ,dent of that_state, only casually or tempor arily within its Iboundaries ; that the situs^of the debt due from Harris, the~garnishee, to the defendant in error herein, was in JSlorth" Ca rolina, and did not accornpany Harris to Maryla nd; that, consequently Ha rris, though within the state of Maryland^ had " not poss ession of any" property b^t Balk, and the Maryland state, court therefor& .nbtainefTnn jiirj.sdjrtinn over any property x>fJBaIk.iii-J:he at- tachme nt proceedin gs, jJidjthe„c.OJisent of Harris to the entry of the judgment was Immaterial . The plaintiff in error, on the contrary, in- sists that, though the garnishee were but temporarily in Maryland, yet the law s of that state provide for_an attachrnent of this nature if the debtor, the garnJiFee, is found in the state, and the court obtains juris- diction over him by the service of process therein ; that the judgment, condemning the d ebt from Harris to^Balk, was a valid judgment, pro- vided Balk could himself have suedllarris for the debt in Maryland. This, it is asserted, he could have done, and the judgment was therefore entitled to full faith and credit in the courts of North Carolina. The cases holding that the state court obtains no jurisdiction over the garnishee if he be but temporarily within the stat e proceed upon the theory that the situs of the debt is atjhe domkile either of Jhejcreditor or of the debtor,' and'tHaOFdoes not follow the debtor in his casual or temporary~" Xourn'ey into another state, and the garnishee has no pps- session of any property or credit of the principal debtor in the foreign state^ ^.jj^. We regard the contention of the plaintiff in error as the correct one. The authorities in the various state courts upon this question are not at all in harmony. They have been collected by counsel, and will be found in their respective briefs, and it is not necessary to here en- large upon them. Attachment, is the creature of the lo cal law ; that is, unle ss there is a law of the state pr ogidipg-for ,and permitting the attachment, it can- not be le vied there . If there be a law of the state ^joviding;_f or _the attacJiment oi~i5 ie debt, then, if_ the garnishee be found jajthat state, and process be personally served ugon him therein, we think the court ."Wi PARTICULAR SUBJECTS. (Part 2 thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff, and condemn it, provided the garnishee could himself be sued by his credi tor jg , that state. We do not see how the question of jurisdiction vel non'canupi^^efl y be made ^ to~depend upon the so-called original situs of the debt, or upon the ' character of the stay of the garnishee, whether temporary or perma - nent, in the state where the attachment is issued. Power over th e ^'person of the garnis hee confers jurisdiction on the courts of the sta te . - where the writ issues. Blackstone v. Miller ,' 188 IT. S.' 189-306, 23 Sup. Ct. 277, 47 t. Ed. 439^45. If, whil e temporarily t here, his cre d- itor might sue him there and recover the debt, then he is liable to pr o- cess of garnishment, no matter where the situs of the debt was orig i- nally. ,We do not see the materiality of the exjpre^ssion_!!sitm^fthe debt," when used in connection with attachment pro ceedin gs. If by situs is meant the place of the creation of the debt, that^ f^'ttl^ imma- terial. If iFT3F meant Th"anfie obligation to pay the debt can onlji^e enforced at the situs thus fixed, we think it plainly untrue._ The ob- ligation of the debtor to pay his debt clings to and accompanies him wherever he goes'.' He is as much bound to pay his debt in a foreign state when therein sued upon his obligation by his creditor, as he was in the state where the dfiht. was contracted. We s peak of ordinar y debts, such as the one_ in this case. It would be no defense t o such stilt for the debtor to plead that he was only in the foreign state casual- ly or temporarily. His obligation to pay would be the same whether he was there in that way or with an intention to remain. TTisTioth ing but the obligation to pay which is garnished or attached. THis"^liga- fion can be enforced by the courts of the foreign state after personal service of process therein, just as well as by the courts of the domicile of the debtor. If the debtor leave the foreign state without appearing, a judgment by default may be entered, upon which execution may is- sue, or the judgment may be sued upon in any other state where the debtor might be found. In such case the situs is unimportant. It_ is not a question of possession in the foreign state, for possession cannot be taken of a debt or of the obligation to pay 'it, as tangible pmperty might be taken possession of. Notice to the debtor (gar nishee) of the commencement of the suit, and notice"nbt to pay tcTh^creditor, Xs all that can be ■ given, whether the garnishee be a mere casual and tem- porary comer, or a resident of the state where the attachment is laid. His obligation to pay to his creditor is thereby arrested, and a lien created upon the debt itself. Cahoon v. Morgan, 38 Vt. 234, 236; National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468, 483, 33 Atl. 663. /We can see no reason why the attachment could not be thus laid.jjro- / vided the creditor of the garnishee could himself sue in tha t state, "and I its laws permitted the attachment. ' ""~' ~ , " There can be no doubt that Balk, as a citizen of the state of North Carolina, had the right to sue Harris in Maryland to recover the debt ^ which Harris owed' him. Being a citizen of North Carolina, he was Ch. 1) PEOPEKTY. 335 entitled to all the privileges and immunities of citizens of the several states, one of which is the right to institute actions in the courts of an- other state. The law of Maryland provides for the attachment of cred- its in a case like this" S^ee" sections 8 and 10 of article 9 of the Code of Public General L,aws of Maryland, which provide that, upon the proper facts being shown (as stated in the article), the attachment may be sued out against lands, tenements, goods, and credits of the debtor. Section 10 particularly provides that "any kind of property or credits belonging to the defendant, in the plaintiff's own hands, or in the hands of any one else, may be attached; and credits may be attached which shall not then be due." Sections 11, 13, and 13 of the above-mentioned article provide the general practice for levying the attachment, and the proceedings subsequent thereto. Where money or credits are attached, the inchoate lien attaches to the fund or credits when the attachment is laid in the hands of the garnishee, and the judgment condemning the amount in his hands becomes a personal judgment against him. Busch- man v. Hanna, 73 Md. 1, 5, 6, 18 Atl. 963. Section 34 of the same Maryland Code provides also that this judgment of condemnation against the garnishee, or payment by him of such judgment, is plead- able in bar to an action brought against him by the defendant in the attachment suit for or concerning the property or credits so condemned, i Xtjhus appears that Balk could, have, sued JHaxris in Maryland to re- cover his debt, notwithstanding the temporary character of Harris' stay there ; It also appearFIBIF the municipal law of Maryland permits the debtor "oFTEe principal debtor to be garnished, and therefore if the court "of the state where the garnishee is found fibtains jurisdiction over him, through theseryice__of_process upon him within the state, then the judgment entere"d is a valid judgment. See Minor on Conflict of Laws, § 135, where the various theories regarding the subject are stated and many of the authorities cited. He there cites many cases to prove the correctness of the theory of the validity of the judgment where the municipal law permits the debtor to be garnished, although his being within the state is but temporary. See pages 389, 390. This is the doctrine which is also adopted in Morga,n_v. Neville, 74 Pa. S^fby ffie"supreme court~o'f Pennsylvania, per Agnew, J., in delivering the opimoiTof that "court.- The same principle is held in Wyeth Hardware & Mfg. Co. V. H. F. Lang & Co., 137 Mo. 343, 347, 39 S'. W. 1010, 37 L. R. A. 651, 48 Am. St. Rep. 636, in Lancashire Ins. Co. v. Corbetts, 165 111. 593, 46 N. E. 631, 36 L. R. A. 640^ 56 Am. St. Rep. 375, and in Harvey v. Great Northern R. Co., 50 Minn. 405, 406, 407, 53 N. W. 905, 17 L. R. A. 84; and to the same effect is Embree v. Hanna, ^ Johns. (N. Y.) 1 01 ; also Savin v. Bond, 57 Md. 338, where the court held that the attachment was properly served upon a party in the Dis- trict of Columbia while he was temporarily there; that as his debt to the appellant was payable wherever he was found, and process had been served upon him in the District of Columbia, the Supreme Court of the District had unquestioned jurisdiction to render judgment, and •336 PARTICULAR SUBJECTS. (Part 2 the same having been paid, there was no error in granting the prayer of the appellee that such judgment was conclusive. The case in 138 ■ N. Y. 209, 33 N . E. 938, 20 L. R. A. 118, 34 Am. St. Rep. 448 (Doug- lass V. Phoenix Ins. Co.), is not contrary to this doctrine. The ques- tion there was not as to the temporary character of the pi-esence of the garnishee in the state of Massachusetts, but, as the garnishee was a , foreign corporation, it was held that it was not within the state of Mas- ^ sachusetts so as to be liable to attachment by the service upon an agent "of the company within that state. T he gene ral^ principleJaid_down in Embree V. Hanna, 5 Johns. (N. Y.) 110, was recognized as correct. There are, as we have said, authorities to the contrary, and they can- not be reconciled. It seems to us, however, that the principle decided in Chicago, R. I. & P. R. Co. V. Sturm, 174 U. S. 710, 19 Sup. Ct. 797, 43 L. Ed. 1144, recognizes the jurisdiction, although in that case it appears that the presence of the garnishee was not merely a temporary one in the state where the process was served. In that case it was said : " 'AH debts are payable everywhere unless there be some special limitation or pro- vision in respect to the payment; the rule being that debts, as such, have no locus or situs, but accompany the creditor everywhere, and au- thorize a demand upon the debtor everywhere.' 2 Parsons, Contracts, 8th ed. 702 [9th ed. 739]. The debt involved in the pending case had no 'special limitation or provision in respect to payment.' It was pay- able generally, and could have been sued on in Iowa, and therefore was attachable in Iowa. This is the principle and effect of the best con- sidered cases — ^the inevitable effect from the nature of transitory ac- tions and the purpose of foreign attachment laws, if we would en- force that purpose." The case recognizes the right of the creditor to sue in the state where the debtor may be found, even if but temporarily there ; and upon that right is built the further right of the creditor to attach the debt owing by the garnishee to his creditor. The impor- iance of the fact of the right of the original creditor to sue his debtor jn the foreign state, as affecting the right of the creditor of that cred itor to sue the debtor or garnishee, hes in the nature of the at tachment pr o- ceeding . The plainUajn^uclTproceeding in the foreign state is able to sue out the affachnient and attach the debt due fromTfiFganusEee to his (the garnishee's) creditor, because of the fact "tha nEe plaint iff is really, in such proceeding, a representative of the creditor "oIl'HegaF- nishee, and therefore if such creditor himself had the right 'to com- mence suit to recover the debt in the foreign state, his rep resentativ e has the same right, as representing him, and may garnishor attac h the debt, provided the municipal law of the state where, the attachment was sued out permits it. It seems to us, therefore, that the judgment against Harris in Mary- land, condemning the $180 which he owed to Balk, was a valid judg- ment, because the court had jurisdiction over the garnishee by per- sonal service of process within the state of Maryland. Ch. 1) PROPERTT. 337 It ought to be and it is the object of courts to prevent the payment of any debt twice over. Thus, if Harris, owing a debt to Balk, paid it under a valid judgment against him, to Epstein, he certainly ought not to be compelled to pay it a second time, but should have the right to plead his payment under the Maryland judgment. It is objected, however, that the payment by, Harris to Epstein was not under legal compulsion. Harris in truth owed the debt to Balk, which was attach- ed by Epstein. He had, therefore, as we have seen, no defense to set up against the attachment of the debt. Jurisdiction over him personal- ly had been obtained by the Maryland court. As he was absolutely without defense, there was no reason why he should not consent to a judgment impounding the debt, which judgment the plaintiff was legal- ly-entitled to ,""arid which he "could not'prevent. There was no merely voluntary payment within the meaning of that phrase as' applicable But m ost rights may be lost by ne gligence , and if jh^garnishee were j^uilty_ _of_ negligence trr"ihe attachment proceeding, to the^ damage of EaltcHie ought not to be permitted to set up the judgment as a defense. T hus it is recognized as the du ty of the garnishee to give notice to his ow n crec litor, if "he would~p"rotect Jiimself, so that the creditor may have the opportunity to defend himself against the claim ^of the .per- son suing out the attachment. This duty is affirmed in the case above cited of Morgan v. Neville, 74 Pa. 53, and is spoken of in Chicago, R. I. & P. R. Co. V. Sturm, 174 U. S. 710, 19 Sup. Ct. 797, 43 L. Ed. 1144, although it is not therein actually decided to be necessary, be- cause in that case notice was given and defense made. While t he want of notification by the garnishee to his own_creditor may have no effect upon the validity of the judgment against the garnishee (the proper publication being made by the plaintiff), we think it has and ought to have an effect upon the right of the garnishee to avail Hirnself pf the prior judgment and his payment thereunder. This notification by the garnishee is for the purpose of making sure that his creditor shall have an opportunity to defend the claim made against him in the attachment suit. Fair dealing requires this at the hands of the garnishee. In this case, while neither the defendant nor the garnishee appeared, .the court, while condemning the credits attached, could not, by the terms of the TVlarylaird statute, issue the writ of execution unless the plaintiff gave 'borid' or Sufficien t security before_ the court awarding the executioji, to make restilution of the money paidJ£_the.defendant_should, at any time withm a year anSTa day, appear in the action and show that the plain- "Erff^Tlaiffl, or some part thereof_j_wasjiot.duje.to.the plaintiff. The de- fendaht IrTerror, Bal k, had notice of this attachment, c ertainly within a few days alter the issumg thereof and the entry of judgment, there- on, because Ke"sued the'^pIamtilTTn efroFTo^ecovS his debt within a few^^ays after his (Harris') Tefurfft'o'North Carolina, in which suit the judgment in Maryland was set up by Harris as a plea in bar to Balk's claim" Balk, therefore, had an opportunity for a year and a EDBXonEL. — 22 o38 PARTICULAR SUBJECTS. (jr^art ^ day after the entry of the judgment to litigate the question of his lia- bihty in the Maryland court, and to show that he did not owe the debt, or some part of it, as was claimed by Epstein. He, however, took no proceedings to that end, so far as the record shows, and the reason may be supposed to be that he could not successfully defend the claim, because he admitted in this case that he did, at the time of the attach- ment proceeding, owe Epstein some $344. Generally, though, the failure on the part of the garnishee to give proper notice to his creditor of the levying of the attachment would be such a neglect of duty on the part of the garnishee which he owed to his creditor as would prevent his avaihng himself of the judgment in the attachment suit as a bar to the suit of his creditor against himself, which might therefore result in his being called upon to pay the debt twice. The judgment of the Supreme Court of North CaroHna must be re- versed, and the cause remanded for further proceedings not incon- sistent with the opinion of this court.^' Reversed. Harlan and Day, JJ., dissented. 2 9 The state courts are in great confusion on this subject. Some courts have maintained that tlie situs of a debt for the purpose of garnishment is at the domicile of the creditor. Louisville & N. R. Co. v. Nash, 118 Ala. 477, 23 South. 825, 41 L. R. A. 331, 72 Am. St. Rep. 181 (1898). But it has been held that a Legislature may constitutionally fix the situs of a debt for such purpose at the residence of the debtor. Harvey v. Thompson, 128 Qa. 147, 57 S. B. 104, 9 L. R. A. (N. S.) 765, 119 Am. St. Rep. 373 (1907). Other courts have allowed the attachment of the debt at the residence of the debtor upon the general ground that, so far as the remedy of the creditors of the payee of the debt is concerned, it has a situs there. Cross v. Brown, 19 R. I. 220, 33 Atl. 147 (1895); Bragg v. Gaynor, 85 Wis. 468, 55 N. W. 919, 21 L. R. A. 101 (3893). Others again have allowed such a garnishment wherever the debtor could be found or sued. Harvey v. Great Northern R. Co., 50 Minn. 405, 52 N. W. 905, 17 L. R. A. 84 (1892) ; Wyeth Hardware & Mfg. Co. v. H. F. Lang & Co., ]27 Mo. 242, 29 S. W. 1010, 27 L. R. A. 651, 48 Am. St. Rep. 626 (1895). It has been held, also, that a debtor can be garnished only in the state where the debt is payable, provided it is also the place of residence of his creditor. American Cent. Ins. Co. v. Hettler, 37 Neb. 849, 56 N. W. 711, 40 Am. St. Rep. 522 (1893) ; Bullard v. Chaffee, 61 Neb. 83, 84 N. TV. -604, 51 L. R. A. 715 (1900). See, in general, 19 L. B. A. 577-580; 67 L. R. A. 209- 223 ; 8 Col. Law Rev. 325. As to garnishment of foreign corporations, see 19 Cyc. 1331-1337; Louis- ville & N. R. Co. v. Deer, 200 IT. S. 176, 26 Sup. Ct. 207, 50 L. Ed. 426 (1906) ; Nntional Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468, 32 Atl. 663 (1895); Lan- cashire Ins. Co. v. Corbetts, 165 111. 592, 46 N. E. 631, 36 L. R. A. 640, 56 Am. St. Rep. 275 (1897) ; Pennsylvania R. Co. v. Rogers, 52 W. Va. 450, 44 S. E. 300, 62 L. R. A. 178 (1903) ; Baltimore & O. R. Co. v. Allen, 58 W. Va. 388, 52 S. E. 465, 3 L. R. A. (N. S.) 608, 112 Am. St. Rep. 975 (1905). As to attachment of shares of stock, see J. H. Beale, Jr., Foreign Corpora- tions, § 376 ; also 55 L. R. A.. 796-809. Taxation. Intangible property has a situs for the purpose of taxation at the domicile of the creditor. Kirtland v. Hotchklss, 100 U. S. 491, 25 L. Ed. 558 (1879). Capital may be taxed, however. In the state where It is employ- ed, though the owner be a nonresident. New Orleans v. Stemple, 175 U. S. ,309, 20 Sup. Ct. 110, 44 L. Ed. 174 (1899) ; Bristol v. Washington County, 177 U. S. 133, 20 Sup. Ct. 585, 44 L. Ed. 701 (1900) ; State Board of Assess- ors of Parish of Orleans v. Comptoir National D'Esoompte, 191 U. S. 388, 24 Ch. 1) PROPERTY. 339 Sup. Ct. 109, 48 L. Ed. 232 (1903) ; Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395, 27 Sup. Ct. 499, 51 L. Ed. 853 (1907). But the mere presence of the instrument evidencing a debt does not confer authority to tax upon the state where it is found. Buclc v. Beach, 206 U. S. 392, 27 Sup. Ct. 712, 51 L. Ed. 1106 (1907). Unless, perhaps, the debt is incorporated in a specialty. State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L. Ed. 179 (1872). But a mortgage securing notes held by a nonresident may be taxed at the situs of the realty. Savings & Loan Soc. v. Multnomah Co., 169 U. S. 421, 18 Sup. Ct. 392, 42 L. Ed. 803 (1898). Shares of stock are taxable at the domicile of the stockholder. Dwight v. Mayor, etc., of City of Boston, 12 Allen (Mass.) 316, 90 Am. Dec. 149 (1866) ; Dyer v. Osborne, 11 R. I. 321, 23 Am. Rep. 460 (1876) ; Worth v. Commissioners of Ashe County, 90 N. C. 409 (1884). But in creating a corporation a state may, for the purpose of taxation, assign a situs to the stock at the domicile of such corporation. Tappan v. Merchants' Nat. Bank, 19 Wall. 490, 22 L. Ed. 189 (1873); Corry v. Baltimore, 196 U. S. 466, 25 Sup. Ct. 297, 49 L. Bd. 556 (1905). A transfer or succession tax may be imposed on debts owed by citizens of a state to a nonresident. Blackstone v. Miller, 188 U. S. 189, 23 Sup. Ct. 277, 47 Li. Ed. 439 (1903). Or upon stock or bonds held by a nonresident in a do- mestic corporation. Matter of Bronson's Estate, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632 (1896) ; Matter of Cooley's Estate, 186 N. Y. 220, 78 N. E. 939, 10 L. R. A. (N. S.) 1010 (1906). A tax may be levied upon transfers inter vivos within the state of shares of stock held In a foreign corporation by a nonresident. People v. Reardon, 184 N. Y. 431, 77 N. E. 970, 8 L. R. A. (N. S.) 314, 112 Am. St. Rep. 628 <1906), affirmed 204 U. S. 152, 27 Sup. Ct. 188, 51 L. Ed. 415 (1907). 340 PARTICULAR SUBJECTS. (Part 2 CHAPTER n. OBLIGATIONS. SECTION 1.— CONTRACTS. I. In General.^ 1 As to jurisdiction to enforce foreign contracts, see 55 Am. St. Rep. 774r-778. As to place where contract is made, see 55 Am. St. Rep. 44r-55 ; 99 Am. Dec. 668-675. The general rule is that a contract is deemed made in the state or country where the last act necessary to make it a binding agreement takes place. Su- preme Lodge K. P. V. Meyer, 198 U. S. 508, 25 Sup. Ct. 754, 49 L. Ed. 1146 (1905) ; Haas v. Myers, 111 111. 421, 53 Am. Rep. 634 (1884) ; Born v. Home Ins. Co., 120 Iowa, 299, 94 N. W. 849 (1903) ; Emerson Co. v. Proctor, 97 Me. 360, 54 Atl. 849 (1903). A contract concluded by correspondence will, there- fore, ordinarily be deemed to have been made at the place where the letter of acceptance was mailed or the telegram of acceptance was delivered for transmission. Perry v. Mount Hope Iron Co., 15 R. I. 380, 5 Atl. 632, 2 Am. St. Rep. 902 (1886) ; Emerson Co. v. Proctor, 97 Me. 360, 54 Atl. 849 (1903) . Continental Law. — France. According to the prevailing opinion, the con- tract is regarded as made at the place where the letter of acceptance is post- ed. App. Rouen, Feb. 28, 1874 (D. 1877, 2, 222) ; App. Rennes, Dec. 15, 1891 (19 Qunet, 912); App. Limoges, March 2, 1894 (D. 1895, 2, 257); App. Poi- tiers, Oct. 28, 1907 (4 Darras, 222). In favor of place where the letter of ac- ceptance is received, App. Lyon, June 27, 1867 (D. 1867, 2, 193) ; App. Chambgry, June 8, 1878 (D. 1878, 2, 113). The Court of Cassation has held that the place where the contract is made is a question of fact, to be left to the determination of the trial judge. Cass. Aug. 6, 1867 (S. 1867, 1, 400) ; Cass. Dec. 1, 187^ (D. 1877, 1, 450). Germany. — Notwithstanding the rule that a declaration of intention (Wil- lenserklarung) requiring communication is not efCective until it reaches the other party (section 130, Civ. Code), it seems to be held that a contract will be deemed made in the state where the offer is accepted. 62 R. G. 379 (Feb. 12, 1906); R. G. June 2, 1908 (18 Niemeyer, 449). See also, section 151, Civ. Code. /toJy.— Article 30, Com. Code, provides that a contract is not complete until notice of the acceptance reaches the offeror. If the offeror requests an imme- diate performance, however, or if the nature of the transaction is such that in accordance with general commercial usage an answer is not required, it will be deemed complete the moment the offeree has entered upon his performance. See Cass. Palermo, Feb. 17, 1900 (La Legge 1901, 1, 165) ; Cass. Turin, Dec. 30, 1892 (Monitore 1893, p. 389) ; Cass. Turin, Jan. 13, 1891 (Monitore 1891, p. 189). These rules apply also to civil contracts. Cass. Turin, Feb. 4, 1891 (Giurispr. Tor. 1891, p. 153) ; Cass. Rome, Feb. 1, 1892 (2 Riv. de Dlr. Eccl. 606). See, also, F. Survllle, Des contrats par correspondance, notammant dans les rapports internatlonaux, 18 Clunet, 361-h379. Ch. 2) OBLIGATIONS. 341 MONTANA COAL & COKE CO. v. CINCINNATI COAL & COKE CO. (Supreme Court of Ohio, 1904. 69 Ohio St. 351, 69 N. B. 613.) On February 1, 1896, the defendant in error the Cincinnati Coal & Coke Company executed and delivered to the plaintiff in error, the Montana Coal & Coke Company, a promissory note, of which the fol- lowing is a copy: "$1,654.39. Cincinnati, Feb. 1, 1896. " "Ninety days after date the Cinti. Coal & Coke Co. promise to pay to the order of Montana Coal & Coke Co. sixteen hundred fifty- four and thirty-nine one-hundreth dollars, payable at Northern Bank, Cov- ington. Kv.. value receiv ed. A. Montgomery, Pres. '%. Stock, Sec'y & Treas." On the back of said note appear the following indorsements : "A. Montgomery & Co. Marshall McDonald." The consideration for the note was coal sold by the plaintiff in er- ror to the defendant in error the Cincinnati Coal & Coke Company, prior to its date. The Cincinnati Coal & Coke Company, when the m^n ey was du e, requested an extension^ of time for payment, and the plainti j[jn__error agreed to extend the time for payment, provided ^at the Cincinnati Coal & Coke Company would execute lind deliver "T o the plaintiff a 9 0:day note, indorsed^ by A^ Montgomery & ^Cor~ahd "Marshall McDonal d. A. Montgomery & Co. did so indorse said no te on the back thereof at Covington, Ky ., prior to the delivery of the note to the plaintiff in error. The Cincinnati Coal &~Coke Company thereupon sent said note to Marshall McDonald, at Pittsburg, Pa., and he there indorsed his name on the b ack_of_said note after the in- dorsement of A. Montgomery & Co., and returned the said note to the Cincinnati Coal & Coke Company, at Cincinnati, Ohio, after which the Cincinnati Coal & Coke Company delivered the note to the plain- tiff in error, the Montana Coal & Coke Company, at Cincinnati. Ohio . The note, on default, was not protested , nor was notice of nonpay- ment given to Alexander Montgomery, the surviving partner of A. Montgomery & Co., nor to Marshall McDonald or his legal repre- sentatives. T_he note was never discounted or jiegQ±ia.ted_at_arLyJink in the state o f Kentucky. Nosuk_wasjnstituted to compel J:he Cin- ci nnati Coal & Coke Company to pay the note in any court pxiojcto this suit. Each of the circuit courts of the state of Kentucky, being courts of general jurisdiction in all actions at law, held a term sub- sequent to May 1, 1896, at which an action might have been brought by the plaintiff in error to recover any sum that might have been due upon the note set out in the petition. The plaintiff, the Montana Coal & Coke Company, has always been the owner and holder of the note 342 PARTICULAR SUBJECTS. (Part 2 set forth in the petition. On the trial of this action in the court of common pleas of Hamilton county the court held upon these facts that the liability of Alexander Mpntgqmery ancf Marshal) McDonald was to bedeterrnined by the laws of the sta.te of Kentucky, and that by the laws of that state said indorsers were to be Regarded as assignors merely, and were released from all liability to the payee of thejnote in suit, because "the payee had failed to prosecute the make r to insol - l?«Tcy"at the next term of the circuit court in that state after the ma- turity of the note. The petition of the plaintifif in error was there- fore dismissed as to Montgomery and McDonald, and this judgment was affirmed on error to the circuit court of Hamilton county. DaviSj J. This court has already committed itself to the doctrine that "a contract made in one state or country to be performed in an- other is governed by the laws of the latter, which determine its valid- ity, obligation, and effect." Pittsburgh, C, C. & St. L. Ry. Co. v. "^ppard, 56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep. 733; Kanaga V. Taylor, per Bowen, J., 7 Ohio St. 143, 70 Am. Dec. 62. This rule is so well established upon reason and authority that it requires no discussion here. The note which is the subject of controversy in this case was signed by one of the parties in Ohio, and before delivery by another in Kentucky and by another in Pennsylvania; but it was de- livered to the agent of the payee in Ohio. The contract was within the control of the parties who are bound by it, and did not become effective until it was delivered. Therefore the loci contrac tuaJajQhio. &ut_the_ pjace of performance, the loci solutionis, _is Kentucky , be- cause the note ,is expressly made "payable at Northern Bank, Covi ng- Toh, Ky." The "plaintifif in" error insists that this stipulation binds 'only the principal debtor, the Cincinnati Coal & Coke Company which signed underneath the note and upon the face of it; and that the contract of the parties who signed in blank on the back of the note, although before its delivery, is like the engagement of an in- dorser, an independent contract which contains no stipulation as to the__glace of performance. Hence if is argued that as to these parties tTie case is controlled by the lex loci contractus; that is, the law of Ohio. From our point of view, Montgomery & Co. and McDonald were not indorsers in the regular" way and in the course of business as the owners or holders of the note. All of the defendants" wer e original parties to the note, having signed it before it came into the ■possession of the first owner, the payee. The facts are undisputed, and the obvious deduction therefrom is that the parties to the note at the time of its utterance all understood, and meant to be governed "by, its terms ; for at the time, Montgomery & Co. and McDonald put their signatures on the back of the note the stipulation that the money should be "payable at Northern Bank, Covington, Ky.," was as much a part of the original contract as the promise to pay to the order of plaintiff the sum of money which is stated. There was, in short, no separate contract after the making of the note ; but the note came to Ch. 2) OBLIGATIONS. 343 th e payee si gneji by all of the defendants, and with the place of per- formance distinctly expressed. There was therefore no error in the judgments of the courts below, and the judgment of the circuit court is affirmed.^ SPRINGS V. SOUTHBOUND R. CO. (Supreme Court of South Carolina, 1896. 46 S. C. 104, 24 S. E. 166.) The plaintiffs were cotton buyers in §outh, Carolina and as such shipped over the defendant's railroad to thp rity nf'^ava'rinali, Oa., 171 bales of cotton, arriving at destination about February 28, 1893. The defendantstood the cotton bales up on the ends of the bales, exposed to the weather, from'February 28, 1893, untilthe 23d of April, 1893, at which time they were shipped by the steamer D. H. Miller to the city of Baltimore, where they arrived on April 25, 1893. The cotton was sold to Albert G. Ober, of that city. When weighed by Albert R. Rhett, a public weigher of that city, the heads of bales were found to be wet with water. The plaintiffs sued the railroad company to re- cover from it the sum of $275.64, as injury to the 171 bales of cotton, which, they alleged, resulted to, their property from their negligence and" carelessness in exposing the cotton to the weather for nearly two months. The answer admitted the shipment over its road by the plain- tiffs, but alleged that it observed due care of the cotton after it reach- ed the city of Savannah.^ Pope, J* * * * in the thirteenth exception it is alleged the' circuit judge was in error when he charged the jury: " Did they [de- ' fendant] put it [the cotton] in a place of safety when it reached Savan- nah? JDid they safely keep the cotton — preserve it ? _If they did not," they, under the laws of the state of Georgia, would be liable for any damage resulting." The presiding juBge made this quotation from the Georgia case cited by appellant: "We think section 2044 of the Code dispenses with the notice in this case, and relieves the plaintiff from'any error or liability as a common carrier after the transporta- tion of the freight within the accustomed time, a deposit of it in a place of safety, and the holding of it there ready for delivery, on demand." (Itahcs ours). Remembering _that, as to dehvery, the defendant_as well as plaintiff s .were bound^y_the laws.of the state of Georgia, where the delivery was had, we can see, no_ error on the part of the circuit 'ySSge, forit is in keeping with the requirements of the laws of Georgia on this subject. This ground of appeal is dismissed. * * * 2As to where the place of performance in general is deemed to be, see Minor, Conflict of Laws, 377, 378; Grant v. Ilcaley, Fed. Cas. No. 5,696 (1839). Com- pare Ballister v. Hamilton, 3 La. Ann. 401 (1848). 3 The facts have been taken from the opinion and have been slightly- abridged. * Only so much of the opinion is given as relates to the law governing delivery. 344 PAETicuLAK SUBJECTS. (Part 2 BENNERS V. CEEMENS. (Supreme Court of Pennsylvania, 1868. 58 Pa. 24.) This was an amicable action of assumpsit to December term, 1866, in which John Clemens was plaintiff and Isaac R. Benners, survivor of the firm of Isaac R. Benners & Co., defendant. The claim was for a balance due by defendant on an invoice of fruit, contracted for in Eng- land and shipped to defendant to New York. The whole amount of the shipment was $3,967.85, which was reduced to $896.95 by quercit- ron bark shipped to plaintiff. The plaintiff claimed to recover this bal- ance at gold prices with interest from December 17, 1863. The only question in the case was whether it was to be paid on that basis. The verdict was for $1,456.65, the whole amount of the plaintiff's claim. The defendant took a writ of error. Thompson, C. J. The debt sued for was a debt contracted in Eng- land, or rather the balance of a debt contracted and partially liquidated there by returns in quercitron bark. In the absence of any understand- ing to the contrary the balance was due and payable there. This being so, it was payable in the legal currency of the country, denominated pounds, shillings, and pence, and the representative of gold. Of course, as any payment obtained here would be payable in legal tender notes, the value of the gold in legal tenders, with interest, would be what in amount the judgment should be. The lex loci contractus must control in interpreting the contract. Allshouse v. Ramsay, 6 Whart. 331, 37 Am. Dec. 417; Watson v. Brewster, 1 Pa. 381, and authorities cited by the defendant in error. This view of the case is sufficient to afRrm the judgment without reference to any question arising on our legal tender acts. The judgment being right in amount is affirmed. ° 5As to whether the amount recoverable is to he calculated by the real par, or by the nominal par, see Lee v. Wilcocks, 5 Serg. & R. 48 (1819) ; Scofield V. Day, 20 Johns. (N. T.) 102 (1822) ; Adams v. Corlis, 8 Pick. (Mass.) 260 (1829)rGrant v. Healey, Fed. Cas. Ne. 5,696 (1839); Marburg v. Mar- burg, 26 Md. 8, 90 Am. Bee. 84 (1866). In Abt V. American Trust & Savings Bank, 159 111. 467, 470, 42 N. E. 856, 50 Am. St. Rep. 175 (1896), the point for determination was whether the Il- linois law or the New York law should govern the question whether the drawing of a draft in Illinois on a New York bank operated as an assign- ment pro tanto of the funds on deposit. The court, per Carter, J., said: "The contract was to be performed in New York, and it must be presumed that upon a question of this character the parties contracted with reference to the laws of the state where the contract was to be performed, rather than with reference to the laws of the state where the contract was made." In Davis V. Adae, 7 Ohio Dec. 620 (1879), it was held, however, that as between the drawer of a check and the holder the lex loci contractus should govern. And in France the law of the place where a bill of exchange Is drawn determines its effect upon the funds in the hands of the drawee. Cass. Feb. 6, 1900 (S. 1900, 1, 161), and note by Ch. Lyon-Caen. Such law has been held to apply also Ch. 2) OBLIGATIONS. 345 GRAHAM V. FIRST NAT. BANK OF NORFOI K. '^ ' (Court of Appeals of New York, 1881. 84 N. Y. 393, 88 Am. Rep. "128.) FiNCHj J.° The ownership of one hundred and ninety-six shares of stock, which stood upon the books of the Norfolk Bank in the name of Eliza A. Graham, must be deemed vested in her, whether the purchase price was paid by her or by her husband, and notwithstanding the evi- dent control of it, for his own purposes, by the latter. No creditors of the husband intervene to affect the question, and, as between Mrs. Graham and the bank, her right as owner must be admitted. The divi- dends declared during such ownership belonged to and were payable to her ; and, assuming for the present that her assignment to plaintiffs was effective to transfer such right to them, there remain for discus- sion only the two questions: Whether the Norfolk Bank did, in fact, pay the dividends sued for to the husband of Mrs. Graham ; and wheth- er by such payment to him the liability of the bank to her was dis- charged. The referee has found that such payments were, in fact, made to James Graham, the husband. * * * While the facts are not free from difficulty, a careful examination has satisfied us that there was sufficient evidence to warrant the find- ing of the referee, and to make it conclusive on this appeal. The question of law, however, remains, whether the payment by the bank to James Graham was a good payment to his wife in whose name the stock stood upon the books of the bank. The Norfolk Bank was located and transacted business in the state of Virginia. It i s pr oved^ that in tha t state th e common layy prevails as it_respects the relation of husband and wife, and that withiji tha± jjirisdiction jhejbu^^^ has the absolufe" right to reduce to his own possession, and use for his own benefit, "the personal property of the wife. The contract out of which grevv "the right to the dividends was both made and to be performed in Virginia 7and if the payment by the Bank of Norfolk to James Graham is to be tested and measured by the law of that state, it is conceded to have be en good and an effective discharge of the liability to the wife. It is denied, however, that the law of Virginia applies, and i^i^s ar- gued that the law of Maryl and, the lex domicilii, governs and controls' the capacity ofThFpartieFto receive payment, and jthe duty of the bank in makiiigit Tlie'general subject of a conflict between the law of the domicile and that of the place of contract has been fully discussed by Story and Wharton in their respective treatises. Story on Conflict of Laws, § 374 et seq. ; Wharton, § 393 et seq. Whatever is useful in between an Indorser and his indorsee. App. Oaen, Dec. 12, 1900 (29 Clunet, 321). But see App. Eennes, Aug. 1, 1895 (23 Clunet, 376), in favor of the law of the place of Indorsement. 6 The statement of facts and a part of the opinion have been omitted. 346 PARTICULAR SUBJECTS. (Part 2 the learning, of the continental jurists, or the decisions of the English courts, hd's been made tributary to conclusions which we may safely follow ivhere, at least, they are in harmony with the ruling of our own tribxfhals. It must, then, be granted thatrnoyables or personal ^prop- erty, by a,fiction of the law, are deemed attached to the person of the owner, and so, present at his domicile, whatever their actual situation Inay be. The law of the domicile, therefore, naturally governs their transfer by the'owner, and their disposition and distribution in case of his death. So far the authorities substantially agree, differing only in the reasons upon which the rule is founded, and by which it is to be justified. When, howevei", the question passes beyond the dispositJMi of the personal property by the party, or the act of the law, within the jurisdiction of the domicile, and busies itself with the inherent character oT~tEe property, and of the contracts which both create and_consti-, tute it, elements of discord arise, and the authorities are not easily to be reconciled. It is readily seen that the inhe r ent character of the con- tract must usually be the product of the jurisdiction in which it orig i- _rmtes^nd hence it follows, and has been justly held, that the c onstru c- ] tion, nature a nd effect of a contract are to be, determined by the le x J loci contractus. Story on Conflict of Laws, § 321. But no such ques- "tion is here. There is no dispute about the construction of the, contract to pay dividends. All are agreed upon that. There is no trouble as to the nature of the contract or its effect. Its jvalidity,_ariid the duty of payment to the stockholders, is conceded on all sides. The real question _ is o ver the, performance of the con,tract,. or its discharge by paymen t : and" that involves the capacity of the husband to receive and discharg e the debt, represented by. the dividends, jure mariti. On the one hand it is argued that this question of capacity, of the rights and powers flowing from the marriage relation, is dependent upon the law of the domicile, and utterly unaffected by the foreign law, and the former must, therefore, dictate and measure the authority and power of the husband and the right of the wife. That is, in general, true as between themselves, and relatively to each other. It_does not follow that it is true as betvyeen tliem and a debtor in another state, whose, contract was made there, and is there to be performed. Such a fact introduces a new element into the problem, jt would scarcely be endurable if a railroad or insurance company declaring^ divTdehcls'in 'tfils^ state .should be bound to pay stockholders in other states according -to-tl1e-.i3r.eign ^ laws, and in accordance with different and varying Codes. Observ- 'ihg the evil result we must remember that, in a case like the present, it is a legal fiction which attaches the property to the domicile, and the actual fact may be otherwise. Judge Comstock, in People ex rel. Hoyt V. Commissioners of Taxes, 23 N. Y. 228, well says, "that the fic- tion or maxim, 'Mobilia personam sequuntur,' is by no means of uni- versal application. Like other fictions it has its special uses. It may be resorted to when convenience and justice so require. In other cir- cumstances the truth and not the fiction affords, as it plainly ought to Ch. 2) OBLIGATIONS. 347 afford, the rule of action." And Judge Story says that the legal fiction "yields whenever it is necessary for the purposes of justice, that the actual situs of the thing should be examined." Confl. of Laws, § 550. And hence has been very steadily sustained the general rule that a contr act made in one state and to be performed there is governed By the" law~oT"ffiat state, and the_further rule',' which is a logical result, that" a defense or discharge, good by the law of the place where the contract is m ade or to be performedfis to be held, in rnost cases, of equal valid- "T^^elsewhere. Story oh Confl. of Laws, § 331 ; Thompson v. Ketchum, TJohns. 189, 5 Am. Dec. 332; Bartsch v. Atwater, 1 Conn. 409; Smith v. Smith, 2 Johns. 235, 3 Am. Dec. 410 ; Hicks v. Brown, 12 Johns. 142 ; SherriU v. Hopkins, 1 Cow. 103 ; Peck v. Hibbard, 26 Vt. 702, 62 Am. Dec. 605 ; Bowen v. Newell, 13 N. Y. 290, 64 Am. Dec. 550 ; Cut- ler V. Wright, 22 N. Y. 472 ; Waldron v. Ritchings, 3 Daly, 288 ; Jewell V. Wright, 30 N. Y. 259, 86 Am. Dec. 372 ; Willitts v. Waite, 25 N. Y. 577. Jn these cases the fictio n yields_toJ:he factj_ th e situs at- tached theoretica lly to the person of the owner, and; .therefore^ to^hi? domicile, surrenjderFTo the actual _situs_ where justice and cqnYenience "ctemand it. The illustrations are various, but founded upon a common reason and justification. For the purpose of taxation the actual situs controls and the fiction which carries the personal property to the domi- cile of the owner is disregarded. As to days of grace affecting the maturity of a contract and determining when it becomes due, the lex loci is applied. The defense of infancy is to be sustained or denied ac- cording to the rule of the place of contract and performance. So, also, as to the disability of coverture, and the rate and legality of interest. And even an assignment, in invitum, compelled by the local law, will transfer property in another state where suitors in the courts of the lat- ter are not thereby prejudiced. These rulings and others of the like character have been modified and moulded in their application by the influence of yaried circumstances, but concur in the general principle upon which the lex loci has been applied. The poin t prpggpri hprp is that while Jt controls the_constnictjoiLJjidjal.idity of the. contract it does noF set tle the capacity of the noriresident parties. But to found a ' ruling upon such a test would involve us in an ambiguity. Capacity ma y affect the power of transfer and the direction j,nd.. details ot distribu- ti on. In that respect it is often shaped and settled by the law of the domicile. But it also affects the validity of a contract and the mode and manner of itsjiissolutlon or discharge. I n that respect it is gen- erally g overned by th e law of the p la ce of contract. Story concludes, atter a full and learnedreview of the insuperable difficulties which at- tend an effort to extend the capacity or incapacity created by the law of the place of domicile to foreign states, that the true rule is that "the capacity, state and condition of persons according to the law of their domicile will generally be regarded as to acts done, rights acquired and contracts made in the place of their domicile, touching property situate therein," but as to acts done, etc., elsewhere the lex loci contractus will. 348 PAETiCDLAK SUBJECTS. (Part 2 govern in respect to capacity and condition. We cannot make, ther e- fore, the^law of the domicile in and.qf itself a solvent of the d oubts an d difficulties likely to arise even as to questions of capacity. I n the pre s- ^ ent case the contract was made in Virginia and to be per formed there . The dividends were there declared and payable. They were paid to th e husband who could lawfully receive and appropriate thenij by the la .w of Virginia, to his own use and benefit. The pa"ymerit""was , th erefore, valid aiid effectual^nd discharged the bank . trQrn.iis.JiS)iht3?r "_'I^he TtgffEroflHe" wife after such payment, as between hersdiji,u±hssJiUS- band under the law of Maryland^ might prove to be a very differen t •question. It is sufficient for the purpose of this case that the payment, which the referee finds was in fact made to the husband, discharged the liability of the bank and furnished a defense to the action. The judgment should be affirmed with costs. All concur, except Rapali^o, J., absent.'' / , J ! / HEALY v. GORMAN. - ^\ (Supreme Court of New Jersey, 1836. 15 N. J. Law, 328.) i\ This was an action of assumpsit on a promissory note dated in the city of New York, and payable at the State Bank in Elizabethtown, New Jersey. The Chief Justice, on the trial at the circuit, directed the 7 Where the further performance of a contract became impossible by reason of military operations at the place of performance, or by reason of prohib- itive enactments by the local government of such place, the question wheth- er the contract was discharged was held to lie determined by the law governing the malting of the contract, and not by that governing its performance. Jacobs V. Credit Lyonnais, L. R. 12 Q. B. Div. 589 (1884) ; Tweedie Trading Co. v. James P. McDonald Co. (D. C.) 114 Fed. 985 (1902). In the latter Adams, District Judge, said: "Contracting parties are subject to the contingencies of changes in their own law, and liable to have the execution of their con- tracts prevented thereby; but it is on the ground of illegality, not of im- possibility. Prevention by the law of a foreign country is not usually deem- ed an excuse, when the act which was contemplated by the contract was valid in view of the law of the place where it was made. Pol. Cont. 363 ; Abb. Shipp. (13th London Ed.) 755 ; Carv. Carr. by Sea (3d Ed.) § 255 ; Clif- ford v. Watts, L. R. 5 C. P. 577, 586; Duff v. Lawrence, 3 Johns. Cas. 162, 172; Spence v. Cbadwick, 10 Q. B. 517, 530; Jacobs v. Credit Lyonnais, 12 Q. B. Div. 589. And a fortiori when it was also then valid at the place of performance." Continental Law.— a. In general. — There is general agreement that matters relating to the performance of an obligation should be subject to the lex solutionis. France, Trib. Com. Rouen, Dec. 10, 1899 (15 Autran, 442) ; Trib. Com. Marseille, Sept. 26, 1894 (25 Clunet, 749). Germany, 6 R. G. 125 (March 11, 1882) ; O. L. G. Hamburg, Oct. 31, 1900 (17 Autran, 163). Itahi, article 10, Prel. Disp. Civ. Code ; Cass. Naples, Dec. 4, 1892 (26 Clunet, 866) ; App. Catania, July 17, 1880 (Giurispr. Cat. 1880, p. 168). b. Interest and dam ofires.— Contractual interest is subject to the general rules governing contracts in the particular country. France, Oass. Feb. 19, 1890 (17 Clunet, 495) ; App. Bordeaux, Aug. 22, 1865 (S. 1866, 2, 217). Italy, article 9, Prel. Disp. Civ. Code. Moratory interest, on the other hand, is fixed by the lex solutionis. France, Cass. April 13, 1885 (S. 1886, 1, 154). Germany, 1 R. G. 59 (Feb. 20, 1880) ; 24 R. O. H. G. 388 (Dec. 6, 1878). Italy, Cass. Florence, July 4, 1892 (Temi Yen. 1892, p. 454). Ch. 2) OBLIGATIONS. 349 jury to allow interest, at the rate of seven per cent., being the legal in- terest of the state of New York, where the plaintiff lived, and the con- tract was made. It was agreed by the counsel for the parties, that this question of the rate of interest should be moved, and argued at the bar of the court, and if the direction of the Chief Justice should be found wrong, then that the excess of interest should be deducted and judg- ment be entered for the residue. HoRNBi^owER, C. J. I am satisfied that I was wrong in directing the jury to allow interest at the rate of seven per cent., the legal interest in the state of New York, instead of New Jersey interest, which is only six per cent. Mr. Justice Story in his Commentaries on Conflicting Laws, 241, § 291, says : "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." In support of this rule the commentator refers to a great number of cases, both American and English. Chancellor Kent in his Commentaries (section 39, pp. 460, 461, 3d Ed.) says: "The law of the place where the contract is made, is to determine the rate of interest, when the contract specifically gives in- terest ; and this will be the case though the loan be secured by a mort- gage 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 of in- terest; when that is the case, the rate of interest of the place of pay- ment, is to govern." The note in question though made in the city of New York was in express terms to be paid at the Bank of Elizabeth, in this state. The contract did not carry interest upon the face of it, but upon default of payment at the day and place, the law of this state tacitly annexes an obligation thenceforth to pay interest until the debt is liquidated. But the obligation to pay interest was no part of the contract; for if the contract had been performed, no interest could have been demanded. It may be said however, that it was ; and that the understanding of the parties, and therefore in legal contemplation, a part of the New York contract, that if the money was not paid at maturity, it should then carry interest till paid. But the liability to pay interest, in such case is rather a legal consequence, than a conventional duty. The con- tract itself was for payment at a day certain. It did not contemplate a failure in the performance, and therefore made no provisions in antici- pation of such an event; but left the law to take its course in case of a breach of the contract. Since, therefore, the event which gave rise to and legalizes the plaintiff's claim to interest, happened in this state ; or in other words, since it was here that the right to interest accrued, and by operation of our law that it becomes payable, the' rate of inter- est must be such as is allowed in this state. See Story on Conflicting Laws, 245, §§ 394, 395. The excess of interest must therefore be de- oiJO PARTICULAR SUBJECTS. (Part 2 ducted, and judgment entered for the residue, pursuant to the agree- ment of the parties entered into at the circuit. Ford and Ryerson, JJ., concurred. Judgment for 6 per cent, interest.* . CURTIS V. DELAWARE, L. & W. R. CO. *^ ^ (Court of Appeals of New York, 1878. 74 N. Y. 116, 30 Am. Rep. 271.) Appeal from judgment of the General Term of the. Supreme Court, in the Second Judicial Department, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial, without a jury. This action was brought to recover for the loss of a trunk and its contents. The court found, in substance, that plaintiff, on the 9th of October, 1875, took passage on defendant's road from Scranton, Pa., to New York City, leaving his baggage to be brought by his wife ; that, on the 16th of October, 1875, plaintiff's wife and infant son took passage at Scranton for New York, with his and their baggage, consisting of personal clothing, all of which was his property ; that the baggage was was brought safely by defendant to New York, and was there l ost thjimgh-iisaifigligence. That by a general act of the Legislature of said commonwealth of Pennsylvania, passed on the 11th day of April, 1867 (P. L- 69), and at all times since and still in force, it was enacted and declared as follows : "Section 1. Each passenger upon a railroad shall have the right to have carried in the car or place provided for that purpose, in the train in which he or she may be a passenger, his or her personal clothing, not exceeding, inclusive of the trunk or box in which it may be con- tained, one hundred pounds in weight, and $300 in value. "Sec. 2. No railroad company shall, under any circumstances, be lia- ble for loss or damage of any baggage or property belonging to any such passenger, beyond the said sum of $300, unless it shall be proven that the excess in value thereof over that sum was duly declared to the agents of the company at the time of its delivery for transportation, and the sum charged by the railroad company for such transportation over and above passage fare was paid : "Provided, however, that the said declaration shall not relieve the claimant from proving the actual value of the articles alleged to have been lost or damaged ; but in no event shall there be any recovery be- yond the value thus declared." Further facts appear in the opinion. MiiyLER, J.° The right of a passenger to recover of a railroad cor- poration damages arising by reason of a loss of >baggage, while travel- 8 As to oontractual interest, see 62 L. K. A. 35-37 ; Minor, Conflict of Laws, ■S 184. »A part of the opinion has been omitted. Cll. 2) OBLIGATIONS. 351 ing upon the railroad, is fully established, and accordin a ; to the laws of this state the re can be no question as to the liability of such company ^for the loss a ctually' sustained, when it HTIs' 1;6~fillfilt the contract with the traveler, or is char geable with negligence, by which the damages are caused. ^The baggage, for which a recovery was had, was deliver- ed to the defendant at Scranton, in the state of Pennsylvania, to be transported to and delivered in the city of New York. The first ques- tion which arises upon this appeal is whether th e_statuteof the state pf Penns ylvania passed in 1867, w hich limits anddefines tTieTiabiHty .of raili Qad-cor-pprations upon contracts^ entered^into by them forJthe_ j r^smissi on^_of baggage, forms a part of the contract between the plamtiflF and the defendant,, and should be considered as determining the righ LiQ.r-ecover aad the amount of the. recovery. I think th aLtbe tedJbas^no_applicatjo,n,^and-that the eights of the parties must fbe determined^ in accordance with the laws of the state of Nev^ York, ["Which are applicable to such contracts, as is manifest by referring Jto e ~principles which govern contracts of this description. One of the "Tules applicable to the subject is that tfie "lex l oci contractus is to gov- i ern, u nless it appears upon the face of the contract tliat it 'was" fo' be performed i n some otner'pla'ce7'or'made" with. reference to^ of sorne other place, and then the rule of interpretation is governed by the law o f ..the , place. ~'Dyke""v. Erie Ry." Co;, 45 N. Y. 113, 6 Am. Rep. 43; Sherrill v. Hopkins, 1 Cow. 103. The place of delivery was a ma- terial and important part of the contract, and until such delivery the - - same 'was~hot~completed' and fulSllFd." Upon a failure to deliver the "baggage to the'plaintiff, in tEe~city of New York, there was a breach — o^thc" contract ; and as the final place of performance was in that city, would seem t o follow that, within the rule laid do wn, the contract gov erned, at least so far as .a.deliveryjsj^oncerned,. b y the laws ot JSlew ^ork. This certainly was to be done m"ardt-ffieEent- place [from where the contract was made, and it is a reasonable inference that it was in the contemplation of the parties at the time, and that it ) was" entered into with reference to the laws of the place where it was to be delivered. So also, wheii it appears t hat the place of perform- anc e'was different from the place of makmg the contractTi t is to be construed accordin g to the laws of the place where it i s to bejerform- .€d._ atiernll v. Hopkins, supra, p. 108, and authorities there cite^ Thompson v. Ketchum, 8 Johns. 189, 5 Am. Dec. 333 ; 4 Kent's Com. - 459. The place of final performance of the contract being in the city I of New York, although the transportation was mostly through other states, no reason pxists why a failure to deliver the baggage should ' not be 'Controlled by the laws which prevail at the place of deliv ery. It is said that the contract is entire and indivisible, and we are referred to some cases outside of this state, which, it is -claimed, sustain the doc- trine that the locality where the contract was made, in cases of this character, must control. None of the cases cited are entirely similar to the one at bar and do not involve the precise point now considered. 352 PARTICULAR SUBJECTS. (Part 2 But even were it otherwise, they are not, I think, controlHng, as no rea- son exists why a contract to deliver baggage should not be governed by the laws of the place where the baggage is to be delivered. * * * ^^ ^ In re MISSOURI S. S. CO. ]y \:\ (Court of Appeals, 1889. 42 Ch. D. 321, 58 L. J. Oh. 721.) ^ This was an action for damages, brought in England by A. N. Mun- ' roe, a citizen of the United States, residing at Boston, Mass., agauist the Missouri Steamship Company, Limited, which was in course of vol- untary liquidation, for the loss of 264 head of cattle shipped by Mun- roe in A merica, on board their ship, the Missouri. ' ' The Missour i Stga mship Company was an English company, havi ng its offices at Liverpool, an d the Misso uri_was_arL-Erg1'g^i g^^'p The cattle wereshipped by Munroe under^ contracts i n the English for m, signecl__b}M;lTe agents of the company at Boston. The contracts and ""BiTTTof lading contained each a stipulation, relieving the carrier troiiT liability for loss occasioned through the negligence of~9ie master and crew. "^ ' '" " "" ■ — The"' Missouri was wrecked on the coast of Carnarvon and the cattle were drowned. Eor the purpose of "this claim it was admitted that the cargo was lost through the negligence of the master and crew. Claimant contended that the contract should be governed by the law of Massachusetts, according to which any special contract exempting 'j a common carrier from responsibility for the negligence of himself or his servants was null and void. Chitty, J., held the stipulations valid, "First, on the general ground that the contracts are governed by the law of the flag, and, secondly, on the particular ground that from the special provisions of the con- tracts themselves it appears that the parties were contracting with a view to the law of England." From this judgment the claimant appealed. The appeal came on to be heard on June 20, 1888, but the hearing stood over to await the de- cision of The Montana case in the Supreme Court of the United States. The case came on again on the 1st of May, 1889, when a printed copy of the judgment of The Montana case was produced to the court from which it appeared that the stipulation in question was held by the Su- preme Court to be void as being contrary to public policy.^^ FrYj L. J.^^ The principles on whichthis case has to be decided have 10 Accord: Brown v. Camden & A. R. Co., 83 Pa. 316 (1877); Williams V. Central R. Co. of New Jersey, 93 App. Div. 58&, 88 N. Y. Supp. 434 (1904), affirmed 183 N. Y. 518, 76 N. B. 1116 (1905). 11 The statement of facts has been somewhat abridged. 12 The opinion of Chitty, J., in the court below, and the concurring opinions of Lord Halsbury, L. C, and Cotton, L. J., have been omitted. Ch. 2) OBLIGATIONS. 353 been familiar to the courts at any rate since the time of Lord Mansfield, who in the case of Robinson v. Bland, 3 Purr. 1077, expounded those principles of law, and they have been clearly stated since in many cas- es, among others in the well-known case of Lloyd v. Guibert, Law Rep. 1 Q. B. 115, 122, where the learned judge who delivered the judgment of the Exchequer Chamber, said: "It is, however, generally agreed that the law of the place where the cpntraH] is made, is prima facie_ ffiatwhich_ffiepartiesTnSnd£d, or ought lQ.i.e presumed to have adopt- ed as the footing upon which th ey dealt, and that such law ought there- fore to prevaiMn the absence of circunistances indicating a Afferent intention, as for instance" — and he goes on to enurnerafe instances "from wHIcIf the courts have gleaned a different intention. That view of the law was fully adopted in the case of Jacobs v. Credit Lyonnais, 12 Q. B. D. 589, in this court. I think, therefore, the general principle on which we have to proceed is one which admits of no doubt; and the inquiry, therefore, is this: Lookin g at the subject-matter of this contract, the place where it _was_ made, the contracting parties, and the Jthings to be done, what ought be presumedto bSveTieen th e intention of the contracting parties with regard to t^elaw which was to govern this contract? By tha t" T mpan tn detprrrtinp Tts" va1iHitv and its interpretation. ^Now, in the first place, the ship was an English ship; the owners were an English company ; England was the place to which the goods were to be brought and the place at which the final completion of the contract was to take place ; and, what is still more important, the forms of the contract and the bills of lading were English forms. Accord- ing to the law of England, the contract would be good in the terms in which it stood ; whereas according to the law of the United States important terms of the contract would be excluded from it. That is, to my mind, a very cogent consideration to shew that what must be presumed to have been the intent of the parties was this: That the law which wOTld..,m.akeJhe contract valid in all particulars was theTaw^ to regulate the conduct of the_garties. Looking at all the circumstances of the case, I have no doubt that that is^the conclusion which we ought ^^rrive at. In coming to that conclusion, and in stating those principles, I am glad to find that I am in entire accordance with the law laid down in the American courts. It appears to me that the passages cited from Mr. Justice Story are strong in favor of the principle to which I have referred, and in the case of The Montana that rule was adopted in ex- press terms by the Supreme Court of the United States. Lord Justice Cotton has read one passage from that judgment, and I will read an- other: "This court has not heretofore had occasion to consider by what law contracts like those now before us should be expounded. But it has often affirmed and acted on the general rule, th at co ntracts are to be governed, as to their nature, their validity, and their interpre- tation, by the law of the place where they were made, unless the con- ' ""EoB.CoNP.L.— 23 354 PARTICULAR SUBJECTS. (Part 2 ■ tracting parties clearly appear to have had some other law in view." And in that very case, in accordance with the principle so laid down, the Supreme Court proceeded to inquire whether there were any cir- cumstances from which they ought to presume any other law than that of the place where the contract was made to have been presumed by the parties. Therefore, it is obvious in adopting the principles which I have stated we are proceeding not only according to the Eng- lish law, but also according to the law of America. It is very desirable, if possible, that the law relating to the interchange of comity between nations should be the same. There was only one other argument put forward to which I need refer, and it seemed to me to be a little halting between two statements. Sir Walter Phillimore laid down a proposition to this effect, that when- ever the law of the place where the contract is made prohibits a par- ticular stipulation in a contract no other country can treat that stipula- tion as valid. If by the word "prohibit" he means that the law of the United States has in terms prohibited or has rendered illegal or crim- inal the introduction of this stipulation, it appears to me that the de- cision in The Montana case shows that that is not the law of the Unit- ed States. That decision I think, when fairly read, shews what one would expect to be the case, namely, that the courts have held that this stipulation being obnoxious to their public policy is void, not il- legal, exactly in the same way as in this country we hold that stipula- tions which are in restraint of trade are not illegal, and that the enter- ing into them does not constitute an illegal conspiracy, but they are void. If, on the other hand, it be argued that where the law of the place of the contract refuses to enforce a stipulation, then no other country will enforce that stipulation, we have a proposition which on the face of it appears to me to be untenable. Therefore, whichever is the alternative of the proposition which Sir Walter Phillimore adopts, neither of them will support his case. I think, therefore, the decision of Mr. Justice Chitty was correct, and that this appeal fails.^' 13 See Hamlyn v. Tallsker Distillery (H. L. Sc), [1804] A. C. 202; Spurrier V. La Cloche, [1902] A. C. 446. Continental Law. — France. — In the absence of an express stipulation or special circumstances showing a contrary intent, the law of the place where a contract is made will govern its substance and effect. Oass. Feb. 6, 1900 (S. 1900, 1, 161) ; Cass. Feb. 23, 1864 (S. 1864, 1, 385). Qermany.— German courts apply the law of the place of performance. R. G. July 4, 1904 (15 Niemeyer, ^5). [This rule has been applied to the determination of the validity of a clause not to engage In a similar business. R. G. March ^, 1904 (S. 1904, 4, 6). And to the question of usury. 46 B. G. 112 (May 26, 1900).] In favor of the lex domicilii of the debtor, see 61 R. G. 343 (Oct. 12, 1905). In the case of bilateral agreements, where the place of performance of on6 party is different from the place of performance of the other, the obligations of each party will be determined with reference to the lex solutionis of his own part of the agreement. 34 R. G. 191 (Oct. 13, 1894) ; 46 R. G. 193 (April 28, 1900) ; 51 R. G. 218 (April 21, 1902) ; 55 R. G. 105 (June 16, 1903) ; R. G. Apr. 26, 1907 (18 Niemeyer 177). Unless, in accordance with, the presumed in- tention of the parties, a uniform law can be deemed applicable. R. G. April •Ch. 3) OBLIGATIONS. CARNEGIE V. MORRISON. 1 (Supreme Judicial Court of Massachusetts, 1841. 2 Mete. 381.) Shaw, C. J.^* A case, involving most of the same questions which arise in the present, was argued at a former term; but, having stood over for consideration, the court have been desirous of hearing the argument in this case, before giving an opinion in the former one. It has now been! fully and very ably argued on both sides. It involves questions of much difficulty, and of great importance to the mercantile community. It is an action of assumpsit, brought by Carnegie & Co., a mercan- tile firm at Gottenburg, Sweden, against Messrs. Morrison'. Cjryder & Co. ofLo^Sjj. The action i s foj inded upon a letter of credi t' giVen by the defendants, by Mr. Oliver, their general agent residing STlBog- ton, upon the application of Mr. John Bradford, in favor of the plain- tiffs, and for the purpose of paying, in part, a large debt due from Bradford to the plaintiffs, for merchandise before shipped to him on credit. The letter of credit is of the following tenor: "Boston, 4 March, 1837. "Messrs. Morrison, Cryder & Co., London: Mr. John Bradford of this city having requested that a credit may be opened with you for his account in favor of Messrs. D. Carnegie & Co. of Gothenburg, for three thousand pounds sterling, I have assured him that the same will be accorded by you on the usual terms and conditions. "Respectfully your ob't serv't, Francis J. Oliver; "'For i3,000." 4, 1908 (18 NIemeyer, 138). A uniform law will apply also 'wbere the ex- istence of the contract itself is in question. R. G. Feb. 13, 1891 (47 Seuf- fert's Archiv, 3). As to where the place of performance is In general deemed to be, see section 269,' Civ. Code. ItaVy. — Article 9, Prel. Disp. Civ. Code, provides: "The substance and effect of obligations shall be presumed to be governed by the law of the place where the acts took place and, if the con- tracting parties are foreigners and subjects of the same country, by their Jiational law. A different intent, however, may always be shown." See Cass. Turin, Feb. 4, 1891 (Glurispr. Tor. 1891, p. 153); Cass. Rome, Nov. 7, 1894 (S. 1895, 4, 13). As to commercial obligations see article 58, Com. Code: "The form and essential conditions of commercial obligations, the form of acts required for the exercise and preservation of rights springing therefrom and for their execution, as well as the effect of the acts themselves, shall be governed by the laws and usages of the place where the obligation was cre- ated, respectively, by the laws and usages of the place where said acts take place or are to be performed, reserving in all cases, however, the exceptions established by article 9 of the Preliminary Dispositions of the Civil Code with respect to persons subject to the same national law." See, also, L. Beer, Zum internationalen Obligationenrecht, 18 Niemeyer, 334-363; A. de Reu- terskiold, De la loi qui doit rggir les obligations contractuelles d'aprss le droit international privg, 26 Clunet, 462-470, 654-663; J. Aubry, Le do- malne de la loi d'autonomie en droit international privg, 23 Clunet, 465-481, 721-745; J. Aubry, De la notion de la territorialit6 en droit international prive, 27 a'unet, 689-704; 28 Clunet, 253-273, 643-671; 29 Clunet, 209-243. 14 The statement of facts and a part of the opinion have been omitted. 350 PARTICULAR suBJKCTis. (Part 2 It appears by the evidence, that Oliver was the general agent of the defendants in Boston; that this letter of credit was obtained upon the application of Bradford, and was immediately forwarded to the plain- tiffs, at Gottenburg; and that notice of it was given to the defendants,, at London. Mr. Oliver knew the purpose for which Bradford wanted it. He had often had similar letters of credit from Mr. Oliver before ; all of which have been honored, except one other in favor of Scholfield & Co. which is now in controversy in this court. M r. Bradfo rd was accusto med to g ive satisfactory security, from time to time, to Mr. T5Iiver7and to piy the 3efendants a^commissionof one per cen t. It also' appears that upon thfe strength of this letter of credit, the plain- tiffs drew a bill or bills on the defendants, according to the usual mode of drawing bills at Gottenburg on London, which the defendants de- clined accepting. Various other circumstances were given in evidence, but this is a summary of the leading facts in the case. This action, if it can be maintained at all, as between these parties,. must be maintained on the letter of credit. But a question meets us at the outset, what law shall determine the rights of the parties in this transaction ? It is obvious that the undertaking of the defendants. was, to do sortie act out of this country. The substanceof that under- taWng was, to j;-ive_Bradford a_credit for the use and benefit of Car- _negie_&_Co. ; injDthejLwwds, th£_subjt£nce^n of that under- taking was^_to pay a sum of money to Carnegie & Co. in di scharg e^ of Bradford's debt to them, by means of bills of exchange_to be^diajaai by Carnegie & Co. on the defendants, in their own favor, or in favor of their appointee, for their use,^in consideration of the promise of Bradford to provide funds to meet those bills, giving them satisfac- tory security, placed in the hands of their agent, and in further con- sideration of a commission of one per cent, paid by Bradford. In considering the nature of this transaction, the inquiry involves two questions : First, whether the transaction in question constitutes a contract, in which the plaintiffs have an interest; and, secondly, whether the interest of the plaintiffs in this contract is of such a char- acter, that they can maintain an action upon it, in their own names. The question, therefore, does not depend exclusively upon the lex fori,, although, as the action is brought in this commonwealth, its laws must 1 determine whatever relates to the remedy. Supposing that the lex I loci contractus is also to have a bearing on the question, it must be \considered, that some of the rules, applicable to the construction and effect of contracts, are founded in positive law, established by usage j)r by statute, which each country will establish for itself, according to |ts own views of convenience and policy, and have a local operation; ■ whilst others are derived from those great and unchangeable princi- ples of duty and obligation, which are everywhere recognized amongst mercantile communities, and indeed amongst all civilized nations, as lying at the foundation of civil contracts, and must be considered as having the same effect, wherever by the comity of nations contracts Ch. 3) OBLIGATIONS. 357 made in one country are allowed to be carried into effect by the laws of another. In some states, for instance, a bond made to one or his assigns, is regarded as a negotiable instrument, and creates an obliga- tion to pay to the obligee or any person, who shall legally become the assignee of it. In others, a note for money, payable to one or order, creates a legal obligation to the payee only, and an indorsee cannot maintain a suit in his own name. Whether an instrument, made in a particular form, shall have the one or the other construction, will depend upon the positive law of the country which governs it; and such law therefore will determine the nature and legal obligation of the contract created by it; it is positive law, concurring with, and giving effect to, the act of the parties, which determines the nature and extent of such contract. But that a party entering into a formal stipulation to pay money, or do some other beneficial act to or for another, shall substantially perform that undertaking, is a great prin- ciple of moral as well as legal obligation, and of international as well as municipal law, recognized everywhere. Taking it as settled, in the present case, that the defendants became subject to a duty or obligation of some kind, the real subject of dis- cussion is, not merely as to the remedy, but whether the facts now in proof constituted a contract between these parties, which may be en- forced by an action. The objection to such an action and the ground of this defence are, that the immediate parties to the transaction were Bradford on the one side, and the defendants on the other; that to this transaction the plaintiffs were strangers; and that as Bradford acquired some rigkf tinder it, and had a remedy upon it against the defendants, their con- tract must be deemed to be made with him and not with the plain- tiffs. But this position presupposes that the same instrument may not constitute a contract between the original parties, and also between one or both of them and others, who may subsequently assent to, and become interested in its execution; an assumption quite too broad and unlimited, which the law does not warrant. In a common bill of exchange, the drawer contracts with the payee that the drawee will accept the bill; with the drawee, that if he does accept and pay the bill, he, the drawer, will allow the amount in account, if he has funds in the drawee's hands; otherwise, that he will reimburse him the amount thus paid. He also contracts with any person who may become indorsee, that he will pay him the amount, if the drawee does not accept and pay the bill. The law creates the privity. So in the familiar case of money had and received, if A. deposits money with B. to the use of C, the latter may have an action against B., though they are in fact strangers. But if C, not choosing to look to B. as his debtor, calls upon A. to pay him, notwithstanding such deposit (as he may), and A. pays him, A. shall have an action against B. to recover back the money deposited, if not repaid on notice and demand. The law, operating upon the act of the parties, creates the duty, es- 358 PAETicuLAE SUBJECTS. (Part 2 tablishes the privity, and implies the promise and obligation, on which the action is founded. Hall v. Marston, 17 Mass. 575. So in regard to a very common transaction ; when one deposits money in a. bank to the credit of a third person, and 'forwards him a certificate, or other evidence of the fact, the bank is regarded as coming under an obligation to pay the money to the person to whose credit it is thus deposited. So it is held in England, when the depositary assents to receive the money, though there is no consideration moving from the plaintiff to the defendant. Lilly v. Hays, 5 Adolph. & Ellis, 548. We think, therefore, it is no decisive objection to an action by the plain- tiffs, that the act done constituted, at the same time, a contract be- tween the defendants and Bradford, on which the latter might pro- visionally have had a remedy, in case the plaintiffs should not assent to, and enforce the contract, so far^as it was intended for their benefit. From this view of the case^itls manifest that the question whether a particular tj;ansaction constitutes a contract, and between whom, upon which one party can have a remedy against^ another by judicial proceedings, must depend upon the law governing such coritract,_as well as the law of the forum where it is sought 'to be' enforced. The remedy may be sought in the form of an action at law, or a bill in equity, or before any special tribunal, according to the law of the place where it is sought. But the question whether a particular act or in- strument constitutes a contract, and between what parties, is previous in its nature, and must generally be settled before any question of remedy arises. What then is the law of the contract, or in other ^wgrds, w hat law determmes whether an act done constitutes a contract, and if so, be- tween whom and to what effect? The general rule ce rtain^is„"£Eal. the lex loci contractus determines the nature andlegd qual ity of the act done^j whetheMt constitutes a contract; the nature and validitv. obligation and legal effect of such contract; and furnishes tlie._rule of construction and interpretation. There may, perhaps, be excep- tions to this rule; as where" parties happen to meet on a desolate is- land in a savage country, where the principles of commerce and civili- zation do not prevail, or where a settled municipal law is not enforced or regarded. Perhaps such would be the construction of a contract between American or European merchants in China, who rather reside on the confines of that empire, than live under its government; and where they may be presumed to have reference, in their dealings, to the general laws and usages of the commercial world, without regard to the laws of the people with whom they temporarily reside. But a contract, made in one country, may contemplate the execution of deeds or otner contracts, making payments or doing other legaX^acis, m an- other; in regard to which, the law of the foreign country^ where the act is to be done, will govern the contract ; and the obligation of such contract will bind the contracting party to do all such legal acts, ac- cording to the law of the place where they are to operate, so as to Ch. 2) ■ OBLIGATIONS. 359 have their full legal effec t. As if a person in one country should con- tract to convey land in another; the general rule being that the lex loci rei sitae furnishes, the rule which regulates titles and conveyances of real estate, the true con struction and legal effe ct of such contract would be, that the conveyiHce^should be executed in such form as ef- fectually to trans feTTrliFTitle, according to the Jaw of^the place. whexe the land lies.. If the land were in Massachusetts, where the law re- quires the execution and acknowledgment of a deed, it wou ld bind the^ contracting party to execute and acknowledge such deed,'"tEough made in a country where, by its municipal law, a deed would not be necessary. If the stipulation be, that the' drawee shall accept a bill _in^ a foreign country, and the Taw of that country require that a valid acceptance shall Be in writing, though not reqiiired by the law of the place where drawn," it is a contract that the drawee shall accept the bill in writing. That the transaction now in question constituted a good contract to some purpose, and between some parties; that it was made on a good, valuable and adequate consideration, and made in Massachu- setts, is not contested. Then the rule prima facie is, that .the. .con- struction and_ legal ^ff^cf oF'this transaction, are -to be d.etermined by the law^f . Massachusetts. That i s the law wjiich must be regarded, in the first ins tance, in^deciding whether .the_ act done constituted a contract, and if lo^ between whom, and to what effect, and must prevail unless the case falls within some exception to the general rule ; and the question is7 whether it does. It is true that the parties to this suit are both foreigners, one residing in Sweden, and the other in Eng- land. This, however, is immaterial, and only respects the question who may sue and be sued in our courts. By the comity of nations, alien friends are allowed the benefit of our courts in seeking their civil rights, as plaintiffs; and the defendants, by placing their prop- erty under the control and protection of our government, place them- selves within the jurisdiction of our courts. But the immediate actors in the transactions were here. Bradford, the prime mover, who opened and conducted the negotiation, paid the consideration, and caused the obligation to be entered into, was a resident citizen of Massachusetts ; and though in legal strictness he might not be considered as the agent of the plaintiffs, before they had assented to and adopted his act, yet still he so far acted for them, as to procure a stipulatiojii, which, if executed, would enure to their benefit. The other party, though domiciled abroad, was here for the purpose of conducting mercantile and financial business, by their regularly constituted resident agent. The money was paid, or the security given, in Boston, which consti- tuted the consideration for the defendants' undertaking. The nego- tiation, which terminated in giving the letter of credit, was commenced , and completed in Boston. That some things are referred to foreign laws and usages, in this a^^emenf,~is manrfesfin "the insfrument itself. The words, "on' the 360 PARTICULAR SUBJECTS. (Part 2 usual terms and conditions" are_obviously of this^ character. They refer to the laws and usage's both of Sweden and England. Alt par- ,ties of course knew that the credit was to be given by the defendants, by means of bills of exchange, although this is not expressed in terrns. f Supposing that the object was, that this credit should be afforded by means of bills of exchange, to be drawn by Carnegie & Co. in Got- tenburg, on Morrison & Co. in London, the instrument refers to the laws and usages of Sweden, for the mode of drawing, and to those of England for the mode of , acceptance ; andjhejegal_effect and ob- ligation of the contract in Boston are, that the parties will respectively cohfofrfi to those laws and usages, in the performance of their. re- spective acts. But it is not as to the nonobservance of any of these, that the question arises. The gravamen of the compl aint is, that the defendants have violated jhe_obligad^_of their contract, mJis. en- fire' substance. It becomes therefore necessary to inquire, and ascer- 'tain more exactly, what that contract, in its legal effect and operation, was. The substance of the undertaking of the defendants may, we ] think, be simplified and expressed thus: Whereas John Bradford is indebted to Messrs. Carnegie & Co. of Gottenburg, in the sum of £3,000, and has requested us to pay them that amount for him, by means of bills of exchange to be drawn on us at London; we hereby, for value received of him for that purpose, to our satisfaction, prom- ise to accept their bills to that amount, payable to themselves or their order, and pay them accordingly. , The question is, supposing a general failure in the performance of ythis undertaking, who is entitled to a remedy for"such breach, and by 'what law shall this question be determined? The assurance or prom- ise is in terms made to Bradford; but the substantial benefit to be de- rived from the performance of it would be the plaintiffs', and there- fore they are damnified by the breach, Bradford had procured the defendants to pay his debt for him to the plaintiffs, for a satisfactory pecuniary consideration, and immediately gave notice thereof, and remitted the contract to the plaintiffs, who assented to and accepted it. It may be fairly presumed, that but for this transaction, Bradford would have adopted some other mode of remittance. Regarding it as a question of principle and not of technical law, it was an undertaking, in which the plaintiffs had an interest, nearly or quite lii"^3irect~Siaras great, as if'the'promise had been in terms to them, or the negotiation had been with them; or as if the instrument had been a promissory note, procured by Bradford to be made payable to them, in considera- tion of money paid and security given by him, and such note after- wards remitted to and received by them. Upon these facts, the court are of opinion that the construction, the obligation, the legal effect and operation of this transaction are to be governed by the law of Massachusetts. So far as this transaction constituted a legal and binding contract at all, it was, we think, by force of the"law""orthe place of contract, operating upon the act of the parties, and giving Ch. 3) OBLIGATIONS. 361 it for ce_as._such. The undertaking, it is true, was to do certain acts "in England, to wi!pE6 acc^it and pay the plaintiffs' bills; but the obligation to do those acts was created here, by force of the law of this state, giving force and efiec^ to the undertaking of ithe defend- ants' agent, and maEing it "aT contract binding on them. Supposing the law of England had provided that no letter -of credit should be ' issued, unless under seal, or stamped, or attested by two witnesses, or acknowledged before a notary; is it not clear, that as no such for- malities are required by our laws, a letter of credit, made here, would be held good, without such formalities? We think it would be so held even in England, under the authority of the general rule, that a contract, valid and binding at the place where made, is binding every- where. There is no reference^ tacit or express, jnthis^instrument, to the laws of England, which can raise a presumption, that the. parties looked to them as furnishing the rule of law, which should govern this contract. "TTwas, therefore, in our opinion, in legal effect, a con- tract made in Massachusetts, by .^ parties both of whom were here by their agents, or persons acting for their benefit and in their behalf, and therefore the nature, obligation and effect of this contract must be governed by the law of this commonwealth. * * * , PRITCHARD V. NORTON. '^ ^•,^-'' 'i^ ■ 'I^/^fc AKERS v. DEMOND. ^51 Za ^.1- ^V > cl'^ 103 Mass. 318.) Wells, J.^* The defence to this suit is, that the bills of exchange are void for usury, under the laws of New York, where they were first negotiated. The statute of New York, Rev. St. (7th Ed.) pt. 2, c. 4, tit. 3, § 5, declares such securities void "whereupon or where- by there shall be reserved or taken or secured, or agreed to be re- served or taken," a greater rate of interest than seven per cent. The superior court ruled that, upon the testimony offered, no defence was established; and instructed the jury to return a verdict for the plaintiffs. The testimony is reported for our consideration, so far as admissible and competent, subject to the several objections made thereto by the plaintiffs. * * * The testimony thus held to be admissible and competent tends to prove that the bills in suit were drawn by Reed and indorsed by Wil- liam H. Russell, the payee, in New York, and accepted by the de- fendant in Boston, being upon their face addressed to him there. Rn th thp arrpp t ance and the indorsement w e re for the accommoda - tion of Reed . The possession of collateral security, whether subse- quent or at the time, does not change the character of the accept- ance or the relations of the parties. Dowe v. Schutt, 2 Denio (N. Y.) 621. After the return of the acceptances to Reed, by an arrangement between him and the nominal payee, the latter procured the bills to be discounted by the plaintiffs, at the rate of one and a half per cent, a month. The proceeds of one of the bills were retained by William H. Russell, the payee, as a loan from Reed, and the proceeds of the other handed over by him to Reed. 23Accord: Grell v. Levy [1864] 16 C. B. N. S. 73 (semble). Compare; Blackwell v, Webster (C. C.) 29 Fed. 614 (1886). 2* The statement of facts and a part of the opinion have been omitted. 380 PAEticuLAE SUBJECTS. (Part 2 As the case is now presented, in the absence of controlling testi- mony on the part of the plaintiffs, the foregoing statement must be taken as the result of the evidence. It shows that the transactio n by which the plaintiffs became holders of the bill s was" the origin al TTegotiaHon of the paper; a loan upon discount, and not a, mere s ^le ol the bills. They "are therefore open to the 'defence of usury. This is so clearly showntobe the law of New York, by the decisions-of the courts of that state referred to in Ayer y. Tilden, 15 Gray, 178, 'i'7 Am. Dec. 355, as to require no further citations. The defendant is entitled to set up the usury, although not paid by himself, and although the loan was not made to him nor on his account. Van Schaack v. Stafford, 13 Pick. 565 ; Dunscomb v. Bun- ker, 2 Mete. 8 ; Cook v. Litchfield, 5 N. Y. 379 ; Clark v. Sisson, 23 N. Y. 313. The difficult question in the case arises from the fact that t he pa - per was made payable in Boston. It is conten ded that the contrac t ol the 'acceptor is to be governed by the laws of the place where the bills are made payable. The general principle is, that the law of the place of performa nce is the law ^f the contract. This rule applies to the operation and effect of the contract, and to the rights and obli- gations of the parties under it. But the question of its validity, as affected by the legality of the consideration, or of the transaction upon which it is, founded, and in which it tooETtFlnception as a con- tract, must be determined, by the law, ol the state where that trans - I action was had. No other law can apply to it. Usury, in a loan ef- fected el sewhere, is no offence against the lawi~of iviassacnusetts. In a suit upon^ a contract founded on such a loan, the pe nalty tor {tsury could not be set up in defence, under the statutes^Jormerly in force in this Commonwealth. Neither can a penalty, as a partial de- fence, authorized by the laws of one state, be applied or made ef- fective in the courts of another state. Gale v. Eastman, 7 Mete. 14. Such penal laws can be administered only in the state wherejthey ex- ist^ ^t wlie'n"a usurious or other illegal consideration^ is declared by the laws of any state to be incapable of sustaining any valid con- tract, and all confrads arising therefrom are declared void, such coii^ ytracts are not only void in that state, but void in every state and every- ' where. They never acquire a legal existence. Contracts founded ;on usurious transactions in the state of New Yort are_of this char- 'acter. 'Van Schaack v. Stafford, 13 Pick. 565 ; Dunscomb v. Bunker, 3 Mete. 8. The fact that the bills now in suit were accepted in Bos- ton and were payable there does not exempt them from this opera- tion of the laws of New York. They were mere "nude pacts," with no legal validity or force as contracts, until a consideration was paid. The only consideration ever paid was the usurious loan made by these plaintiffs in New York. That then was the legal inception of the^al- leged contracts. Little v. Rogers, 1 Mete. 108 ; Cook v. Litchfield, 5 N. Y. 379 ; Clark v. Sisson, 32 N. Y. 313 ; Aeby v. Rapelyea, 1 Hill Ch. 3) OBLIGATIONS. 381 / (N. Y.) 371. By the statvttes of New York, that transaction was. incapable of furnishing a legal consideration; and, so far as the bills depend upon that, they are absolutely void. The origina l validity of such a contract must be determined^ by the law of the state iiTwhiclT' 1t is first negotiated br delivered Ts' a contract. Hanrick v. Andrews, 9 Port. (Ala.) 9; Andrews v. Pond, i'3 Pet. (U. S.) 65, 10 L. Ed. 61; Miller v. Tiffany, 1 Wall. (U. S.) 398, 17 L. Ed. 540; I.ee V. Selleck, 33 N. Y. 615. There is no pretence that a discount of one and a half per cent, a month was justifiable by reason of any added exchange between New York and Boston; nor that it was otherwise than usurious, if any amount of charge upon paper payable elsewhere than in New York would be usurious there. It has often been held, in states where restrictions upon the rate of interest are maintained, that it is not usury to charge upon negotiable paper whatever is the lawful rate of interest at the place where the paper is payable, although great- er than the rate allowable where the negotiation takes place. But if the paper is so made for the purpose of enabling the larger rate to be taken, or the greater rate is received with intent to evade the stat- utes relating to usury, and not in good faith as the legitimate pro- ceeds of the contract, it is held to be usury. So also, if a greater rate is taken than is allowed by the law of either state, it is usury. Such a rate necessarily implies an intent to disregard the statutes restrict- ing interest. Andrews v. Pond, 13 Pfet. (U. S.) 65, 10 L. Ed. 61; Miller v. Tiffany, 1 Wall. (U. S.) 298, 17 L,. Ed. 540. The legal rate of interest or discount in Massachusetts is six per cent, per an- num ; and, at the date of the negotiation of these bills, a greater rate than six per cent, was usurious and unlawful. It follows from these considerations, that, upon the evidence as it now stands upon the part of the defendant, the transaction, upon which alone the bills in suit must depend for a consideration to give them validity as contracts, was illegal, and such as, under the laws of New York, renders them utterly void. No action, therefore, can be maintained upon them in the courts of Massachusetts, unless the effect of this evidence be in some way overcome or controlled. The verdict for the plaintiff must be set aside and a new trial granted. 382 PARTicuLi^ospBJECTS. |^ (Part 2 AN^EEWS V. POND. (Supreme Court of the United States, 1839. 13 Pet. 65, 10 L. Ed. 61.) Taney, C. J.^^ This case comes before the court upon a writ of error, directed to the judges of the Circuit Court for the Ninth Cir- cuit and Southern District of Alabarha. The action was brought by the plaintiff, as indorsee, against the defendants, as indorsers of a bill of exchange, in the following words : "Exchange for $7,287.78. New York, March 11, 1837. "Sixty days after date of this first of exchange, second of same tenor and date unpaid, pay to Messrs. Pond, Converse & Wadsworth, or order, seven thousand two hundred and eighty-seven '^^/loo dol- lars, negotiable and payable at the Bank of Mobile, value received, which place to the account of ^ ' ~~~' "Your obedient servant, D. Carpenter. "To Messrs. Sayre, Converse & Co., Mobile, Alabama." The case, as presented by the record, appears to be this: The de- fendants_svere_jnerchants, residing in Mobile, in the s tat e of Ala - bama. H. M. Andrews ST Co. were merchants, resijiGgLin3Sew_Ygrk ; and, before the above-mentioned bill was drawn, the defendants had become liable to H. M. Andrews & Co., as indorsers upon a former bill for $6,000, drawn by E. Hendricks on Daniel Carpenter, of Mont- gomery, Alabama. The last-mentioned bill was dated at New York, and fell dug oh the 21st of Februairy, 1837, and was protested for nonpayment. The defendant. Pond, it seems, was in New Yoirk, in the month of March, 1837, shortly after this protest, when H. M. Andrews & Co. threatened to sue him' on the protested bill; and the defendant. Pond, rather than be sued in New York^ agreed to pay H. M. Andrews & Co. ten per cent, damages on the protested bill, and ten per cent, interest and exchange on a new bill to be given, be- sides the expenses on the protested bill. According to this agreement an account, which is given in the rec- ord, was stated between therii on the 11th of March, 1837, in which the defendaiits were charged with the protested bill, and ten per cent, damages on the protest, and interest and expenses, which amounted altogether to the sum of $6,625.25, and ten per cent, upon this sum was then added, as the difference of exchange between Mobile and New York, which made the sum of $7,287.78 ; for which the defend- ant. Pond, delivered to H. M. Andrews & Co. the bill of exchange, upon which this suit is brought, indorsed' by the defendants in blank. The bill was remitted by H. M. Andrews & Co. to S. Andrews, at Mobile, for collection. The drawees refused to accept it, and it was protested for nonacceptance ; and, after this refusal and protest, it »» The statement of facts and a part of the opinion have been omitted. Ch. 2) OBLIGATIONS. 383 was transferred by S. Andrews to J. J. Andrews; the present plain- tiff. It is stated in the exception that, after this transfer, it was a cash credit in the account between H. M. Andrews & Co. and S. An- drews. The bill was not paid at maturity, and this suit is brought to recover the amount. There is no question between the parties as to the principal or dam- ages of ten per cent, charged for the protested bill of $6,000; nor as to the interest and expenses charged in the account hereinbefore mentioned. The defendants admit that the principal amount of the protested bill, the damages on the protest which are given by the act of assembly of New York, and the interest and expenses, were prop- erly charged in the account. The sum of $6,635.2.5 was, therefore, due from them to H. M. Andrews & Co., on the day of the settle- ment, payable in New York. The dispute arises on the item of $663.- 53, charged in the account as the difference of exchange between New York and Mobile, and which swelled the amount for which the bill was given, to $7,387.78. The defendants allege that the ten per cent, charged as exchange, was far above the market price of exchange at the time the bill was" given, and that it was intended as a cover for 'usuri5!]rs"inferest~exacted by the said H. M. Andrews & Co., as the price of their forbearance for the sixty days given to the defendants. Th is wa s their defence in the Circuit Court, where a verdict was found for the defendants, under the directions given by the court. * * * 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. ~S5 ~f aFlilli&il mere, q.u£stLan-o f usury is concerned, this question is not verv important . There is n o stipulation for interest apparent upon the paper. The ten per cent, in controversy is charged.jasj:he difference in exchange only, and not forjnterest arid exchange. . An d if it were otherwise, the interest^ al- lowed in New Yor k is seven per cent., and in Alabania eight ; and this small difference of one per cent, per annum, upon a forbearance of sixty days, could not materi ally affect the rate of exchange, and could hardly have any influence on the inquiry to be made by the ju- ry! But tEere^are other considerafiOTis which make it riecessary to decide this question. The laws of N ew Yojk_make void the instru- ment when ta,inted vifith usury- arid If this bill is to be governed by the laws of New York, and if the jury should find that it was given upon an 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 i-ecovef the principal amount of the debt, with- out any interiest. 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 384 PAETiCTJLAR SUBJECTS. (Part S at the , place of the contract, the parties may sti p ulate for the higher n iteresiu without incurring the penalties ot 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 appeared 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 res- ervation of interest would have been valid and obligatory 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 "defend ants a llegethat t he contract was not made with refer - Mice to~the~laws oi eithe'r state, and was not int ended to' conforntTo either. That a rate ot int ere st forbiddeti by thFlaws of New York , wtiere tEe contract was made, was reserved on the debt actually due ; aii3~th'at "iFwas concealed under the name of exdiange^ in order to "evade Tlie~law. ~ Now if tlTfs" 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 jj^ hi ch is to decide the fate of a security taken up - o n an usurious agreSaentT whicH' h'eitfier will execute? unquestion- aljly. it rmisf be the law oi the state where the ag reement was ma?e , "aiid' the instrument taken to secure its periormance^ ATcori^racTo f this "Icind cannot stan d on the aame pf MtlpiSs With a bona fide agre e- ment made in one place" lu b e eAei_uLt;J iii aiiull ler . liLthe last-nien - tio ned cases the agreements were permitted by the lex loci contractu s ; "and will even be enforce d there, if the party is found within its juris- diction. But the sam e rule cannot be applied t o contracts forbidd en by its laws and designed to evade them^ in such cases, the legal con - ' Vsequences^Df iilich an ag'feemtint Tnrrgf be decided by the l aw of th e [pl ace where the contract was made. TT v6ld thefe, it is void every- 1 "where ; and the cases referred to 1ft ' Story'g~CGnflict of Laws^ 203, 1 fully establish this doctrine. ' +" In the case of De Wolfe v. Johnson, 10 Wheat. 383, 6 L. Ed. 343, this court held that the lex loci contractus must govern in a question of usury; although by the terms of the agreement rtie debt _ was to be secured by a mortgage on real property in another state. And the case of Dewar v. Span, 3 T. R. 435, shows with what" strictness the English courts apply their own laws against usury to contracts made in England. In the case under consideration, the previous debt for which the bill was negotiated was due in New York ; a part of it, that is to say, the damages on the protest of the first bill, were given by a law of that state ; and the debt was then bearing the New York interest of seven per cent., as appears by the account before referred Ch. 2) OBLIGATIONS. 385 to. A nd if in c onsideration of further indulgence in the time of pay- men?7the parties stipulated for a higher interest, and agreed to con- ^^al It under the name of exchange, the validity of the instrument, jmiiclTwas lexeC]ited-lQ-carn3LJliis_ agreement into effect, must be de- termined_^by_th^aws_of^ New York, and not. by the laws of Alabama. " IrTtHis aspect of the case, another question arose in the trial in the circuit court. By the laws of New York, as they then stood, usury was no defence against the holder of a note or bill who had received it in good faith, and to whom it was transferred for a valuable con- sideration, and without notice of the usury. The present plaintiff claims the benefit of this provision. But upon the evidence ifi the case, it is very clear that he does not bring himself within it. The bill of exchange was protested for nonacceptance, while it was in the hands of S. Andrews, the agent of H. M. Andrews & Co., to whom it had been sent for collection; and this fact appeared on the face of the bill at the time it was transferred to the plaintiff. ' Now a per- son who takes a bill, which upon the face of it was dishonored, can- not be allowed to claim the privileges which belong to a bona fide holder without notice. If he chooses to receive it under such cir- cumstances, he takes it with all the infirmities belonging to it; and is in no better condition than the person from whom he received it. There can be no distinction in principle between a bill transferred after it is dishonored for nonacceptance, and one transferred after it is dishonored for nonpayment; and this is the rule in the English courts, as appears by the case of Crossley v. Ham, 13 East, 498. Now it is evident, that no consideration passed between Carpenter, the drawer of the bill, and the defendants, who are the payers and in- dorsers. The bill was made and indorsed by the defendants, for the purpose of being delivered to H. M. Andrews & Co., in execution of the agreement for further indulgence. And if that agreement was usurious, then the bill in question was tainted in its inception; and that taint must continue upon it in the hands of the present plain- tiff. * * * MILIvER V. TIEFANY. " ,. V\ (Supreme Court of the United States, 1863. 1 Wall. 208, 17 L. Ed. 540.) SwAYNE, J.^° * * * The defence chiefly relied upon is usury. The result of our inquiry upon that subject must depend upon the lex loci that governs the contract. Palmer and Wallace, the payees of the note, were the assignees of an insolvent firm, which did business under one name in New York, and under another at Cleveland, Ohio. Palmer resided at New York and Wallace at Cleveland. About $50,000 worth of the goods, covered 26 The statement of facts, and a part of the opinion have been omitted. LoB.CoNF.L.— 25 . 386 PARTicuLAE SUBJECTS. (Part 2 by the assignment, were at the former city, and about $75,000 worth at the latter. The negotiation for the sale was commenced by Palmer and concluded by Wallace. The note is as follows : [His honor here read the mortgage note, already described.''^] Mill er lived in Indiana . Th e note and mortgagfe were executed in that stat e! The mortgaged premises are situated there. Wallace was present at the execution of the securities. They were transmitted to Palmer at New York, and the goods were thereupon shipped thence to Indiana. The note and mortgage have been assigned to the appellee. We lay out of view the imputation upon Palmer and Wallace, of a fraudulent purpose to evade by shift or device the usury statute of Indiana or New York. It is wholly unsupported by the evidence. They were acting in a fiduciary character, and could have had no mo- tive to engage in such a transaction. There is no reason to believe that such a conception entered into their minds. On the other hand, we are by no means satisfied that it was not the deliberate purpose of Miller, when the arrangement was made, to involve them in the toils of this defence, and if possible to escape with the goods without pay- ing anything for them. Our business, however, is to ascertain and apply the law of the case. We shall not discuss the evidence bearing upon the ethics of his conduct. "The general principle in relation to contracts made in one place to be performed in another is well settled. They are to be governed by the law of the place of performance, an d if the interest allowe d by the law of the place of performa nce is higher than that permitted at the place of contra ct, t he parties may stipulate for the higher interest "wrEEout incurring the penalties of usury." Andrews v. Pond, 13 Pet. 77, 78, 10 L. Ed. 61 ; Curtis et al. v. Leavitt, 15 N. Y. 92 ; Berrien v. Wright, 26 Barb. (N. Y.) 213. The converse of this proposition is a lso well settled. If the rate of i nterest be higher at the place .of th e "contract Ihan at the place ot perf or mance, the parties may lawful ly contract in that case also for the higher rate. Dep>eau v. Humphreys, TMart. (N. STnT^CBapmaiTv. Robertson, 6 Paige (N. Y.) 634, 31 Am. Dec. 264. These rules are subject to the qualification, that the parties act in good faith, and that the form of the transaction is not adopted to dis- guise its real character. Th e validity of the rr>n<-r3i;-t j sjjpi^errnined 2 7 The note was in these words: "$2O,O0O. Cleveland, O., February 22, 1850. ' "Five years after date, for value received, I, George Miller, of Fort Wayne, Allen county, Indiana, promise to pay Courtland Palmer and Frederick Wal- lace, assignees, or their order, twenty thousand dollars, with interest at the rate of ten per centum per annum, payable semi-annually, after six months from the date hereof, and on failure to pay said interest when due, the whole of said note to become due and collectible; the above note, interest, I and principal, negotiable and payable at the Commercial Branch Bank, Cleve- land, Ohio, with the current rate of exchange on New York, and without re- lief from valuation or appraisement laws of the state of Indiana. "George Miller." ■Ch. 3) OBLIGATIONS. 387 by-lha jaw of t he^la ce where it.is entered jnto^ Whether vnid or valid there^Jtis so everywhere, Andrews v.^Pond, 13 Pet. 78; 10 L. Ed. "^BTTMix v. Madison Ins. Co., 11 Ind. 117 ; Corcoran v. Powers, 6 Ohio St. 19. When these securities were executed the statute of Ohio of the 14th of March, 1850, upon the subject of interest, was in force. According to its provisions parties might lawfully contract for any rate of inter- est not exceeding ten per cent, per annum. The contract of Miller was therefore valid. Decree afifirmed with costs. 'ARNOLD v.. POTTER. '' , ■'] • ' (Supreme Court of Iowa, 1867. 22 Iowa, 194.) p Mortgage foreclosure. Plaintiff is a resident of Massachusetts ; "• •defendant, a resident of Iowa. The real estate is situated in Lee coun- /' ty, Iowa. The mortgage or trust deed was acknowledged by defend- • ant in Massachusetts and by his wife in Iowa. Love, the trustee, i resided in Iowa and there accepted the trust. The notes secured by the mortgage were dated at Keokuk, in the state of Iowa, payable in New York to the order of one Baldwin, who indorsed them .|:o plain- ' tiff, in Iowa. The notes and the deed were delivered by plaintiff to on the trial. They may be summarized as follows : The plaintiff is a cor- poration organized under the laws of the state of New York, and engaged in the business of banking in the city of New York; and the defendant is a corporation organized under the national banking act, and doing business in the city of Memphis. For two years prior to the 18th day of November, 1884, the plaintiff had been accustomed to send checks, notes, and drafts to the defendant for collection, in- cluding such as were drawn upon persons residing at a distance, in the state of Texas and elsewhere. The commercial paper was inclosed in letters, consisting of printed forms, filled out by the insertion in writing of the date, the name of the defendant's cashier, and a descrip- tion of the inclosure. The checks and drafts were collected by the de- fendant, and the proceeds were remitted to the plaintiff, less one-fourth of 1 per cent., the defendant's commission, and the expense incurred in making distant collections. On November 10, 1884, the plaintiff was the owner and holder of a check for $473.57 dated November 6, 1884, drawn upon the City National Bank of Dallas, Tex., by A. D. Aldridge & Co., and payable to the order of Henry Levy & Son. This check was indorsed by the plaintiff to the defendant for collection, and was sent to the latter in the usual course of business. The defend- ant received the check on November 13, 1884, and on that day indors- ed it for collection, and forwarded it by mail to the firm of Adams & Leonard, at Dallas, Tex. They were at the time, and had been for many years, bankers in good standing at Dallas, and the correspond- ents of the defendant. They received the check on November 17, 1884, and on that day duly presented it for payment to the bank upon which it was drawn, and it was immediately paid, and the proceeds were received by them. They then remitted to the defendant a sight draft for the amount collected, drawn by them upon Jemison & Co., of the city of New York. This draft was sent by the defendant for collection to the First National Bank of New York, and on November 34, 1884, was presented to Jemison & Co., who, in the mean time, had suspended payment. The draft was accordingly protested, and returned to the 4:14 PARTicuLAE SUBJECTS. (Part 2 defendant. Thereupon the defendant, on November 28, 1884, mailed the protested draft to the plaintiff, and the plaintiff refused to accept it. Adams & Leonard had failed in business before the draft on Jemi- son & Co. was presented for payment. The only evidence offered by the defendant in opposition to these facts was proof of a decision of the Supreme Court of Tennessee, in the case of Bank of lyouisville v. First Nat. Barik of Knoxville, 8 Baxt. (Tenn.) 101, 35 Am. Rep. 691, which is referred to in the opinion. Eari<, J." * * * But it cannot be maintained that the contract "between these parties was a Tennessee contract. It is by no means clear, even, that it can be held that the contract was made there. It does not certainly appear where it was made. It cannot be said that a new contract was made every time a piece of paper was sent by the plaintiff to the defendant for collection. There was a general contract between the parties, which was either created by some negotiation, or which grew out of the course of business between them, that the defendant should collect the paper sent to it for the compensation to be allowed. If that contract was made by correspondence, the plaintiff making a proposition by mail, and the defendant accepting it by mail, then, when the acceptance was put in the mail at Memphis, the contract was complete, and had its inception there. If the proposition came from the defendant, and was accepted in the same way in New York, then it would have to be treated as made in New York. In the absence of more proof than we have here, it cannot be assumed that this contract was made in Tennessee. Nor is this to be regarded as a Tennessee contract, for the reason that it was to be performed there, so that the defendant can claim that its obligations and interpretation are to be governed by Tennessee law. We cannot perceive how any substan- tial part of the contract was to be performed in Tennessee. The de- fendant was to collect this draft in Texas, and pay its proceeds, less its compensation, to the plaintiff in New York, and so the contract was to be performed in Texas and New York. Adams & Leonard collected the draft for the defendant in Texas, and sent it their own draft on Jemison & Co. This draft the defendant sent to the First National Bank of New York for collection and credit. If the draft had been paid, then the defendant would have had credit for the amount with that bank, and would probably have sent its own draft on that bank to the plaintiff for the amount of the collected draft, less its compensation, and that bank would have paid that draft on presenta- tion, and thus the proceeds of the collected draft would finally have reached the plaintiff, and the obligation of the defendant would then, 17 In the omitted portion of the opinion It was held (1) that, under the law of New York, a bank receiving commercial paper for collection, in the absence of a special agreement, is liable for a loss occasioned by the default of its cor- respondents ; (2) that, if the contract was to be deemed a Tennessee contract, in which state a different rule obtained, the New York courts would follow their own precedents in the expounding of the general common law applicable to commercial transactions. Ch. 3) OBLIGATIONS. 415 and not until then, have been fully discharged. So, always, the defend- ant having collected a draft sent to it by the plaintiff, and received the proceeds thereof, would, in the ordinary course of business, discharge its obligation to the plaintiff by payment through its corresponding bank in New York. Therefore we think it is quite clear that this contract cannot, in any view, be treated as a Tennessee contract, sub- ject in any way to the law of that state. Our conclusion, therefore, is that the order of the General Term should be reversed, and the judg- ment entered upon the verdict affirmed, with costs. All concur.* (B) Guaranty and Suretyship. ff\ ^ , TENANT V. TENANT. ^ 4 ^-y^ (Supreme Court of Pennsylvania, 1885. 110 Pa. 478, 1 Atl. 532.) Green, J.** The contract in suit in this case was in form a promis- sory note under seal for the payment of $130.52, dated October 36, 1869, payable nine months from date. No place of payment is desig- nated in the instrument; but it was given to A. W. Tenant, admini- strator of William Tenant, deceased, who was a resident of West Vir- ginia at the time of his death, and the administrator was and is also a resident of the same state. The note was given in payment of cer- tain articles purchased at administrator's sale held in West Virginia soon after the intestate's death, and was delivered to the payee in that state. Two sureties joined in the note, one of whom lived in West Vir- ginia and the other in Pennsylvania ; and it is against these the present suit is brought. Of course, the note being payable at the residence of the payee, and having been delivered there for goods sold there, must be deemed and taken to be a West Virginia contract. ♦Continental Law. — The powers of an agent appointed for a particular territory has been held to be governed, with respect to third parties, by the law and usages of such country. R. G. Dec. 5, 1896 (7 Niemeyer, 341). The right of a partner to represent the firm is determined by the law of the place where the partnership is constituted. R. O. H. G. Feb. 17, 1871 (26 SeufCert's Archiv, 163). So the powers of the administrator of a foreign corporation depend upon the law of the state where such authority was conferred. App. Lyon, May 8, 1907 (35 Clunet, 173). The rights of a commission merchant seem to be governed Toy the law of the place where he carries on his business. R. G. Dec. 16, 1885 (14 Clunet, 84) ; O. L. G. Colmar, March 27, 1896 (S. 1898, 4, 9), and note. The authority of the master of a vessel to bind the owners by contract has been held to depend upon the law of the place where the mandate was given. App. Douai, Dec. 5, 1901 (19 Autran, 180) ; appeal rejected in Cass. July 27, 1903 (19 Autran, 178). In favor of law of the flag, App. Rennes, Dec. 21, 1887 (3 Autran, 675) ; Trib. Com. Marseilles, Dec. 21, 1900 (16 Autran, 809). In the interest of commercial security, German courts will apply their own law with respect to the authority of the master of a foreign vessel issuing bills of lading for goods to be delivered in Germany. 34 R. G. 72 (May 2, 1894). 48 A part of the opinion only is given. 416 PARTICULAR SUBJECTS. (Part 2 This contract was made and was to be performed in that state, and hence the law of that state must govern in determining its validity, ob- ligation, and construction. The only question in the case is whether the defense set up by the sureties must be determined by the law of West Virginia or the law of Pennsylvania. The defense is that the sureties gave notice to the creditor that he must proceed against the principal for the collection of the note, or they would no longer be responsible. . By the law of West Virginia such a notice, to be effective, must be in writing. In this case it was verbal only, and therefore, if judged by the law of West Virginia, it was nugatory. It is argued for the defendants that this right of relief to a surety is a matter relating to the remedy, and must, therefore, be determined by the lex fori. But we do not think this position tenable. The right of a surety to discharge his obligation by notice to the creditor to pursue the debtor is an incident of the contract of suretyship. It is a part of the law of that contract, and is, therefore, a part of the contract itself. It is a qualification of the obligation of the contract, reducing it from a peremptory and absolute obligation to one of a qualified or conditional character. It is true the surety may not exercise his right, and if he does not, his obligation remains intact. But, on the other hand, he may exercise it, and if he does, and the creditor pays no heed to the notice, and thereby fails to recover from the principal debtor, the very root of the surety's obligation is reached and destroyed ; he is no longer lia- ble; it is as though he had never contracted. Very different is this from the defense of the statute of limitations. There, the obligation of the contract is not terminated or defeated. Only a right to enforce it by an action in the courts is imperiled. The state simply declares that if her process is used it must be done within certain fixed periods of time, and if not so used the defendant may, at his option, plead the laches of the plaintiff, and receive the benefit of the prohibition. It is in substance a prohibition upon the use of process after a defined period, and this, of course, makes it matter of remedy only. For these rea- sons we think it quite clear that the right of a surety to discharge his obligation by a disregarded notice to the creditor to pursue the prin- cipal debtor, is a matter affecting the obligation of the contract, and must, therefore, be determined by the law of the place of the contract. The notice given in this case was verbal only, and therefore of no effect by the law of West Virginia, and hence unavailing here. * * * *° *o So whether the defense of usury will lie will depend upon the law ap- plicable to the contract of the principal. Pugh v. Cameron's Adm'r, 11 W. Va. 523 (1877) : Brownell v. Freese, 35 N. J. Law, 285, 10 Am. Rep. 239 (1871). Ch. 2) OBLIGATIONS. ^ n 417 COX V. UNITED STATES. (Supreme Ctourt of the United States, 1832. 6 Pet. 172, 8 L. Ed. 359.) Error to the District Court of the United States for the Eastern District of Louisiana. This action was brought by the district attorney of the United States against John Dick, deceased, and Nathaniel Cox, residents of New Orleans, as sureties on the official bond of Joseph H. Hawkins, late of New Orleans, navy agent of the United States. The bo nd was executed by Hawkins and his sureties at New Orkans. Hawkins died without having accounted foF$15,555.18 which he had received in his official capacity. The jury returned a verdict for $20,000, being the amount of the penalty in the bond. Upon this a judgment was enter- ed against the estate of John Dick and Nathaniel Cox, jointly and severally, for $30,000, and a judgment against Nathaniel Dick and James Dick, the legal representatives of John Dick, for $10,000 each.''* Thompson, J.^^ * * * Upon no possible ground can this judg- ment be sustained. There are, however, one or two questions arising upon this record which have been supposed at the bar to have a more general bearing, which it may be proper briefly to notice. * * * . ^ ; It was contended on the part of the plaintiffs in error, that the United St ates were bound to divide their action, and take judgment against e ach s urety only, for his proportion of the^sum due, accord- ' ing to the law of Louisiana; consid ering it a contract made there, and Tqjbe governed in this respect by the law of^the state^ On the part of ^ the United__States, it_ is claimed, that the liability of the "sureties must be governed by the rules of the common law; and the bond being joint and several, each is bound for the whole; and that the contribu- tion between the co-sureties is a matter with which the United States "have no concern. The general rule on this subject is well settled; that^the la w of the p lace where the c ontract is made, and not where the action is brought, js to govern in expounding and enforcing the contract, unless the parties have a view to its being executed elsewhere ; in which case it is to be governed according to the law of the place where it is To be executed. Robinson v. Bland, 2 Burr. 1077; Hunter V. Potts, 4 T. R. 182 ; Alves v. Hodgson, 7 T. R. 242 ; Smith v. Smith, 2 Johns. (N. Y.) 241, 3 Am. Dec. 410; Thompson v. Ketcham, -t Johns. (N. Y.) 285. There is nothing appearing on the face ^f tMs bond, indicating the place of its execution, nor is there any evidence in the case, showing that fact. In_the absence of all proof on that "poi nt, it jeing arTofficial bond, Taken in pursuance of an act of con- 6 This short statement of facts has been substituted for that of the original report 01 A part of the opinion has been omitted. LoR.CoNi'.L.— 27 418 PARTICULAR SUBJECTS. (Part 2 gress, it might well be assumed as having been e xecuted a t t he se at of government. But it Js most likely that, in point of fart, for the convenience of parties, the bond was executed at ISfew Orleans, par- ^ticularly, as the sufficiency of the sureties is approved by the district attorney of I^ouisiana. But admitting the bond to have been signed at New Orleans, it is very cleajTtHiFthe^obligatipns imposed upon the parti esjhereb^^xiked for its execution to the city of Washington. It is immaterial where the services as navy agent were to Jje^performed by Hawkins. His accountability for nonperformance was to be at the seat Qf__goyern- ^iient He was bound to account, and the sureties undertook that he should account for all public moneys received by him, with such offi- cers of the government of the United States as are duly authorized to settle and adjust his accounts. The bond is g iven with reference to the laws of the United States on that subject. And such accounting 1? required to be with the Treasury Department, at the seat of gov- ernment; and the navy agent is bound, by the very terms of the bond, to pay over such sum as may be found due to the United States, on such settlement; and such paying over must be to the Treasury Department, or in such manner as shall be directed by the Secretary. The bond is, therefore, in every point of view in which it_can be con- sidered, a contract to be executed at the city of Washington ; and the , liability of the parties must be governed by the rules of the common law. ■ - The judgment of the court below is reversed; and the cause sent back, with directiorls to issue a venire de novo.'^ I iT MILLIKEN v. PRATT. ^^^^^ "^ v^Qpreme Judicial Court of Massacliusetts, 1878. 125 Mass. 374, 28 Am. Rep. ^ 241.) '^ Action against Sarah A. Pratt, wife of Daniel Pratt and resident of the state of Massachusetts, upon a contract of guaranty signed by her in Massachusetts and sent by mail to the plaintiffs, Deering, Milliken & Co., at Portland, Me." (j" 6 2 See in general 20 Cyc. 1442; Wharton, Conflict of Laws, § 427s. Continental Law.— In Germany it is held that the extent of the surety's liability is subject to the law governing the principal obligation, but whether the surety is liable at all depends upon the law of the place of performance of the contract of suretyship, which need not coincide with that of the prin- cipal contract. R. G. April 23, 1903 (13 Nlemeyer, 423). Whether the creditor can proceed against the surety without previous suit against the principal' is governed by the law applicable to the contract of sure- tyship, and not by the lex fori. 9 R. G. 185 (May 23, 1883). 3 This brief statement of facts has been substituted for that of tbe original report; y. Ch. 2) OBLIGATIONS. 419 Gray, C. J.°* The general rule is that the validity of a contract is to be determined by the law of the state in which it is made; if it is valid there, it is deemed valid everywhere, and will sustain an action in the courts of a state whose laws do not permit such a contract. Scudder v. Union Nat. Bank, 91 U. S. 406, 33 L. Ed. 345. Even a contract expressly prohibited by the statutes of the state in which the suit is brought, if not in itself immoral, is not necessarily nor usually deemed so invalid that the comity of the state, as administered by its courts, will refuse to entertain an action on such a contract made by one of its own citizens abroad in a state the laws of which permit it. Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145. Mclntyre v. Parks, 3 Mete. 207. If the contract is cnmp letprl in another state, it makes no difference jri_j3rinciBle. whe ther the d tizgn of thi s state goes in perso n or jends ^n agent^ or w rites a letter, across the bound ar y line between_the two states. As was said by Lord Lyndhurst: "If I, residing in Eng- land, send down my agent to Scotland, and he makes contracts for me there, it is the same as if I myself went there and made them." Pattison v. Mills, 1 Dow. & CI. 342, 363. , So if a person residing in this st ate signs and transmits, either by a messenger or through the post ofifice, to a person in another jtate^a written contract, jyhich re- quires no speciarf orms' or solemnit i es in its execution, and no signa- "ture of the persorTto whom it is addressed, an d is assented to an d actecT ohTjTTiimV there, tKe~co^ractTs^nade^ there, just as if the writer personally took the executed contract Into the other state, or wrote and signed it there; and it is ho objection to^ the" maintenance of an action thereon here, that such a contract is prohibited by the law of this commonwealth. Mclntyre v. Parks, above cited. The guaranty, bearing date of Portland, in the state of Maine, was executed by the defendant, a married woman, h aying her home in this , commonwe alth, as collateral security for the liability o f her Jiusband for g oods sold b y the p laintiff s to him, and was sent by her t hrough him by mail to the plaintiffs at Portland. . The sales of the goods^or- dered by him from the plaintiffs at Portland, and there delivered by them to him in person, or to a carrier for him, were made in the state of Maine. Orcutt v. Nelson, 1 Gray, 536 ; Kline v. Baker, 99 Mass. 253. The contract betwee n the defendant and the plaintiffs was com- _pl£te_when the guaranty had been received and acted on by them at Portland, and not before. Jordan v7 Dobbins, 123 Mass. 168. It jnust tlierefore be treated as made and to be performed in the state oF" Maine. The law of Maine authorized a married woman to bind herself by any crotract as if she were unmarried. Pub. Laws Me. 1866, p. 31,' c. 53; Mayo v. Hutchinson, 57 Me. 546. The law of Massachusetts, 0* Oaly so much of the opinion as relates to the situs of the contract of guaranty is given. 420 PAETicuLAK SUBJECTS. (Part 2 as then existing, did not allow her to enter into a contract as surety or for the accommodation of her husband or of any third person. Gen. St. 1860, c. 108, § 3; Nourse v. Henshaw, 123 Mass. 96. Since the making of the contract sued on, and before the bringing of this ac- tion, the law of this commonwealth has been changed, so as to enable married women to make such contracts. St. 1874, p. 117, c. 184; Major V. Holmes, 124 Mass. 108 ; Kenworthy v. Sawyer, 125 Mass. 28. The question therefore is, whether a contract made in another state by a married woman domiciled here, which a married woman was not at the time capable of making under the law of this commonwealth, but was then allowed by the law of that state to make, and which she could not lawfully make in this commonwealth, will sustain an action against her in our courts. * * * Judgment for the plaintiffs. (C) Bills and Notes. MONTANA COAI. & COKE CO. v. CINCINNATI COAL & COKE CO. (Supreme Court of Ohio, 1904. 69 Ohio St. 351, 69 N. E. 613.) See ante, p. 341, for a report of the case."" 5 5 With regard to bills and notes, see, in general, 121 Am. St. Rep. 870^879; 61 L. K. A. 193-226. To the efCect that the law of the place of payment will determine the negotiability of the instrument with respect to the maker, see Freeman's Bank V. Ruckman, 16 Grat. (Va.) 126 (1860); Stevens v. Gregg, 89 Ky. 461, 12 S. W. 775 (1890) ; Barger v. Farnham, 130 Mich. 487, 90 N. W. 281 (1902) ; Straw- berry Point Bank v. Lee, 117 Mich. 122, 75 N. W. 444 (1898), semble. Contra, and in favor of the law of the place of making, Howenstein v. Barnes, 5 Dill. (U. S.) 482, Fed. Cas. No. 6,786 (1879). The law of the place of payment has been held to determine whether equitable defenses can be set up by the maker of a note, Brabston v. Gibson, 9 How. (U. S.) 203, 13 L. Ed. 131 (1850), sem- ble ; whether the joint maker of a note is entitled to notice, Phipps v. Hard- ing, 70 Fed. 468, 17 C. C. A. 203, 30 L. R. A. 513 (1895), semble; and the amount of recovery as against the maker of a note or the acceptor of a bill, Scofield V. Day, 20 Johns. (N. Y.) 102 (1822). Stipulations for attorney's fees and costs of collection have been disallowed on the ground of public policy, being deemed to pertain to the remedy, or on the groimd that they are penal. Commercial Nat. Bank v. Davidson, 18 Or. 57, 22 Pac. 517 (1889); Security Co. V. Eyer, 36 Neb. 507, 54 N. W. 838, 38 Am. St. Rep. 735 (1893); Ardeu Lumber Co. v. Henderson Iron Works c& Supply Co., 83 Ark. 240, 103 S. W. 185 (1907). The maker's or acceptor's liability upon a negotiable instrument, so far as it is dependent upon the negotiable or nonnegotiable character of the instru- ment, is not affected by the fact that it is negotiated In a jurisdiction where a different law prevails. Ory v. Winter, 4 Mart. (N. S.) 277 (1826). The Place of SIaking. — ^A bill or note is deemed executed in the place where it is delivered. Hart v. Wills, 52 Iowa, 56, 2 N. W. 619, 35 Am. Rep. 255 (1879) ; Wells, Fargo & Co. v. Vansickle (C. C.) 64 Fed. 944 (1894). This rule applies to each contract contained upon such bill or note. Young v. flarris (1854) 53 Ky. 556, 61 Am. Dec. 170 (indorsement) ; Tilden v. Blair Ch. 2) OBLIGATIONS. 421 EMBIRICOS V. ANGLO-AUSTRIAN BANK. (Court of Appeal, 1905. 1 K. B. Div. 677, 74 L. J. K. B. 326.) Appeal from the decision of Walton, J. [1904] 2 K. B. 870. The action was brought by Messrs. L. & M. Embiricos against the Anglo-Austrian Bank to recover damages for the wrongful conver- sion of a cheque. On March 6, 1903, a Roumanian bank drew a cheque at Braila, in Roumania, on a London bank payable to the plaintiffs or order. The same day the plaintiffs at Braila specially .indorsed the cheque to G. Embiricos & Co., a London firm, and wrote to them a letter which, with the cheque, the plaintiffs placed in an envelope addressed to G. Embiricos & Co. in London. The cheque was stolen from the envelope by a clerk of the plaintiffs. On March 9, 1903, the cheque was presented at the bank of Messrs. Schelham- mer & Schatterer, in Vienna, by a person who desired that it might be cashed. It then bore the indorsement G. Embiricos & Co., in ad- dition to the special indorsement to that firm by the plaintiffs. The indorsements were apparently regular and in order, but that of G. Embiricos & Co. was in fact a forgery, though Messrs. Schelham- mer & Schatterer were ignorant of the forgery. They telegraph- (1874) 21 Wall. (U. S.) 241, 22 L. Ed. 632 (accepf ance) ; Briggs v. Latham (1887), 36 Kans. 255, 13 Pac. 393, 59 Am. Rep. 546 (indorsement). If sent by mail it will be the place where the instrument is received by the payee. McGarry v. Nicklin. 110 Ala. 559, 17 South. 726, 55 Am. St. Rep. 40 (1895) ; Phlpps V. Harding, 70 Fed. 468, 17 C. C. A. 203, 30 L. R. A. 513 (1895) ; Nashua Sav. Bank v. Sayles, 184 Mass. 520, 69 N. E. 309, 100 Am. St. Rep. 573 (1904). Unless the payee has in advance agreed to the, terms of the instrument, in which event the place of delivery will be the place where the instrument is mailed. Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530, 27 Am. St. Rep. 777 (1890) ; Garrigue v. Kellar, 164 Ind. 676, 74' N. E. 523, 69 L. R. A. 870, 108 Am. St. Rep. 324 (1905). In the absence of evidence to the contrary, a negotiabfe instrument will be presumed to have been executed at the place indicated by its date. Lennig v. Ralston, 23 Pa. 137 (1854); Second Nat. Bank V. Smoot, 2 MacArthur (D. C.) 371 (1876) ; Parks v. Evans, 5 Houst. (Del.) 576 (1879). As to a holder in due course there is a conclusive presumption to this effect. Towne v. Rice, 122 Mass. 67 (1877) ; Quaker City Nat. Bank v. Show-acre, 26 W. Va. 48 (1885) ; Chemical Nat. Bank v. Kellogg, 183 N. Y. 92, 75 N. E. 1103, 2 L. R. A. (N. S.) 299, 111 Am. St. Rep. 717 (1905). Accommodation paper is regarded as made in the state where it is first de- livered for value. Tilden v. Blair, 21 Wall. 241, 22 L. Ed. 632 (1874) ; Gay V. Rainey, 89 111. 221, 31 Am. Rep. 76 (1878); Young v. Harris, 14 B. Mon. (Ky.) 556, 61 Am. Dec. 170 (1854) ; Davis v. Clemson, Fed. Cas. No. 3,630 (1855). Continental Law. — a. Form. — The law of the place where the instrument is executed governs. Article 85, German Bills of Exchange Act. The law of the place of performance is of no importance in this regard. 6 R. O. H. G. 125 (May 11, 1872). b. Obligation and Effect. — ^The general rule as to contracts prevails. In France and Italy, therefore, the law of the place of execution will, in the absence of evidence of a contrary intention or a common nationality, determine the obligation and effect of the maker's and acceptor's contracts. See French Cass. Feb. 6, 1900 (S. 1900, 1, 161), and note ; article 58, Italian Com. Code. While in Germany the law of the place of performance will apply. 6 R. G. 24 cording to theJaws_of j^JewJYiirk. — And so, again, we are confronted witn tne mquiry whether the rights of these responden ts as to the nature of this instrument shall be measured by the laws o f ^Jgw York or by tho sg..^f Anctn'^ — It-seems-to-uaxlear that jt must be the former . T he parties had their places of business in New York. The bill was there drawn and negotiated and transferred to the appellants. The contract of the respondents was executed and consummated there, and, ■ as we have already seen, was to be performed there upon default of the drawees. The law of New York surro u nded the parti es and the ex- ' ecution of their contract ^^a nd in our iudgment itjwould be. not only~ erroneous, but hi ghly unreasonable, to hold t hat they contracted with referencetn_aiTy_law oth er than that of New^y mk^r_ intended that their contraj cF^sliQukLlte^ other lhan_that_which_such law made it — a bill of exc hange. The authorities which already have beeiTcited with '' reference to the contract and rights of the drawer of a bill of exchange are amply sufficient to sustain this view. ^ Lastly, it is suggested that the decision which we are making will impose much trouble and responsibility upon those who are held for the proper demand and protest of paper in foreign countries where commercial laws and usages differ from our own. We do not see much balance of weight in favor of this argument, even if it is to be considered. In a case like this, there would be no great difficulty in forwarding with the bill instructions for its proper protest such as were finally given. Some such precautions would not be more onerous than would those otherwise imposed upon a party to a New York bill of ascertaining the law of the foreign country where it was payable in order that he might learn in what manner the rights secured to him where his contract was made would be altered and perhaps material- ly impaired. Ch. 3) OBLIGATIONS. 433 Therefore we conclude that no error was committed to the prejudice of appellants, and that the judgment appealed from should be affirmed, with costs. Ctji.i,en, C. J., and O'Beien, Edward T. Bartlett, Haight, and Chase, JJ., concur. Vann, J., dissents. , Judgment affirmed."* x^r^"^ AYMAR V. SHELDON. ^^ a^ o (Supreme Court of New York, 1834. 12 Wend. 439, 27 Am. Dec. 137.) Error from the Superior Court of the City of New York. Sheldon and others, as endorsees, brought a suit against B. & I. Q. Aymar, as endorsers of a bill of exchange, bearing date 4th June, 1830, drawn by V. Cassaigne & Co. St. Pierre, at Martinique, on L'Hotelier Freres, at Bordeaux in France, for 4,000 francs, payable at 34 days sight, to the order of B. Aymar & Co., the name of the firm of B. & I. Q. Aymar. The plaintiffs set forth the endorsement of the bill of exchange at the city of New York, where, they averred, that they and the defendants, all being citizens of the United States at the time of the endorsement, respectively dwelt and had their homes ; and then aver that on the 11th August, 1830, the bill of exchange was presented to L'Hotelier Freres, at Bordeaux for acceptance, according to the custom of merchants, and that they refused to accept; whereupon the bill was duly- protested for nonacceptance, and notice given to the defendants. The defendant pleaded: 1. Non assumpsit; 2. That the bill declared on was made and drawn in the island of Martinique, a country then, since and now, under the dominion and government of the king of France, by persons there dwelling subjects of the king of France; and that the bill, ac- cording to its tenor was payable at Paris in the kingdom of France, by persons then and still residing and dwelling at Bordeaux, in the king- dom of France, subjects of the king of France, to wit, on, etc., at, etc. ; that the island of Martinique, as well as Paris and Bordeaux, and the persons therein respectively residing, and the drawers and drawees were subject and governed by the laws of the kingdom of France, there 63 Accord: Cass. Florence, April 8, 1895 (S. 1896, 4, 7). With reference to indorsers the negotiability of the instrument has been determined with reference to the law of the place of Indorsement. Nichols's Ex'r V. Porter, 2 W. Va. 13, 94 Am. Dec. 501 (1867) ; Hyatt v. Bank of Ken- tucky, 8 Bush (Ky.) 193 (1871) ; Barger v. Farnham, 130 Mich. 487, 90 N. W. 281 (1902). To the efCect that the law of the place where the bill of exchange is di-awn, and not the law of the place where it is payable, will determine the conditions precedent to the drawer's liability, see Raymond v. Holmes, 11 Tex. 54 (1853) ; Warner v. Citizens' Bank of Parker, 6 S. D. 152, 60 N. W. 746 (1894). So as to damages. Bank of the United States t. United States, 2 How. (U. S.) 711, 746, 11 If. Ed. 439, 453 (1844) ; Crawford v. Branch Bank at Mobile, 6 Ala. 12,41 Am. Dec. 33 (1844) ; Price v. Page, 24 Mo. 65 (1856) ; Kuenzi v. Elvers, 14 La. Ann. 391, 74 Am. Dec. 434 (1859). L0B.C0NF.L.— 28 434 PAETicDLAR SUBJECTS. (Part 2 and then, and still existing and in force, to wit, on etc., at etc.; that by the laws of France, then and still at the several places in the plea mentioned, existing and in force, it is established, enacted and pro- vided, in relation to bills of exchange drawn and payable in the coun- tries, subject to the laws of France, among other things, in manner and form following, namely: The drawer and endorsers of a bill of ex- change are severally liable for its acceptance and payment at the time it falls due. Code de Commerce, 119. The refusal of acceptance is evidenced by an act denominated protest for nonacceptance. Id. 130. On notice of the protest for nonacceptance, the endorsers and drawer are respectively bound to give security, to secure the payment of the bill at the time it falls due, or to effect reimbursement of it, with the ex- pense of protest and re-exchange. The time when a bill of exchange becomes due, if payable at one or more days after sight, is fixed by the date of the acceptance, or by the date of the protest for nonacceptance. The holder is not excused the protest for nonpayment by the protest or nonacceptance. After the expiration of the above periods (certain periods specified in the Code, and which, in the case of a bill drawn in the West Indies on France, is one year), for the presentment of bills at sight, or one or more days after sight, for protest of nonpayment, the holder of the bill loses all his claim against his endorsers, etc., set- ting forth, besides the above, a variety of other provisions of the French Code, relative to bills of exchange, and then averring, that although at the time of the commencement of the action of the plaintiffs, twenty- four days after sight of the bill of exchange declared on had elapsed, from the day when the same was alleged to have been protested for nonacceptance, yet no protest of the said bill for nonpayment had been made, concluding with a verification and prayer of judgment. 3. The defendants pleaded, after referring to the matter of inducement stated in the second plea, that on notice of protest for nonacceptance, as al- leged in the declaration, they were ready and willing to give security; and offered to the plaintiffs to give security, according to the true intent and meaning of the laws of France, to secure payment of the bill at the time when the same should fall due, to wit, on, etc., at, etc., con- cluding as in last plea. To the second plea the plaintiffs demurred, and took issue upon the third, denying that the defendants did offer securi- ty, etc. The superior court on the argument of the demurrer, adjudged the second plea to be bad; after which the issues of the fact were tried. The jury found for the plaintiffs, on the plea of nonassumpsit, and assessed their damages at $895.53, and found a verdict for the defend- ants on the third plea. Notwithstanding which last finding, the court gave judgment for the plaintiffs on the whole record. The defend- ants sued out a writ of error. Nelson, J. The only material question arising in this case is, wheth- er the steps necessary on the part of the holders of the bill of exchange in question, to subject the endorsers upon default of the drawees to ac Ch. 2) OBLIGATIONS. 435 cept, must be determined by the French law, or the law of this state. If by our law, the plaintiffs below are entitled to retain the judgment ; if by the law of France, as set out and admitted in the pleadings, the judgment must be reversed. We have not been referred to any case, nor have any been found in our researches, in which the point now presented has been examined 'Or adjudged. But there are some familiar principles belonging to the law merchant, or applicable to bills of exchange and promissory notes, which we think are decisive of it. The persons in whose favor the bill was drawn were bound to present it for acceptance and for pay- ment, according to the law of France, as it was drawn and payable in French territories ; and if the rules of law governing them were appli- cable to the endorsers and endorsees in this case, the recovery below could not be sustained, because presentment for payment would have been essential even after protest for nonacceptance. No principle, how- ever, seems more fully settled, or better understood in the commercial law, than that the contract of the endorser is a new and independent contract, and that the extent of bis obligations is determined by it. The transfer by endorsement is equivalent in effect to the drawing of a bill, the endorser being in almost every respect considered as a new drawer. Chittyon Bills, 142 ; Ballingalls v. Gloster, 3 East, 482 ; Heylyn v. Adam- son, 2 Burr. 674, 675 ; Bomley v. Frazier, 1 Str. 441 ; Selw. N. P. 256. On this ground, the rate of damages in an action against the endorser is governed by the law of the place where the endorsement is made, be- ing regulated by the lex loci contractus. Field v. Holland, 6 Cranch (U. S.) 21, 3 L. Ed. 136 ; 2 Kent's Comm. 460 ; Hendricks v. Franklin, 4 Johns. 119. That the nature and extent of the liabilities of the draw- er or endorser are to be determined according to the law of the place where the bill is drawn or endorsement made, has been adjudged both here and in England. In Hicks v. Brown, 12 Johns. 142, the bill was drawn by the defendant, at New Orleans, in favor of the plaintiff, upon a house in Philadelphia; it was protested for nonacceptance, and due notice given; the defendant obtained a discharge under the insolvent laws of New Orleans after such notice, by which he was exonerated from all debts previovisly contracted, and in that state, of course from the bill in question. He pleaded his discharge, here, and the court say : "It seems to be well settled, both in our own and in the English courts, that the discharge is to operate according to the lex loci upon the contract where it was made or to be executed. The contract in this case originated in New Orleans, and had it not been for the circum- stance of the bill being drawn upon a person in another state, there could be no doubt but the discharge would reach this contract ; and this circumstance can make no difference, as the demand is against the de- fendant as drawer of the bill, in consequence of the nonacceptance. The whole contract or responsibility of the drawer was entered into . and incurred in New Orleans." The case of Potter v. Brown, 5 East, 124, contains a similar principle. See, also, Powers v. L,ynch, 3 Mass. 436 PAETicuLAK SUBJECTS. (Part 2 81 ; Van Raugh v. Van Arsdaln, 3 Caines, 154, 2 Am. Dec. 359 ; Sher- rill V. Hopkins, 1 Cow. 107 ; Slacum v. Pomery, 6 Cranch (U. S.) 231, 3 ly. Ed. 304 ; Andrews v. Harriot, 4 Cow. 513, note. The contract of endorsement was made in this case, and the execu- tion of it contemplated by the parties in this state ; and it is therefore to be construed according to the laws of New York. The defendants below, by it, here engage that the drawees will accept and pay the bill on due presentment, or, in case of their default and notice, that they will pay it. All the cases which determine that the nature and extent of the obligation of the drawer are to be ascertained and settled accord- ing to the law of the place where the bill is drawn, are equally appli- cable to the endorser; for, in respect to the holder, he is a drawer. Adopting this rule and construction, it follows that the law of New York must settle the liability of the defendants below. The bill in this case is payable 34 days after sight, and must be presented for ac- ceptance; and it is well settled by our law, that the holder may have immediate recourse against the endorser for the default of the drawee in this respect. Mason v. Franklin, 3 Johns. 202 ; Chitty on Bills, 231, and cases there cited. Upon the principle that the rights and obligations of the parties are to be determined by the law of the place to which they had reference in making the contract, there are some steps which the holder must take according to the law of the place on which the bill is drawn. It must be presented for payment when due, having regard to the number of days of grace there, as the drawee is under obligation to pay only ac- cording to such calculation; and it is therefore to be presumed that the parties had reference to it. So the protest must be according to the same law which is not only convenient, but grows out of the neces- sity of the case. The notice, however, must be given according to the law of the place where the contract of the drawer or endorser, as the case may be, was made, such being an implied condition. Chitty on Bills, 266, 93, 217 ; Bayley, 28 ; Story's Conflict of Laws, 398. The contract of the drawers in this case, according to the French law, was that if the holder would present the bill for acceptance within one year from date, it being drawn in the West Indies, and it was not accepted, and was duly protested, and notice given of the protest, he would give security to pay it, and pay the same if default was also made in the payment by the drawee after protest and notice. This is the contract of the drawers, according to this law, and the counsel for the plaintiffs hi error insists that it is also the implied contract of the endorser in this state. But this cannot be, unless the endorsement is deemed an adoption of the original contract of the drawers, to be regu- lated by the law governing the drawers,- without regard to the place where the endorsement is made. We have seen that this is not so; . that notice must be given according to the law of the place of endorse- ment; and if, according to it, notice of nonpayment is not required, none of course is necessary to charge the endorser. But if .the above Ch. 2) OBLIGATIONS. 437 position of the plaintiffs in error be correct, notice could not then be dispensed with, the law of the drawer controlling. The above position of the counsel would also be irreconcilable with the principle, that the endorsement is equivalent to a new bill, drawn upon the same drawee ; for then the rights and liabilities of the endorser must be governed by the law of the place of the contract, in like manner as those of the drawer are to be governed by the laws of the place where his con- tract was made. Both stand upon the same footing in this respect, €ach to be charged according to the laws of the country in which they were at the time of entering into their respective obligations. I am aware that this conclusion may operate harshly upon the en- dorsers in this case, as they may not be enabled to have recourse over on the drawers. But this grows out of the peculiarity of the Commercial Code which France has seen fit to adopt for herself, ma- terially differing from that known to the law merchant. We cannot break in upon the settled principles of our commercial law, to ac- commodate them to those of France or any other country. It would involve them in great confusion. The endorser, however, can always protect himself by special endorsement, requiring the holder to take the steps necessary according to the French law, to charge the draw- er. It is the business of the holder, without such an endorsement, only to take such measures as are necessary to charge those to whom he in- tends to look for payment. Judgment affirmed.** 6* So as to the necessity of demand, protest, and notice for nonpayment at the time of maturity. Holbrook v. Vibbard, 2 Scam. (111.) 465 (1840) ; Allen V. Merchants' Bank of New York, 22 Wend. 215, 34 Am. Dec. 289 (1839) ; Read V. Adams, 6 Serg. & R. (Pa.) 356 (1821) ; Douglas v. Bank of Commerce, 97 Tenn. 133, 36 S. W. 874 (1896). So as to necessity of previous suit against the maker or acceptor. Williams V. Wade, 1 Mete. (Mass.) 8i2 (1840) ; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec. 79 (1860); Rose v. Park Bank, 20 Ind. 94, 83 Am. Dec. 306 (1863). Or the want of consideration. Wood v. Gibbs, 35 Miss. 559 (1858). Or the defense of usury. Glidden v. Chamberlin, 167 Mass. 486, 46 N. E. 103, 57 Am. St. Rep. 479 (1897). If the instrument is drawn or indorsed for accommodation, how- ever, the defense of usury will be governed by the law of the place where it was first delivered for value. Davis v. demson. Fed. Cas. No. 3,630 (1855). So the amount of recovery as against the drawer or indorser will be de- termined by the law applicable to their respective contracts. Slacum v. Pomery, 6 Cranch (U. S.) 2S1, 3 L. Ed. 204 (1810) ; Gibbs v. Fremont, 9 Ecsch. 25. Contra: Bank of Illinois v. Brady, 3 McLean, 268, Fed. Cas. No. 888 (1843) ; Mullen V. Morris, 2 Pa. 85 (1845) ; Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205 (1842). The presumptive intent of the parties, however, has been held to be the ulti- mate criterion of the indorser's liability. Vanzant v. Arnold, 31 Ga. 210 (I860).' 438 PARTICULAR SUBJECTS. V I (Part 2 ^0, ^ ^ ■"^.i' WOOLEY V. LYON. 9^^ \^^ (Supreme Court of lUiuois, 1886. 117 111. 244, 6 N. E. 885, 57 Am. Rep. 867.) Sheldon, J.* This action was brought by Lyon, as indorsee, against Wooley, as indorser, of two promissory notes, one for $632.36, the other for $626.85, both dated July 9, 1875, one payable in 60, the other in 90, days, made by Dobbins & Co., and payable to the order of Wool- ey, at the maker's office in Chicago, Illinois. Upon the trial in the court below there appeared upon the notes, over the indorsement of Wooley, the following : "Pay to order of Thos. R. Lyon." There also appeared the following: "Without recourse. Orrin W. Potter, as Executor Estate E. B. Ward." The plaintiff had judgment for the amount of the notes, which was affirmed by the appellate court for the second district and the defendant brings this writ of error. The errors which are here insisted upon are in respect of instructions to the jury. The notes were indorsed in blank by Wooley, and were negotiated by him, so indorsed in Michigan, having been sent after some correspondence, from Fruitport, Michigan, to Ludington, Michi- gan, in payment for lumber purchased by Wooley of the estate of E. B. Ward, or, rather in payment of two other similar notes which had been so given by Wooley for lumber. * * * The sixth instruction given for the plaintiff is objected to, which was to the effect that if, after the maturity of the notes, the defendant was informed of their non-payment, and, being so informed acknowledged his liability as indorser, and agreed to settle or pay the amount due, then it is immaterial, under the Michigan law, whether the protest was legal or proper. This instruction, if faulty, could have done the de- fendant no harm, for the reason that the necessary steps under the law of this state were taken to charge defendant as indorser, viz., demand of payment, protest for non-payment, and notice of non-payment ad- dressed to defendant at a proper place, all which the evidence shows were duly made and given in accordance with our own law, where the defendant's liability became fixed, and it was immaterial whether or not he made a subsequent promise to pay the notes. The notes being payable in this state, and the contract of indorsement being made in Michigan, and the indorser residing there, the law of the place where the notes were payable we consider governed as to time and mode of presentment for payment, manner of protests, and giving notice. 2 Pars. Notes & Bills, 344, 345 ; 1 Daniel. Neg. Inst. §§ 911, 912 ; Roths- child V. Currie, 1 Adol. & E. (N. S.) 43 ; Hirschfeld v. Smith, L. R. 1 C. P. 350. There is a conflict of authority as to what law should govern in the giving of notice of dishonor — whether the law of the place of payment or the law of the place where the indorsement is made. Aymar v. Sheldon, 12 Wend. (N. Y.) 439, 27 Am. Dec. 137, *A part of the opinion has been omitted. Ch. 2) OBLIGATIONS. 439 and some other American cases, hold the notice should be according to the law of the place of the indorsement ; and see Redf . & B. L,ead. Cas. Bills & Notes, 713, in note to above case of Aymar v. Sheldon. We are disposed to adopt the rule that the notice should be in accordance with the law of the place where the bill or note is made payable, as resting upon the better reason. * * * | ROUQUETTE v. OVERMANN. (Queen's Bench, 1875. L. B. 10 Q. B. 525, 44 L. J. Q. B. 221.) Plaintiff is the indorsee and holder, defendants the drawers and in- dorsers, of the following bill of exchange: "Manchester, 28 June, 1870, for i345. 15s. 2d. sterling. On the 5th of October, 1870, pay this first of exchange (second and third unpaid) to the order of ourselves the sum of i345. 15s. 2d. sterling, at the exchange as per indorsement, for value received, which place to account as advised. Overmann & Schou. "To Messrs. Magalhaes Freres, 5 Rue Martel, Paris." The bill was indorsed in England by defendants, who were merchants in Manchester, to plaintiff, an English subject, carrying on business in London. Defendant indorsed the bill to Messrs. Krauetler & Mie- ville, English subjects and residents of England, who indorsed the bill in Eondon to Messrs. Pillet, Will & Co., French subjects and residents of Paris. The bills were duly accepted by the drawees at their place of business in Paris. During the currency of the bill, viz. from July 23, 1870, to January 20, 1871, France and Prussia were at war. As a consequence, through different legislative enactments beginning with that of August 13, 1870, the time of presentment, protest, and notice of negotiable paper issued before the promulgation of such law was extended, and the right of recourse against the indorsers and other parties postponed, until September 5, 1871. On that date Pillet, Will & Co. presented the bill for payment, which was refused. The bill was duly protested for nonpayment on September 6, 1871. Notice of dishonour and protest was given by the holder to Krauetler & Mieville on September 8, 1871, in manner required by French law, and was re- ceived by them on September 9th. On the same day they gave the like notice to the plaintiff, and he on the same day gave the like notice to defendants, who refused to pay the bill. The plaintiff paid the bill, before action, to Krauetler & Mieville, and now sues to recover the sum so paid, with interest. Defendants had no notice that the bill had not been presented for payment prior to September 6, 1871, nor of any of the laws or proclamations of the French government."" t Contra, and in favor of the law of the place of drawing or Indorsement, Snow V. Perkins, 2 Mich. 238 (1851) ; Thorp v. Oaig, 10 Iowa, 461 (1860). 85 This statement of facts has been substituted for that of the original re- port. 440 PARTICULAR SUBJECTS. (Part 2 CocKBURN, C. J.°* * * * The main ground for the defence is that due diligence was not used by the holders of the bill in presenting it for payment at the appointed time, or in giving notice of dishonour on its nonpayment at that time ; by reason of which the indorsers were discharged; whence, as was contended, it followed that the plaintiff had paid the bill in his own wrong, and therefore could not claim to be indemnified by the defendants; who, again, it was said, were en- titled on their own account to notice of dishonour on nonpayment at the regular time — it being contended that whatever might be the effect of this special legislation of the French government, as between the holders of the bill and the acceptors, the holders, though resident in France, were bound, the bill having been drawn and indorsed in Eng- land, if they desired to fix the parties in this country, to present the bill for payment at the time at which it fell due in the regular course, according to its tenor, and if it was not then paid, to give notice of its dishonour — the right to insist on due diligence in these particulars ac- cording to the law of England, as a condition precedent of liability, being one which it was not competent to a foreign legislature to affect. That, at all events, the transaction between the defendants and the plaintiff having occurred in this country, their respective rights and lia- bilities must be determined by English law. The implied contract of in- demnity, which attaches on nonpayment of a bill of exchange, is based, it was urged, on the assumption that the bill will be presented for pay- ment at the time specified by it ; and that, in case of nonpayment, notice of dishonour will thereupon be given. How then, it was asked, can the right to insist on these as the conditions of liability on a bill drawn and indorsed in this country be modified or affected by the legislation of a foreign country? The question is of considerable importance and interest in a juridical point of view. It has occupied the attention of the tribunals in Ger- many, Switzerland, and Italy. The High Court of Leipzig has decid- ed it in favour of the view presented to us on the part of the defend- ants. The High Court of Geneva and the Cour de Cassation of Turin have come to the opposite conclusion. Our view coincides with theirs. In considering the subject, two questions present themselves. The first, as to what was the effect of this special legislation on the ob- ligations of the acceptors ; the second, as to what, if any, was its effect on the rights and liabilities of the drawers and indorsees inter se. It is with the second question that we are more immediately concerned; but the consideration of the first may materially assist us towards the satisfactory solution of the second. Now that, so far as the French law was concerned, the effect of the exceptional legislation in question was to substitute, as the time of pay- ment, the expiration of the period of grace afforded by it for the time specified in the bill, and to suspend till then the legal obUgation of the 86 Part of the opinion is omitted. Ch. 2) OBLIGATIONS. 441 acceptors to pay, cannot be doubted. If the bill had been presented for payment on the 5th of .October, and payment having been refused, an action had been brought in a French court against the acceptors, wheth- er by a French or foreign holder, the plaintiff must by the effect of the new law have been defeated. Even if the acceptors had b'Sen found in this country, and an action had been brought against them in an Eng- lish court, the result must have been the same. It is well settled that the incidents of presentment and payment must be regulated and de- termined by the law of the place of performance — a rule which is strik- ingly illustrated by the familiar but pertinent example of the effect of days of grace being allowed by the law of the country where a bill of exchange is drawn, but not by the law of the country where it is pay- able, or vice versa, the payment of the bill being, as is well known, de- ferred till the expiration of the days of grace in the one case, but not so in the other. And this arises out of the nature of the thing, as the acceptor cannot be made liable under any law but his own. It is, in- deed, true that, in the present instance, the period of grace has been accorded by ex post facto legislation. But this appears to us to make no difference in the result, at all events so far as the obligations of the acceptors are concerned. The power of a legislature to interfere with and modify vested and existing rights cannot be questioned, although no doubt such interference, except under most exceptional circum- stances, would be contrary to the principles of sound and just legis- lation. Such being the effect of this legislation on the liability of the acceptor, we have next to consider its effect on the relative position of the drawer and the drawee or indorsee and holder. It is said that, although the obligations of the acceptor may be determined by the lex loci of the country in which the bill is payable, the contract as between the drawer and indorsee must be construed according to the law of the country where the bill was drawn ; and, consequently, that in order to make the defendants, the drawers of this bill, liable, the bill should have been pre- sented at the time specified in it, and on nonpayment notice of dishonour should thereupon have been given according to the requirements of Eng- lish law. It is unnecessary to consider how far this position may hold good as to matter of form, or stamp objections, or illegality of consid- eration, or the like. We cannot concur in it as applicable to the sub- stance of the contract, so far as presentment for payment is concerned ; still less to a formality required on nonpayment in order to enable the holder to have recourse to an antecedent party to the bill. Applied to these incidents of the contract, this reasoning appears to us altogether to overlook the true nature of the contract which a party transferring for value the property in a bill of exchange makes with the transferee. All that he does is to warrant that the bill shall be accepted by the drawee, and, having been accepted, shall, on being presented at the time it becomes due, be paid. In other words, he engages as surety for the due performance by the acceptor of the obligations which the latter 442 PARTICULAR SUBJECTS. (Part 2 takes on himself by the acceptance. His liability, therefore, is to be measured by that of the acceptor, whose surety he is; and as the ob- ligations of the acceptor are to be determined by the lex loci of per- formance, so also must be those of the surety. To hold otherwise would obviously lead to very startling anomalies. The holder might sue the drawer or indorser before, according to the law applicable to the acceptor, the bill became due ; or, the acceptor having refused pay- ment till the expiration of the period of grace thus afforded him by the new law, but on presentment at the end of that time having duly paid, the holder might claim compensation against the indorser in re- spect of any loss he might have sustained by reason of the delay, al- though the obligations of the acceptor had been fully satisfied by the payment of the bill. Again, as a bill may be indorsed in different coun- tries before it arrives at maturity, and each indorsement becomes a fresh undertaking with the subsequent parties to the bill for due per- formance by the acceptor, unless the performance to which the acceptor is bound is, made the measure and the limit of each indorser's liability, confusion must arise in determining by what law the rights and lia- bilities of the different indorsers and indorsees inter se shall be gov- erned. It may be urged, no doubt, that, though it may be true that the parties to a bill of exchange, payable in a foreign country, may be assumed to have contracted for the payment of the bill according to the existing law of the country in which it is to be paid, they cannot be assumed to have contracted on the supposition of that law being altered in the in- terval prior to the bill becoming due ; that, on the contrary, the inten- tion of the parties was that the bill should be paid according to the existing law, and the undertaking of the party transferring it was that it should be so paid ; and that such being the effect of the indorse- ment, the obligation of the indorser cannot, as between him and his in- dorsee, be affected by ex post facto legislation in the foreign country. A strong argument ab inconvenient! may also be founded on the serious consequences which may ensue to the holder of a bill of exchange, if the time of payment, as fixed by the bill, may be postponed by subse- quent legislation. He may require the money secured by the bill at the precise moment it is to become due ; he may have purchased the bill for the purpose of insuring the command of it. The delay in receiving it may involve him in the greatest embarrassment. The indorser ought, therefore, to be held strictly to his undertaking that the bill shall be met at the time stated in it, and contemplated by the parties as the date of payment. That to hold otherwise would be materially to shake the credit and impair the utility of negotiable instruments. To the first of these arguments it may be answered, that the indorser of a bill guarantees its payment only according to the effect of the bill at yie place of payment. He transfers all the right the acceptance gives him against the acceptor, and guarantees that the obligations of the lat- ter, as arising from the acceptance, shall be fulfilled. If, by an altera- Ch. 3) OBLIGATIONS. 443 tion of the local law pending the currency of the bill, the obligations of the acceptor are rendered more onerous, those of the indorser become so likewise. Thus, if it were enacted that certain days should be treat- ed as holidays, and that a bill falling due on any one of them should be paid at an earlier date, the indorser, on nonpayment of the bill at stich earlier date, would become liable from such date. On the other hand, if the time of payment were postponed by a period of grace being al- lowed, or by an enactment that a bill, falling due on a day appointed to be kept as a holiday, should be payable a day after, as was done by St. 34 & 35 Vict. c. 17, the period at which the liability of the indorser on nonpayment by the acceptor would arise, would be pro tanto delayed. To the second argument it may be answered, that it goes rather to the expediency of such exceptional legislation than to its effect. Fur- ther, that the instances in which it is resorted to are so extremely rare as to be little likely to have the effect of lessening the faith in negotiable instruments or diminishing their utility. If, then, the right of the holder, as against the acceptor and the an- tecedent parties, can be thus modified in respect of the time of pay- ment, there can be no injustice or hardship towards them in holding him exempted from the obligations of presenting the bill earlier than his right of payment accrues, or of giving notice of dishonour in order to preserve his right of recourse to them. If the time of payment, which is of the essence of the contract, and the consequent necessity for presentment at the original time can thus be postponed, it would seem to follow that, a fortiori, a formality, the ne- cessity for which arises only on the nonfulfillment of his obligation, by the acceptor, would follow any alteration introduced by the law in re- spect of the time at which that obligation was to be discharged. But, independently of this consideration, we are of opinion, on general prin- ciples, that notice of dishonour cannot be required until payment has been legally demandable of the acceptor, and has been refused. It is true that if the bill had been presented for payment at the time men- tioned in it, the acceptors might, possibly, have omitted to avail them- selves of the indulgence accorded by the special law, and might have paid at once. But so might, possibly, the acceptor of a bill under or- dinary circumstances, if asked to do so as matter of grace or of special arrangement. The holder of a bill of exchange cannot be held bound to present it for payment till it becomes legally payable, that is to say,, payable as matter of right and not of option. Neither, therefore, can he be called upon to give notice of nonpayment to the indorser before the time when his right to demand payment of the acceptor has accrued, and the Hability of the indorser, consequent on such refusal, has arisen. There cannot be two different times at which a bill of exchange be- comes payable. Suppose the holder had presented this bill for payment at the time specified in it, and payment had been refused by reason of . the extension of time afforded by the new law, such presentment would certainly not have dispensed with the necessity of presenting the bill 444 PARTICULAR SUBJECTS. (Part 2 anew, when the period of grace expired, and the liability of the ac- ceptors had arisen ; and the omission to present it then would have had the effect of discharging the indorser. If presentment at the expira- tion of the time allowed by the special law was necessary to fix the legal liability of the acceptor and the indorser, it was only on such pre- sentment and nonpayment thereupon that the bill could be treated as dishonoured, or that notice of its dishonour could be effectually given so as to charge the indorser. Another ground for holding that presentment and notice of dis- honour at the earlier period were not necessary to preserve the right of recourse against the defendants, as drawers and indorsers, is to be found in the reasons assigned for requiring presentment at the appointed time and notice of dishonour immediately on payment being refused. The reason given is, that the drawer, whom it is intended to make lia- ble, may have the earliest opportunity of withdrawing his assets from the acceptor, or resorting to such other remedies against him as the law may afford. But in such a case as the present, as the acceptor re- mains bound to the holder to pay the bill when presented at the time it becomes legally due, the drawer could not withdraw from him the means of satisfying that liability, or take steps against him for nonful- fillment of an obligation not as yet capable of being legally enforced. [The learned Chief Justice here examined Allen v. Kemble, 6 Moo. P. C. 314, Gibbs v. Fremont, 9 Ex. 35, Rothchild v. Currie, 1 Q. B. 43, and Hirschfeld v. Smith, L. R. 1 C. P. 340.] Judgment for the plaintiff.®' 8 7 Accord: Prance, App. AIx, April 9, 1872 (D. 1872, 2, 202). Italy, Cass. Turin, Match 6, 1872 (Annali 1872, 1, 107) ; Cass. Turin, May 20, 1879 (Annali 1879, 1, 405) ; Cass. Florence, Jan. 16, 1873 (Annali 1873, 1, 47), and note ; App. Rome, June 12, 1872 (Annali 1872, 2, 266). Contra: Germany, 1 B. O. H. G. 288 (Aug. 13, 1870), notwithstanding the general rule that the time and mode of presentment, protest, and notice are governed with respect to all parties by the law of the place of performance (article 86, Bills of Exchange Act), and the day of maturity is diBtermined by the law of the place of payment E. G. Dec. 11, 1895 (6 Niemeyer, 429). Italy, App. Milan, April 16, 1872 (An- nali 1872, 2, 139). For a review of the literature on this question, see 17 Goldschmidt's Zeit- schrift fur das gesamte Handelsrecht, 29t-309; 18 Id. 025-643. American and English Law. — The law of the place of payment will deter- mine whether or not it is entitled to days of grace. Cribbs v. Adams, 13 Gray (Mass.) 597 (1859); Bowen v. Newell, 13 N. Y. 290, 64 Am. Dec. 550 (1855); Pawcatuck Nat. Bank v. Barber, 22 R. I. 73, 46 Atl. 1095 (1900). And the time, manner and sufficiency of the demand and protest. Pierce v. Indseth, 106 IT. S. 546, 1 Sup. Ct. 418, 27 L. Ed. 254 (1883) ; Carter v. Union Bank, 7 Humph. (Tenn.) 548, 46 Am. Dec. 89 (1847) ; Commercial Bank of Kentucky v. Barks- dale, 36 Mo. 563 (1865) ; Sylvester v. Crohan, 138 N. Y. 494, 34 N. E. 273 (1893) ; Douglas V. Bank of Commerce, 97 Tenn. 133, 36 S. W. 874 (1896). Contra: Musson V. Lake, 4 How. (U. S.) 262, 11 L. Ed. 967 (1846) . Whether or not the acceptance of a bill or note operates as payment of the original indebtedness has been held to depend upon the law applicable to the original obligation. Tarbox v. Childs, 165 Mass. 408, 43 N. E, 124 (1896). But see Minor, Conflict of Laws, § 189. The English Bills of Exchange Act provides as follows: Sec. 72. Where a bill drawn In one country is negotiated, accepted, or pay- Ch. 2) OBLIGATIONS. 445 able In another, the rights, duties, and liabilities of the parties thereto are de- termined as follows: (1) The validity of a bill as regards requisites In form Is determined by the law of the place of Issue, and the validity as regards requisites in form of the supervening contracts, such as acceptance, or indorsement, or acceptance su- pra protest, is determined by the law of the place where such contract was made. Provided that — (a) Where a bill Is issued out of the United KIngdwm It is not invalid by reason only that It is not stamped in accordance with the law of the place of Issue. (b) Where a bill, issued out of the United Kingdom, conforms, as regards requisites in form, to the law of the United Kingdom, it may, for the pur- pose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, or become parties to it in the United Kingdom. (2) Subject to the provisions of this act, the interpretation of the drawing, indorsement, acceptance, or acceptance supra protest of a bill, is determined by the law of the place where such contract is made. Provided that where an Inland bill Is Indorsed in a fore'ign country the in- dorsement shall as regards the payer be interpreted according to the law of the United Kingdom. (3) The duties of the holder with respect to presentment for acceptance or payment and the necessity for or sufficiency of a protest or notice of dis- honour, or otherwise, are determined by the law of the place where the act is done or the bill is dishonoured. (4) Where a bill is drawn out of but payable in the United Kingdom and the sum payable is not expressed in the currency of the United Kingdom, the amount shall. In the absence of some express stipulation, be calculated ac- cording to the rate of exchange for sight drafts at the place of payment on the day the bill Is payable. (5) Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where It Is pay- able. CtoNTiNEWTAL IiAW.— The contracts of the drawer and Indorser are subject to the law of the place where such contracts are respectively made. France, Cass. Feb. 6, 1900 (S. 1900, 1, 161); and note. Germany, 44 R. G. 153 (Oct. 4. 1889) ; 9 R. G. ^1 (March 28, 1883). Unless a different Intention of the par- ties Is apparent. 24 R. G. 112 (Nov. 5, 1889). Italy, Cass. Florence, April 8, 1895 (S. 1896, 4, 7) ; Cass. Florence, Jan. 16, 1888 (15 Clunet, 735). When the parties are subjects of the same country, however, they will be deemed to have contracted with reference to their national law. Article 9, Prel. Disp. Civ. Code ; Cass. Naples, Jan. 4, 1898 (La Legge 1898, i; 617). The law applicable to each contract governs the necessity of presentment, protest, and notice. G-errmmy, 19 R. O. H. G. 203 (Feb. 1, 1876) ; 24 R. G. 112 (Nov. 5, 1889). France, see Weiss, Traite de droit International privfi, IV, 442-444. Italy, App. Messina, March 15, 1891 (Foro It. 1891, 1, col. 574). The time and mode of presentment, protest, and notice, on the other hand, are governed by the law of place of payment of the bill or note. France, Cass. July 5, 1843 (S. 1844, 1, 49) ; App. Chambfiry, Nov. 25, 1864 (S. 1865, 2, 96) ; App. Paris, March 22, 1875 (3 Clunet, 361). Germany, article 86, Bills of Exchange Act. Italy, article 58, Com. Code; Cass. Turin, May 6, 1883 (Glurispr. Tor. 1883, p. 446). See App. Milan, June 5, 1895 (25 Clunet, 595). See, also, Ch. Brocher, fitude sur la lettre de change dans ses rapports avec le droit International prlvS, 6 Revue de Droit International, 5-56, 196-229 ; F. P. Contuzzi, Die internatlonalen Wirkungen des Wechsels In Ansehung des itallenischen Rechts und der itallenlschen Jurisprudenz, 1 NIemeyer, 572-582 ; P. Esperson, Dirltto cambiale internazionale, Florence, 1870. ■116 PARTICULAR SUBJECTS. (Part 2 (D) Carriers. CURTIS V. DELAWARE, L. & W. R. CO. (Court of Appeals of New York, 1878. 74 N. Y. 116, 30 Am. Rep. 271.) See ante, p. 350, for a report of the case. MERRITT CREAMERY CO. v. ATCHISON, T. & S. -F. R. CO. (Kansas City Court of Appeals, 1908. 128 Mo. App. 420, 107 S. W. 462.) Johnson, J. This suit was brought by a shipper against a common carrier to recover the value of a shipment of goods lost in transit. A jury being waived by agreement of parties, the court found in favor of defendant on the pleadings and admitted facts, and plaintiff brought the case here by appeal. The cause of action pleaded in the petition is "that on or about the 26th day of May, 1903, the plaintiff delivered to the defendant for transportation from Great Bend, Kan., to Boston, Mass., and defend- ant accepted and undertook to transport 25 tubs of butter containing 50 pounds each, 25 tubs of butter containing 30 pounds each, and 26 tubs of butter containing 20 pounds each, consigned to Lamson & Co., Boston, all of which belonged to the plaintiff; that the but- ter was delivered to plaintiff for shipment in car M. D. T. 9043; that it thereupon became and was the duty of defendant as a com- mon carrier to safely transport and deliver said butter and all of it to consignee at Boston, Mass., yet said defendant, wrongfully neg- lecting and refusing to perform its duty in that behalf, did fail, neglect, and refuse to so transport and deliver said butter or any part thereof; that said butter was of the value of $529, and that plaintiff has been damaged by said failure to so transport and deliver said butter in the sum of $529." In the answer, defendant admitted that as a common carrier it received the butter from plaintiff for transportation to the consignee at Boston, and that it failed to make delivery. Two de- fenses are interposed: First. "That, when the cars in which said but- ter was being carried arrived at Argentine, in the state of Kansas, the same were overtaken by an extraordinary and unprecedented flood of water, wholly beyond the control of this defendant, which inundated and overspread the entire surrounding country, including the tracks and yards of this defendant, and that flood, which was an act of God, entirely destroyed said consignment of butter on May 31, 1903." Sec- ond. A statute of Kansas is pleaded which provides that an action of this character shall be barred in three years after the cause of action has accrued, and it is alleged, in substance, that this statute should be applied to defeat a recovery by plaintiff, since the present suit was not Ch. 2) OBLIGATIONS. 447 brought until after three years had elapsed from the loss of the prop- erty. The following admissions were made by the parties at the trial : "That ever since 1901 there was in full force and effect in the state of Kansas section 4446 of the General Statutes of Kansas, as set out in defendant's amended answer; * * * that the shipments re- ferred to in the plaintiff's petition were delivered to the defendant by the plaintiff at Great Bend, Kan., for shipment to Boston in May, 1903; that said defendant carried said consignments over its road from Great Bend, Kan., to Olathe, Kan., and at said point, in order to avoid the high waters on its road, detoured said consignments and transported them over the 'Frisco Line' to Kansas City, Mo., and from Kansas City, Mo., into its yards on its own line at Argentine, Kan., which was the destination of the train in which this car was, which yards are used by the defendant company for placing all cars preparatory to their being made up into trains; that the goods were not stopped at Kansas City at all, but passed through to Argentine, Kan., from which point they were to have been forwarded to the place of destination, but were never delivered to the consignee. It is further admitted by both parties that, if the defendant in any way failed to perform any duty which defendant owed to the plaintiff, such failure only occurred at Argentine, Kan., on the 31st day of May, 1903." Defendant then moved for judgment on the pleadings and ad- missions. The motion was sustained, and judgment entered for de- fendant. For the purposes of the motion for judgment, defendant, in effeci, eliminated the defense pleaded in the answer, that the property was destroyed by the act of God, and relied for defense on the sole propo- sition that the cause of action accrued at Argentine, Kan., and was barred by the statute of limitations of that state, which under the provisions of section 4380, Rev. St. 1899 [Ann. St. 1906, p. 2355], must be applied in the courts of this state. In this posture of the case, we must assume as established the facts that defendant as a common carrier accepted the shipment at Great Bend, Kan., for delivery at Bos- ton, that it failed to deliver, and that such failure was the result of the loss of the property at Argentine by some tortious act or neglect of defendant. In other words, the motion necessarily is based on the hypothesis that plaintiff is entitled to recover in this action, but for the bar thereto interposed by the Kansas statute. It will be observed that the petition is carefully drawn to plead a cause of action ex delicto as distinguished from one in the nature of assumpsit founded on a breach of the contract of transportation. The cause of action alleged is the failure of defendant to discharge its common-law obliga- tion to deliver the property at its destination. Plaintiff takes the posi- tion that the breach of duty occurred at the place of delivery, and con- sequently that the cause accrued at that place, and that the cause of the failure to deliver (such as an act of God or the public enemy) is immaterial as long as it is not shown to be one which would excuse 448 PARTICULAR SUBJECTS. (Part 2 the carrier from liability under the common law. On the other hand, defendant argues that the act of the carrier which disabled it from discharging its common-law duty to deliver is the real cause of action, and that the fact that the property was not delivered is but eviden- tiary, and in no sense creative of the cause of action. We are of opin- ion that plaintiff has the better of the argument and that the learned trial judge erred in sustaining the motion for judg'ment. At common law the obligation of a common carrier with respect to the subject of transportation is that of an insurer. It is liable for loss of or dam- ages to the property regardless of the nature of the cause of injury. To this rule there are certain exceptions. If the carrier can show that the proximate cause of its apparent breach of duty was some overwhelming force such as the act of God or the public enemy, or that it resulted from unavoidable accident, from the fraud or fault of the owner of the goods, or from some inherent defect or infirmity of the goods themselves, which has caused the injury, it will be relieved of its obligation of an insurer, and will not be held to respond in dam- ages for the loss or injury sustained. In the absence of proof of such excusing fact, the burden of which is on the carrier, the fact of fail- ure to deliver of itself constitutes a cause of action, and the plaintiff neither in his pleading nor evidence is required to go behind that fact to show the specific misconduct that incapacitated the carrier from de- livering the goods. The owner of goods lost in transportation by a cause which will not relieve the carrier from liability may have sev- eral different causes of action, any one of which he may elect to prose- cute. He may sue, as we have said, in tort for breach of the common- law duty to deliver, or for breach of the contract of transportation, or by treating the carrier as a mere bailee, may allege the specific tortious act by which the goods were lost and found his right to re- cover on that. The place where the goods were to be delivered is the place where the cause originates in the first-mentioned class of ac- tions, but the place where the tortious act occurred is that where the cause arises which is based on the specific misconduct that produced the injury. The cause pleaded in the present action being for breach of the common-law duty to deliver the goods in Boston, the statute of limitations in force in Massachusetts (under the provisions of sec- tion 4280, Rev. St. 1899 [Ann. St. 1906,- p. 2355]) controls the time in which that action may be prosecuted in this state, and the learned trial judge erred in holding that the Kansas statute should be applied. There is nothing in the case of Lamar Mfg. Co. v. St. Louis & S. F. R. Co., 117 Mo. ApJp. 453, 93 S. W. 851, at variance with what we have said. It is true that, when the carrier sustains the burden of showing that the loss or injury to the goods was the direct result of an act of God, the burden of proving that the carrier, notwithstanding the presence of such excusing cause was guilty of concurring negli- gence which directly contributed to the loss or injury, is on the plain- tiff ; but that rule goes only to a matter of defense, and cannot operate Ch. 3) OBLIGATIONS. 449 to change either the nature or the situs of the cause of action. Witli the defensive matter met by proof of concurring negligence, the cause still rests on the failure of the carrier to deliver the goods at their des- tination. But it is argued by defendant that the admission made by plaintiff "that, if the defendant in any way failed to perform any duty which defendant owed to the plaintiff, such failure only occurred at Argen- tine, Kansas, on the 31st day of May, 1903," made the tort, if any, which occurred at that place the ground of his action. We do not agree with this contention. Construed in the light of the pleadings and of the other facts admitted, we think it was not within the con- templation of the parties to attempt to change the cause pleaded in the petition, and that the parties meant only to agree that, if the goods were lost through the misconduct of defendant, such misconduct oc- curred at Argentine. Whether the fact of the place where the goods were lost was admitted by the parties or was made a matter of proof, it would be immaterial to the cause pleaded in the petition, and, in any event, could be only material to prove or disprove the defensive issue that the goods were destroyed by an act of God or by some other cause that would excuse the carrier from its common-law liability. It follows from what has been said that the judgment must be re- versed, and the cause remanded. All concur. In re MISSOURI S. S. CO. (Court of Appeals, 1889. 42 Ch. D. 321.) See ante, p. 353, for a report of the case. GRAND V. LIVINGSTON. 3w York, Appellate Divlsic N. Y. Supp. 490.) See ante, p. 367, for a report of the case. (Supreme Court of New York, Appellate Division, 1896. 4 App. Dlv. 589, 38 N. Y. Supp. 490.) , c3c. & ST. L. RY. CO. vySHE: PITTSBURGH, C.,'iC. & ST. L. RY. CO. v.' SHEPPARD. (Supreme Court of Ohio, 1897. 56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep. 732.) Action by Harry D. Sheppard against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Sheppard delivered to the Terre Haute & Indianapolis Railroad, at Lovington, in the state of Illinois, a car load of horses whicJh that company agreed to transport liOE.CONF.L.— 29 450 PARTICULAR SUBJECTS. (Part 2 over its line to Indianapolis, Ind., and there deliver them to plaintiff in error for carriage to the city of Columbus, Ohio. The contract with the former company is in v^riting, and contains a stipulation that, "in case of any loss or damage, the liability of said company and of any connecting line shall not exceed $100 per head." The horses were safely delivered to the plaintiff in error, at Indianapolis, and received by it in good condition; but, while being transported over its line ^ this s tate, a defective wheel of one of the cars in the train gave way, in consequence of which one of the horses was killed, and the others were injured. Sheppard brought suit in the court ^of common p1pas_n f Kranklin rnnnty ag-aJTlSt the plaintiff JnTerrnr fn r_flgTnayes. alleging that his loss was occasioned bv the company's neglige nce. The company denied negligence on its part, and pleaded the stipula~ tion in the contract, above set forth, as a limitation on its liability, aver- ring that the contract was made in the state of Illinois, where, under the law of that state, such stipulation is valid. Issue was joined on the allegations of the answer, and on the trial evidence was given by both sides tending to prove what the law of Illinois on the subject was when the contract was made. The plaintiff recovered more than the amount limited by the contract, and that judgment was affirmed by the circuit court. The railway company prosecutes error here to ob- tain the reversal of both judgments. Williams, C. J.'^* It is not contended there is sufficient ground for disturbing the judgments below, for lack of evidence tending to prove that the negligence charged against the defendant was the cause of the plaintiff's loss; but it is claimed the evidence did not establish gross or willful negligence, and that under the law of Illinois, where the contract for the transportation of the horses was made, it was com- petent for a common carrier of goods to limit his liability, by special agreement, except as against his negligence of that character. And the principal contention of counsel for the plaintiff in error is that the trial court erred in its charge concerning the law of Illinois on that subject; the complaint being that the charge, in substance, was a statement of the rule established in this state, instead of that which obtains in Illinois. The parties put in evidence several decisions of the Supreme Court of tliat state to prove the law of the state, and coun- sel in argument seek to maintain different interpretations of those decisions favorable to their respective clients. But_ii_the rights of _th£.£arties are to be determined by the laws of th i s stateTan d jiot 1)y thoseoTT Hiflois, the char ge was not erroneo us^orlprfiiudiclaLthough ^^[iyeii_a£ lhe law o f thafstate. There is nothing to show that any traffic arrangement existed beTween the two railroad companies, nor any agency or authority of one to contract for the other ; and assum- ing that the plaintiff in error, by accepting the horses from the other 8 8 A part of the opinion not relating to the Conflict of Laws has been omitted. "Ch. 2) OBLIGATIONS. 451 company, and utidertaking to transport them over its line, became a party to the contract with the plai ntiff below, i t did so at Indianapol is", ana^^ts_contract_was to carry the horses trom that point to their des- Imation. N o part~oFjts~p erfnrnTanre of the con"tra cFwas to take plac e in the state ot llhnois ; and, it the carriage ot the property over that "part 01 its roaa winch ii! ItJcated m Indiana could De eoti'Siaerea as a SLila ilnance ha ving;jne effect ot makmg the rights ot the parties un- der the contract subject to^tHelaws unhafstate, noneirrffefing ~fram those ofl:his ¥Eate"wai^leade^bY^proven,~alKrtFere is no presumption tjiatttiey were ditt eren t7 ' But, if the law of Indiana were shown to be the same as that of Illinoi-s is claimed to be, it would not be the law governing this con- tract. We understand the rule to be that where a contract is mad e in one state, to be performed in part in another, and an action i s brought tor a breach ot that part of the contract, the rights of the pa r- ties must be determined according to the law of the latter state! Story, Oont. § 6SS ; Jdarter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434. It is apparent, however, from the face of this contract that it was to be , wholly performed in this state. The property was to be transported to Columbus, where the consignee was entitled to receive it from the carrier. The latter was bound to deliver it at that place. The contract could be performed by the company nowhere else. Carrying the prop- ertv through a portion nf the state of Indian a did not constitute pe r- ^ forma nce. That was merely a means of enabling the company to per- form by deJiverv of the property at its destinat ion. And, the cu ri- tract beinpr silent as to the time and place of pa yment of the freight, it was payable at the time of the de l ivery of the pr operty to the coii- signee, and necessarily at the place of delivery; so that the place of performance by bp*-^ partip,.^ f^ the contract was in this state. And . the rule is- that, when it appears fro m a contract made in one state or hc ountr y that it i s to be perfo mig^ in~atiother, the presu riiption^ is tha~ it wa s entered into with referenceto~3ieTa^vi^o? TEeTat te r, and thos e law s (leterm ine" its validity, obhg'ation, and effect. Ka^n aga v. Tay- lor, 7 Ohio St. 'l437"70"~Am. iiec. (5a. uther'caseTon thissubject are largely collected in the briefs of counsel. It is also the well-settled law of this state that a common carrier cannot by special agreement relieve himself from the consequences of his own negligence, nor limit his liability for losses resulting therefrom. This rule is laid down in Welsh v. Pittsburg, Ft. W. & C. R. Co., 10 Ohio St. 65, 75 Am. Dec. 490, as follows : "A railroad company, acting as a common carrier of live stock, cannot, by special contract, procure exemption from responsibility for losses arising from its own neglect of the du- ties incident to such employment. Such common carrier is liable for damage resultipg from defective and unsafe cars or vehicles of trans- portation, notwithstanding an express contract to the contrary." And see Davidson v. Graham, 3 Ohio St. 132; Graham v. Davis, 4 Ohio St. 362, 62 Am. Dee. 285 ; Clevel'and, P. & A. R. Co. v. Curran, 19 452 PARTICULAR SUBJECTS. (Part 2 Ohio St. 3, 2 Am; Rep. 362; Cincinnati, H. & D. & D. & M. R. Co. V. Pontius, 19 Ohio St. 321, 2 Am. Rep. 391 ; Knowlton v. Erie Ry. Co., 19 Ohio St. 263, 2 Am. Rep. 395; United States Express Co. v. Backman, 28 Ohio St. 144; Express Co. v. Schwab, 53 Ohio St. 659, 44 N. E. 1135. We find no error in the charge of the court that could operate to the prejudice of the defendant below. * * * "" DYKE V. ERIE RY. CO. (Court of Appeals of New York, 1871. 45 N. Y. 113, 6 Am. Kep. 43.) See post, p. 480, for a report of the case. HUGHES V. PENNSYLVANIA R. CO. ''(Supreme Court of Pennsylvania, 1902. 202 Pa. 222, 51 Atl. 990, 63 U R. A. 513, 97 Am. St. Rep. 713.) Potter, J. The plaintiffs in this case were the owners of a valuable horse, which was shipped by their agent from Albany, N. Y., to Cyn- wyd, Pa. The contract for transportation was made in Albany with the New York Central Railroad, acting for itself and connecting car- riers. The bill of lading provided that "no carrier shall be liable for loss or damage not occurring on its own road, or its portion of the through route." The horse was carried safely by the initial carrier to the end of its line, and delivered to the defendant company, by whom it was brought to Philadelphia. At this point the horse was badly in- jured by the negligence of defendant's servants, and the injuries thus received are the foundation of this action. The defendant admitted lia- bility, but claimed that the plaintiff was not entitled to recover in ex- cess of $100. In support of this claim, it relied upon a printed form of a shipping contract, which was signed by plaintiff's agent at the time of shipment, and retained by the carrier. This contract contained a stipulation that the liability of the initial carrier and any connecting carrier should be limited, in case of loss or damage to a horse or mule, whether through, negligence or otherwise, to an amount not exceeding 8» It is held in a number of jurisdictions that, since a contract of carriage through several states is to be in part performed in the state where the con- tract is made, the law of such state should govern. McDaniel v. Chicago & N. W. R. Co., 24 Iowa, 412 (1868) ; Illinois Cent. R. Co. v. Beebe, 174 111. 13, 50 N. E. 1019, 43 L. Ei, A. 210, 66 Am. St. Rep. 253 (1898) ; Brockway v. Ameri- can Express Co., 171 Mass. 158, 50 N. E. 626 (1898). The same principle has been applied to other contracts partially to be per- formed in the state where made and partially in other states. Morgan v. New Orleans, M. & T. R. Co., 2 Woods (U. S.) 244, Fed. Cas. No. 9,804 (1876) ; Bartlett v. Collins, 109 Wis. 477, So N. W. 703, 83 Am. St. Rep. 928 (1901). Ch. 2) OBLIGATIONS. ,453 $100 each. At the trial the court below declined to charge the jury that such a limitation of the amount" of the damages was lawful in this case. The jury, under the evidence, found a verdict for $9,900 — the full value of the horse. The refusal of the court to charge that the contract of shipment, limiting the liability for negligence, was valid and binding upon the plaintiff, is here assigned as error. It is conceded that this contract i s valid under the Jaw_ rtf New Vn r^ a nH tTiaf-^ i - f fhp Vinc sp TiaH hppn mjure d while in cour se of transportation through that state, the g lain- tiffs~w buld have been limited to the sum of $ 100. it is also conceded that such a contra ct, made in Pennsylvania.~for tran sp ortation" between poin ts witHirTthe^ state, would be void, as against the settled policy of this stat e. The question is not an open one with us. Nor does it mat- 'ter whether the attempt be to limit the liability, as in Ruppel v. Alle- gheny Valley Ry., 167 Pa. 166, 31 Atl. 478, 46 Am. St. Rep. 666, or to claim exemption entirely from liability, as in Willock v. Pennsylvania R. Co., 166 Pa. 184, 30 Atl. 948, 27 L. R. A. 338, 45 Am. St. Rep. 674. But b ecause the contract was made in New York, to be performed partly in New York and partly in Pennsylvania, it is contended th at the law of New York should govern t he case^ Jt may be noted here that while the contract contains an acknowledgment that Grady had the option to ship the horse at a higher rate, with increased liability, yet, as a matter of fact, no such offer was made. The evidence shows that the freight agent at Albany did not know the amount of the char- ges, and the blanks for the amounts were not filled in. The case of Burnett v. Pennsylvania R. Co., 176 Pa. 45, 34 Atl. 973, seems to be decisive of the question now before us. In that case the plaintiff was an employe of defendant at Trenton, N. J. He applied for and obtain- ed free transportation from Trenton to Elmira, N. Y. He received two passes — one, from Trenton to Philadelphia, which was not in evidence, and the other, an employe's trip pass, from Philadelphia to Elmira — by the terms of which he assumed all risks of accident. He was in- jured at Harrisburg, Pa., through the admitted negligence of the de- fendant's employes. It was proved at the trial that under the laws of New Jersey the contract by which the plaintiff, in consideration of free transportation, assumed the risk of accident, was valid, and that in that state he could not recover ; and it was conceded by the defendant that in Pennsylvania the decisions are otherwise, and that such a contract will not relieve a common carrier from responsibility for negligence. There, as in this case, the contract was valid in the state where made. The transportation was safely performed into this state, and the injury occurred within this state through the negligence of the carrier. It was held __ that the responsibility of the defendant was to be determined by melaw"ot the state wherg the contract was being performed, and where the negligence occurred, and recovery was allowed . In the present _case the fac ts are more strong ly against the defendant, in that it is not the initial carrier under the contract, and the stipulation upon thejart of 454 PARTICULAR SUBJECTS. (Part 3: ea ch Carrie; ^ was ag^ainst liability for damages not ooctirring on its por- tion of the through ipute. IiaTairchild v. Philadelphia, W. & &. RrGo.-, 14.8 Pa. 527, 34 Atl. 79, there was a contract for the transportation of a horse from Washington, D. C, through Pennsylvania, to Harkimus, N. J. It was injured by the negligence of the defendant while in Balti- more, Md. The contract contained a stipulation limiting the value of the horse to $100. Suit was brought to recover damages for the injury. The court below held the contract to be valid, and, under instructions, a verdict was rendered for $105.50, and judgment entered thereon.. This judgment was affirmed; this court saying, in a per curiam, "This written contract was made in the District of Columbia, and is to be interpreted by the lex loci contractus." Forepaugh v. Delaware, L. & W. R. Co., 128 Pa. 317, 18 Atl. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672. If, however, in the performance of the contract, the horse had been car- ried into Pennsylvania, and it had been injured in this state, the prin- ciple set forth in Burnett v. Railroad Co., supra, would, no doubt, have been applied, and the limitation of liability held void. In the Fairchild Case nothing is said about the law of Maryland, where the injury occur- red, though, as a matter of fact, the limitation of liability was valid in that state, as appears in Brehme v. Dinsmore, 35 Md. 338. The Fair- child Case, when properly understood, is authority only for the propo- sition that a contract containing a limitation of liability, made in a state where it is valid, will be enforced in this state, where an injury occurs in the course of transportation through a state where such a contract is not contrary to public policy. It is only an application of the doctrine of Forepaugh v. Delaware, L. & W. R. Co., 138 Pa. 317, 18 Atl. 503, 5 L. R. A. 508, 15 Am. St. Rep. 673, to a slightly differing state of facts The reference to Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 38 L. Ed. 717, could only have been to show the law of the District of Columbia; for in Grogan v. Adams Express Co., 114- Pa. 533, 7 Atl. 134, 60 Am. Rep. 360, this court expressly refused to fol- low the Hart Case. I A ^istinction may well be made between contracts o f a general j ia.- ture, an d^tliose ^co mmon c arriers of_go ods through s everal states. Muchstress is laid in the briefof appellants upon the opinion of Justice Bradley in Morgan v. New Orleans, M. & T. R. Co., 3 Woods (U. S.) 344, Fed. Cas. No. 9,804. The contract in that case was made in New York, to be performed, in an important part, there, and in part by the building of a railroad in Louisiana. Another important part was to be performed in Alabama, and perhaps other important parts in other states. The court held that, where a contract is to be performed in several jurisdictions, there could be no presumption that the parties had in view the laws of each of these jurisdictions, as the law that was to govern the contract, and therefore held that it was governed by the law of New York, where it was made. But it will be noticed t hat the c ase jid not involve the law orcommbn carriers, but only a contract r elating to a m atter about whichjhe parties were free to contract, and againsf Ch. 2) OBLIGATIONS. 455 which there was no pub lic p olicy of any state. The inquiry was there- fore properly conhned to ascertaining the intention of the parties to the agreement. But a contract for the carriage of goods is not one as tn which parties are entirely free to contract. Judge Sulzberger, in his charge in this case, aptly said : "There are, however, limitations upon the right of contract. There is a certain field of human activity over which the state assumes supreme control by virtue of its sovereignty, and when the state declares its policy, which we call 'public policy,' upon these questions, then the right of private contract is utterly abolished to that extent." It will not do, therefore, to apply to the con- tracts of common carriers all the principles that may apply to other contracts. When courts declare a contract void as against public policy, they are not declaring the intention of the parties, as in the ordinary case, but are acting under the obligation of the higher law, which re- quires the enforcement of that which is for the public good. Where a contract containing a stipulation limiting liability for negligence is made in one state, but with a view to its performance by transportation through or into one or more other states, we see no reason why it should not be construed in accordance with the law of the state where its neg- ligent breach, causing injury, occurs. If such a contract comes under construction in a state like Pennsylvania, whose policy prohibits such exemption, and the injury has occurred in a state where the contract is valid, the stipulation will be enforced, as in Forepaugh v. Railroad Co. and in Fairchild v. Railroad Co. But if the injury has taken place with- in its limits, it will declare the contract null and void, as in Burnett V. Railroad Co. In the Fairchild Case, as the injury occurred in Mary- land, this court enforced the law of that state. If the injury to the horse had been delayed until in the course of the journey it had reached Pennsylvania, our own law of public poHcy would have controlled. This principle is maintained in Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434. In that case the transportation was from Toledo, Ohio, to CJoncord, N. H. The goods were lost on their passage through New York, and the court said that, if it is to "be executed partially in New York, we perceive no reason why, in respect to that part, the law of that state should not govern ; and such is the doctrine laid down in Story, Cont. § 655." To the same effect is Pittsburg, C, C. & St. L- R. Co. v. Sheppard, 56 Ohio St. 69, 46 N. E. 61, 60 Am. St. Rep. 733. This principle involves no greater difficulty, as to proof, than the at- tempt to recover under a limitation of liability. In either case, negli- gence is a fact to be proven as to time and place, as any other fact. Careful consideration of the contract and of the evidence shows that the contract in this case -y^^as not entire, either as to the obligation of the carrier to transport, or o f the shipper tn pay the freight The New York Central Railroad made no contract for itself beyond its own lines. It acted as age nt on ly for t he connecting carr ier. I t is the same a s "thougti each carrier hadleoarateiv apfreedto transport over its own line. And the freight charges were shown to be made up of two dis- 456 PARTICULAR SUBJECTS. (Part 2 t mrf snpi s; one being the amount from Albany to Jersey City, and the other from Jersey City to Cynwyd. No case has come under no- tice, directly deciding that such a contract is severable. But in Wells V. Thomas, 27 Mo. 17, 72' Am. Dec. 228, the ruling is such as to indicate that, in the opinion of the court, the bill of lading issued in that case, covering lines of several carriers, was not an entire contract. The third assignment of error suggests that the entry of judgment is in conflict with the interstate commerce act of Congress. This seems to be an afterthought, as there is no indication in the record that this question was raised or considered in the court below. It is not ap- parent how the act can have any application to this case. It contains nothing bearing upon the validity of a contract limiting the liability of a railroad for loss or injury caused by negligence. The object of the act seems to be to secure continuous carriage and uniform rates, and to compel the furnishing of equal facilities. We cannot see that the entry of judgment in this case interferes in any way with the legitimate exercise of interstate commerce. Upon the case as a whole, there is nothing to show any bad faith upon the part of the shipper. He applied for the transportation of his horse upon a special car, and loaded him thereon, together with the traps and harness and a special attendant. There was no concealment, nor any misrepresentation as to value. The shipper paid the carrier the amount asked of him. It does not appear that any bargain was made in advance for a freight rate; nor was there any reason why the full rate, sufficient, in the opinion of the carrier, to cover the risk of trans- portation, should not have been charged and collected. The shipper should not be asked to pay for insurance against the negligence of the employes of the carrier. If protection of that nature was desired, the carrier was at liberty to procure it for itself, and at its own expense. It must be assumed, also, th at both shipper and carrier knew^the Jaw otPennsylvania, and liad~irin view when the contract was made. The facts were submitted to the jury in a charge whiclTclearlyTnd correct- ly stated the public policy of this state with regard to the question un- der consideration. The assignments of error are overruled, and the judgment is affirmed. Mitchell and Brown, JJ., dissent. WESTERN UNION TELEGRAPH CO. v. LACER. (Court of Appeals of Kentucky, 1906. 93 S. W. 34, 29 Ky. Law Rep. 379, 5 L. E. A. [N. S.] 751.) O'Rear, J. A telegram was sent from Booneville, Ind., to appel- lee, then at Louisville, Ky., on August 19, 1904, as follows: "Jake Lacer, Enterprise Hotel, Louisville, Ky. Napoleon failing, can't live, doctor says. L. Lacer." The Napoleon referred to was appellee's Ch. 3) OBLIGATIONS. 457 brother. He was then very ill at Booneville, Ind., and died on August 21, 1904. If the telegram had been delivered promptly, appellee, who was at the Enterprise Hotel in Louisville, could have reached his brother's bedside before his death. But the telegram was not delive r- ed till August 25, 1904, six days after it was sent, and four day s after the death of appellee's brother referred to therein. It is admitted that appellant had not a direct line of wire from Booneville, Ind., to I^ouis- ville, Ky. The message had to be sent to Evansville, Ind., where it was transferred from one of appellant's lines to another, and thence for- warded to Louisville. In taking it off the Booneville line and trans- ferring to the Louisville line, some of appellant's agents misread the name Lacer, and sent it as Koer, so that, when it was delivered to the Enterprise Hotel at Louisville, there being no one there by the name of Jake Koer, it was returned to appellant's receiving office in Louisville where it was found by appellee at the date last mentioned above. Appellee brought this suit in the Jefferson circuit court to re- cover damages for his mental suffering occasioned by appellant's breach of its contract in failing to deliver the message expeditiously, as it had agreed to do. The action is maintainabl e under the laws of thi s sta te (Chapman v. Western Union TelegrapF Co7WKy.~2587^3 "SP^. 880; Western Union Telegraph Co. v. Van Cleave, 107 Ky. 464, 54 S. W. 837, 93 Am. St. Rep. 366) , unless, as appellant contends it is, the cause of ac - tion accrued in Indiana, where such damages a re not recoverable, which brings us to an analysis of the ca us e of action sued on ., Appellant is engaged in a service of the public for hire. Its business is that of a common carrier of messages. It contracted with the sender of the dis- p atch in this case, for the benefft of appellee , that it would promp tly and expeditious ly _dgliye r the exact message received bv it t oj he person at the place addressed. The relation is one growing out of contract. The breach by appellant gives the sendee of this message the right to recover damages within the legal contemplation of the parties wh enjt was entered into, which, since the Cha p man Case, supra, must be deem - ed to have included mental anguish occa sioned by a failur e to delive r _it. Appellant seeks to avoid the breach of the contract by alleging, so as to avoid the effect of the Kentuck y r ule o n this subje ct, t hat the breach occurred by reason of its negligence wholly in the state of In- diana, wher e the contract was made. The cases of Cleveland, C., C. & St. L. Ry. Co. V. Druien, ll8TCy.^37780 S. W. 778, 66 L. R. A. 375, and Adams Express Co. v. Walker, 119 Ky. 131, 83 S. W. 106, 67 L. R. A. 413, are particularly relied on as supporting its position in this contention. Each of these cases arose out of a contract to ship prop- erty from another state into the state of Kentucky by a common car- rier operating in both the states. In each case it was held that the breach of such a contract made in another state, would give to the shipper or consignee a right of action therefor in the state where the breach occurred, which would be governed. by the laws of such lat- 458 PAETicuLAE SUBJECTS. (Part 2 ter state. From this it is argued that, as it is admitted that the negli- gent act of appellant in this case, by which the dispatch was altered in the name of the addressee and sender, occurred wholly in Indiana, the cause of action therefor arose then in that state, and the rights of the parties growing out of the contract must be controlled by the laws of that state. This contention is, we think, a misconception of the na- ture of the action in this case. It is for the breach of a contract, caus- ed, it is true, by a tortious act of a ppellant . A co ntract made in one "state, to lit perfuiuied jjartly where mad e and partly in aiiother sta te, "should b e construed, m hxmg "anTabili tv for its breach, according to the laws ot the ju risdiction wEer^the breach occurr ed; fo r it must be conclusively presumedt hat the parties entered into it with such in- tent, purp osing that in Its execut ion, as well as in its constructi oa, the jaws ot each state where it was being performed w ere to be read into it . This is the precise point decided in the Druien Case, supra. Bui, argues appellant, the performance in this case was in course of execution in Indiana, where the contract was made, when it was breached; i. e., when appellant negligently altered the address so as to cause it to miscarry. The thing contracted for in this case wa s. not to carry property, but to do a service . T he service which was contracted for was to expeditiousJy deliver the correct message to th e addressee at the poi nt addressed. S ee extended opinion in Howard "vT^Western Union Telegraph Co., 119 Ky. 635, 86 S. W. 982. Tran- scribing it into t he characters of the Morse_ code, or o therwise, tem- porarily rendering it unintelligible^jo ordinary persons including ap- pellee, would not affect t he contract or any rights of the parties, so ong as It was tinally and in due time correctly communicated to the person intend ed. The message consisted of intelligence to be trans- mitted partly by means of electrically conducted sounds, and partly by messenger, so that it would quickly reach the person designated by the contract. Appellant undertook to do this. It was a single un- dertakinef, the performance of which was to take pl ace in Kentucky. Tl;ie delivery of the rnessage, the communication of the intelligence to the person named, was the thintr to be don e. The contract in suit is not different in this feature ot its nature tnan if A. undertook to go in person from Booneville, Ind., to L,ouisville, Ky., and there find B. at a named point, and communicate to him a message for the sender. Whether A. en route forgot the message, or misremembered the name of the person to whom it was to be delivered, would not be material as affecting his liability in the undertaking. If he in fact found the person and told him the true message, the contract would be satis- fied. But his failure to deliver would be a breach of his undertaking, which could not occur till he failed to deliver at the place and within the time contracted for. That appellant, a corporation, sends its mes- *sages by electric current, instead of personal messengers, does not alter the nature of the service, so far as its being an undertaking to do a single thing. The ejement of expedition is the principal material Ch. 3) OBLIGATIONS. 459 difference between the service tmdertalcen in this case and the one imagined in the illustration. In our opimon it is materially differen t from the nature of a contract to carry a cliattt^l anH Heliver it As was said in the Druien Case, that contract (to carry a lot of horses) "was not only to deliyer. It was also to safely car ry. It was broken * * * when the horses were killed. A cause of action upon the contract instantly arose. A suit could have been maintained there that moment for its breach." Obviously, if a carrier undertook to carry a lot of horses from a point in Illinois and dehver them to a point in Kentucky, if the horses were killed by the carrier in IlHnois, it could never do anything more toward executing its undertaking. The thing it was to carry and deliver no longer had an existence. The chattel consigned to the carrier's safe-keeping had been destroyed by it. Hence the consignee could then say that the undertaking was that moment broken. But in the case at bar the thing to be trans- mitted was formless, impalpable, a message of words conveying in- telligence, a mental picture of a fact, to be reproduced by words ut- tered. It could not be hurt, much less destroyed, in its transmission. Nothing but the failure to deliver in due time could affect its value to the sendee. There cannot be a segregation of liability on the under- taking. It is whole, single, and susceptible of becoming fixed only in the final act contemplated. A telegraphic message is not property which can be destroyed, though undoubtedly it is susceptible of such interest akin to a property right, tliat the sender and sendee would be entitled to be protected in its privacy. We are of opinion that appel- lant's liability on the contract in suit is to be measured by the laws of this state, where the breach of the contract occurred. Such was the ruling of the circuit court. Judgment affirmed. LIVERPOOL & G. W. STEAM CO. v. PHENIX INS. CO. (Supreme Court of the United States, 1889. 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788.) Gray, J.'" This is an appeal by a steamship company from a de- cree rendered against it upon a libel in admiralty, "in a cause of ac- tion arising from breach of contract," brought by an insurance com- pany, claiming to be subrogated to the rights of the owners of goods shipped on board the Montana, one of the appellant's steamships, at New York, to be carried to Liverpool, and lost or damaged by her stranding, because of the negligence of her master and officers, in Holyhead bay, on the coast of Wales, before reaching her destination. In behalf of the appellant, it was contended that the loss was caused by perils of the sea, without any negHgence on the part of master 7 The statement of facts and portions of the opniion have been omitted. 4(!0 PARTICULAR SUBJECTS. (Part 2 and officers; that the appellant was not a common carrier; that it was exempt from liability by the terms of the bills of lading; and that the libelant had not been subrogated to the rights of the owners of the goods. * * * The question of negligence is fully and satisfactorily discussed in the opinion of the District Court reported in The Montana, 17 Fed. 377, and in that of the Circuit Court, reported in 22 Blatchf. 372, 23 Fed. 715. It is largely, if' not wholly, a question of fact, the deci- sion of which by the Circuit Court cannot be reviewed here; and, so far as it can possibly be held to be or to involve a question of law, it is sufficient to say that the circumstances of the case, as found by the Circuit Court, clearly warrant, if they do not require, a court or jury charged with the duty of determining issues of fact, to find that the stranding was owing to the negligence of the officers of the ship. * * * We are then brought to the consideration of the principal question in the case, namely, the validity and effect of that clause in each bill of lading by which the appellant undertook to exempt itself from all responsibility for loss or damage by perils of the sea, arising from negligence of the master and crew of the ship. The question ap- pears to us to be substantially determined by the judgment of this court in New York Cent. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627. * * * ' It was argued for the appellant that the law of New York, the lex loci contractus, was settled by recent decisions of the Court of Appeals of that state in favor of the right of a carrier of goods or passengers, by land or water, to stipulate for exemption from all liability for his own negligence. Mynard v. Syracuse, B. & N. Y. R. Co., 71 N. Y. 180, 27 Am. Rep. 28 ; Spinetti v. Atlas S. S. Co., 80 N. Y. 71, 36 Am. Rep. 579. But on this subject, as on any question depending upon mercantile law and not upon local statute or usage, it is well settled that the courts of the United States are not bound by decisions of the courts of the state, but will exercise their own judgment, even when their jurisdiction attaches only by reason of the citizenship of the parties, in an action at law of which the courts of the state have con- current jurisdiction, and upon a contract made and to be performed within the state. New York Cent. R. Co. v. Lockwood, 17 Wall. 357, 368, 21 L. Ed. 627; Myrick v. Michigan Cent. R. Co., 107 U. S. 102, 1 Sup. Ct. 425, 27 L. Ed. 325 ; Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, 511, 10 L. Ed. 1044; Swift v. Tyson, 16 Pet. 1, 10 E. Ed. 865; Brooklyn City.& Newtown R. Co. v. National Bank of the Republic, 102 U. S. 14, 26 L. Ed. 61; Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. 10, 27 L. Ed. 359 ; Smith v. Alabama, 124 U. S. 465, 478, 8 Sup. Ct. 564, 31 L. Ed. 508 ; Bucher v. Chesire R. Co., 125 U. S. 555, 583, 8 Sup. Ct. 974, 31 E. Ed. 795. The decisions of the state courts certainly cannot be allowed any greater weight in the federal courts when exercising the admiralty and maritime juris- Ch. 2) OBLIGATIONS. 4C1 diction exclusively vested in them by the Constitution of the United States. It was also argued in behalf of the appellant that the validity and effect of this contract, to be performed principally upon the high seas, should be governed by the general maritime law, and that by that law such stipulations are valid. To this argument there are two answers : First. There is not shown to be any such general maritime law. The industry of the learned counsel for the appellant has collected arti- cles of codes, decisions of courts, and opinions of commentators in France, Italy, Germany, and Holland, tending to show that, by the law administered in those countries, such a stipulation would be valid. But those decisions and opinions do not appear to have been based on general maritime law, but largely^ if not wholly, upon provisions or omissions in the codes of the particular country, and it has been said by many jurists that the law of France, at least, was otherwise. See 2 Pard. Droit Com. No. 542; 4 Goujet & Meyer Diet. Droit Com. (2d Ed.) Voiturier, Nos. 1, 81 ; 2 Troplong Droit Civil, Nos. 894, 910, 942, and other books cited in Peninsular & Oriental Co. v. Shand, 3 Moore, P. C. (N. S.) 272, 278, 285, 286; 25 Laurent Droit Civil Fran- qais, No. 532 ; Mellish, L. J., in Cohen v. Railway Co., L. R. 2 Exch. Div. 253, 257. Second. The general maritime law is in force in this country, or in any other, so far only as it has been adopted by the laws or usages thereof; and no rule of the general maritime law (if any exists) concerning the validity of such a stipulation as that now before us has ever been adopted in the United States or in Eng- land, or recognized in the admiralty courts of either. The Eotta- wanna, 21 Wall. 558, 22 L. Ed. 654; The Scotland, 105 U. S. 24, 29, 33, 26 L. Ed. 1001 ; The Belgenland, 114 U. S. 355, 369, 5 Sup. Ct. 860, 29 L. Ed. 152 ; The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; The Hamburg, 2 Moore, P. C. (N. S.) 289, 319, Brown. & E. 253, 272 ; Eloyd v. Guibert, E. R. 1 Q. B. 115, 123, 124, 6 Best & S. 100, 134, 136; The Gsetano, E. R. 7 Prob. Ddv. 137, 143. It was argued, in this court, as it had been below, that as the con- tract was to be chiefly performed on board of a British vessel, and to be finally completed in Great Britain, and the damage occurred in Great Britain, the case should be determined by the British law, and that by that law the clause exempting the appellant from liability for losses occasioned by the negligence of its servants was valid. * * * It appears by the cases cited in behalf of the appellant, and is hardly denied by the appellee, that under the existing law of Great Britain, as declared by the latest decisions of her courts, common carriers, by land or sea, except so far as they are controlled by the provisions of the railway and canal traffic act of 1854, are permitted to exempt them- selves by express contract from responsibility for losses occasioned by negligence of their servants. The Duero, L. R. 2 Adm. & Ecc. 393; Taubman v. Pacific Co., 26 Law T. (N. S.) 704; Steel v. Steam- Ship Co., L. R- 3 App. Cas. 72; Railway Co. v. Brown, L. R. 8 462 PARTICDLAE SUBJECTS. (Part 2 App. Cas. 703. It may therefore be assumed that the stipulation now in question, though invalid by our law, would be valid accord- ing to the law of Great Britain. The general rule as to what law should prevail, in case of a conflict of laws concerning a private con- tract, was concisely and exactly stated before the declaration of in- dependence by Lord Mansfield (as reported by Sir William Black- stone, who had been of counsel in the case), as follows: "The gen- eral rule, established ex comitate et jure gentium, is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits of an exception, where the parties (at the time of making the contract) had a view to a different kingdom." Robinson v. Bland, 1 W. Bl. 334, 356, 258, 2 Burrows, 1077, 1078. The recent decisions by eminent English judges, cited at the bar, so clearly affirm and so strikingly illustrate the rule,, as applied to cases more or less resembling the case before us, that a full statement of them will not be inappropriate. In Peninsular & Oriental Co. v. Shand, 3 Moore, P. C. (N. S.) 372, 290, Lord Justice Turner, delivering judgment in the Privy Coun- cil, reversing a decision of the- Supreme Court of Mauritius, said: ""The general rule is that the law of the country where a contract is made governs as to the nature, the obligation, and the interpretation of it. The parties to a contract are either the subjects of the power there ruling, or as temporary residents owe it a temporary allegiance. In either case, equally, they must be understood to submit to the law there prevailing, and to agree to its action upon their contract. It is, of course, immaterial that such agreement is not expressed in terms. It is equally an agreement in fact, presumed de jure, and a foreign court interpreting or enforcing it on any contrary rule defeats the in- > tention of the parties, as well as neglects to observe the recognized comity of nations." It was accordingly held that the law of England, .and not the French law in force at Mauritius, governed the validity and construction of a contract made in an English port between an English company and an English subject to carry hrm thence by way of Alexandria and Suez to Mauritius, and containing a stipulation that the company should not be liable for loss of passengers' baggage, which the court in Mauritius had held to be iuvahd by the French law. 3 Moore, P. C. (N. S.) 278. Lord Justice Turner observed that it was a satisfaction to find that the Court of Cassation in France had pro- nounced a judgment to the same effect, under precisely similar cir- cumstances, in the case of a French officer taking passage at Hong Kong, an English possession, for Marseilles in France, under a like contract, on a ship of the same company, which was wrecked in the Red Sea, owing to the negligence of her master and crew. Julien v. Peninsular & Oriental Co., imperfectly stated in 3 Moore, P. C. (N. S.) .382, note, and fully reported in 75 Journal du Palais, 225 (1864), The case of Lloyd v. Guibert, 6 Best & S. 100, L- R. 1 Q. B. 115, Ch. 2) OBLIGATIONS. 463 decided in the Queen's Bench before, and in the Exchequer Chamber after, the decision in the Privy Council just referred to, presented this peculiar state of facts : A French ship owned by Frenchmen was chartered by the master, in pursuance of his general authority as such, in a Danish West Indies island, to a British subject, who knew her to be French, for a voyage from St. Marc, in Hayti, to Havre, London, or Liverpool, at the charterer's option, and he shipped a cargo from St. Marc to Liverpool. On the voyage, the ship sustained damage from a storm which compelled her to put into a Portuguese port. There the master lawfully borrowed money on bottomry, and repaired the ship, and she carried her cargo safe to Liverpool. The bondhold- er proceeded in an English court of admiralty against the ship, freight, and cargo, which being insufficient to satisfy the bond, he brought an action at law to recover the deficiency against the owners of the ship; and they abandoned the ship and freight in such a manner as by the French law absolved them from liability. It was held that the French law governed the case, and therefore the plaintiff could not recover. It thus appears that in that case the question of the intent of the par- ties was complicated with that of the lawful authority of the master ; and the decision in the Queen's Bench was put wholly upon the ground that the extent of his authority to bind the ship, the freight, or the owners was limited by the law of the home port of the ship, of which her flag was sufficient notice. Lloyd v. Guibert, 6 Best & S. 100. That decision was in accordance with an earlier one of Mr. Justice Story, in Pope v. Nickerson, 3 Story, 465, Fed. Cas. No. 11,274, as well as with later ones in the Privy Council, on appeal from the High Court of Admiralty, in which the validity of a bottomry bond has been determined by the law prevailing at the home port of the ship, and not by the law of the port where the bond was given. The Karnak, L. R. 2 P. C. 505, 512; The G^ano, L. R. 7 Prob. Div. 137. See, also. The Woodland, 7 Ben. 110, 118, Fed. Cas. No. 17,976; Id., 14 Blatchf. 499, 503, Fed. Cas. No. 17,977, and 104 U. S. 180, 26 L. Ed. 705. The judgment in the Exchequer Chamber in Lloyd v. Guibert was put upon somewhat broader ground. Mr. Justice Willes, in delivering that judgment, said : "It is generally agreed that the law of the place where the contract is made is prima facie that which the parties in- tended, or ought to be presumed to have adopted, as the footing upon which they dealt, and that such law ought therefore to prevail in the absence of circumstances indicating a different intention, as, for in- stance, that the contract is to be entirely performed elsewhere, or that the subject-matter is immovable property situated in another counatry, and so forth; which latter, though sometimes treated as distinct rules, appear more properly to be classed as exceptions to the more general one, by reason of the circumstances indicating an intention to be bound by a la-w different from that of the place where the contract is majde ; which intention is inferred- from the subject-matter and from the sur- 464 PARTICULAR SUBJECTS. (Part ^ rounding circumstances, so far as they are relevant to construe and de- termine the character of the contract." L. R. 1 Q. B. 1S3, 133, 6 Best & S. 133. It was accordingly held, conformably to the judgment in Peninsular & Oriental Co. v. Shand, above cited, that the law of England, as the law of the place of final performance or port of discharge, did not govern the case, because it was "manifest that what was to be done at Liverpool was but a small portion of the entire service to be ren- dered, and that the character of the contract cannot be determined thereby," although as to the mode of delivery the usages of I^iver- pool would govern. L,. R. 1 Q. B. 125, 136, 6 Best & S. 137. It was then observed that the law of Portugal, in force where the bottomry bond was given, could not affect the case; that the law of Hayti had not been mentioned or relied upon in argument; and that, "in favor of the law of Denmark, there is the cardinal fact that the contract was made in Danish territory, and, further, that the first act done towards performance was weighing anchor in a Danish port;" and it was finally, upon a view of all the circumstances of the case, decided that the law of France, to which the ship and her owners belonged, must govern the question at issue. The decision was, in substance, that the presumption that the contract should be governed by the law of Den- mark, in force where it was made, was not overcome in favor of the law of England by the fact that the voyage was to an English port and the charterer an Englishman, nor in favor of the law of Portu- gal by the fact that the bottomry bond was given in a Portuguese port; but that the ordinary presumption was overcome by the con- sideration that French owners and an English charterer, making a charter-party in the French language of a French ship, in a port where both were foreigners, to be performed partly there by weighing anchor for the port of loading, (a place where both parties would also be foreigners,) partly at that port by taking the cargo on board, prin- cipally on the high seas, and partly by final delivery in the port of discharge, must have intended to look to the law of France as gov- erning the question of the liability of the owner beyond the value of the ship and freight. [After commenting upon Chartered Bank of India v. Netherlands S. N. Co., 9 Q. B. D. 118, 10 Q. B. D. 531, Jacobs v. Credit Lyonnais, 13 Q. B. D. 589, Watts v. Camors, 115 U. S. 353, 6 Sup. Ct. 91, 39 L. Ed. 406, Pope v. Nickerson, 3 Story (U. S.) 465, Fed. Cas. No. 11,374, Morgan v. New Orleans, M. & T. R. Co., 3 Woods (U. S.) 344, Fed. Cas. No. 9,804, Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398, Dyke v. Erie Ry., 45 N. Y. 113, 6 Am. Rep. 43, McDaniel v. Chicago & N. W. Ry. Co., 34 Iowa, 413, Penn- sylvania Co. v. Fairchild, 69 111. 360, Brown v. Camden & A. R. Co., 83 Pa. 316, Curtis v. Delaware, L. & W. R. Co., 74 N. Y. 116, 30 Am. Rep. 271, Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434, and Ch. 2) OBLIGATIONS. 465 Gray v. Jackson, 51 N. H. 9, 13 Am. Rep. 1, the learned justice con- tinued as follows :] This review of the principal cases demonstrates that, according to the great preponderance, if not the uniform concurrence, of authority, the general rule that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view, requires a contract of affreightment, made in one country between citizens or residents thereof, and the performance of which begins there, to be governed by the law of that country, unless the parties, when entering into the contract, clearly manifest a mutual intention that it shall be governed by the law of some other country. There does not appear to us to be anything in either of the bills of lading in the present case tending to show that the contracting par- ties looked to the law of England, or to any other law than that of the place where the contract was made. The bill of lading for the bacon and hams was made and dated at New York, and signed by the ship's agent there. It acknowledges that the goods have been shipped "in and upon the steamship called 'Montana,' now lying in the port of New York, and bound for the port of Liverpool," and are to be deliv- ered at Liverpool. It contains no indication that the owners of the steamship are English, or that their principal place of business is in England, rather than in this country. On the contrary, the only de- scription of the line of steamships, or of the place of business of their owners, is in a memorandum in the margin, as follows : "Guion Line. United States Mail Steamers. New York: 29 Broadway. Liver- pool: 11 Rumford St." No distinction is made between the places of business at New York and at Liverpool, except that the former is named first. The reservation of liberty, in case of an interruption of the voyage, "to tranship the goods by any other steamer," would per- mit transhipment into a vessel of any other line, English or American. And general average is to be computed, not by any local law or usage, but "according to York-Antwerp rules," which are the rules drawn up in 1864 at York, in England, and adopted in 1877 at Antwerp, in Belgium, at international conferences of representatives of the more important mercantile associations of the United States, as well as of the maritime countries of Europe. Lown. Av. (3d Ed.) app. Q. The contract Jpeing made at New York, the shipowner having a place of business there,: and the shipper being an American, both par- ties must be presumed to have submitted themselves to the law there prevailing, and to have agreed to its action upon their contract! The contract is a single one, and its principal object, the transportation of the goods, is one continuous act, to begin in the port of New York, to be chiefly performed on the high seas, and to end at the port of Liverpool. The facts that the goods are to be delivered at Liverpool, and the freight and primage, therefore, payable there in sterling cur- rency, do not make the contract an English contract, or refer to the LOR.CONF.I/.— 30 460 PARTICULAR SUBJECTS. (Part 2 English law the question of the liability of the carrier for the neg- ligence of the master and crew in the course of the voyage. Peninsular & Oriental Co. v. Shand, Lloyd v. Guibert, and Chartered Bank of India v. Netherlands Steam Navigation Co., before cited. There is even less ground for holding the three bills of lading of the cotton to be English contracts. Each of them is made and dated at Nashville, an inland city, and is a through bill of lading, over the Louisville & Nashville Railroad and its connections, and by the Wil- liams and Guion Steamship Company, from Nashville to Liverpool ; and the whole freight from Nashville to Liverpool is to be "at the rate of fifty-four pence sterling per 100 lbs. gross weight." It is stipulated that the liability of the Louisville & Nashville Railroad and its connections as common carriers "terminates on delivery of the goods or property to the steamship company at New York, when the liability of the steamship commences, and not before;" and that "the property shall be transported from the port of New York to the port of Liverpool by the said steamship company, with liberty to ship by any other steamship or steamship line." And in the mar- gin is this significant reference to a provision of the statutes of the United States, applicable to the ocean transportation only : "Attention of shippers is called to the act of Congress of 1851: 'Any person or persons shipping oil of vitriol, unslacked lime, inflammable matches, [or] gunpowder, in a ship or vessel taking cargo for divers persons on freight, without delivering at the time of shipment a note in writ- ing, expressing the nature and character of such merchandise, to the master, mate, or officer, or person in charge of the loading of the ship or vessel, shall forfeit to the United States one thousand dollars.' " Act March 3, 1851, c. 43, § 7, 9 St. 636 ; Rev. St. § 4288. It was argued that as each bill of lading, drawn up and signed by the carrier and assented to by the shipper, contained a stipulation that the carrier should not be liable for losses by perils of the sea arising from the negligence of its servants, both parties must be presumed to have intended to be bound by that stipulation, and must therefore, the stipulation being void by our law and valid by the law of England, have intended that their contract should be governed by the English law ; and one passage in the judgment in Peninsular & Oriental Co. V. Shand gives some color to the argument. 3 Moore, P. C. (N. S.) 291. But the facts of the two cases are quite differei^t in this respect. In that case, effect was given to the law of England, where the con- tract was made, and both parties were English, and must be held to have known the law of their own country. In this case, the contract was made in this country, between parties one residing and the other doing business here; and the law of England is a foreign law, which the American shipper is not presumed to know. Both parties or either of them may have supposed the stipulation to be valid; or both or either may have known that by our law, as declared by this court, it was void. In either aspect, there is no ground for inferring that the Ch. 2) OBLIGATIONS. 467 shipper, at least, had any intention, for the purpose of securing its validity, to be governed by a foreign law, which he is not shown, and cannot be presumed, to have had any knowledge of. Our conclusion on the principal question in the case may be summed up thus : Each of the bills of lading is an American, and not an Eng- lish, contract, and, so far as concerns the obligation to carry the goods in safety, is to be governed by the American law, and not by the law, municipal or maritime, of any other country. By our law, as declared by this court, the stipulation by which the appellant undertook to ex- ■empt itself from liability for the negligence of its servants is contrary to public policy, and therefore void; and the loss of the goods was a "breach of the contract, for which, the shipper might maintain a suit against the carrier. This being so, the fact that the place where the vessel went ashore, in consequence of the negligence of the master and officers in the prosecution of the voyage, was upon the coast of Great Britain, is quite immaterial. This, conclusion is in accordance with the decision of Judge Brown in the District Court of the United States for the Southern District of New York in The Brantford City, 29 Fed. 373, which appears to us to proceed upon more satisfactory grounds than the opposing decision of Mr. Justice Chitty, sitting alone in the Chancery Division, made since this case was argued, and, so far as we are informed, not reported in the Law Reports, nor affirmed or considered by any of the higher courts of Great Britain. In re Missouri Steam-Ship Co., 58 Law T. (N. S.) 377. The present case does not require us to determine what effect the courts of the United States should give to this contract, if it had ex- pressly provided that any question arising under it should be governed by the law of England. * * * The result of these considerations is that the decree of the Circuit Court is in all respects correct and must be affirmed.'^ 71 As to the liability of carriers in general, see 63 L. R. A. 513-534; E. Par- iiielee Prentice, The Right to Engage In Interstate Commerce, 17 Harv. Law Bev. 30-40. Although the stipulation in a contract of carriage be valid under the law of the place where it was entered into, the courts of another state may de- cline to enforce it on the ground of public policy. The Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190 (1902). So, a fortiori, in the face of an express statute. See Harter Act Feb. 13, 1893, c. 105, 27 Stat. 445 (U. S. Comp. St. 1901, p. 2946) ; Knott v. Botany Worsted Mills, 179 U. S. 69, 21 Sup. 'Ct. 30, 45 L. Ed. 90 (1900). But it has been held that where no part of the contract is to be performed in this country such stipulation will be given effect. The Fri, 154 Fed. 334, 83 C. C. A. 205 (1907). Two District Court de- cisions have upheld such stipulations, although a part of the contract was to Tje performed in the United States, where the injury occurred in the country imder the law of which such stipulation is valid. The Trinaeria (D. C.) 42 Fed. 863 (1890) ; Baetjer v. La Compagnie G6n6rale Transatlantique (D. C.) 59 Fed. 789 (1894). In Kentucky the enforcement of such a stipulation is regarded as contrary to the public policy of the forum only when the dam- age or Injury was sustained within such jurisdiction. Cleveland, C, C. & St. L. B. Co. V. Druien, 118 Ky. 237. 80 S. W. 778, 66 L. R. A. 275 (1904) ; Adams Express Co. v. Walker, 119 Ky. 121, 83 S. W. 106, 67 L. R. A. 412 (1004). Continental Law. — Whether a duty exists to carry for all is determined 468 PARTiCDLAE SUBJECTS. (Part 2 bv the law of the place where acceptance Is refused. R. G. April 11, 1901 (12 Niemeyer, 452) ; see 57 R. G. 142 (Feb. 25, 1904). lu the absence of an express stipulation or circumstances showing a con- trary intent (see App. Paris, March 19, 1907, 34 Clunet, 1139, where the na- tional law of the parties was applied), the obligations arising out of a con- tract of carriage are governed by the law of the place where such contract is made. France, Cass. Feb. 23, 1864 (D. 1864^ 1, 166) ; App. Douai, June 17, 189T (S. 1898, 2, 202) ; App. Douai, March 2, 1907 (35 Clunet, 456). Italy, art. 58, Com. Code; Cass. Turin, Aug. 23, 1887 (4 Autran, 337); Cass. -Naples, Feb. 27, 1899 (14 Autran, 841) ; App. Naples, July 16, 1905 (21 Autran, 687). See App. Venice, Aug. 2, 1901 (Annali 1901, 3, 413). Germany on the other hand, applies again the law of the place of performance (R. G. April 29, 1902 [14 Niemeyer, 86]) ; which, however, need not be the law of the place of delivery. R. G. April 19, 1903 (33 Clunet, 196) ; R. G. April 29, 1903 (33 Clunet, 1168). According to the general rule in Germany, applicable to all bilateral contracts, the ob- ligations of the parties may be subject to different laws. O. L. G. Hamburg, March 7, 1906 (18 Niemeyer, 113). Nor are all matters, exclusive of those relating directly to the performance of the contract, necessarily subject to the same law, e. g. the question of demurrage. 9 R. G. 51 (March 21, 1883). If a voyage is not completed, the liability for freight may be determined in accordance with the law of the place where the voyage ends. R. G. Jan. 23, 1897 (7 Niemeyer, 450). The liability of a connecting carrier is governed by the law to which such carrier is subject. R. G. April 10, 1901 (12 Niemeyer, 112). Stipulations in a bill of lading may not be enforced, however, on the ground of public policy. France, Cass. June 12, 1894 (S. 1895, 1, 161), and note by Ch. Lyon-Caen ; but see Cass. Feb. 23, 1864 (D. 1864, 1, 166). According to German law, all rights arising under bills of lading issued for goods to be delivered in Germany will, in the interest of commercial security, be subjected to German law. 34 R. G. 72 (May 2, 1894). International transportation by rail on the continent is governed to-day al- most exclusively by the Convention of Berne of August 14, 1890, with amend- ment of October 10, 1901, in regard to which see Ch. Lyon-Caen, La Con- vention du 14 Oct., 1890, sur le transport international des marchandises par chemin de fer. 20 Clunet, 465-476; 21 Clunet, 435-471, 641-676; L6on Poin- sard, Des transports internationaux par chemins de fer; 19 Clunef, 33-55; Georg Eger, Die..Haftpilicht der Bisenbahnen (nach den Bestimmungen des Internationalen Ubereinkominens iiber . den Bisenbahnfrachtverkehr), 3 Nie- meyer, 589-606. See, also, H. Fromageot, De la loi applicable aux obliga- tions et specialment d la responsabilitg r6sultant pour les armateurs des con- trats d'affrfitement par charter-partie ou par connaissement, 18 Autran, 743- 779. As to maritime law in general, see Ch. Lyon-Caen, Etudes de droit inter- national prive maritime, 4 Clunet, 479-493; 9 Clunet, 241-260, 488-500, 593- 606. BoTTOMKY Bonds — The law of the country to which the ship belongs has been held to govern the validity and eifect of bottomry bonds. Lloyd v. Guibert [1865] L. R. 1 Q. B. 115 ; The Gaetano, 7 Prob. Div. 137 (1882) ; Pope v. Nicker- son, 3 Story, 465, Fed. Cas. No. 11,274 (1844) ; Force v. Providence Washington Ins: Co. (D. C.) 35 Fed. 767 (1888). Accord: France, App. Bordeaux, April 1, 1889 (S. 1891, 2, 103) ; App. Alger, March 9, 1904 (31 Clunet, 673). In favor of the general maritime law as administered by the courts of the forum, Duran- ty V. Hart, 2 Moo. P. C. N. S. 289 (1804). In favor of the law of the place where the contract is made, Italy, art. 9, Prel. Disp. Civ. Code ; Cass. Naples, March 1,' 1883 (12 Clunet, 457) ; App. Genoa, Dec. 31, 1886 (16 Clunet, 169). The mode of enforcing bottomry bonds and the rank of creditors are subject to the law of the forum. The Union, Lush. 128 (1860). DiscHAEGE OF OBLIGATIONS.— See in general. Minor, Conflict of Laws, §§ 187-191. As to discharge by performance, see Graham v. First Nat. Bank, 84 N. Y. 393, 38 Am. Rep. 528 (1881), ante. p. 345. As to discharge by non- performance, see Mutual Life Ins. Co. v. Cohen, 179 U. S. 262, 21 Sup. Ct. 106, 45 L. Ed. 181 (1900) ; Amsinck v. Rogers, 189 N. Y. 252, 82 N E. 134, 12 L. R. A. (N. S.) 875 (1907), ante, p. 427 ; Tenant v. Tenant, 110 Pa. 478, 1 Atl. 532 (1885), ante j). 415. As to discharge by postponement of performance, see Ch. 2) OBLIGATIONS. 469 SECTION 2.— TORTS. CARR V. FRACIS TIMES & CO. (House of Lords [1902] A. 0. 176, 71 L. J. K. B. 361.) In 1898 the appellant, an officer of the British navy in command of H. M. S. Lapwing, acting under the orders of the British govern- ment, seized in the territorial waters of Muscat ammunition belong- ing to the respondents which had been shipped by them in London on board the Baluchistan.' The respondents having brought an ac- tion against the appellant for the conversion of the goods, the defense was that the seizure was lawful by the law of Muscat, having been Rouquette v. Overmann [1875] L. R. 10 Q. B. 525, ante, p. 439. As to dis- charge by release, see Greenwald v. Raster, 86 Pa. 45 (1878) ; Suydam v. Bar- ber, 18 N. Y. 468, 75 Am. Dec. 254 (1858) ; Seymour v. Butler, 8 Iowa, 304 (1859). As to discharge by acceptance of note, see Tarbox v. Childs, 105 Mass. 408, 43 N. a 124 (1896). As to discharge of obligations by operation of the statute of limitations, see ante, pp. 62-74. Under the federal bankruptcy acts, the debts of nonresident aliens have been held to be discharged though they were not parties to the proceedings. Za- rega's Case, Fed. Cas. No. 18,204 (1842); Pattison v. Wilbur, 10 R. I. 448 <1878); Ruiz v. Bickerman, 5 Fed. 790, 2 McCrary, 259 (1881). Contra: Mc- Dougall V. Page, 55 Vt. 187, 45 Am. Rep. 602 (1882). A discharge under state insolvency proceedings is ineffective, even within the state where such discharge is had, with resi)ect to citizens of the United States who are nonresidents of such state, if no personal jurisdiction over the credit- or is obtained. Baldwin v. Hale, 1 Wall. 223, 17 L. Ed. 531 (1863) ; Oilman V. Lockwood, 4 Wall. 409, 18 L. Ed. 432 (1866); Pullen v. Hillman, 84 Me. 129, 24 Atl. 795, 30 Am. St. Rep. 340 (1891) ; Phoenix Nat. Bank v. Batcheller, 151 Mass. 589, 24 N. E. 917, 8 L. R. A. 644 (1890). Compare: Adams v. Batchel- der, 173 Mass. 258, 53 N. E. 824, 73 Am. St. Rep. 282 (1899). This is true, al- though the debt arose out of a contract entered into or to be performed or both entered into and to be performed in the state where such proceedings took place. Oilman v. Loekwood, 4 Wall. 409, 18 L. Ed. 432 (1866) ; Hammond Beef & Provision Co. v. Best, 91 Me. 431, 40 Atl. 338, 42 L. R. A. 528 (1898) ; Pha?nix Nat. Bank v. Batcheller, 151 'Mass. 589, 24 N. B. 917, 8 L. R. A. 644 (1890). The same principle has been held applicable to corporations created tinder the laws of a sister state. Bergner & Engel Brewing Co. v. Dreyfus, 172 Mass. 154, 51 N. E. 531, 70 Am. St. Rep. 251 (1898). A discharge under the law of a foreign country will not be recognized in the United States with regard to creditors who were not parties to such proceed- ings (Phelps V. Borland [1886] 103 N. T. 400, 9 N. E. 307, 57 Am. St Rep. 755 [obiter]) ; at least if the debt was made in and with reference to the laws of this country or a country other than the one where the discharge was had. McMillan v. McNeill, 4 Wheat. 209, 4 L. Ed. 5.52 (1819) ; Oreen v. Sarmiento, Fed. Cas. No. 5,760 (1810) ; In re Shepard (1868) Fed. Cas. No. 12,753 (obiter). With respect to corporations created under the laws of a foreign country, see Canada Southern R. Co. v. Oebhard, 109 U. S. 527, 3 Sup. Ct. 363, 27 L. Ed. 1020 (1883). See, also, Minor, ConOict of Laws, § 191; Wharton, Conflict of Laws, §§ 522-529a ; HoUis R. Bailey, A discharge in insolvency and its effect upon nonresidents, 6 Harv. Law Rev. 349-368. As to the English doctrine, see Oibbs v. Soci6t6 Industrielle, 29 Q. B. D. 399 (1890) ; Dicey, Conflict of Laws, Rules 114^117 ; Westlake, Priv. Int. Law, S06. 470 PARTICULAR SUBJECTS. (Part 2" authorized by a proclamation issued by the Sultan, the sovereign ruler, of Muscat, and pronounced to be lawful by a court of inquiry in Mus- cat, whose decision was confirmed by the Sultan. Evidence of this was given at the trial. The effect of the proclamation and inquiry is stated in Lord L,indley's judgment. Grantham, J., who tried the case with a jury, entered judgment for the defendant. The Court of Appeal (A. L,. Smith, Vaughan Wili^iams, and Romer, L. JJ.) reversed this decision, and entered judgment for the plaintiff for the- value of the ammunition. Lord Macnaghten. This case has been very fully and very ably argued, but after all it comes to an extremely short point. The re- spondents, who are, or were, merchants carrying on business in Lon- don, Bushire, and Muscat, sue the appellant, a captain in the British navy, for an alleged wrong committed abroad. He seized their goods, as they allege, illegally, and they claim compensation in damages. Now, it is well settled by a series of authorities (of which the latest is the case of Phillips v. Eyre, L. R. 6 Q. B. 1, in the Exchequer Cham- ber), that in order to found an action in this country for a wrong com- mitted abroad two conditions must be fulfilled. In the first place, the wrong must be of such a character that it would have been actionable if committed in England ; and, secondly, the act must not have been justifiable by the law of the place where it was committed. In the present case the whole question turns upon the second proposition. It is not disputed that the alleged wrong would have been actionable if it had been committed in England or on the high seas. It was, however, committed within the dominions of the Sultan of Muscat, who is duly proved to be an independent sovereign. It was committed in the territorial waters of Muscat, which are, in my opinion, for this purpose, as much a part of the Sultan's dominions as the land over which he exercises absolute and unquestioned sway. The appellant says that the act complained of was done under the authority and by the direction of the Sultan ; that he adopted it as his act, and declared it to be legal. In support of this assertion the ap- pellant relies upon two documents — the proclamation of January 13, 1898, and the report of April 15, 1898, adopted and confirmed by the Sultan himself. The real question is, what is the true meaning and effect of these documents? The respondents contend that the documents in question come to nothing more than this: That the Sultan of Muscat announced by formal proclamation that so far as he was concerned her Britannic Majesty was welcome to seize munitions of war destined for Indian or Persian ports, if they were the property of British subjects, when found within the territorial waters of Muscat; that he would not resent such an act as an invasion of his sovereignty; and that after- wards, on inquiry, he declared that he was satisfied that her Britannic Majesty had done no more that he had permitted her to do. I do not think that this was the meaning of these documents. I think the mean- Ch. 2) OBLIGATIONS. 471 ing was that the act, if done, was to be done under his authority, as his act, and that after inquiry he adopted the act as his own, and de- clared it to be legal — legal, that is, according to the law of Muscat, which, for anything I know to the contrary, may be nothing more than the will and pleasure of the despot who rules over that country. If this was the true meaning of these documents — if the act was legal in Muscat, and therefore justifiable there — in my opinion there is a conclusive answer to the action, and I am therefore of opinion that the appeal must be allowed. Order of Court of Appeal reversed.''^ MACHADO V. PONTES. (Court of Appeal, 189T. 2 Q. B. 231, 66 L. J. Q. B. 542.) Appeal from Kennedy J., at chambers. The plaintiff brought this action to recover damages from the de- fendant for an alleged libel upon the plaintiff contained in a pamphlet in the Portuguese language alleged to have been published by the plaintiff in Brazil. The defendant delivered a statement of defence (in which, amongst other defences, he denied the alleged libel), and he afterwards took out a summons for leave to amend his defence by adding the follow- ing plea: "Further the defendant will contend that if (contrary to the defendant's contention) the said pamphlet has been published in Brazil, by the Brazilian law the publication of the said pamphlet in Brazil cannot be the ground of legal proceedings against the defend- ant in Brazil in which damages can be recovered, or (alternatively) cannot be the ground of legal proceedings against the defendant in Brazil in which the plaintiff can recover general damages for any in- jury to his credit, character, or feehngs." The summons came before Kennedy J. in chambers, who allowed the plea to be added, but expressed some doubt as to the propriety of so doing, and gave leave to plaintiff to bring the present appeal. lyOPES, ly. J. I am of opinion that this appeal ought to be allowed. [The Lord Justice then referred to the facts, and, after reading the plea, continued:] Now that plea, as it stands, appears to me merely to go to the rem- edy. It says, in effect; that in this case no action in which damages could be recovered would lie in Brazil, and, assuming that any dam- ages could be recovered in Brazil, they would be special damages only. Mr. Walton contends that that is not the meaning of the plea: that the plea is intended to raise a larger question than that, and to say 72 The Lord Chancellor (Earl of Halsbury) and Lord Lindley delivered con- curring opinions. Lord Shand and Lord Brampton concurred. 472 PAETictTLAE SUBJECTS. (Part 2 that libel cannot be made the subject of any civil proceedings at all in Brazil, but is only the subject-matter of criminal proceedings ; and, for the purposes of what I am about to say, I will assume that to be so. Now the principle applicable in the present case appears to me to be this: where the words have been published outside the jurisdic- tion, then, in ordertomaintain an action h ere onjthe^round of a tort committed Joutside the "jurisdiction, the act complained-. of- must be wrongful — -I use the word "wrongful" deliberately — both by the law of this country, and also by the law of the country where jt wascom- mitted; and the first thing we have to consider is whether those con- ditions are complied with. In the case of Phillips v. Eyre, L. R. 6 Q. B. 1, Willes J. lays ^ down very distinctly what the requisites are in order to found such an action. He says this, L,. R. 6 Q. B. 1, at p. 28: "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled: First, the wrong must be of such a character that it ^w^uld have^heen_actionable Tricomrtiitted' in England. *■ * * ^Secondly, the act^ must not~H aye ^een justifiable by the law of the place where it was done." Then itT the Er.~KroxEam71 P^ D. 107, James L. J., in the course of his judg- ment, uses these words, IP. D. 107, at p. Ill: "It is settled that if by the law of the foreign country the act is lawful or is excusable, or even if it has been legitimized by a subsequent act of the Legislature, then this Court wiH take into consideration that state of the law — that is to say, if by the law of the foreign country a particular person is justified, or is excused, or has been justified or excused for the thing done, he will not be answerable here." Both those cases seem to me to go this length: that, in order to ^constitute a good defence to an action brought in this countFyTn^l-e- ^spect of an act done iru a -foreign country, the act relieT^nrnusTlje one which is innocent in the country where it was .co mmitte3r ~Tri thfe present case there can be no doubt that the action lies, for it complies with both of the requirements which are laid down by Willes J. The act was committed abroad, and was actionable here, and not justi- fiable by the law of the place where it was committed. Both those conditions are complied with; and, therefore, the publication in Bra- zil is actionable here. It then follows, directly the right of action is established in this country, that the ordinary incidents of that action and the appropri- ate remedies ensue. Therefore, in this case, in my opinion, damages would flow fro'm the wrong committed just as they would in any action brought in respect of a libel published in this country. It is contended that it would be much better that this question should not be decided at the present time, but that a commission should go to Brazil, and that the Brazilian law should be inquired into. If our view is correct, it seems to me that that would be a great waste Ch. 3) OBLIGATIONS. 473 of time and money, because, having regard to the authorities I have mentioned, this plea is absolutely bad, and ought to be struck out. RiGBY^ L. J. I am of the same opinion. I do not propose to decide this case on any technical consideration as to what may be the precise meaning of the allegation that is proposed to be introduced into the defence; I give it the widest possible construction it can reasonably bear; and I will assume it to involve that no action for damages, or even no civil action at all, can be maintained in Brazil in respect of a libel published there. But it does not follow from that that the libel is not actionable in this country under the present conditions, and having regard to the fact that the plaintiff and defendant are here. Willes J., in Phillips v. Eyre, L,. R. 6 Q. B. 1, was laying down a rule which he expressed without the slightest modification, and with- out the slightest doubt as to its correctness; and when you consider the care with which the learned judge prepared the propositions that he was about to enunciate, I cannot doubt that the change from "ac- tionable" in the first branch of the rule to "justifiable" in the second branch of it was deliberate. The first requisite is that the wrong must be of such a character that it would be actionable in England. It was long ago settled that an action will lie by a plaintiff he;:e against a defendant here, upon a transaction in a place outside this country. But though such action may be brought here, it does not follow that it will succeed here, for, when it is committed in a foreign country, it may turn out to be a perfectly innocent act according to the law of that country; and if the act is shewn by the law of that country to be an innocent act, we pay such respect to the law of other coun- tries that we will not allow an action to be brought upon it h^rev The innocency of the act in the foreign country is an answer to the action. That is what is meant when it is said that the act must be "justifiable" by the law of the place where it was done. It is not really a matter of any importance what the nature of the remedy for a wrong in a foreign country may be. The remedy must be according to the law of the country which en- tertains the action. Of course, the plea means that no action can be brought in this country in respect of the libel (if any) in Brazil. But I think the rule is clear. It was very carefully laid down by Willes J. in Phillips v. Eyre, L. R. 6 Q. B. 1 ; and in the case of The M. Mox- ham, 1 P. D. 107, all the learned judges of the Court* of Appeal in their judgments laid down the law without hesitation and in a uni- form manner; and first one judge and then another gave, in different language but exactly to the same purport and effect, the rule enun- ciated by Willes J. So that if authority were wanting there is a de- cision clearly binding upon us; although I think the principle is suffi- cient to decide the case. I think there is no doubt at all that an action for a libel published abroad is maintainable here, unless it can be shown to be justified or excused in the country where it was published. James L,. J. states 474 PARTICULAR SUBJECTS. (Part 2 in The M. Moxham, 1 P. D. 107, what the settled law is. Hellish ly. J. is quite as clear upon that point as James L. J. in laying down the general rule ; and Baggallay L. J. also takes the same view. We start, then, from this : that the act in question is prima facie action- able here, and the only thing we have to do is to see whether there is any peremptory bar to our jurisdiction arising from the fact that the act we are dealing with is authorized, or innocent or excusable, in the country where it was committed. If we cannot see that, we must act according to our own rules in the damages (if any) which we may choose to give. Here we cannot see it, and this appeal must be allowed with costs. Appeal allowed. THE HALLEY. (Judicial Committee of the Privy Council, 1868. L. R. 2 P. C. 193, 37 L. J. Adm. 33.) The Lord Justice Selwyn." This is an appeal from an order by the judge of the High Court of Admiralty, dated the 26th of Novem- ber, 1867, and admitting the third article of the reply filed by the plaintiffs in the court below, who are the present respondents. The cause is a cause of damage promoted by the respondents as owners of a Norwegian barque called the Napoleon, against a British steamship called the Halley, and her owners, for the recovery of damages occasioned to the Respondents by reason of a collision which took place on the 8th of January, 1867, in Flushing Roads, between the Napoleon and the Halley In their petition the respondents state that the collision was caused by the negligent and improper navigation of the Halley. The appellants, in their answer to that petition, state that the Hal- ley is a steamship belonging to the port of Liverpool, and that "by the Belgian or Dutch laws which prevail in and over the river Scheldt,, and to which the said river is subject, from the place where the said river pilot came on board the Halley, and thence up to and beyond the place of the aforesaid collision, it was compulsory on the said steamer to take on board and be navigated under the direction and in charge of a pilot duly appointed or licensed according to the said laws; and it was by virtue of such laws that the Halley was com- pelled to take on board and to be given in charge, and until the time of the said collision, as aforesaid, to remain in charge of, and did take on board and was given in charge, and up to the time of the said collision remained in charge of the said river pilot, who was duly appointed or licensed according to the said laws, and whom the defendants or their agents did not select and had no power of se- 's statement of facts and arguments of counsel omitted. Ch. 2) OBLIGATIONS. 475 lecting;" and "that the collision was not caused by the negligence, default, want of skill, or improper conduct of any person on board the Halley, except the said river pilot." In reply to this answer, the respondents pleaded the following, being the third article in their reply : — "By the Belgian or Dutch laws in force at the time and place of the said collision, the owners of a ship which has done damage to another ship by collision, are liable to pay and make good to the owners of such lastly-mentioned ship all losses occasioned to them by reason of such collision, notwithstand- ing that the ship which has done such damage was, at the time of the doing thereof, being navigated under the direction and in charge of a pilot duly appointed or licensed according to the said laws, and not- withstanding that such damage was solely occasioned by the negli- gence, default, or want of skill of such pilot, without any contributory negligence on the part of the master or crew of such lastly-mentioned ship, and notwithstanding that it was at the time and place of the collision, by the said laws, compulsory on such lastly-mentioned ship to be navigated under the direction and in charge of such pilot ; and the defendants, the owners of the Halley, are by virtue of the said laws, liable to pay and make good to the plaintiffs all losses occa- sioned to them by the said collision, even if the statements contained in the eleventh article of the said answer be true." The appellants having moved the court below to reject the third article of the reply, on the ground that, even if the third article were true, the appellants would not be liable in the Court of Admiralty in England, the learned judge of that court has made the order now under appeal, by which he has refused the motion of the appellants, and has sustained the third article of the reply. The claim of the respondents is stated by the learned judge to be founded upon a tort committed by the defendants in the territory of a foreign state, and we are not called upon to pronounce any opinion as to the rights which the respondents might have obtained-, either against the appellants as the owners of the Halley, or as against that ship, if the respondents had instituted proceedings and obtained a judgment in the foreign court. For this cause is a cause for damage instituted by petition in the High Court of Admiralty in England; and it is admitted by the counsel for the respondents that the question before us must be decided upon the same principles as would be applicable to an action for damages for the collision in question if commenced in the Court of Queen's Bench or Common Pleas. But it is contended on their part, and has been held by the learned judge in the court below, that the respondents are entitled to plead that the law of Belgium, within whose territorial jurisdic- tion the collision took place, renders the owners of the Halley, al- though compelled to take a pilot on board, liable to make reparation for the injury which she has done. 476 PAETiCTJLAE SUBJECTS. (Part 2 Their Lordships agree with the learned judge in his statement of the common law of England, with respect to the liability of the owner of a vessel for injuries occasioned by the unskilful navigation of his vessel, while under the control of a pilot, whom the owner was com- pelled to take on board, and in whose selection he had no voice ; and that this law holds that the responsibility of the owner for the acts of his servant is founded upon the presumption that the owner chooses his servant and gives him orders which he is bound to obey, and that the acts of the servant, so far as the interests of third persons are concerned must always be considered as the acts of the owner. This exemption of the owner from liability when the ship is under the control of what has been termed a "compulsory pilot" has also been declared by express statutory enactments. Vide Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, s. 388. - In cases like the present, when damages are claimed for tortious collisions, a chattel, such as a ship or carriage, may be, and frequently is, figuratively spoken of as the wrongdoer ; but it is obvious, that al- though redress may sometimes be obtained by means of the seizure and sale of the ship or carriage, the chattel itself is only the instrument by the improper use of which the injury is inflicted by the real wrong- doer. Assuming, as, for the purposes of this appeal, their Lordships are bound to assume, the truth of the facts stated in the pleadings, and applying the principles of the common law and statute law of Eng- land to those facts, it appears that the tort for which damages are sought to be recovered in this cause was a tort occasioned solely by the negligence or unskilfulness of a person who was in no sense the servant of the appellants, a person whom they were compelled to re- ceive on board their "ship, in whose selection they had no voice, whom they had no power to remove or displace, and who, so far from being bound to receive or obey their orders, was entitled to supersede, and ,liad, in fact, at the time of the collision, superseded, the authority of the master appointed by them; and their Lordships think that the maxim, "qui facit per alium, facit per se," cannot by the law of Eng- land be applied, as against the appellants, to an injury occasioned under such circumstances; and that the tort upon which this cause is founded is one which would not be recognized by the law of Eng- ■ land as creating any liability in, or cause of action against, the ap- \ pellants. It follows, therefore, that the liability of the appellants, and the right of the respondents to recover damages from them, as the owners of the Halley, if such liability or right exists in the present case, must be the creature of the Belgian law; and the question is, whether an English court of justice is bound to apply and enforce that law in a case, when, according to its own principles, no wrong has been com- mitted by the defendants, and no right of action against them exists. The counsel for the respondents, when challenged to produce Ch. 2) OBLIGATIONS. 477 any instance in which such a course had been taken by any English court of justice, adniitted his inability to do so, and the absence of any such precedent is the more important, since the right of all per- sons, whether British subjects or aliens, to sue in the English courts for damages in respect of torts committed in foreign countries has long since been established ; and, as is observed in the note to Mostyn V. Fabrigas, in Smith's Leading Cases, vol. 1, p. 656, there seems to be no reason why aliens should not sue in England for personal injuries done to them by other aliens abroad, when such injuries are action- able both by the law of England and also by that of the country where they are committed, and the impression which had prevailed to the contrary seems to be erroneous. In the case of The Amalia, 1 Moore's P. C. Cases (N. S.) 484, Lord Chelmsford, in delivering the opinion of the Judicial Commit- tee, said "Suppose the foreigner, instead of proceeding in rem against the vessel, chooses to bring an action for damages in a court of law against the owners of the vessel occasioning the injury, the argument arising out of the acquired lien would be at once swept away, and the rights and liabilities of the parties be determined by the law which the court would be bound to administer." As Mr. Justice Story has observed in his Conflict of Laws, p. 32, "it is difficult to conceive 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 tights of other nations or to those of their sub- jects." And even in the case of a foreign judgment which is usually conclusive inter partes, it is observed in the same work, at § 618a, that the courts of England may disregard such judgment inter partes if it appears on the record to be manifestly contrary to public jus- tice, or to be based on domestic legislation not recognised in Eng- land or other foreign countries, or is founded upon a misapprehen- sion of what is the law of England: Simpson v. Fogo, 1 H. & M. 195. It is true that in many cases the courts of England inquire into and act upon the law of foreign countries, as in the case of a con- tract entered into in a foreign country, where, by express reference, or by necessary implication, the foreign law is incorjjorated with the contract, and proof and consideration of the foreign law therefore become necessary to the construction of the contract itself. And as in the case of a collision on an ordinary road in a foreign country, where the rule of the road in force at the place of collision may be a necessary ingredient in the determination of the question by whose fault or negligence the alleged tort was committed. But in these and similar cases the English court admits 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 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 it is, in their 478 PARTICULAR SUBJECTS. (Part 3 Lordships' opinion, alike contrary to principle and to authority to hold, that an English court of justice will enforce a foreign municipal law, and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the per- son from whom the damages are claimed. The case of Smith v. Condry, 1 How. (U. S.) 38, 11 L. Ed. 35, in the Supreme Court of the United States, appears at first sight to have an important bearing upon this case ; but, upon an investigation ■of the report, it does not appear that any question as to a conflict between the English law and the American law was discussed in that case, or that tne precise point now under consideration was no- ticed in the judgment, nor is it specifically mentioned in any of the three exceptions which were taken to the decision of the inferior court, and there is no report of the arguments. Their Lordships think, therefore, that that case cannot be treated as an authority sufficient to support the contention of the respondents ; and, on the whole, they think it their duty humbly to advise her Majesty to allow this appeal, and to order that the third article of the plaintifif's reply be rejected, and that there should be no costs of .this appeal.''* MORRISETTE v. CANADIAN PAC. R. CO. (Supreme Court of Vermont, .1904. 76 Vt. 267, 56 Atl. 1102.) Stafford, J.'^ The plaintiff was a brakeman upon one of the de- fendant's freight trains, and claimed to have beeri injured through the negligence of the company in maintaining a switch too near the track, so that when he was attempting to mount a moving car he struck against it and was knocked off. The accident occurred in the Provi nce of Q uebec, and the declaration, treatmg"the law^of jthe_prov- ince as jmatter _of_fact, alleges that the defendant, as e mployer of the plaintiff, owed him the care and oversight whichthe good fathei- of a family owes to his children, ^and, was bound to ^ ^ar3~h imreveri ■"against" his own mistakes and thoughtlessness; that neither assump- 'tion of risk nor contributory negligence constituted a bar to the right of recovery, but operated only to reduce the damages. The def endant objected to any and all evidence of the law of Quebec , iip on the" ji Igrouiid that, as it was alleged in the declaration, i¥"was J^_jiirect 'jconflict with the law of Vermont, and related, not to the_right_of_ac; tion7"but solely to the remedy." The objections stateH^were overruled, , aii"^TcepHofi" was' allowed, and the plaintiff introduced evidence in support of his allegations. Under this exception the defendant in 7 4 Accord: 20 R. G. 90 (.June 25 and July 9, 1892), on ground that section 738, (Coin. Code, contains an absolute and positive rule of law. '5A part of the opinion lias been omitted. Ch. 2) OBLIGATIONS. 47^ this court presents the objection that the plaintiff should not have been permitted to make good his declaration touching the law of the prov- ince on the subject of contributory negligence, because he had also alleged that the plaintiff was in fact wholly free from fault; that, having made the latter allegation, he was bound to prove it. This question is not raised by the objection and exception, and is not con- sidered. It is next objected that evidence as to the law of contributory neg- ligence was inadmissible because it related, not to the right of ac- tion, but only to the remedy. But we think i t related clearly to the right of action. By th e law of Vermont it was_a_bar; by the hwsii "Canada, as the evidence in question 'tended to show, it was not a bar. ""'" It 'is' further objected that the Canadian 'law7 as 'alleged, although neither cri minal nor penal, is so different from ours that we~ought not to aclrilimster it. TJomTty does not require us to take up and en- Torce the law of a foreign state which is contrary to pure morals, or to abstract justice, or to enforce which would be contrary to our own public policy. The law we are considering is not claimed to be operl to either of the first two objections, but i s claimed to be open to the J:hird, b ecau se it i s so dinerent from the law of Vermont. JSome states nave adopted this view, declining to administer foreign laws unless closely analogous to their own. Mexican Nat. Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L,. R. A. 276, 59 Am. St. Rep. 28 ; Anderson V. Milwaukee & St. P. Ry. Co., 37 Wis. 321; Richardson v. New York Cent. R. Co., 98 Mass. 85. But we believe the sounder opinion is that a court should not, in otherwise proper c ases, refuse to adopt jand apply the law of a foreign state, however unlike the law of its TiiTles? it be contr ary Co pure morals, or "abstract justice, or unless ^ |j:he enforcement would be ~of evil example, ~ari3~harfrif ul"To its own '• people, and therefore incon sistent with the dignity of the government whose authority is invoked. Judged by that test, the ruling was cor- rect. HerrickvT Minneapolis & St. I^. Ry. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771 ; Higgins v. Central N. E. & W. R. Co., 155 Mass. 180, 29 N. E. 534, 31 Am. St. Rep. 544; Dennick v. Central R. Co. of New Jersey, 103 U. S. 11, 26 L. Ed. 439; McLeod v. Con- necticut & P. R. R. Co., 58 Yt 727, 6 Atl. 648; Chicago & E. I. R. Co. v. Rouse, 178 111. 132, 52 N. E. 951, 44 E. R. A. 410. It was still further objected that in the circumstances of this case a resort toour tribunals vvassojieedless and^so embarrassing that the "county court should have refused to entertain the complaint. See Great We'stern Ry. Co', of Canada v. Miller, 19 Mich. 306; Gardner V. Thomas, 14 Johns. 134, 7 Am. Dec. 445. The defendant is a Cana- dian corporation. The plaintiff is a resident of Canada, and there the accident occurred The courts oT the Dominion were open to the pTamfiHT ' "The witnesses could there have been compelled to attend and testify in person. A view could have been ordered, if necessary, and the governing law would have been determined by judges with- 480 PARTICULAR SUBJECTS. (Part 2 out the necessity of a tedious and perplexing trial by jury to settle the law as a question of fact. ^A^'lJ^SUt saying jyhat might or ought ^to have been done if a motion to this effect had been made at the ^outset of the case, we do not feel at liberty at this time and under this exception to say that the proceeding should have been dismissed. The exception was merely to the admission of evidence concerning the law of Canada on the ground that the case was governed by the law of Vermont — a position that cannot be sustained. Morrisette v. Canadian Pac. Ry. Co., 74 Vt 332, 52 Atl. 520. * * * DYKE V. ERIE RY. CO. (Court of Appeals of New York, 1871. 45 N. Y. 113, 6 Am. Eep. 43.) Appeals from the General Term of the Supreme Court in the Second district in Dike's case, and from the General Term of the Supreme Court in the Sixth district in Floyd's case. These actions were to recover damages for personal injuries sus- tained by the plaintiffs while passing over the road of the defendant as passengers, caused by the negligence of the defendant's servants and agents. The defendant is a corporation existing under the laws of the state of New York, owning and operating a railroad for th^ carriage of freight and passengers between the cities of Buffalo and New York, in that State, and the intermediate places, running its road, en route between the terminal named, for -short distances in the States of Pennsylvania and New Jersey by the permission of those States respectively. Each of the plaintiffs purchased a ticket and took passage on the defendant's road, on the 14th of April, 1868, from stations in this state to the city of New York, and while in transit from the place of departure to the city of New York, and upon a part of the. road in the State of Pennsylvania, sustained the injuries complained of. By an act of the legislature of Pennsylvania, passed April 4th, 1868 (P. L. 58), the recovery in actions then or thereafter instituted against common carriers or railroad corporations for personal injuries is lim- ited to $3,000. Upon the trials, it was claimed in behalf of the de- fendant that the rights of recovery of the plaintiffs were controlled by this act. The claim was overruled by the judge, and each of the plain- tiffs had verdicts in excess of the limit prescribed by the Pennsyl- , vania statute. Dike for $35,000, at the Kings Circuit, and Floyd for $15,000 at the Tioga Circuit, and judgments upon such verdicts were affirmed by the Supreme Court at the General Terms. The defendant has appealed- to this court. AivLEN, J. The only question to be considered upon this appeal is as to the effect of the Pennsylvania statute, limiting the amount of Ch. 2) OBLIGATIONS. 481 the recovery in actions of this character. It is conceded that the statutes of one State are not obHgatory upon the courts of other States ; that they have not, proprio vigore, the force of law beyond the limits of the State enacting them. But it is sought to bring these actions within the operation and effect of the foreign statute upon the ground that the contracts were made with reference to the laws of that State, and the causes of action arose there. The generally received rule for the interpretation of contracts, is that they are to be construed and interpreted according to the laws of the State in which they are made unless from their terms, it is perceived that they were entered into with a view to the laws of some other State. The lex loci contractus, determines the nature, validity, obligation and legal effect of the contract, and gives the rule of construction and interpretation, unless it appears to have been made with reference to the laws and usages of some other State or govern- ment, as when it is to be performed in another place, and then in con- formity to the presumed intention of the parties, the law of the place of performance furnishes the rule of interpretation. (Prentiss v.. Savage, 13 Mass. 20 ; Medbury v. Hopkins, 3 Conn. 472 ; Everett v. Vendryes, 19 N. Y. 436 ; Hoyt v. Thompson's Exr., Id. 207 ; Curtis V. Leavitt, 15 N. Y. 227.) The contracts before us were niade in the State of New York, and between citizens of that State. The plain- tiffs were actual inhabitants, and thp defendant was a corporation existing by the laws of that State. The contracts were for the car- riage and conveyance of the plaintiffs over the road of the defendant, between two places in the same State, to wit, from stations' on the line of the road, in the western part of the State to the city of New York. The duty and obligation of the defendant, in the performance of the contracts commenced and ended within the State of New York. Although the route and line of defendant's road between the places at' which the plaintiffs took their passage and their destination, passed through portions of the States of Pennsylvania and New Jersey, by the consent of those States respectively, the parties cannot be presumed to have contracted in view of the laws of those States. The contracts were single and the performance one continuous act. The def endant did not undertake for one specific jict, jn_ part performance in_one "State, and another specific"and Histijnct act , in another of the Slates ^narned, as Ttr which thrparties coiild be presumed to have had in view the laws and usages of distinct places. Whatever was done in Penn- isylvania, was a part of the single act of transportation from Attica, or Waverly, in the State of New York, to the city of New York, and in performance of an obligation assumed and undertaken in this State, and which was indivisible. I ^e obli gation was created here, and by force of the laws of this St'ite, and force and effect must be given to it, in conformity to the laws of New York. (Carnegie v. Morrison, 2 Mete. (Mass.) 381, Per Shaw, Ch. J. The performance \^as to commence in New York, and to be fully completed in the LOE.OONF.L.— 31 482 PARTICULAR SUBJECTS. (Part 2 same State, but liable to breach, partial or entire in the States of Penn- sylvania and New Jersey, through which the road of the defendant passed, but whether the contract was broken, and if broken, the con- sequences of the breach should be determined by the laws of this State. It cannot be assumed that the parties intended to subject the contract to the laws of the other States, or that their rights and lia- bilities should be qualified or varied by any diversities that might exist between the laws of those States and the lex loci contractus. The case of the Peninsular and Oriental Steam Navigation Co. v. Shand (3 Moore's P. C, 372), is somewhat analogous in principle to the case at bar. A passenger, by an English vessel belonging to an English company, from Southampton to Mauritius, via Alexandria and Suez, sustained a loss of his baggage between Alexandria and Mauritius, and it was held that the contract for the passage was to be interpreted by the law of England, the place where the contract was rnade. The Supreme Court at Mauritius had held that the contract was governed by the French law in force in Mauritius, and refused to the defendants the benefit of an exemption from liability for loss of property, to which they were entitled by the terms of the contract as interpreted by the laws of England, and the judgment was reversed, upon ap- peal, by the Privy Council. Whether the actions are regarded as actions of assumpsit upon the > contracts,, or as actions upon the case for neghgence,' the rights and liabilities of the parties must be judged by the same standard. The form of the action concerns the rernedy, but does not affect the legal obligations of the parties. In either form of action the liability of^e / defendant, and the rights of the plaintiffs, are based upon the contracts.^ The defendant owed no duty to the plaintiffs, except in virtue of the contracts and the obligations for the violation and breach. ^i„ which ail action may be brought are only co-extensive with the contracts made. It follows, that the law of Pennsylvania cannQt_.£nla£g£.. or restrict the liability of parties to a contract, whichfojiits validity, effect, and construction, is subject to the laws of New York. "The jdarnages to which a party is entitled, upon the breach of a contract, 7or violation of a duty growing out of a contract, and the rule and ["measure of damages pertains to the right and notto the remiSy. It ]is matter of substance, and the principal thing ibught, and not a fflere" incident to the remedy for the principal thing. iFTs "conceded, that" the statutes of Pennsylvania have no intrinsic extra territorial force, and that they bind only within the jurisdictional limits of the State. Upon principles of comity, effect is sometimes given by the courts of a State to foreign laws. In matters of contract, such effect is ac- corded to statutes of other States, only to carry out the intent of and do justice between the parties, never to qualify or vary the effect of a contract between parties not citizens of such foreign State, or sub- ject to its laws, and not made in view of the laws of such State. Effect will not be given by the courts of a State to foreign laws in 'Ch. 2) OBLIGATIONS. 4iS:? ■derogation of the contracts, or prejudicial to the rights of citizens. (Liverpool, Brazil, &c.. Steam Navigation Company v. Benham, 2 Law Rep., P. C. Cases, 193; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398; Arnott v. Redfern, 2 Carr. & Payne, 88 ; Gale v. Eastman, 7 Mete. [Mass.] 14.) The actions are not given by the laws of Pennsylvania. They grow ■out of the contracts and the duties resulting from the contracts, and are given by the common law, and, therefore, the laws of another State in an action brought here cannot prescribe the measure of dam- ages, or limit the liability of the parties. The judgments should be affirmed. ALABAMA GREAT SOUTHERN R. CO. v. CARROLL. ' {Supreme Court of Alabama, 1892. 97 Ala. 126, 11 South. 803, 18 L. R. A. 433, 38 Am. St. Rep. 163.) Action by W. D. Carroll, a citizen of Alabama, against the Alabama Great Southern R. R. Co., an Alabama corporation, to recover dam- ages for_personaliniuries_j^dvedJn_Rfc while serving as a brakeman~on~defendaiifs road. Judgment for plaintiff. McClELLAN, J." [After holding that under the law of Mississippi ithe defendant corporation was not liable to plainti ff on account of injurj sustained in consequence of the negligence of a fellow-servant, and that no recovery could be had undeFthe employers' liability act of Ala bama, .siiice_only_^e negligence which produced the casu- alty had occurred in Alabama whjr e^the in juries had been received jn ^"Mississippi, tlTe~tearflEd~Justice contmuedais follows ■] Another consideration, — that referred to above, — it is insisted, en- titles this plaintiff to recover here under the employers' liability act for an injury inflicted beyond the territorial operation of that act. This is claimed upon the fact that at the time plaintiff was injured he was in the discharge of duties which rested on him by the terms of a con- tract between him and the defendant, which had been entered into in Alabama, and hence was an Alabama contract, in connection with the facts that plaintiff was and is a citizen of this state, and the de- fendant is an Alabama corporation. These latter facts — of citizen- ship and domicile, respectively, of plaintiff and defendant — are of no importance in this connection, it seems to us, further than this : they may tend to show that the contract was made here, which is not controverted, and, if the plaintiff has a cause of action at all, he, by reason of them, may prosecute it in our courts. They have no bear- ing on the primary question of the existence of a cause of action, and, as that is the question before us, we need not further advert to the fact of plaintiff's citizenship or defendant's domicile. 'OA part of the opinion has been omitted. 484 PARTICULAR SUBJECTS. (Part 2 The contract was that plaintiff should serve the defendant in the capacity of a brakeman on its freight trains between Birmingham, Ala., and Meridian, Miss., and should receive as compensation a stipulated sum for each trip from Birmingham to Meridian and return. The theory is that the employers' liability act became a part of this contract, that the duties and liabilities which' it prescribes became contractual duties and liabilities, or duties and liabilities springing out of the contract, and that these duties attended upon the execution whenever its performance was required, in Mississippi as well as in Alabama, and that the liability prescribed for a failure to perform any of such duties attached upon such failure and consequent injury wherever it occurred, and was enforceable here, because imposed by an Ala- bama contract, notwithstanding the remission of duty and the resulting injury occurred in Mississippi, under whose laws no liability was in- curred by such remission. The argument is that a contract for ser- vice is a condition precedent to the application of the statute, and that; "as soon as the contract is made, the rights and obligations of the parties under the employers' act became vested and fixed," so that "no subsequent repeal of the law could deprive the injured party of his rights, nor discharge the master from his liabilities," etc. If this argument is sound, and it is sound if the duties and liabilities pre- scribed by the act can be said to be contractual duties and obliga- tions at all, it would lead to conclusions, the possibility of which has not hitherto been suggested by any court or law writer, and "which, to say the least, would be astounding to the profession. For instance, if the act of 1885 becomes a part of every contract of service entered into since its passage, just "as if such law were in so many words expressly included in the contract as a part thereof," as counsel in- sist it did, so as to make the liability of the master to pay damages for injuries to a fellow servant of his negligent employe a contractual obligation, no reason can be conceived why the law existing in this regard prior to the passage of that act did not become in like manner a part of every contract of service then entered into, so that every such contract would be deemed to contain stipulations for the non- liability of the master for injuries flowing from the negligence of a fellow servant, and confining the injured servant's right to damages to a claim against his negligent fellow servant; the former, in other words, agreeing to look alone to the latter. There were many thou- sands of such contracts existing in this country and England at the time when statutes similar to section 2590 of our Code were enacted. There were, indeed, many thousands of such contracts existing in Ala- bama when that section became the law of this state. Each of these contracts, if the position of plaintiff as to our statute being embodied into the terms of his contract, so that its duties were contractual du- ties and its liabilities contractual obligations to pay money, can be maintained, involved the assurances of organic provisions, state and federal, of the continued nonliability of the master for the negligence ■Ch. 3) OBLIGATIONS. 485 of his servants, notwithstanding the passage of such statutes. Yet. these statutes were passed, and they have been applied to servants un- der pre-existing contracts as fully as to servants under subsequent contracts, and there has never been a suggestion even, in any part of the common-law world, that they were not rightly so applied. If plain- tiff's contention is well taken, many a judgment has gone on the rolls in this state and throughout the country, and been satisfied, which palpably overrode vested rights, without the least suspicion on the part of court or counsel that one of the most familiar ordinances of the fundamental law was being violated. Nay, more : another result, not heretofore at all contemplated, would ensue. Contracts for ser- vice partly in Alabama might be now entered into in adjoining states, where the common-law rule still obtains, as in Mississippi, for instance, where the servant has no right to recover for the negligence of his fellow ; and the assumption of this risk, under the , law, becoming, according to the argument of counsel, a contractual obligation to bear it, such contracts would be good in Alabama; and, as to servants en- tering into them, our statute would have no operation, even upon negli- gence and resulting injury, withii;i its terms, occurring wholly in Ala- bama. And, on the other hand, if this defendant is under a contract- ual obligation to pay the plaintiff the damages sustained by him be- cause of the injury inflicted in Mississippi, the contract could be of course enforced in Mississippi, and damages there awarded by its courts, notwithstanding the law of that state provides that there can be no recovery, under any circumstances whatever, by one servant for the negligence of his fellow employe. We do not suppose that such a proposition ever has been or ever will be made in the courts of Mississippi. Yet that it should be made and sustained is the natural and necessary sequence of the position advanced in this case. These considerations demonstrate the infirmity of plaintiff's posi- tion in this connection, and serve to show the necessity and propriety of the conclusion we propose to announce on this part of the case. That conclusion is that, the duties, and liabilities incident tO the rela- tion between the plaintiff_arid^.^ie.,defendant, which are involved .in thrs~case, "are nofmiposed by, and dojiot_rest_iii_px. spring .from,-_the .contract betweeiOhe parties]IirThe .^only office of the contract, under section 2590 of the Code, Js JItjb es^tabli_shmeat- of a relation between them,^— that of master and servant; and it Js_ upon _that_ relation, that incident or "coiisequehcerof 'the contract, and not upon the rights of the parties under the coritract, that our jtatute operates. The law ^is not_concerned with the contractual stipulations, except in so far as to determine from them that the relation upon which it is to oper- "ate_exists. Finding this relation, the statute imposes certain duties and liabiHties on the parties to it, wholly regardless of the stipulations of the contract as to the rights of the parties under it, and, it may be in the teeth of such stipulations. It is the purpose of the statute, and must be ,the Hmit of its operation, to govern persons standing in 486 PARTICULAR SUBJECTS. (Part 2" the relation of master and servants to each other, in respect of their conduct in certain particulars within the state of Alabama. Mississip- pi has the same right to establish governmental rules for such per- sons within her borders as Alabama, and she has established rules which are different from those of our law; and the conduct of such persons towards each other is, when its legality is brought in ques- tion, to be adjudged by the rules of the one or the other states as it falls territorially within the one or the other. -The doctrine is like that which prevails in respect of other relations, as that of man and wife. Marriage is a contract. The entering into this contract raises up certain duties and imposes certain liabilities in all civilized coun- tries. What these duties and liabilities are at the place of the con- tract are determinable by the law of that place ; but, when the parties go into other jurisdictions, the relation created by the contract under the law of the place of its execution will be recognized, but the per- sonal duties, obligations, and liabilities incident to the relation are such as exist under the law of the jurisdiction in which an act is done or omitted, as to the legality, effect, or consequence of which the question arises. It might as well be said, where there is a mar- riage in Alabama, and the parties remove to Mississippi, and the wife there makes a contract which is void in Mississippi, but valid under our statute, and subsequently they return to Alabama, that our courts will enforce that contract; or if such husband, while in Mississippi, does an act which is innocuous and lawful in that state, but which, if done here, would entail liability upon him, and the parties afterwards return here, that the liability imposed by our laws could be enforced here, because the parties entered into the contract here, — as that a master is liable here for conduct towards his servant which was proper, or at least involved no liability, where it took place, simply because the contract which created the relation was entered into in this state. The whole argument is at fault. The only true doctrine is that each sovereignty, state or nation, has the exclusive power to finally deter- mine and declare what act or omissions in the conduct of one to an- other — whether they be strangers, or sustain relations to each other which the law recognizes, as parent and child, husband and wife, mas- ter and servants, and the like — shall impose a liability in damages for the consequent injury, and the courts of no other sovereignty can im- pute a damnifying quality to an act or omission which afforded no cause of action where it transpired. * * * [The learned Justice here commented upon Whitford v. Panama R. Co., 23 N. Y. 465, and Gray v. Jackson, 51 N. H. 9, 12 Am. Rep. 1.] For the' error in refusing to instruct the jury to find for the defend- ant, if they believed the evidence, the judgment is reversed, and the cause will be remanded.''^ / 77The locus delicti is where the damage is done or the injury is received, ',' and not where the death ensues. Van Doren v. Pennsylvania R. Co., 93 Fed. Ch. 2) OBLIGATIONS. "^ Ol V^ X^ ft '^.T ^87 DENNICK V. CENTRAL R. CO. OF NEW JERSEY. (Supreme Court of the United States, 1880. 103 U. S. 11, 26 L. Ed. 430.) Error to the Circuit Court of the United States for the Northern District of .New York. Miller, J.^* It is understood that the decision of the court below rested solely upon the proposition that the liability in a civil action ^for damages which, under the statute'of New Jersey, is imposed upon a party, by whose wrongful act, neglect, or default death' ensues, " can be enforced by no one but an administrator, or other personal "representative of the deceased, appointed by the authority of that ■^afeT And the soundness or unsoundness of this proposition is what we are called upon to decide. It must be taken as established by the record that the acciden t b^ ( which the plaintiff's husband came to his death occurred in New jersey, under circumstances which brought the defendant within the provisions of the first section of the act making the company liable for damages, notwithstanding the death. It can scarcely be contended that the act belongs to the class of criminal laws which can only be enforced by the courts of the State where the offence was committed, for it is, though a statutory remedy, a civil action to recover damages for a civil injury. It is indeed a right dependent solely on the statute of the State ; | but when the act is done for which the law says the person shall be lia ble, and the action by which the remedy is to be enforced iS' a personal and not a real action, and is of that character which the| "Tawrecognizes as transitory and not lol:al, we* cannot see why the v defendant may not be held liable in any coiirt to whose jurisdiction "Tie" can be subjected by personal process or by voIuntarjTappearancej ai"was the case here. '' It is difficult to understand how thg nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common-law right. 7 Wherever, by either the common law or the statute law of a State, 'a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court 260, 35 C. C. A. 282 (1899). But see Hoodmacher v. Lehigh Valley R. Co., 218 Pa. 21, 66 Atl. 975 (1907). Nor where the act which occasioned such injury or damage takes place. Cameron v. Vandergri£f, 53 Ark. 381, 13 S. W. 1002 (1890) ; Alabama Great Southern R. Co. v. Carroll, 97 Ala. 126, 11 South. 803, 18 L. R. A. 433, 38 Am. St. Rep. 163 (1892). See Leonard v. Decker (D. C.) 22 Fed. 741 (1884). In Germany it has been held that where the resulting injury occurs in ^ state other than the one where the act was committed, an action will lie if it is a tort under the law of either state. R. G., Dec. 22, 1902 (13 Niemeyer, 171). See, also, R. G., Nov. 8, 1906 (18 Niemeyer, 159). 78 The statement of facts has been omitted. 488 PARTICULAR SUBJECTS. (Part 2 ■) which has jurisdiction of such matters and can obtain jurisdiction of the parties. The action in the present case is in the nature of trespass to the person, always held to be transitory, and the venue immaterial. The local court in New York and the Circuit Court of the United States for the Northern District were competent to try such a. case wTien the parties were properly before it. Mostyn v. Fabrigas/ 1 Cowp. 161; Rafael v. Verelst, 2 W. Bl. 983, 1055; McKenna v. Fisk, 1 How. 241, 11 L. Ed. 117. We do not see how the fact that it was a statutory right can vary the principle, ^jparty legally. JiaJfele. in New Jersey cannot escape that liability by going to New York. If the liability to pay money was fixed by the law of the State where the [transaction occurred, is it to be said it can be enforced nowhere dse [because it depended upon statute law and not upon common law? lit would be a very dangerous doctrine to establish, that in all cases Iwhere the several States have substituted the statute for the com- Jmon law, the liability can be enforced in no other State but that where the statute was enacted and the transaction occurred. The common law never prevailed in Louisiana, and the rights and reme- dies of her citizens depend upon her civil code. Can these rights be enforced or the wrongs of her citizens be redressed in no other State of the Union? The contrary has been held in many cases. See Ex parte Van Riper, 20 Wend. (N. Y.) 614; Lowry v. Inman, 46 N. Y. 119 ; Pickering v. Fisk, 6 Vt. 102 ; Nashville & C. R. v. Spray- berry, 8 Baxt. (Tenn.) 341, 35 Am. Rep. 705 ; Great Western Ry. Co. v., Miller, 19 Mich. 305. But it is said that, conceding that the statute of the State of New Jersey established the liability of the defendant and gave a remedy, the right of .action is limited to a personal representative appointed jn that Sjate and amenaBlF'to its jurisdiction. The statiite does not say this in terms. "Every such action shall be brought by and in the names of the personal representatives of such deceased person." It may be admitted that for the purpose of this case the words "personal representatives" mean the administrator. The plaintiff is, then, the only personal representative of the de- ceased m existence, and the construction thus given the statute is, that such a suit shall not be brought by her. This is in direct coiT- tradiction of the words of the statute. The advocates of this view interpolate into the statute what is not there, by holding that the personal representative must be one residing in the State or appointed by its authority. The statute says the amount recovered shall be ■for the exclusive benefit of the widow and next of kin. Why not add here, also, by construction, "if they reside in the State of New Jersey" ? It is obvious thatjigthing in the language oj the statute requires such a construction. Indeed, by inference, it is'opposed to it. The first section makes the liability of the corporation or person absolute Ch. 2) OBLIGATIONS. 489 where the death arises from their negligence. Who shall say that it depends on the appointment of an administrator within the State? The second section- relates to the remedy, and declares who shall receive the damages when recovered. These are the widow and next of kin. Thus far the statute declares under what circumstances a '3efendant shall be liable for damages, and to whom they shall be paid. In this there is no ambiguity. But fearing that there might be a ques- tion as to the proper person to sue, the act removes any doubt by desig- nating the personal representative. The plaintiff here is that repre- sentative. Why can she not sustain the action? Let it be remembered that this is not a case of an administrator, appointed in one State, suing in that character in the courts of another State, without any authority from the latter. It is the general rule that this cannot be done. The suit here was brought by the administratrix in a court of the State which had appointed her, and of course no such objection could be made. If, then, the defendant was liable to be sued in the courts of the State of New York on this cause of action, and the suit could only be brought by such personal representative of the deceased, and if the plaintiff is the personal representative, whom the courts of that State are bound to recognize, on what principle can her right to main- tain the action be denied ? ^ So far as any reason has been given for such a proposition, it seems to be this: that the foreign administrator is . not responsible to I the courts of New Jersey, _arid cannot be compelled to distribute the ] amount received in accordance with the New Jersey 'slatufe.' "- Biit the courts of .New York are as capable of enforcing the rights of the widow and next of kin as the courts of New Jersey. And as ^ the court which renders the judgment for dkmages in favor of the administratrix can only do so' by virtue of the New Jersey statute, so "any court, having control of her can compel distribution of the "amount received in the manner prescribed by that statute. Again: it is said that, by virtue of her appointment in New York, the administratrix can only act upon or administer that which_was of the estate of the deceased in his lifetime. There cin be no doubt that much that comes to the Hands ot ' administrators or executors must go directly to heirs or devisees, and is not subject to sale or distribu- tion in any other mode, such as Specific property devised to individuals, or the amount which by the legislation of most of the States is set apart to the family of the deceased, all of which can be enforced in the courts ; and no reason is perceived why the specific direction of the law on this subject may not invest the administrator with the right to re- ceive or recover by suit, and impose on him the duty of distributing un- der that law. There can be no doubt that an administrator, clothed with the apparent right to receive or recover by suit property or money, may be compelled to deliver or pay it over to some one who establishes a 490 PARTICULAR SUBJECTS. (Part 2 better right thereto, or that what he so recovers is held in trust for some one not claiming under him or under the will. And so here. The statute of New Jersey says the personal representative shall recover, and the recovery shall be for the benefit of the widow and next of kin. It would be a reproach to the laws of New York to say that when the money recovered in such an action as this came to the hands of the administratrix, her courts could not compel distribution as the law directs. It is to be said, however, that a statute of New York, just like the New Jersey law, provides for bringing the action by the personal representative, and for distribution to the same parties, and that an administrator appointed under the law of that State would be held to have recovered to the same uses, and subject to the remedies in his fiduciary character which both statutes prescribe. We are aware that Woodard v. Michigan S. & N. I. R. Co., 10 Ohio St. 121, asserts a diflferent doctrine, and that it has been followed by Richardson v. New York Cent. R. Co., 98 Mass. 85,^' and Mc- Carthy V. Chicago, R. I. & P. R. Co., 18 Kan. 46, 26 Am. Rep. 742. The reasons which support that view we have endeavored to show are not sound. These cases are opposed by the latest decision on the subject in the Court of Appeals of New York, in the case of L,eonard V. Columbia Steam Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491, of which we have been furnished with a certified copy. The right to recover for an injury to the person, resulting in death, is of very recent origin, and depends wholly upon statutes of the dif- ferent States. The questions growing out of these statutes are new, and many of them unsettled. Each State court will construe its own statute on the subject, and differences are to be expected. In the absence of any controlling authority or general concurrence of deci- sion, this court must decide for itself the question now for the first time presented to it, and with every respect for the courts which have held otherwise, we think that sound principle clearly authorizes the administrator in cases like this to maintain the action. Judgment reversed, with directions to award a new trial.^" 7 8 But see Davis v. New York & N. B. B. Co., 143 Mass. 301, 9 N. E. 815, 58 Am. iiep. las (1SS7) ; Higgins v. Central N. E. & W. R. Co., 155 Mass. 176, 29 N. E. 534, 31 Am. St. Rep. 544 (1892). 8 0A personal representative appointed in the state in which the deceased had his domicile may sue in the jurisdiction where he was appointed. Leon- ard V. Columbia Steam Nav. Co., 84 N. T. 48, 38 Am. Rep. 491 (1881) ; Nel- son V. Chesajieake & O. It. Co., 88 Va. 971, 14 S. E. 838, 15 L> R, A. 583 (1892). Contra : Woodard v. Michigan S. & N. R. Co., 10 Ohio St. 121 (1859). A per- sonal representative appointed In another jurisdiction has been permitted to sue without reappointment on the ground that he sued as trustee for the bene- ficiaries named in the statute. Boulden v. Pennsylvania R. Co., 205 Pa. 264, 54 Atl. 906 (1903) ; Connor v. New York, N. H. & H. R. Co. (R. I.) 68 Atl. 481 (1908). Contra: Southwestern R. Co. v. Paulk, 24 Ga. 356 (1858). As to whether an administrator may be appointed by the courts of the state in which the cause of action arose if the deceased left no other property in the state, see Jordan v. Chicago & N. AY. R. Co., 1 L. R. A. (N. S.) 885 (1905), and note. See, also, Cooper v. Gulf, C. & S. F. R. Co., 93 S. W. 201 (1906). Ch. 2) OBLIGATIONS. 491 POWELL V. GREAT NORTHERN R. CO. (Supreme Court of Minnesota, 3907. 102 Minn. 448, 113 N. W. 1017.) Start, C. J. Albert D. Powell, a brakeman employed by the de- fendant, a Minnesota corporation, was killed in the state of North Dakota, while acting as such, by the admitted negligence of other employes of the defendant, for which it is hable under the fellow servant statute of that state. This action was brought in the district court of the county of Ramsey, in this state, by the widow of the de- ceased, to recover damages for such negligence by virtue of a statute of North Dakota hereinafter referred to. She obtained a verdict for $11,000, and defendant appealed from an order denying its motion for a new trial. The statute of North Dakota (found in the Revised Codes) is in these words : "Sec. 5974. Whenever the death of a person shall be caused by a wrongful act, neglect or default and" the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who, or the corporation or company which, would have been liable if death had not ensued, shall be liable in an action for damages, notwithstanding the death of the person in- jured, and although the death shall have been caused under such circumstances as amount in law to felony. "Sec. 5975. In such actions the jury shall give such damages as they think proportionate to the injury resulting from the death to the persons entitled to the recovery. "Sec. 5976. The action shall be brought by the following persons in the order named : First. The surviving husband and wife. Second. The surviving children, if any. Third. The personal representative. "Sec. 5977. The amount recovered shall not be liable for the debts of the decedent, but shall inure to the exclusive benefit to his heirs at law, in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purpose of determining such shares the judge may after the trial make any investigation which he deems necessary." It is conceded that upon the death of plaintiff's husband a cause of action at once accrued to her in North Dakota by virtue of this statute, but it is contended that the statute is so dissimilar to our own on the same subject that her right of action ought not to be enforced in our courts. This is substantially the only question raised by the record. A right of action accruing to a party under a statute of an- other state will, as a matter of comity, be enforced in the courts of this state, when jurisdiction can be had and justice done between the parties, if such statute be not contrary to the pubHc policy of this state; that is, against good morals, or natural justice, or the interest 492 PAETicuLAE SUBJECTS. (Part 3 of this state or its citizens. Herrick v. Minneapolis & St. L,. Ry. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771; Midland Co. v. Broat, 50 Minn. 562, 52 N. W. 972, 17 L. R. A. 312; Nicholas v. Burlington, C. R. & N. Ry. Co., 78 Minn. 43, 80 N. W. 776 ; Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N. W. 620, 104 Am. St. Rep. 674; Stewart v. Baltimore & O. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537 ; Rick v. Saginaw Bay Towing Co., 132 Mich. 237, /93 N. W. 632, 102 Am. St. Rep. 422. The statute of another state is not contrary to the public policy of this state simply because it is materially unlike our own, nor is it so even if we have no statute on the same subject that it covers. In the Herrick Case a right of action, given by a statute of the state of Iowa to an employe of a railway com- pany against it for the recovery of damages for injuries sustained by him by reason of the negligence of a fellow servant, was enforced in the courts of this state, although at the time the law of this state was the common law, which denied a servant any relief from his master for the negligence of his fellow servant. Nor is it any reason for re- fusing to enforce a' right of action given by the statute of another state that it is given to a different person or party than it is by our own statute. This was expressly held in the Nicholas Case. The claims of the defendant must be tested by the rules we have stated. ( Its first claim is, in effect, that the provision of the statute of North j Dakota, which declares that the damages recovered shall inure to the exclusive benefit of the heirs at law of the deceased in such shares as the trial judge shall fix in the order for judgment, is so dissimilar Ito the provisions of our own statutes that the courts of this state can- inot give it effect, and therefore they will not entertain the action. jThis cause of action accrued upon the death of the deceased in North t>akota, and the right of the plaintiff to enforce it was then absolute. .The determination of the respective shares of the heirs by the trial /judge is a mere incident to the entry of judgment after the liability I of the defendant and the amount thereof have been determined by the verdict. Such determination after the trial in no manner affects or interests the defendant. The court can do full justice between the parties to the action, whether or not it fixes in the judgment the amount which shall inure to the benefit of each heir. In any event, the judgment must be entered in favor of the plaintiff and against the defendant for the amount of the verdict. When the defendant I /'pays to the plaintiff the amount of the judgment its liability is ab- solutely extinguished, and it has no more concern as to the preserva- tion or distribution of the fund than the defendant, in an action under our statute to recover by a father for injuries to his minor child, has in the determination by the court of the question whether the plaintiff I shall give security before the amount of the judgment is paid to him. Lathrop v. Schutte, 61 Minn. 196, 63 N. W. 493. It is quite obvious ithat the provisions of the statute of North Dakota as to the determina- tion of the respective shares of the heirs in the amount recovered is Ch. 2) OBLIGATIONS. 493 a mere incident to the entry of judgment, with which the courts of this state will comply, and that it is not contrary to good morals, or ^atural justice, or the interest of the state or its citizens. The defendant further claims that it is against the public policy of this state to allow the recovery of more than $5,000 damages, the limit in our statute, for the death of a person by the wrongful act or neglect of another. This question is settled adversely to the defend- ant by the Herrick Case, for in that case nothing whatever could have been recovered under the laws of this state, and yet the statute of Iowa, giving what our laws then wholly denied, was enforced. The greater includes the less. In the Negaubauer Case the time limit for bringing the action in the statute of Montana, although greater than that in our own statute, was given effect. We hold that the fact that the amount of the recovery in actions of this kind is limited by our statute, but not by the statute of North Dakota, affords no reason why the courts of this state should not enforce in its entirety the right of action given by the statute of North Dakota. The last contention of the defendant's counsel is that the trial court erred in refusing to permit him to discuss our own statute as to damages. The ruling was manifestly right, for the statute of the forum had nothing to do with the damages. Order affirmed.*^ SLATER v. MEXICAN NAT. R. CO. (Supreme Court of the United States, 1904. 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900.) Holmes, J.'^ This is an action brought in the United States cir- ciiit court for the northern district of Texas by citizens and residents of Texas against a Colorado corp oration operating a railroad from Texa"sToThe City of Mexic o. The plaintiffs are the widow and chil- dren of William^HT' Slater, who was employed by the defendant as" a switchman on its road, and was killed through the defendant's neg- ligence while coupli ng two freight car s at NueTO_L,aredo, in Mexico. This action is to recover damages for the death. The laws of Mexi- ' CO were set forth in the plaintiffs' petition, and the defendant demurred 81 The lex loci delicti will determine also the amount of damages. North- ern Pac. B. Co. V. Bahcock, 154 TJ. S. 190, 14 Sup. Ct. 9T8, 38 L. Ed. 958 (1894), semble. But see Wooden v. Western N. T. & P. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803 (1891). And the distribution of the moneys so recovered. In re Coe's Estate, 130 Iowa, 30Y, 106 N. W. 743, 4 L. B. A. (N. S.) 814, 114 Am. St. Rep. 416 (1906) ; Charlton v. St. Louis & S. F. B. Co., 200 Mo. 413, 98 S. W. 529 (1906). Compare In re Williams' Estate, 130 Iowa, 553, 107 N. W. 608 (1906). The lex domicilii of the tort-feasor, and not the lex loci delicti, has been held to govern the question whether the action will survive against his estate. Whitten v. Bennett (C. C.) 77 Fed. 271 (1896). 82A part of the opinion has been omitted. 494 PARTICULAR SUBJECTS. (Part 2 l] on the ground that the cause of action given by the Mexican laws was not transitory, for reasons sufficiently stated. The demurrer was overruled, and the defendant excepted. A similar objection was taken also by plea setting forth additional sections of the Mexican statutes. A demurrer to this plea was sustained, subject to exception. The same point was raised again at the trial by a request to direct a verdict for the defendant. The judge who tried the case instructed the jury that the damages to be recovered, if any, were to be measured by the money value of the life of the deceased to the widow and children, and the jury returned a verdict for a lump sum, apportioned to the several plaintiffs. The judge and jury in this regard acted as prescribed by the Texas Rev. Stat. art. 3027. The case then was taken to the circuit court of appeals, where the judgment was reversed and the action ordered to be dismissed. Mexican Nat. R. Co. v. Slater, 53 C. C. A. 339, 115 Fed. 593. There is no need to encumber the reports with all the statutes in the record. The main reliance of the plaintiffs is upon the following agreed translation from the Penal Code, bk. 2. "Civil Liability in Criminal Matters." "Art. 301. The civil liability arising from an act or omission contrary to a penal law consists in the obligation imposed on the party liable, to make (1) restitution, (2) reparation, (3) indem- nization, and (4) payment of judicial expenses." "Art. 304. Reparation comprehends: Payment of all damages caused to the injured party, his family, or a third person for the vio- lation of a right which is formal, existing, and not simply possible, if such damages are actual, and arise directly and immediately from the act or omission complained of, or there be a certainty that such act or omission must necessarily cause a proximate and inevitable consequence." Coupled with these are articles making railroad com- panies answerable for the negligence of their servants within the scope of the servants' employment. Penal Code, bk. 2, arts. 330, 331; regulations for the construction, maintenance, and operation of rail- roads, art. 184. We assume for the moment that it was sufficiently alleged and proved that the killing of Slater was a negligent crime within the definition of article 11 of the Penal Code, and, therefore, if the above sections were the only law bearing on the matter, that they created a civil liability to make reparation to any one whose rights were infringed. As Texas has statutes which give an action for wrongfully causing death, of course there is no general objection of policy to enforcing such a liability there, although it arose in another jurisdiction. Stew- art V. Baltimore & O. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. _ But when such a liability is enforced in a jurisdiction foreignja the place of the wrongful act, obviously that does not mean that the act in any degree is subject to the lex fori, wijth regard Jo^itEer its quality or its consequences. On the other hand, it equally ITttle "means that the law of the place of the act is operative outside its own Ch. 3) OBLIGATIONS. 495 territory. The theory of t he foreign suit^ is_that^although the act com- plained of was subject to no law having force in the forum, it gave rise ^""^^"obligatibn, an obligatio, which Jike other obligations, folio_W-5 TKe"person, and may be enforced wherever the person may be found. Stout V. Wood, 1 Blackf. (Ind.) 71; Dennick v. Central R. Co., 103 U. S. 11, 18, 36 L. Ed. 439, 443. But as the only source of this ob- ligation is the law of the place of the act, it follows that that law de- termines riot merely the existence of the obligation (Smith v. Condry, i'How. 28, 11 L. Ed. 35), but equally deter mines its, extent. It seems to us unjust to allow a plaintiff to c ome here_ absolutely depejad- in g on the foreign law for the foundation of his case, and yet to deny the defendantJie-benefit-ol whatever limitations on' his liability "that law would impose. In Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 199, 14 Sup. Ct. 978, 38 E. Ed. 958, 961, an action was brought in the district of Minnesota for a death caused in Montana, and it was held that the damages were to be assessed in accordance with the Mon- tana statute. Therefore we may lay on one side as quite inadmissible the notion that the law of the place of the act may be resorted To'so far as to show that the act w as a tort, and then may be abandoned, ■leaving the consequences t o be determined according to the accident of the place where the defe ndant "niav happerT to be caught. See further, Pullman Palace Car Co. v. Lawrence, 74 Miss. "752, 801, ■802, 22 South. 53 ; Morris v. Chicago, R. I. & P. R. Co., 65 Iowa, 727, 731, 23 N. W. 143, 54 Am. Rep. 39 ; Mexican Nat. Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28 ; Bruce's Adm'r v. Cincinnati R. Co., 83 Ky. 174, 181 ; Holmes v. Barclay, 4 Ea. Ann. 64; Atwood v. Walker, 179 Mass. 514, 519, 61 N. E. 58; Minor, Confl. E. 493, § 200. We are aware that expressions of a different tendency may be found in some English cases. But they do not cover the que:':ion before this court, and our opinion is based upon the ex- press adjudication of this court, and, as it seems to us, upon the only theory by which actions fairly can be allowed to be maintained for foreign torts. As the cause of action relied upon is one which is sup- posed to have arisen in Mexico, under Mexican laws, the place of the death and the domicile of the parties have no bearing upon the case. The application of these considerations now is to be shown. The ■ general__grGund_JDnovhich_the plaintiffs bring their suit is, as we have~stat£dt..that _th6re is a civil liability imposed on the railroad com- pany arising from an act contrary to the_jgenaljaw, — a negligent crime, as it is called.. is _ the Code. But the Code contains specific provision's for the case of homicide. These necessarily override the merely gen- eral rule for torts which also are crimes. Mutual Eife Ins. Co. v. Hill, 193 U. S. 551, 24 Sup. Ct. 538, 48 E. Ed. 788. B^ article 311 the right is personaEto the parties .mentioned in art. 318, jnd is no part of the estate of the deceased. The specific cause of action is the kill- ing of the deceased. So far- as appears, apart from that and the follow- ing articles, these plaintiffs would have no right of action for the 496 PARTICULAR SUBJECTS. (Part 2 cause alleged. For article 304 seems to presuppose a right in the fam- ily, not to create one, and we cannot assume a general right of the mem- bers of a family to sud for causing death. B^article 318 civil responsi- bility for a wrongful homicide includes, besides the expenses of medical attendance and burial and damages to the property of the deceased, the expenses "of the support not only of the widow, descendants and ascendants of the deceased, who were being supported by him^ he being^ 'under legal obligations to do so, but also to the posthumous descend- ants that he may leave." Then, by article 319, the obligation to s up- " port shall last during the time that the deceased might have lived, cal- "culated by a given life table, but taking the state of" his healtFTefore" the homicide into consideration ; but "the obligation shall cease : 1. At whatever time it shall not be absolutely necessary for the subsistence of those entitled to receive it. 2. When those, beneficiaries get married. 3. When the minor children become of age. 4. In any other case in which, according to law, the deceased, if alive, would not be required to continue the support." It is unnecessary to set forth the detailed rovisions as to support in other parts of the statutes. It is sufficiently bvious _from__^ what has been quoted that the decree contemplated by " |he Mexican law is a decree analogous to a decree, .for. alimony in di- . vorce proceedings, — a_decree which contemplates periodical payments, and which is subject to modification from time to time, as^ the circum- stances change. See also, arts. 1376, 1377, of the Code of Procedure, and Penal Code, bk. 2, art. 363. The j)resent action is a suit at common law, and the court has no /power to make a decree of this kind contemplated by the Mexican (' statutes. What the circuit court did was to disreg ard the princi ples r of the Mexican statute altogether and to follow thp ; T'^"*'^"'' statnt p V.This clearly was wrong, and was excepted to specifically. But we are pf opinion further that justice to the defendant would not periiiiFthe I substitution of a lump sum, however estimated, for the periqSicaTpay- ments which the Mexican statute required. The marriage of bene- ficiaries, the cessation of the absolute necessity for the payments, the arising of other circumstances in which, according to law, the de- ceased would not have been required to continue the support, all are contingencies the chance of which cannot be estimated by any table of probabilities. It would be going far to give a lump sum in place -of an annuity for life, the probable value of which could be fixed by averages based on statistics. But to reduce Uability conditioned as this was to a lump sum would be to leave the whole matter to a mere guess. We may add that by art. 235, concerning alimony, the right cannot be renounced, nor can it be subject to compromise between the parties. There seems to be no possibility in Mexico of capitalizing the liability. Evidently the Texas courts would deem the dissimilari- ties between the local law and that of Mexico too great to permit an action in the, Texas state courts. Mexican Nat. Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28; Ch. 2) OBLIGATIONS. 497 St. Louis, I. M. & S. R. Co. V. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804. The case is not one demanding extreme measures, like those where a tort is committed in an uncivilized country. The defendant always can ,be_ found in Mexico, on the other side of the river, and it is to be presumed that the courts there are open to the plaintiffs, if the statute conferred a right upon them notwithstanding their absence from the jurisdiction, as we assume that it did, for the "pcffposes of this part of the case. See Mulhall v. Fallon, 176 Mass. ■366, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309.''' * * * -^^ (h^ SOUTHERN PAC. CO. v. DUSAbLON. (Court of Civil Appeals of Texas, 1908. 106 S. W. 766.) Neill, J.^* This suit was brought by the appellee against appel- lant to recover damages for personal injuries alleged to have been in- flicted by the negligence of the company on the 36th of April, 1906, a j Lordsburg, J sl. M. In our view of the case it is unnecessary to state the grounds of negligence averred, nor the specific injuries sus- tained. The appellant answered by a plea of privilege, claiming the right to be sued in Harris county, Tex. Also by special demurrer, raising the question of jurisdiction, which being overruled, it filed a special plea to the jurisdiction of the court, predicating such plea upon the statute set out in our conclusions of law, and upon the fact that appellee was a resident citizen of New Mexico at the time of his alleged injuries and when this suit was brought. This plea be- ing overruled, appellant pleaded certain defenses in bar, which, in view of the disposition we shall make of the case, are not necessary to further mention. The trial of the case resulted in a verdict and judgment for the appellee. * * * It is a general rule that for the purpose of redress it is immaterial where a wrong was committed; in other words, a wrong being per- sonal, redress may be sought for it whenever the wrongdoer may be found. To this there are a few exceptions, in which actions are said to be local, and must therefore be brought within the country where they arose. As applied to torts, these exceptions may be said to con- sist of: (1) Those where the lex loci delicti is in direct contraven- tion of the law or policy of the forum; (3) where the remedy pre- scribed for the tort by the lex loci delicti is penal in its character; 83 Fuller, C. J., with whom concurred Harlan and Peckham, JJ., dissent- ed. In his dissenting opinion the learned Chief Justice said : "It seems to me that the method of arriving at and distributing the damages pertains to the procedure or remedy — that is to say, to the course of the court after parties i are brpuglit in, and the means of redressing the vyrong — and I think the gen- eral rule that procedure and remedy are regulated by the law of the forum is applicable." Page 132. See 4 Col. Law Rev. 503. s*A part of the opinion has been omitted. LoB.CoNF.L.— 32 498 PARTICULAR SUBJECTS. (Part 2 /and (3) statutory torts, where the statute, in creating the liability, at [the same time, creates a mode of redress pecuUar to that state, by which alone the wrong is to be remedied. To these exceptions, how- ever, there are certain limitations and qualifications not necessary to mention here. It is obvious that the second exception has no applica- tion to this case. But it was earnestly contended by counsel for appel- lant in brief and oral argument that the first has; and among other cases they cite Mexican Nat. Ry. Co. v. Jackson, 89 Tex. 113, 33 S. W. 857, 31 L. R. A. 376, 59 Am. St. Rep. 38, in support of the con- tention. * * * The Jackson Case was decided upon the ground that the remedy given by the law of Mexico for such an injury is so essentially differ- ent from that given by our law that it cannot be enforced by the courts of Texas. Something is said, arguendo, in the opinion as to public policy of Mexico, a matter about which the courts of this state are not concerned, and is never considered in determining the public policy of the forum. It is the public policy of its own country that a court must look to and be governed by in deciding whether it will entertain jurisdiction of a cause of action arising elsewhere, and not to the policy of a foreign country, about which they know and care nothing. In view of what has always been the pronunciation of our courts on cases of this character, we do not think it was the intention of the Supreme Court to hold that jurisdiction should be denied be- cause they would be "charge upon our people" in making settlement of rights originating outside the state, under the laws of a different government. See Mexican Cent. Ry. Co. v. Mitten, 13 Tex. Civ. ' App. 653, 36 S. W. 382. But, however this may be, the territory of New Mexico does not occupy the attitude towards Texas of strictly a foreign country. Among the privileges guaranteed by article 4, § 3, of the Constitution of the United States to the citizens of each state, is the right to institute and maintain actions of every kind that is accorded its own citizens. Corfield v. Coryell, 4 Wash. C. C. 380, Fed. Cas. No. 3,230. Under the third section of article 4 of the Con- stitution it has been held that a "citizen of a sister state may sue a I defendant resident of his home state in any state where he can get i service on him, even though the cause of action arose in his home j state, provided it be transitory." Eingartner v. Illinois Steel Co., 94 ■ Wis. 70, 68 N. W. 66+, 34 L. R. A. 503, 59 Am. St. Rep. 859 ; Cofrode V. Gartner, 79 Mich. 333, 44 N. W. 633, 7 L. R. A. 511. While it may be that this privilege is not extended to citizens of territories, and may be claimed only by citizens of sister states, yet a territory like New Mexico, waiting to be panoplied with statehood, is a child of the federal government to whom comity, at least, should, in its infancy, be extended by one of the United States. We therefore conclude that this case does not fall within the first exception stated to the general rule that, for the purpose of redress, it is immaterial where the wrong is committed. Ch. 2) OBLIGATIONS. 499 Does it fall within the third exception? This question depends upon (1) whether plaintifif's action is founded upon a statutory tort, and (2), if it is, whether the statute, in creating the liability, at the same time creates a mode of redress peculiar to the territory of New Mexico. The act of the Legislature (Laws 1903, p. 51, c. 33) upon which the appellant bases its contention that this action is for purely a statutory tort is as follows : "Whereas it has become customary for persons claiming damages for personal injuries received in this territory to institute and main- tain suits for the recovery thereof in other states and territories, to the increased cost and annoyance and manifest injury and oppression of the business interests of this territory, and in derogation of the dignity of the courts thereof ; therefore be it enacted by the Legislative Assembly of the territory of New Mexico : "Section 1. Hereafter there shall be no civil liability under either the common law or any statute of this territory on the part of any person or corporation for any personal injuries inflicted, or death caused by such person or corporation in this territory, unless the person claiming damages therefor, shall, within ninety days after such in- jury shall have been inflicted, make and serve upon the person or corporation against whom the same is claimed and at least thirty days before commencing suit to recover judgment therefor, an affi- davit which shall be made before some officer within this territory who is authorized to administer oaths, in which the affiant shall state his name and address, the name of the person receiving such injuries, in so far as the same may be known to affiant, the way or manner in which said injuries were caused in so far as the affiant has any knowl- edge thereof, and the names and addresses of all witnesses to the hap- pening of the facts or any part thereof causing such injuries as may at such times be known to affiant, and unless the person so claiming such damages shall also commence an action to recover the ^same within one year after such injuries occur in the district court of this terri- tory in and for the county in which such injuries occur, or in and for the county of this territory where the claimant or person against whom such claim is asserted resides, or in event such claim is asserted against a corporation, in the county in this territory where such cor- poration has its principal place of business ; and said suit after hav- ing been commenced shall not be dismissed by plaintiff unless by written consent of defendant filed in the case or for good cause shown to the court; it being hereby expressly provided and understood that such right of action is given only on the understanding that the fore- going conditions precedent are made a part of the law under which right to recover can exist for such injuries except as herein otherwise provided." "Sec. 3. It shall be unlawful fot any person to institute, carry on or maintain any suit for the recovery of any such damages in any other state or territory." 500 PARTICULAR SUBJECTS. (Part 2 It clearly appears from this act that the Legislature intended to make any right of action against any person or corporation for personal injuries or death inflicted in New Mexico depend upon the person claiming damages bringing and prosecuting his suit therefor in a dis- trict court of the territory, after performing certain acts made con- ditions precedent to his cause of action. In other words, its obvious purpose was to relieve the perpetrator of the wrong from any civil liability therefor, unless the party damaged, after complying with cer- tain conditions prescribed, instituted his suit within one year after the injuries occurred in the district court of the territory where they were inflicted, or in the county where both parties reside, or, if against a corporation, in the county of the territory where such corporation has its principal place of business. It will, however, be observed that the statute does not create or originate the cause of action, but seems to recognize the fact that civil liability theretofore existed at common law, as well as by statute, for personal injuries inflicted or death caused by persons or corporations in New Mexico. This differentiates this case from Ross v. Kansas City S. Ry. Co., 34 Tex. Civ. App. 586, 79 S. W. 626, and others which hold that, where a cause of action is created by and has its origin in a statute which imposes conditions or limitations upon the right as prerequisites to its exercise, this is a right of action existing at common law, which has not, as in the case of Coyne v. Southern Pacific Co. (C. C.) 155 Fed. 683, been wholly superseded by the statute, upon which conditions are sought to be imposed by statute limiting its enforcement. As was said by this court in Atchison, T. & S. F. Ry. Co. v. Sowers (Tex. Civ. App.) 99 S. W. 190, a case where the same statute was considered, and precisely like this one, except the plaintiff was a citizen of the territory of Arizona : "The section of the law under consideration * * * attempts not only to prohibit its citizens, but all parties, who are so unfortunate as to be injured within its territorial limits, from exercising the right, accorded in England, the states of the American Union, and other civilized countries, of instituting such actions, wherever the guilty party may have his or its domicile." The judgment in favor of plain- tiff in that case was affirmed, and an application by the defendant for a writ of error was denied by the Supreme Court. This is, in so far as it can be decided by the courts of state, a judicial determination that this action is not a statutory one, in the sense that it can only be prose- cuted and maintained in the state where the injury was inflicted, un- less the injured party be a citizen of that state. But, inasmuch as the plaintiff in this case was at the time his cause of action accrued, and when this suit was brought, a resident citizen of the territory of New Mexico, the further question is presented: Can this action, in view of the statute under consideration, be maintained by him in any jurisdiction except that territory? It cannot be said that a citizen is not to be governed and bound by the laws of his own country; nor can he, in disregard of such laws, go into the courts of another coun- Ch. 2) OBLIGATIONS. 501 try and ask them as a matter of comity to redress wrongs which the laws of his domicile require him to seek redress in the courts of his own country. The very principle upon which comity between foreign or sister states is based repels the idea that he has even the shadow of a claim to any such right. As we said in the Sowers Case : "The right of injured parties to recover damages from the negligent in- flictor of the injuries is recognized in New Mexico, although the recognition carries with it burdensome and vexatious conditions, of which, however, if its citizenship is willing to endure them, no one is in a position to complain." The honor one enjoys in being a resident of a territory whose L,egislature has such an exalted idea of the "dig- nity" of its courts, and tender consideration for its "business inter- ests," manifested by the statute in question, must be taken cum onere. We therefore conclude that the district court was without jurisdic- tion of this case, and that it erred in not sustaining defendant's ex- ception and plea to its jurisdiction. If we are correct in this conclusion, the other assignments of error should not be considered. If, however, the Supreme Court should diflfer from us upon the jurisdictional question, we will then cheer- fully perform the duty of considering all other questions raised by the assignments. For reason of the errors indicated, the judgment of the district court is reversed, and the suit dismissed, without prejudice of plain- tiff's right, if any he has, to institute and prosecute his action in any jurisdiction outside the state of Texas. Reversed and dismissed.*" 85 In Illinois it is provided by statute (Laws of 1903, p. 217) that no action shaU be brought or prosecuted to recover damages for death occurring outside the state. The statute prohibits the bringing of an action in Illinois only / where the act by which the death was caused occurred in another state. ^ Crane v. Chicago & W. I. R. Co., 233 111. 259, 84 N. E. 222 (1908). And in Ohio the Supreme Court of the state reached the following conclusion: "From a consideration of the statutes hereinbefore referred to and the former decisions of this court, we think it must now be held to be the recognized policy and established law of this state that an action for wrongful death occurring in another state will not be enforced in the courts of this state, except where the person killed was, at the time of his death, a citizen of Ohio." Baltimore & O. R. Co. V. Chambers, 73 Ohio St. 16, 76 N. B. 91, 11 L. R. A. (N. S.) 1012 (1905) ; affirmed Chambers v. Baltimore & O. R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 L. Ed. 143 (1907). An action of trespass to realty is local, and cannot be maintained in any other jurisdiction. Doulson v. Matthews, 4 T. R. 503 (1792) ; British South Africa Co. v. Companhia de Mocambique, App. Cas. 602 (1893) ; Ellenwood v. Marietta Chair Co., 158 tl. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 918 (1895). Con- tra: Little V. Chicago, St. P., M. & O. R. Co., 65 Minn. 48, 67 N. W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421 (1896). See, in general, 22 Am. St. Rep. 22- 27. With respect to the infringement of foreign patents, see 19 Harv. L. Rev. 295 ; with respect to the infringement of foreign trade-marks, 21 Harv. L. Rev. 361 ; and as to foreign patents, copyrights, and trade-marks in general, V. Bar, Priv. Int. Law, 737-791; Meili, Int. Civ. & Com. Law, 450-453; Weiss, Traite de droit international privfi, vol. 4, pp. 451-501. Continental Law. — On principle, the lex loci governs. France, Cass. May 502 PAETICULAR SUBJECTS. (Part 2 THE SCOTLAND. (Supreme Court of the United States, 1881. 105 U. S. 24, 26 L. Ed. 1001.) Appeals from the circuit court of the United States for the Eastern district of New York. Bradley, J.*° The steamship "Scotland," belonging to the National Steam Navigation Company, a corporation of Great Britain, sailed from New York for Liverpool, on the 1st of December, 1866, with freight and passengers ; and after reaching the high sea, opp>osite Fire Island light, ran into the American ship "Kate Dyer," bound from Callao, in the republic of Peru, to New York, laden with a cargo of guano. The "Kate Dyer" immediately sank, and ship and cargo were totally lost. The steamship suffered so severely from the collision that she put back, but was unable to get further than the middle ground outside and south of Sandy Hook, where she also sank and became a total loss, with the exception of some stripping of ship's material, consisting of anchors, chains, rigging, and cabin furniture got from her by the Coast Wrecking Company before she went down. Libels in personam Were filed in the district court for the Eastern district of New York, against the steam navigation company by the owners of the "Kate Dyer," the Peruvian government, owner of her cargo, and by a passenger and some of the crew who lost certain effects by the sinking of the ship. Personal service of process not being ob- tainable, the marshal attached another vessel belonging to the steam- ship company, lying in the port of New York, which was duly claimed and released on stipulation, and the steamship company appeared and responded to the libel. The answer admitted the collision, but denied that the "Scotland" was in fault, and further alleged as follows : "Re- spondents further answering say, that said steamer 'Scotland' was by said collision sunk and destroyed, and that there is no liability in personam- against these respondents for said loss of the 'Kate Dyer.' " Proofs being taken, the district court rendered a decree in favor of the libellants, which, on appeal to the circuit court, was substantially affirmed. The owners of the "Kate Dyer" were awarded $56,000, with interest; the owners of the cargo, $57,375, with interest; and the passengers and crew, upwards of $11,000, with interest. 16, 1888 (S. 1891, 1, r,09) ; App. Paris, June 23, 1899 (28 Clunet, 128). Germany, R. G. March 12, 1906 (Juristiche Wochenschrift, 1906, p. 297). So as to liability of principal for the torts of his agent, 19 R. G. 382 ( Sept. 23, 1887) ; R. G. July 1, 1896 (6 Niemeyer, 514). It will not be applied where it would conflict with the rules concerning public order. France, Cass. May 29, 1894 (S. 1894, 1, 481), and note by Ch. Lyon-Caen. Germany, 29 R. G. 90 (June 25 and July 9, 1882). And according to article 12, Law Intr., no greater claim for a foreign wrongful act can be asserted in a German court against a Ger- man than is authorized by German law. See P. Fiore, De la loi qui d'aprgs les prlncipes du droit International doit rfgir les engagements qui se torment sans convention. 27 Clunet. 449-^60, 717-734. 8 "A part of the opinion has been omitted. Ch. 2) OBLIGATIONS. 503 On the trial in the circuit court, the respondents, besides contesting the question of fault and general liability, again insisted upon the benefit of the limited liability law, and proposed for adoption by the court a certain finding of fact and conclusion of law looking to that end. The finding of fact was substantially adopted by the court as follows : "The steamer was, by reason of the said collision and in con- sequence thereof so injured that, although at once put about, she could only reach the 'outer middle,' so called, on the west side of the channel south of Sandy Hook, where she sank and became a total loss, except that a large amount of anchors, chains, rigging, and cabin furniture, of the value of several thousand dollars, was saved from her and delivered to the agent of the respondents. She earned no freight, the voyage being broken up. The passage-money paid in advance by the passengers was $1,703.65 ; of this $225 was refunded to such of them as could not wait to be transported by the respondents in another vessel of their line; the remaining passengers were forwarded by the 'Queen,' and the expense charged to the 'Scotland.' Irrespec- tive of the carriage of the passengers by the 'Queen,' the respondents paid return money as above, $225, and the expenses of bringing the passengers to New York, and taking care of them before they were reshipped, $566.83,, in all, $791.83; the balance of the passage-money, $911.82, was credited to the 'Queen,' and charged to the 'Scotland.' " The conclusion of law proposed and insisted on by the respondents as legitimately arising upon this fact was as follows, to wit: "The liability of the respondents, as owners of the said steamship 'Scot- land,' did not e;xtend beyond the value of their interest in the vessel and her pending freight at the time of the collision; and the vessel having been lost by the collision, and no freight or passage-money earned, the respondents are thereby discharged from any liability on account thereof." The circuit court, as before stated, refused any relief grounded on the limited liability law, but made a decree against the respond- ents for the total amount of damages sustained by the various parties in interest. To this conclusion the respondents excepted. Both parties appealed from the decree, and the case is now before us for review. The appeal of the libellants was based on what they supposed to be an erroneous conclusion of the court in reference to the allowance of interest, and the estimation of the value of the cargo. The principal question raised and argued on this appeal is, whether the steamship company is entitled to the benefit of a limited respon- sibility equal to the value of the steamship and freight after the col- lision occurred, — a liability which, in this case, as the vessel and freight were a total loss, would only amount to the value of th^ articles saved by the wrecking company. It is contended by the company that it is entitled to the benefit of such limitation, either -under the general maritime law or under the act of congress of Ma;rch 3, 1851, c. 43. On the other side, it is contended that the general maritime law on this 504 rAETicuLAR SUBJECTS. (Part 2 subject (if there be any) is not in force in this country, and that the benefit of the act of congress cannot be claimed by foreign vessels. It is further contended by the libellants that the steamship company, even if it might have had the benefit of the rule, failed to take the proper steps for obtaining it, — first, in not filing a petition according to the rules of this court; and, secondly, in not surrendering the prop- erty recovered from the wreck, or its proceeds. In the case of Norwich & N. Y. Transp. Co. v. Wright, 13 Wall. 104, 30 L. Ed. 585, we had occasion to state that the general maritime law of Europe only charges innocent owners to the extent of their interest in the ship for the acts of the master and crew, and that if the ship is lost their liability is at an end. This rule is laid down in several places in the ancient code called the Consolato del Mare, and in many other authorities which are quoted and commented upon by Judge Ware in the case of The Rebecca, 1 Ware, 187, Fed. Cas. No. 11,619 ; and it is specifically formulated in various national ordinances and codes, amongst others, in the Marine Ordinance of Louis XIV., adopted in 1681. Emerigon, in his treatise of Contracts "a. la Crosse," says : "The owners of the ship are bound in solidum by everything which the captain does in the course of the voyage for the promo- tion of the voyage. * * * But this action in solidum does not exist against the owners farther than according to the interest which they have in the body of the ship; hence, if the ship perish, or if they abandon their interest, they are no longer liable for anything. It is thus that the maritime laws of the Middle Age have directed ; such is the law which is observed in the North; and such is the regulation of our own ordinance :" and he refers to the Consolato and other authorities. The text of the French ordinance, which is regarded as merely formulating the old customary law, is as follows : "The owners of ships are responsible for the acts of the master, but they become discharged therefrom by abandoning the ship and freight." But whilst this is the rule of the general maritime law of Europe, it was not received as law in England nor in this country until made so by statute. The English statutes, indeed, have not yet adopted, to its full extent, the maritime law on this subject. They make the own- ers responsible to the value of ship and freight at the time of the in- jiiry (that is, immediately before the injury), although the ship be destroyed, or injured by the same act, or afterwards in the same voy- age; whilst our law adopts the maritime rule of graduating the lia- bility by the value of the ship after the injury, as she comes back into port, and the freight actually earned ; and enables the owners to avoid all responsibility by giving up ship and freight, if still in existence, in whatever condition the ship may be; and, without such surrender, subjects them only to a responsibility equivalent to the value of the ship and freight as rescued from the disaster. But, whilst the rule adopted by congress is the same as the rule of the general maritime law, its efficacy as a rule depends upon the Ch. 2) OBLIGATIONS. 505 statute, and not upon any inherent force of the maritime law. As explained in The Lottawanna, 31 Wall. 558, 32 L. Ed. 654, the mari- time law is only so far operative as law in any country as it is adopted by the laws and usages of that country; and this particular rule of the maritime law had never been adopted in this country until it was enacted by statute. Therefore, whilst it is now a part of our mari- time law, it is, nevertheless, statute law, and must be interpreted and administered as such. Then, does it govern the present case? In administering justice between parties it is essential to know by what law, or code, or system of laws, their mutual rights are to be determined. When they arise in a particular country or state, they are generally to be determined by the laws of that state. Those laws per- vade all transactions which take place where they prevail, and give them their color and legal effect. Hence, if a collision should occur in British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice accord- ing to the British law, so far as the rights and liabilities of the parties were concerned, provided it were shown what that law was. If not shown, we would apply our own law to the case. In the French or Dutch tribunals they would do the same. But, if a collision occurs on the high seas, where the law of no particular state has exclusive force, but all are equal, any forum called upon to settle the rights of the parties would prima facie determine them by its own law as pre- sumptively expressing the rules of justice; but if the contesting ves- sels belonged to the same foreign nation, the court would assume that they were subject to the law of their nation carried under their com- mon flag, and would determine the controversy accordingly. If they belonged to different nations, having different laws, since it would be unjust to apply the laws of either to the exclusion of the other, the law of the forum, that is, the maritime law as received and practised therein, would properly furnish the rule of decision. In all other cases, each nation will also administer justice according to its own laws. And it will do this without respect of persons, to the stranger as well as to the citizen. If it be the legislative will that any particular privi- lege should be enjoyed by its own citizens alone, express provision will be made to that effect. Some laws, it is true, are necessarily spe- cial in their application to domestic ships, such as those relating to the forms of ownership, charter-party, and nationality; others fol- low the vessel wherever she goes, as the law of the flag, such as those which regulate the mutual relations of master and crew, and the power of the master to bind the ship or her owners. But the great mass of the laws are, or are intended to be, expressive of the rules of justice and right applicable alike to all. The act of congress creating a limited responsibility of ship-owners in certain cases, first passed March 3, 1851, and reproduced in sec- tions 4283^289 of the Revised Statutes, is general in its terms, ex- tending to all owners of vessels without distinction or discrimination. 506 PARTICULAR SUBJECTS. (Part 2 It declares that "the liability of the owner of any vessel for any em- bezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending." This statute declares the rule which the law-making power of this country regards as most just to be applied in maritime cases. The great carrying trade by l^d is governed by substantially the same principle; being in the hands of corporate as- sociations, whose members are not personally liable for acts of the em- ployes, but risk only the amount of their capital stock in the corpora- tion. The doctrine of respondeat superior, it is true, applies to the corporations themselves ; but that does not interfere with the per- sonal immunity of the shareholders. Whenever the public interest requires the employment of a great aggregation of capital, exposed to immense risk, some limitation of responsibility is necessary in order that men may be induced to contribute to the enterprise. As Grotius says, in reference to this very matter of ship-owners : "Men would be deterred from owning and operating ships, if they were subject to the fear of an indefinite liability for the acts of the master." De Jure B. lib. 2, c. 11, § 13. But it is enough to say, that the rule of limited responsibility is now our maritime rule. It is the rule by which, through the act of congress, we have announced that we propose to administer justice in maritime cases. We see no reason, in the absence of any different law governing the case, why it should not be applied to foreign ships as well as to our own, whenever the parties choose to resort to our courts for redress. Of course the rule must be applied, if applied at all, as well when it operates against foreign ships as when it operates in their favor. English cases have been cited to show that the courts of that coun- try hold that their statutes prior to 1862, which in generality of terms were similar to our own, did not apply to foreign ships. See The Nos- tra Signora de los Dolores, 1 Dod. 290; The Carl Johan, cited in The Dundee, 1 Hagg. Adm. 109, 113 ; The Girolamo, 3 Hagg. Adm. 169, 186 ; The Zollverein, 1 Swab. 96 ; Cope v. Doherty, 4 Kay & J. 367, 2 De Gex & J. 614; General Iron Screw Collier Co. v. Schur- manns, 1 Johns. & H. 180 ; The Wild Ranger, 1 Lush. 553. We have examined these cases. So far as they stand on general grounds of argument, the most important consideration seems to be this, that the British legislature cannot be supposed to have intended to prescribe regulations to bind the subjects of foreign states, or to make for them a law of the high sea ; and that if it had so intended, it could not have done it. This is very true. No nation has any such right. Each na- tion, however, may declare what it will accept and, by its courts, en- Ch. 2) OBLIGATIONS. 507 force as the law of the sea, when parties choose to resort to its forum for redress. And no person subject to its jurisdiction, or seeking jus- tice in its courts, can complain of the determination of their rights Dy that law, unless they can propound some 'other law by which they ought to be judged; and this they cannot do except -where both par- ties belong to the same foreign nation ; in which case, it is true, they may well claim to have their controversy settled by their own law. Perhaps a like claim might be made where the parties belong to dif- ferent nations having the same system of law But where they belong to the country in whose forum the litigation is instituted, or to differ- ent countries having different systems of law, the court will administer the maritime law as accepted and used by its own sovereignty. The English courts say that, as foreigners are not subject to their law, nor entitled to its benefits, they will resort to the general law of general liability when foreigners are litigants before them. Where do they find such general law? In the law of nature? or the civil or common law? Is not the maritime law, as their own legislature or na- tional authority has adopted it, as imperative as either of these? Does it not, in the British judicial conscience, stand for the law of nature, or general justice? As for the civil and common laws, they are only municipal laws where they have the force of laws at all. The better grounds for the English decisions seem'to be the peculiar terms of the acts of parliament on the subject, and the supposed policy of those acts, as being intended for the encouragement of the British marine. From these considerations, as grounds of construction, the conclusion may have been properly deduced that the law was intended to be con- fined to British ships. The question, it is true, has ceased to be of practical importance in England, since the act of ,1863 (25 & 26 Vict, c. 63), by which the owners of any ship, British or foreign, are not to be answerable, without their actual fault or privity, for any loss or damage to person or property, to an amount exceeding £15 per ton of the ship's registered tonnage, or its equivalent in case of foreign ships. But the former English decisions are thought to have a bear- ing on our law, because the acts of parliament to which they related, in their principal clauses, were conceived in the same broad and gen- eral terms as our act of congress. Some of the clauses of the British acts, however, relating to registered tonnage and other particulars, admitted only a special application to British ships ; and perhaps these clauses did require a restricted construction of the whole acts to such ships. But there is no demand for such a narrow construction of our stat- ute, at least of that part of it which prescribes the general rule of limited responsibility of ship-owners. And public policy, in our view, requires that the rules of the maritime law as accepted by the United States should apply to all alike, as far as it can properly be done. If there are any specific provisions of our law which cannot be apjilied to foreigners, or foreign ships, they are not such as interfere with 508 PARTICULAR SUBJECTS. (Part 2 the operation of the general rule of limited responsibility. That rule, and the mode of enforcing it, are equally applicable to all. They are not restricted by the terms of the statute to any nationality or domi- cile. We think they should not be restricted by construction. Our opinion, therefore, is that in this case the National Steamship Com- pany was entitled to the benefit of the law of limited responsibil- \f-y 8 7 -js sp ^ sTAccord: The Leon, 6 P. D. 148 (1881). In regard to collisions upon the high seas, see, in general, G. Phillip Ward- ner. The Enforcement of a Right of Action Acquired under Foreign Law for Death upon the High Sea, 21 Harv. L. Rev. 1-23, 75-91. A ship will not be open to blame for following the sailing regulations and rules of navigation prescribed by its own government for its direction on the high seas. The Scotia, 14 Wall. 170, 20 L. Ed. 822 (1871). Damages in admiralty for death of a human being on the high seas, caused by negligence, are not recoverable in the absence of an act of Congress. The Harrisburg, 119 TJ. S. 199, 7 Sup. Ct. 140, 30 L. Ed 358 (1886). But where the law of the state to which a vessel belongs, i. e., the law of the flag, gives such right of action, it \Yill be enforced in an admiralty court of the United States. The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264 (1907); La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973 (1908). The law of the owner's state and not that of the state where the ship is registered has been applied to a tort committed on a ship upon the high seas. International Nav. Co. v. Lindstrom, 123 Fed. 475, 60 C. C. A. 649 (1903). In favor of the general maritime law, see Elder Dempster Shipping Co. v Poup- pirt, 125 Fed. 732, 60 C. C. A. 500 (1903). Collisions occurring within the territorial waters of a nation and torts com- mitted upon a vessel within such territorial waters have been held to be gov- erned by the law of the state within whose waters they occurred. Smith v. Condry, 1 How. 28, 11 L. Ed. 35 (184.3) ; Geoghegan v. Atlas S. S. Co., 22 N T. Supp. 749, 3 Misc. Rep. 224 (1893). See, also, Charles N. Gregory, .lurisdiction over Foreign Ships in Territorial Waters, 2 Mich. Law Rev. 333-357. Salvage is determined by the maritime law as generally adopted by mari- time nations. Anderson v. The Edam (D. C.) 13 Fed. 135 (1882). General average is adiusted in accordance with the law of the port of discharge. Simonds v. White, 2 B. c& Ch. 805 (1824) ; The Energia (D. C.) 61 Fed. 222 (1894). Accord: France, App. Rouen, March 20, 1878 (5 Clunet, 599). Germany, 8 R. O. H. G. 289 (Dec. 23, 1872). Compare: O. L. G. Ham- burg, Jan. 30, 1893 (4 Niemeyer, 353). But if the voyage is not completed, the law of the place where it was broken up may become applicable. The Eliza" Lines (C. C.) 102 Fed. 184 (1900), affirmed 114 Fed. 307, 52 C. C. A. 195 (1902) ; National Board of Marine Underwriters v. Melchers (D. C.) 45 Fed. 643 (1891). Continental Law. — It is said that collisions In the territorial waters of a nation are governed by the local law. France, .\pp. Caen. June 23, 1897 n?, Autran. 282); Cass. July 18, 1895 (S. 1895, 1, 305) Cass. Feb. 15, 1905 (S. 1905, 1, 209). Germany, R. G. May 30, 1888 (44 Seuffert's Archiv. 133) ; R. G. Dec. 11, 1901 (12 Niemeyer, 121). But in each of the above cases the collision occurred within the territorial waters of the country where the suit was brought. German law has been held applicable to a collision between Ger- man vessels in foreign waters. Supreme Hans. Ct., Nov. 12, 1906 (22 Autran, (KJG). In Italy the liability of the owner of a vessel for the wrongful acts of the captain has been determined with reference to the law of the place where the mandate was given. Trib. Civ. Naples, June 5, 1899 (15 Autran, 524). If the collision occurred upon the high seas, French courts will apply the national law of the offending vessel. Cass. Nov. 4, 1891 (S. 1892, 1, 69) ; App. Rennes, Dec. 21, 1887 (S. 1888, 2, 25) and note by Ch. Lyon-Caen ; Trib. Com. Marseilles, Dec. 21, 1900 (16 Autran, 809). So Italy, Cass. Turin, April 17, 1903 (19 Autran, 478) ; App. Genoa, Dec. 10, 1894 (S. 1896, 4, 9) and note ; but in App. Genoa, March 24, 1902 (17 Autran, 645), the national law of the vessel Ch. 2) OBLIGATIONS. 509 collided with was held to goveru. The German courts apply the law of the forum (R. G. Nov. 10, 1900 [12 Niemeyer, 457] ; R. G. Oct. 22, 1902 [31 CUmet, 406]), unless both vessels belong to the same country or are subject to the same law, in which event such law will govern (49 R. G. 182 [Nov. 18, 1901]). See, also, Louis Francis, De I'abordage en droit international, 22 Clunet, 952- 981; P. Turgon, De la competence des tribunaux frangais en cas d'abordage entre navires Strangers, 22 Autran, 245-256. Quasi Contracts and Statutoet Jjiabilities. — Quasi contractual obliga- tions will in general be determined in accordance with the law of the place where such obligations arise. See Healy v. Gorman, 15 N. J. Law, 328, ante p. 348 ; Curtis v. Delaware, L. & W. R. Oo., 74 N. Y. 116, 30 Am. Rep. 271, ante, p. 350. As to the enforcement abroad of the statutory liability of stockholders and directors, see Beale on Foreign Corporations, 595-616, and 34 L. R. A. 737-763. Such liability will be enforced by the courts of other states if they can do so without Injustice to any of the stockholders. Whitman v. Oxford Nat. Bank, 176 U. S. 559, 20 Sup. Ct 477, 44 L. Ed. 587 (1900) ; Miller v. Smith, 26 R. I. 146. 58 Atl. 634, 66 L. R. A. 473, 106 Am. St. Rep. 699 (1904). But see Converse V. Hamilton (Wis.) 118 N. W. 190 (1908). As to whether a state in which a foreign corporation transacts business has the power to impose a statutory liability upon its stockholders which shall be recognized by the courts of other states, see Pinney v. Nelson, 183 U. S. 144, 22 Sup. Ct. 52, 46 L. Ed. 125 (1901) ; Risdon I. & L. Works v. Furness, 74 L. J. K. B. 243 (1904). See, also, 18 Harv. L. Rev. 452, and 6 Col. L. Rev. 45. 510 PARTICULAR SUBJECTS. (Part 2 CHAPTER m. FAMILY LAW. SECTION 1.— MARRIAGE. In re HALL. (Supreme Court, Appellate Division, New York, 1901. 61 App. Div. 266, 70 N. Y. Supp. 406.) Smith, J.^ Unless the appellant was the illegitimate son of Alice Maude Fithian, and therefore not of kin to EUa Maria Fithian, named in the will, the decree of the surrogate cannot stand. Edwin Fithian, the father of Alice Maude Fithian, was a retired American naval officer. While traveling in Europe, the daughter, Alice Maude, was placed in a school at Milan. From there she eloped at the age of 19 with Alberto Martinez, a citizen of the Argentine Republic. They went to Paris, where they stayed not more than four days, when they departed for the Argentine Republic. At Paris some form of mar- riage service was performed. At Buenos Ayres they lived as husband and wife for about 18 months, when Martinez sent her to her father, in England, and thereafter refused to live with her or to support her, and deserted her. Thereafter the said Alice Maude came with her father to Dakota, where a judgment of divorce against Martinez is claimed to have been obtained. She thereafter married Richmond Kingman in Dakota, where to that marriage this appellant was born. The surro- gate has found that a valid marriage was contracted with Martinez in France, and that the decree of divorce obtained in Dakota was in- valid on the ground that the said Alice Maude had not at the time of the commencement of the action established a domicile in the state of Dakota sufficient, under the laws of Dakota, to give jurisdiction to the court to grant a decree. Three questions, then, require examination: First. Did the surro- gate properly hold that a valid and binding marriage had been con- tracted by Alice Maude Fithian with Alberto Martinez in Paris ?^ Second. Did Alice Maude acquire in Dakota, prior to the commence- ment of her action, a domicile sufficient to give jurisdiction to the Da- kota court to authorize the decree of divorce? Third. If the decree of divorce granted in Dakota was valid in that state, can this infant 1 The statement of facts has been omitted. 2 Only so much of the opinion is given as relates to the first question. Ch. 3) FAMILY LAW. 511 appellant take property as one of the next of kin of Ella Maria Fithian, under the laws of thiS' state? 1. The record contains the Civil Code of France, by which mar- riages are regulated. By that law it is required that a marriage be celebrated at the domicile of one of the parties, and a residence of six months is required to constitute such a domicile; that a record of the proposed marriage be made, and two publications thereof, with an interval of eight days between them, on a Sunday, before the door of the town hall; that the consent of the girl's parents, if living,- if she be under the age of 21 years, appear; and that the celebration of the marriage be had before a civil officer.- It appears in this case that with none of these conditions did the parties comply. They were in Paris not to exceed three or four days before the marriage ceremony claimed. No domicile, therefore, could have been acquired. No publication could have been made in accordance with the laws of France. The father's consent was confessedly wanting. In fact, it is admitted and found by the learned surrogate that the marriage was not, and could not have been, performed in accordance with the requirements of the Civil Code of France. The marriage is held valid by the surrogate, however, as a putative marriage under a supposed fiction of the French law. The statutory basis of such a finding is contained in the following articles of the Civil Code of France : "Art. 201. If a marriage has been declared void, not only the par- ties to the marriage but the issue thereto shall nevertheless enjoy all civil rights resulting therefrom, if the marriage was contracted in good faith. "Art. 202. If only one party was in good faith, only the party in good faith and the issue of the marriage shall be entitled to the civil rights resulting therefrom." (See Kelly's French Law of Marriage [2d Ed.] 170.) The surrogate has found that the marriage in France was contracted by Alice Maude in good faith. If it were necessary to review this find- ing, a serious question is presented, — whether good faith, in the eye of the law, can co-exist with an elopement and clandestinity. Au- thorities are not wanting which hold that clandestinity is incompatible with the good faith required by law to give civil rights in an il- legal marriage. But assume, for the argument, that the attempted mar- riage was contracted by her in good faith. It is not found, nor could it be found, that there was good faith on the part of Martinez. To him the French law gave no civil rights of the marriage. These sections of the Civil Code are found in a chapter of the Code entitled ''Of Actions to Annul Marriage." There is no other provision of the French law determining what shall be the rights of parties innocent or guilty, to a marriage not contracted with the formalities required by law. The learned surrogate has held that this "putative marriage," as he calls it, constituted a valid marriage, which was a bar to the remarriage of Alice Maude before it was annulled by a court of com- 512 PARTICULAR SUBJECTS. (Part 2 petent jurisdiction. Is this conclusion correct? While it was un- doubtedly competent for the French government so to declare of marriages there celebrated, it has been seen that they have not express- ly so declared. Such an important provision in the law, if not express- ed, should be found only by necessary implication. In the first place, such implication is not warranted by the sections of the French Code. It might well be inferred that the rights assured to an innocent party to a void marriage upon annulment should belong to such a party before an annulment of the attempted marriage. But those rights are simply the civil rights of property. The purpose of the law in grant- ing civil rights to an innocent party is fully accomplished by accord- ing to her and her children the rights of property. It can add nothing to give her a status as a married woman. Such a construction would, and in this case has, worked to the detriment, rather than the benefit of the person for whose benefit the law was enacted. The very fact that those rights are given only to an innocent party, while withheld from a party not innocent, is, to our minds, convincing of an intent to award to the innocent party only property rights, and legitimacy to the children. The marriage is not declared valid, even though both parties be innocent. Much less could it be if one party only be innocent, and the civil rights of the marriage refused to a guilty par- +'ir -P ^ '(■ The respondent's counsel upon the argument further claimed the marriage in France valid upon the ground that, as neither Alice Maude nor Martinez were residents of France, the French law was not ap- plicable. We are referred to the case of L,oring v. Thorndike, re- ported in 5 Allen (Mass.) at page 357. In that case an American and a resident of Mayence, in the grand duchy of Hesse-Darmstadt were temporarily residing in the free city of Frankfort, in German}- Neither of them ever had any domicile there. Upon making inquiries of magistrates and counsel, they were advised that they could be legal- ly married before the consul of the United States. There was there- upon a marriage agreement drawn up and signed, and the consul de- clared their marriage legal and valid. The validity of this marriage was questioned by reason of the fact that it was not performed in ac- cordance with the laws of the city of Frankfort. The court, however, held that the formalities specifically required by the Frankfort la^^' were not applicable to foreigners, but the marriage was valid in Frankfort, "as having been duly contracted according to the prescrip- tion of that portion of the common law which had not there been abro- gated or repealed." If, then, the common law was in force in Frank- fort, as it appears, and if the special marriage laws made did not ap- ply to foreigners temporarily there, the parties were there married in accordance with the laws of Frankfort, and the marriage valid there was valid everywhere. Assuming, then, for the argument, that the formalities required by the laws of France do not apply to for- eigners temporarily in France, there is no proof that the common Ch. 3) FAMILY LAW. 513 law is there applicable, so as to render valid a common-law marriage. In fact, the court will take judicial notice that the common law is not, and never was, in force in France. It is further urged that the marriage will be presumed to have been contracted at a consulate. But, to be valid if there contracted, it must accord with the laws of the domicile of the contracting parties. Here the contracting parties had no common domicile. While, perhaps, un- der the laws of the domicile of Alice Maude a common-law marriage would be valid, not so under the laws of the domicile of Martinez. In the record appear the laws of the Argentine Republic. No facts appear in the record which would justify a finding that the marriage was contracted in accordance with these laws, nor is such a finding claimed. The marriage, then, appears to have been invalid both by the laws of France and by the laws of the Argentine Republic, the domicile of the husband. Alberto Martinez was never married to Alice Maude. He was not her husband. If the conclusion of the learned surrogate be correct, she was a married woman without a husband. This is clearly a legal paradox. There can be no marriage vinculum which does not bind both parties. In Atherton v. Atherton, 181 U. S. 155, 21 Sup. Ct. 544, 45 L. Ed. 794, Justice Gray, in writing for the United States supreme court, says, "A husband, without a wife, or a wife without a husband, is unknown to the law." The assumed marriage, not binding upon Martinez, except possibly to bind him for her support, did not invest her with the status of a mar- ried woman. Alice Maude therefore had capacity at any place to contract the marriage with Kingman, and the appellant is her lawful offspring. We do not here decide whether the French law is applicable to the marriage of foreigners temporarily in France, either as to the formal- ities required, or as to the civil rights acquired thereunder. Nor do we decide whether under that law civil rights are given to an inno- cent party to an attempted marriage, in disregard of every formality required by that law. We are unable to find a binding marriage under any law which can be applicable to the conditions here existing, and, even though under the law civil rights attached to this marriage, such civil rights create no marriage status.^ * * * 3 See 57 L.- E. A. 155-159, and 1 Bishop on Marriage, Divorce & Separation, §§ 890-906. As to whether compliance with the local law as to form is obligatory, see Rudlng V. Smith, 2 Hagg. Cons. 371. 390 (1821) ; Kent v. Burgess, 11 Sim. 361 (1840) ; Hynes v. McDermott, 82 N. T. 41, 37 Am. Rep. 538 (1880) ; Id., 91 N. Y. 451, 43 Am. Rep. 677 (1883). As to marriages celebrated upon the high seas, consult Norman v. Norman. 121 Cal. 620, 54 Pac. 143, 42 L. R. A. 343, 66 Am. St. Rep. 74 (1898) ; Dicey, Conflict of Laws, 620-621 ; J. Dundas White, Marriages at Sea, 17 Law Quar. Rev. 283-292; A. H. Charterls, Marriage on the High Seas, 19 Juridical Re- view, 178-182. As to fliarriages celebrated before a consular or diplomatic officer, see Rev. LoB.CoNr.L.— 33 514 PARTICULAR SUBJECTS. (Part % OGDEN V. OGDEN. (Court of Appeal, 1907. [1908] Prob. 46, 77 L. J. Prob. 34.) Leon Philip, a French subject and domiciled in France, being a temporary resident in England, married, September, 1898, Sarah Helen Williams, an Englishwoman, domiciled in England. The ceremony was in English form and was celebrated in England. The parties cohabited for a short time in England, whereupon Philip's father went over to England and took his son to France. In 1901, the marriage was annulled by a decree of a French tribunal on the ground that the consent of the parents as required by French law (Philip be- ing actually only 19 years of age), had not been obtained. Philip hiving married again in France, Sarah instituted, in 1903, a suit in England for the dissolution of her alleged marriage with him on the ground of desertion and adultery. This petition was dismissed on the ground of want of jurisdiction. In 1904, Sarah married Wil- liam Henry Ogden in England. In 1906, Ogden instituted a suit to obtain a decree of nullity of the marriage' on the ground that Sarah's previous marriage to Philip had not been annulled or dissolved for any cause competent according to the law of England. Bargrave Deane, J., rendered a decree in favor of petitioner. From this de- cision an appeal was taken.* Sir Gore;i,l Barnes, President. ° This is an appeal in a case of considerable importance and interest, more especially to persons in this country who have entered into, or contemplate entering into, matrimonial relations with foreigners. The facts which give rise to the question are these. [Having stated the facts as above set out, his Eordship continued:] The case was very fully and ably argued by counsel on behalf of the respective parties, and two points were made for the appellant by her counsel. Sir Edward Clarke; the first, that her marriage with Leon Philip was not valid, inasmuch as, although the marriage was celebrated according to the forms required by the law of England, it was invalid both in this country and in France, be- cause Leon Philip was, by the law of France, being the law of his country and his domicil, incapable of contracting the marriage; the second, that the effect of the French decree was to annul the mar- riage, both in France and in this country. If both or either of these points were established in favour of the appellant, the contention on her part which followed as a matter of course was that at the time of St. U. S. § 4082 (U. S. Comp. St. 1901, p. 2768) ; 2 Moore, Int. Law Digest, §§ 237-240; 2 Wbarton, Int. Law Digest, § 261. As to extraterritorial privileges, see 2 Moore, Int. Law Digest, §§ 238-239. See, also. Dicey, Conflict of Laws, 613-633; Westlake, Priv. Int. Law, 62- 67 ; G. Addison Smith, The Marriage of British Subjects Abroad, 19 Juridical Review, 869-385. < This brief statement has been substituted for that of the original report. Portions of the opinion have been omitted. Ch. 3) FAMILY LAW. 515 the ceremony of marriage between herself and Mr. Ogden she was free, to contract a marriage with him, and that, therefore, her mar- riage with him was valid, and his petition should be dismissed. Evidence was given at the trial of the French law upon which the appellant relied. The French Civil Code was put in, and various sec- tions of that Code were referred to on the argument of this appeal, to some of which it is necessary to draw attention. By article 1, § 3, the laws relating to the condition and privileges of persons govern Frenchmen although residing in a foreign country. By title II, § 63, two publications with an interval of eight days between them have to be made, containing particulars of the proposed marriage. Title V contains (inter alia) provisions which, translated into English, are as follows : [Having read the articles from the French Civil Code set out above,' his Lordship proceeded:] It would seem from these pro- visions that a marriage without the necessary consent or publication is not made by the Code void from the outset, but will only be de- clared void if proceedings for that purpose are taken by the proper parties in proper time, and will be valid unless the declaration is made. These being the facts and the points raised, counsel for the ap- pellant endeavoured to support his first point by urging before the court certain propositions which were wider than that which it is necessary to consider for the purpose of determining the present case. It is not necessary in this case to consider what are the principles which ought to govern a decision in England upon the question of the validity in this country of a marriage celebrated therein between two foreigners domiciled abroad and incapable by the law of their domicil of marrying each other at all. It is not even necessary for the decision of this case to consider what has been or ought to be de- cided as to the validity of a marriage entered into in England be- tween two foreigners domiciled abroad where they have come to this country in order to avoid a difficulty with regard to formalities which are required by the law of their domicil for the celebration ■of a valid marriage in their own country. The simple question for determination in the present case upon the first point is whether or not a marriage taking place in England be- tween an English person domiciled in England with a foreigner tem- porarily residing in this country, which it was not disputed would be held in England to be a valid rnarriage if celebrated between two in- habitants of this country, ought to be held invalid on the ground that the foreigner was by the statute law of his country subjected to the necessity of complying with certain formalities in order to be at liberty to enter into the marriage. It is desirable to state this limited propo- sition very clearly, because, with regard to questions which may be raised as to the validity of marriages in England between persons 8 The articles referred to, which have been omitted, were 144, 148-153, 170, 182, 183, 185, 201, and 202. 516 PARTICULAR SUBJECTS. (Part 2 domiciled abroad, certain cases have been decided (to which reference will be made further on in this judgment) which do not necessarily involve the consideration of the particular point already iridicated, or any decision thereupon; and it is desirable, therefore, to avoid the confusion which appears to have arisen sometimes between the con- sideration of the principles which have been laid down for determining the validity of a marriage where the ceremony alone was in question, and of those which have been considered, in determining whether it was lawful for the parties to intermarry at all. Now, the argument for the appellant in the present case was that, although the marriage between her and Leon Philip was celebrated according to the forms required by the English law, it was invalid universally because Leon Philip was a minor in France, and under a disability by the law of France from contracting such marriage with- out the consent of his father, and without complying with the other formalities required by the law of France. In substance this con- tention amounted to this — that in regard to entering into a marriage in England with an inhabitant thereof, Leon Philip carried with him into this country an incapacity, which ought to be recognized by the law of England, to enter into matrimonial relationship with such in- habitant without complying with the provisions of the French Code. It was urged that this principle had been recognized in this country, and cases were cited which it was said supported the contention. The cases cited, however, do not support it, and in truth the argument on behalf of the appellant appears to be based upon views which have been expressed by foreign jurists, but which have not been adopted in this country, where the English courts have not been very ready to admit a personal law of status and capacity dependent on domicil, and travelling with the person from country to country, although there has been, perhaps, less unwillingness in later years to give effect to the lex domicilii to some extent; see, for instance, In re Goodman's Trusts, (1881) 17 Ch. D. 266. * * * It would needlessly lengthen this judgment to set out the passages from foreign jurists bearing upon this subject, and it is not necessary to examine at length those cases or those passages in the above-men- tioned work' or other commentaries which deal with cases in which a marriage is entirely prohibited by the laws of the domicil of both or either of the parties, and yet is permitted by the laws of the place of celebration, for we are concerned in this case only with the ques- tion of a disability imposed by foreign law upon one of the parties to the marriage in respect only of want of parental consent, and compliance with certain formalities required by such foreign law. There appears to be no case in this country (certainly no case was cited to us in argument on this appeal) in which in such a case as last mentioned the view has been expressed that such a marriage would ' Story (jn the Conflict of Laws. Ch. 3) FAMILY LAW. 517 be held invalid in this country. We know of no principle recognized by English law which would justify the court in coming to the con- clusion that such a marriage ought to be held invalid; for, although to a certain extent the lex domicilii is recognized in this country, for instance, in the famiUar case where it is held that mobilia sequ- untur personam, yet such fecognition appears never to have been ex- tended to the case of a matrimonial engagement entered into in this country between an inhabitant of another country and an inhabitant of this country. In such a case, where there are two different sys- tems of law, one may well ask, which is to prevail? Why should it be recognized that a person who comes over to this country and valid- ly enters into a marriage with one of its inhabitants according to English law should be held unable to do so here because of the regu- lations of a foreign system of jurisprudence which places upon him a personal incapacity to contract unless he complies with formalities required by the foreign law? It may be observed here that the 3rd section of article 1 of the French Civil Code ordains that the Erench laws relating to the conditions and privileges of persons are to govern Frenchmen although residing in a foreign country, so that it would seem from this provision that the French rule as to competency by reason of minority is not based upon domicil, but upon nationality, and therefore that even in the case of a Frenchman domiciled in Eng- land celebrating a marriage with a domiciled Englishwoman the French courts would be at liberty, if the question arose before them, to declare such a marriage null and void, on the ground that it was governed by the laws of France, although celebrated in this country; but it could hardly be contended in England, if both persons parties to a marriage were domiciled in this country, that our courts ought to hold such a marriage invalid because one of the parties by the laws of his or her nationality may not have adequate competency to enter into the contract. [The learned justice here examined the following cases: Herbert V. Herbert, 1819, 3 Phill. 58; Scrimshire v. Scrimshire, 2 Hagg. Cons. 395; Brook v. Brook, 9 H. E. C. 193 (1861) ; DeWilton v. Monte- fiore, (1900) 3 Ch. 481; Commonwealth v. Lane, 113 Mass. 458, 18 Am. Rep. 509 (1873); Simonin v. Mallac, 2 Sw. & Tr. 67 (1860); and continued as follows :] The case principally relied on by the appellant was the case of Sot- tomayor v. De Barros (3 P. D. 81 ; 3 P. D. 1) before Sir Robert Phil- limore, and afterwards on appeal before the Court of Appeal, where the petitioner and respondent, Portuguese subjects and first cousins, came to reside in England in 1858. In 1866 they went through a form of marriage before the registrar of the district of the city of London, and in 1873 they returned to Portugal, and continued to reside there. By the law of Portugal a marriage of Portuguese subjects, being first cousins, without dispensation, wheresoever contracted, is invalid. The wife afterwards, while residing with her parents at Lisbon, filed a 518 PARTICULAR SUBJECTS. (Part 2' petition in this country for a declaration of nullity of marriage. The- respondent appeared, but did not file an answer, and the matter came on unopposed before Sir Robert Phillimore, who directed that the papers should be sent to the queen's proctor, in order that he might argue the questions raised, and the queen's proctor thereupon appear- ed. The questions were argued, and in the result Sir Robert Philli- more felt himself bound by prior decisions, and especially that in Sim- onin V. Mallac, 3 Sw. & Tr. 67, and dismissed the petition. The petitioner appealed to the Court of Appeal. The judgment of the court, consisting of James, Baggallay, and Cotton L. JJ., was delivered by Cotton L,. J., and one of the principal arguments ad- dressed to us upon this appeal was based upon that judgment. The decision of the court below was reversed. The basis of that judgment is to be found in the following sentence at page 5 of the report : "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 domi- cil. It is, however, urged that this does not apply to the contract of marriage, and that a marriage valid according to the law of the coun- try where it is solemnized is valid everywhere. This, in our opinion, is not a correct statement of the law. The law of a country where a marriage is solemnized must alone decide all questions relating to- the validity of the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil; and if the laws of any country prohibit its subjects within certain degrees of con- sanguinity from contracting marriage, and stamp a marriage between persons within the prohibited degrees as incestuous, this, in our opin- ion, imposes on the subjects of that country a personal incapacity, which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage 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." Now this court hearing this appeal is bound by the decision of the Court of Appeal in this case of Sottomayor v. De Barros, 2 P. D. 81 ; 3 P. D. 1. It is not necessary, even if we were at liberty to do so, to consider whether that case was rightly decided, but it is permis- sible to point out that the commencement of the paragraph above set out could scarcely be considered correct in stating that "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," for, if so, it would logically seem to follow that that part of the judg- ment which indicates that the opinion of the court was confined to cases where both the contracting parties were, at the time of their marriage, domiciled in a country, the laws of which prohibited their marriage, should not have expressed that limitation, and that the case of Simonin v. Mallac, 2 Sw. & Tr. 67, should have been overruled, and Ch. 3) FAMILY LAW. 519 yet that case, according to our reading of the judgment, is approved. The probability is that that sentence should be read with the context, and be confined to the case present to the minds of the court in re- lation to marriages which could not be contracted at all by the laws of the country of domicil. Even then it may be questioned whether that sentence is correct, and whether the question of capacity is really raised at all in such a case; that is to say, where both the parties are capable of entering into a marriage but may not marry each other because such a marriage would be illegal in their own country. That is rather a question of illegality than of capacity, and it may, per- haps, not be unreasonable for one country to refuse to recognize a marriage contracted in it between two persons by the laws of whose domicil a marriage between them is illegal, and yet it may be quite proper and reasonable for a country, in which a marriage takes place between persons domiciled in another country, to recognize it as a valid marriage when it would be legal in such other country if con- tracted after compliance with all formalities required in such other country, and, further, to protect its citizens in all cases of marriages where one of the contracting parties is domiciled in the country first referred to — that is to say, where the marriage takes place — and the other is domiciled in a foreign country, and there is a conflict between the laws of the two countries as to the validity of the marriage. The passage in the judgment expressly confining the decision to the case then before the court is as follows : "It was pressed upon us in argu- ment that a decision in favor of the petitioner would lead to many difficulties if questions should arise as to the validity of a marriage between an English subject and a foreigner in consequence of prohibi- tions imposed by the law of the domicil of the latter. Our opinion on this appeal is confined to the case where both the contracting par- ties are, at the time of their marriage, domiciled in a country the laws of which prohibit their marriage. 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 set- ting aside a marriage between a foreigner and an English subject domiciled in England on the ground of any personal incapacity not recognized by the law of this country." It was upon this passage that, when the case subsequently came before Lord Hannen, he was able to decide in favor of the marriage being valid notwithstanding the fact that one of the parties was domi- ciled in Portugal. The concluding passage in the judgment of the Court of Appeals is as follows : "It only remains to consider the case of Simonin v. Mallac, 3 Sw. & Tr. 67. The objection to the validity of the marriage in that case, which was solemnized in England, was the want of consent of parents, required by the law of France, but not under the circumstances 520 PARTICULAR SUBJECTS. (Part 2 by that of this country. In our opinion this consent must be consider- ed a part of the ceremony of marriage, and not a matter affecting the personal capacity of the parties to contract marriage, and the de- cision in Simonin v. Mallac, 2 Sw. & Tr. 67, does not, we think, govern the present case.'' That may perhaps be considered only a dictum by the learned Lords Justices, but it is really a very strong statement that Simonin v. Mal- lac, 3 Sw. & Tr. 67, is clearly distinguishable from the case before them, and we regard it as an approval of the decision in that case, and, if so, it is an authority adverse to the contention of the appellant on the present appeal. The case having been thus argued in the Court of Appeal by the queen's proctor, under the provisions of section 5 of the Matrimonial Causes Act, 1860, was remitted to the Probate Divi- sion in order that the question of fact raised by the queen's proctor's plea should be considered. It was then heard before Lord Hannen, who found, as a fact, that the respondent, the husband, was domiciled in England, but that the domicil of the petitioner was Portuguese. In the course of his judgment he pointed out how the passage in the judgment of the Court of Appeal expressly confining the decision to the case then before the court left him free to consider whether the marriage of the respondent, who was domiciled in England, with a woman subject by the law of her domicil to a personal incapacity not recognized by English law, must be declared invalid by the tribunals of this country, and he commented (5 P. D. at p. 100) upon the passage in the judgment which formed the basis of the decision, and remarked that it appeared to him to put forward a novel principle for which, up to the present time, there had been no English authority. He then cited the case of Male v. Roberts, (1799) 3 Esp. 163, in which the contract upon which the defendant was sued was made in Scotland, the defence being that the defendant was an infant, and where Lord Eldon held the defence bad, saying, "If the law of Scotland is that such a contract as the present could not be enforced against an infant, that should have been given as evidence. The law of the country where the contract arose must govern the contract ; " and after refer- ring to the cases of Scrimshire v. Scrimshire, 2 Hagg. Cons. 395, and Simonin v. Mallac, 2 Sw. & Tr. 67, and other cases, he held that the marriage between the petitioner and respondent was valid, and dis- missed the petition. It appears to have been suggested that the papal dispensation of which the law of Portugal recognizes the validity could not be dis- tinguished in principle from the consent of a parent ; but Cotton L- J- stated in his judgment that it could not, in the opinion of the court, be held that such a dispensation is a matter of form affecting only the sufficiency of the ceremony by which the marriage was effected. Mr. Foote's remarks upon this question in his book on Private International Jurisprudence (3d Ed.) p. 367, are much in point : "Dispensation with a law is, in principle, a very different thing from compliance with its Cll. 3) FAMILY LAW. 521 directions, though in practice the effect of the two may sometimes be similar. In such a case as Sottomayor v. De Barros, 2 P. D. 81 ; 3 P. D. 1, the law of Portugal does not say that, when first cousins wish to intermarry, they shall obtain the written consent of the Pope to their doing so. It says they shall not marry at all, and such a pro- hibition by a domiciliary law is not the less complete, as far as other tribunals are concerned, because the same domiciliary law, under cer- tain circumstances, allows itself to be dispensed with." The last case in which the case of Simonin v. Mallac, 2 Sw. & Tr. 67, has been referred to was the case of Hay v. Northcote, (1900) 3 Ch. 262, in which Farwell, L. J. (then Farwell J.), followed that case. * * * After very careful consideration of the present case we have come to the conclusion that the first point must be decided against the ap- pellant, and that the marriage between her and Leon Philip must be declared valid in England. [In regard to the second point it was held that the decree of the French court declaring the marriage to be null according to articles 148 and 170 of the French Civ. Code would not be recognized in England.] Appeal dismissed.' COMMONWEALTH v. LANE. (Supreme Judicial Court of Massachusetts, 1873. 113 Mass. 458, 18 Am. Rep. 509.) Gray, C. J.° The report finds that the defendant was lawfully mar- ried to his first wife in this Commonwealth; that she obtained a di- vorce here from the bond of matrimony, for his adultery ; that he was afterwards, while still a resident of this Commonwealth, married to a second wife in the State of New Plampshire, and cohabited with her in this Commonwealth, the first wife being still alive; and the ques- tion is whether he is indictable for polygamy, under the Gen. St. 1860, c. 165, § 4. It is provided by our statutes of divorce that, in cases of divorce from the bond of matrimony, the innocent party may marry again as if the other party were dead; but that any marriage contracted by the guilty party" during the life of the other, without having obtained sAs to essentials of marriage, consult Foote, Priv. Int. Jurispr. 360--370 ; Westlake, Priv. Int. Law, 58-61. Formerly the lex loci governed. Dalrymple V. Dalrymple, 2 Hagg. Cons. 54 (1811). On the continent the consent of parents is deemed to relate to the essentials of a marriage and not to its form. France, xVpp. Besangon, Jan. 4, 1888 (D. 1889, 2, 69). Germany, A. G. Celle, Jan. 15, 1870 (24 SeufCert's Archiv. 1). Italy, App. Florence, Aug. 7, 1907 (La Legge 1907, 2230). » The statement of facts and a part of the opinion have been omitted. 522 PARTicuLAK SUBJECTS. (Part 2 leave from this court to marry again, shall be void, and such party shall be adjudged guilty of polygamy. Gen. St. c. 107, §§ 25, 26. St. 1864, p. 379, c. 216. The marriage act, Gen. St. c. 106, specifies, in sections 1-3, what marriages shall be void by reason of consanguinity or affinity; in sec- tion 4, that all marriages contracted while either of the parties has a former wife or husband living, except as 'provided in chapter 107, shall be void; in section 5, that no insane person or idiot shall be capable of contracting marriage; and in section 6 as follows: "When persons resident in this state, in order to evade the preceding provi- sions, and with an intention of returning to reside in this state, go into another state or country, and there have their marriage solemniz- ed, and afterwards return and reside here, the marriage shall be deem- ed void in this state." All these sections, except the last, are manifestly directed and limited to marriages within the jurisdiction of this Commonwealth; and the last has no application to this case, because it does not appear to have been proved or suggested at the trial that the parties to the second marriage went out of this state to evade our laws, or even that the second wife had resided in this state or knew of the previous marriage and divorce. By the Gen. St. c. 165, § 4, "whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this state," shall (except when the first hu^and or wife has for seven years been absent and not known to the other party to be living, or in case of a person legally divorced from the bonds of matrimony and not the guilty cause of such divorce) be deemed guilty of polygamy and punished accordingly. This statute is not intended to make any marriages unlawful which are not declared to be unlawful by other statutes, nor to punish co- habitation under a lawful marriage. Its object is to prohibit unlawful second marriages, whether the parties are actually married in this Commonwealth, or continue after being married elsewhere to co- habit here. But in either alternative, in order to sustain the indictment, the second marriage must be unlawful. It is not enough that the mar- riage is such as would be unlawful if contracted in this Common- wealth; it must be a marriage which, being contracted where it was, is unlawful here. The marriage in New Hampshire is stated in the report to have been "according to the forms of law;" and it appears by the statutes of New Hampshire, therein referred to, that the only provision re- lating to the invalidity of marriages on account of the incompetency of parties to contract them is as follows : "All marriages prohibited by law, on account of the consangunity or affinity of the parties, or where either has a former wife or husband Hving, knowing such wife or husband to be alive, if solemnized in this state, shall be absolutely void without any decree of divorce or other legal process." Gen. St. N. H. 1867 Ch. 3) FAMILY LAW. 523 c. 163, § 1. That provision clearly does not extend to a case in which the former wife, having obtained a divorce from the bond of matri- mony, was absolutely freed from all obligation to the husband, and' in which, as observed by Mr. Justice Wilde, in a like case, "notwith- standing the restraints imposed on the husband, he being the guilty cause of the divorce, the dissolution of the marriage contract was to- tal, and not partial." Commonwealth v. Putnam, 1 Pick. 136, 139. ^^ The marriage in New Hampshire must therefore be taken to have been valid by the law of that state. The question presented by the report is therefore reduced to this : If a man who has been lawfully married in this Commonwealth, and whose wife has obtained a divorce a vinculo here because of his adul- tery, so that he is prohibited by our statutes from marrying again without leave of this court, is marHed, without having obtained leave of the court, and being still a resident of this Commonwealth, to an- other woman in another state, according to its laws, and afterwards cohabits with her in this Commonwealth, is his second marriage valid here? The determination of this question depends primarily upon the construction of our statutes, but ultimately upon fundamental princi- ples of jurisprudence, which have been clearly declared by the judg- ments of our predecessors in this court, and in the light of which those statutes must be read in order to ascertain their just extent and effect. What marriages between our own citizens shall be recognized as valid in this Commonwealth is a subject within the power of the Legis- lature to regulate. But when the' statutes are silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations, the law of nature as generally recognized by all civilized peoples. By that law, the validity of a marriage depends upon the question whether it was vaHd where it was contracted ; if valid there, it is valid everywhere. The only exceptions admitted by our law to that general rule are of two classes : 1st. Marriages which are deemed contrary to the law of nature as generally recognized in Christian countries; 2d. Mar- riages which the Legislature of the Commonwealth has declared shall not be allowed any validity, because contrary to the policy of our own laws. The first class includes only those void for polygamy or for incest. To bring it within the exception on account of polygamy, one of the parties must have another husband or wife living. To bring it within the exception on the ground of incest, there must be such a relation between the parties contracting as to make the marriage incestuous 10 Contra, if the decree of divorce itself remains incomplete at the time of the marriage. Warter v. Warter, L. R. 15 P. D. 152 (1890); McLennan V. McLennan, 31 Or. 480, 50 Pac. 802, 38 L. R. A. 863, 65 Am. St Rep. 835 (1897). But see State v. Feun, 47 Wash. 561, 92 Pac. 417 (1907). 524 PARTICULAR SUBJECTS. (Part 3 according to the general opinion of Christendom; and, by that test, the prohibited degrees include, beside persons in the direct line of con- sanguinity, brothers and sisters only, and no other collateral kindred. Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343, 349-351. 2 Kent Com. 83. Story Confl. § 114. Sutton v. Warren, 10 Mete. 451. Stevenson v. Gray, 17 B. Mon. (Ky.) 193. Bowers v. Bowers, 10 Rich. Eq. (S. C.) 551, 73 Am. Dec. 99.^^ A marriage abroad between persons more remotely related, not absolutely void by the law of the country where it was celebrated, is valid here, at least until avoided by a suit instituted for the purpose, even if it might have been so avoided in that country; and this is so, whether the relationship between the parties is one which would not make the marriage void if contracted in this Commonwealth, as in the case of a marriage between a, widower and his deceased wife's sister, or one which would invalidate a marriage contracted here, as in the case of a marriage between aunt and nephew. In Greenwood v. Curtis, 6 Mass. 358, 378, 379, 4 Am. Dec. 145, Chief Justice Parsons said: "If a foreign state allows of marriages incestuous by the law of nature, as between parent and child, such marriage could not be allowed to have any validity here. But mar- riages not naturally unlawful, but prohibited by the law of one state, and not 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 marriage celebrated here would be held valid in any other state, and the parties entitled to the benefits of the matrimonial contract." This distinction was approved by Chan- cellor Kent and by Judge Story. 2 Kent Com. 85, note a. Story Confl. § 116. In The Queen v. Wye, 7 A. & E. 761, 771 ; s. c. 3 N. & P. 6, 13, 14 ; it was decided that the marriage of a man with his mother's sister in England before the St. of 5 & 6 Will. IV. c. 54, though voidable by process in the ecclesiastical courts, was, until so avoided, valid for all civil purposes, including legitimacy and settlement. In accordance with that decision, it was held in Sutton v. Warren, 10 Mete. 451, that such a marriage contracted in England, and never avoided there, must, upon the subsequent removal of the parties to Massachusetts, and the question arising collaterally in an action at common law, be deemed valid here, although, if contracted in this Commonwealth, it would have been absolutely void. A marriage which is prohibited here by statute, because contrary to the policy of our laws, is yet valid if celebrated elsewhere according to the law of the place even if the parties are citizens and residents of this Commonwealth, and have gone abroad for the purpose of evading our laws, unless the Legislature has clearly enacted that such mar- 11 But see D. S. v. Rodgers (D. C.) 109 Fed. 886 (1901). Ch. 3) FAMILY LAW. 525 riages out of the state shall have no validity here. This has been repeatedly affirmed by well considered decisions. For example, while the statutes of Massachusetts prohibited mar- riages between white persons and negroes or mulattoes, a 'mulatto and a white woman, inhabitants of Massachusetts, went into Rhode Island, and were there married according to its laws, and immediately re- turned into Massachusetts; and it was ruled by Mr. Justice Wilde at the trial, and affirmed by the whole court, that the marriage, even if the parties went into Rhode Island to evade our laws, yet, being good and valid there, must upon general principles be so considered here, and that the wife therefore took the settlement of her husband in this Commonwealth. Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131.12 So it has been held that a man, from whom his wife had obtained in this state a divorce a vinculo for his adultery, which by our stat- utes disabled him from contracting another marriage, might lawfully marry again in another state according to its laws; that the children of such marriage took the settlement of their father in this Common- wealth; and that the new wife was entitled to dower in his lands here, even if the wife as well as the husband was domiciled here, and knew of the previous divorce and its cause, and went into the other state to evade our laws — so long as our statutes did not declare a mar- riage contracted there with such intent to be void here. West Cam- bridge V. Lexington, 1 Pick. 506, 11 Am. Dec. 331. Putnam v. Put- nam, 8 Pick. 433. See also Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 34 Am. Dec. 444; Ponsford v. Johnson, 3 Blatchf. C. C. 51, Fed. Cas. No. 11,266; 3 Kent. Com. 91-93. The principles upon which these decisions proceeded were recogniz- ed in all the English cases decided before the American Revolution, although it is true, as has since been pointed out, that the particular question in each of them related rather 'to the forms required than to the capacity of the parties. * * * In a recent case in the House of Lords, the cases of Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131, and Sutton v. Warren, 10 Mete. 451, above cited, have been severely criticized, and pointedly de- nied to be law. Brook v. Brook, 9 H. L. Cas. 193; s. c. 3 Sm. & Giff. 481. * * * In Brook v. Brook, ubi supra, a widower and the sister of his de- ceased wife, being lawfully domiciled in England, while on a tempo- rary visit to Denmark, had a marriage solemnized between them, which was by the laws of Denmark lawful and valid to all intents and pur- poses whatsoever. In a suit in equity, brought after the death of both parties to ascertain the rights of the children in their father's property, the House of Lords, in accordance with the opinions of 12 Contra, on tUe ground of public policy, Kinney v. Commonwealth, 30 Grat. (Va.) 858, 32 Am. Eep. 690 (1878). 526 PARTICULAR SUBJECTS. (Part 2 Lords Campbell, Cranworth, St. Leonards and Wensleydale, and af- firming a decree rendered by Vice Chancellor Stuart, assisted by Mr. Justice Cresswell, held that the marriage in Denmark was wholly void by the St. of Will. IV.,^^ and that the children of that marriage were bastards. The decision was put, by the learned judges who concurred in it, upon three different grounds. The first ground was that the St. of Will. IV. disqualified EngHsh subjects everywhere from contracting such a marriage. This ground was taken in the court below, and by Lord St. Leonards in the House -of Lords. 3 Sm. & Giff. 523, 525. 9 H. L. Cas. 234r-238. But it was expressly disclaimed by Lord Campbell, Lord Cranworth and Lord Wensleydale, the two former of whom expressed opinions that the statute did not extend to all the colonies, and all three declared that they did not think its purpose was to put an end to such marriages by British subjects throughout the world. 9 H. L. Cas. 214, 222, 240. The second ground, which was suggested by Mr. Justice Cresswell and Lord Wensleydale only, and is opposed to all the American au- thorities, was that the case justly fell within the first exception, stated in Story Confl. § 114, of marriages involving polygamy and incest. 3 Sm. & Giff. 613. 9 H. L. Cas. 241, 245. In view of that position, it may be observed that in an earlier case, in which Lord Wensleydale himself (then Baron Parke) delivered the opinion, a marriage of a widower with his deceased wife's sister, before the St. of Will. IV., was prevented from being made irrevocable by that statute, only by the institution, a week before its passage, of a suit for nullity in the Ecclesiastical Court by the father of the supposed wife; and by the decision of the Privy Council, that because, if the marriage was not set aside, the birth of a child of the marriage would impose a legal ■obligation upon the grandfather to maintain the child in the event of its being poor, lame or impotent, and unable to work, he had, according to the rules of the ecclesiastical courts, a sufficient interest, "although of an extremely minute and contingent character," to support such a suit. Sherwood v. Ray, 1 Moore P. C. 353, 401, 402. The third ground, upon which alone all the law lords agreed, was that the St. of Will. IV. made all future marriages of this kind between English subjects, having their domicile in England, absolutely void, because declared byact of Parliament to be contrary to the law of God, and must therefore be deemed to include such marriages, although solemnized out of the British dominions. The law of England, as thus declared by its highest legislative and judicial authorities, is certainly presented in a remarkable aspect. 1st. Before the St. of Will. IV. marriages within the prohibited degrees of 13 St. 5 & 6 Will. IV, c. 54, commonly known as "Lord Lyndhurst's Act," provided that marriages betweeu persons within the prohibited degrees of af- finity, thereafter celebrated, should be absolutely null and void. Ch. 3) FAMILY LAW. 527 affinity, if not avoided by a direct suit for the purpose during the life- time of both parties, had the same effect in England, in every respect, as if wholly valid. 2d. This statute itself made such marriages, al- ready solemnized in England, irrevocably valid there, if no suit to annul them was already pending. 3d. It left such marriages in Eng- land, even before the statute, to be declared illegal in the Scotch courts, at least so far as rights in real estate in Scotland were con- cerned. 4th. According to the opinion of the. majority of the law lords, it did not invalidate marriages of English subjects in English colonies, in which a different law of marriage prevailed. 5th. But it did make future marriages of this kind, contracted either in England, or in a foreign country, by English subjects domiciled in England, ab- solutely void, because declared by the British Parliament to be con- trary to the law of God. The judgment proceeds upon the ground that an act of Parliament is not merely an ordinance of man, but a conclusive declaration of the law of God ; and the result is that the law of God, as declared by act of Parliament and expounded by the House of Lords, varies ac- cording to time, place, length of life of parties, pecuniary interests of third persons, petitions to human tribunals, and technical rules of statutory construction and judicial procedure. The case recalls the saying of Lord Holt, in London v. Wood, 12 Mod. 669, 687, 688, that "an act of Parhament can do no wrong, though it may do several things that look pretty odd;" and illustrates the effect of narrow views of policy, of the doctrine of the "omnip- otence of Parliament," and of the consequent unfamiliarity with ques- tions of general jurisprudence, upon judges of the greatest vigor of mind, and of the profoupdest learning in the municipal law and in the forms and usages of the judicial system of their own country. Such a decision, upon such reasons, from any tribunal, however eminent, can have no weight in inducing a court, not bound by it as authority, to overrule or disregard its own decisions. The provision of the Gen. St. c. 107, § 25, forbidding the guilty party to a divorce to contract another marriage, during the life of the other party, without leave of this court, on pain of being adjudged guilty of polygamy, does not create a permanent incapacity, like one arising from consanguinity or affinity. It is rather in the nature of the imposition of a penalty, to which it would be difficult to give an extra-territorial operation. West Cambridge v. Lexington, 1 Pick. 506, 510, 512, 11 Am. Dec. 231. Clark v. Clark, 8 Ciish. 385, 386. Upon the principles and authorities stated in the earlier part of this opinion it certainly cannot invalidate a subsequent marriage in another state according to its laws, at least without proof that the parties went into that state and were married there with the intent to evade the provisions of the Statutes of this Commonwealth. No such intent being shown in this case, we need not consider its effect, if proved, nor 528 PARTiCDLAE SUBJECTS. (Part 2 whether the indictment is in due form. See Commonwealth v. Put- nam, 1 Pick. 136, 139 ; Commonwealth v. Hunt, 4 Cush. 49. New trial ordered.^* PENNEGAR v. STATE. ' (Supreme Court of Tennessee, 1889. 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703, 10 Am. St. Bep. 048.) F01.KES, J. The defendants were indicted for lewdness, tried and convicted, and have appealed in error to this court. The record dis- closes the following facts: E. N. Haney was divorced from her hus- band, John Haney, by a decree of the circuit court of De Kalb county, upon the petition of the husband, charging her with adultery with William Pennegar. The decree adjudges the charge fully proven, and the divorce was granted the husband solely upon such charge. The divorced wife and the partner in her guilt shortly after the divorce went to Jackson county, state of Alabama, where they were married to each other, and on the next day after their marriage returned to De Kalb county, in this state, the place of their former and present resi- dence, where they have been living and cohabiting openly and publicly, as man and wife, all within 13 months before the indictment found in this case ; the divorced husband, John Haney, still living. Section 3332, Milliken & V. Code, enacts : "When a marriage is ab- solutely annulled, the parties shall, severally, be at liberty to marry again; but a defendant who has been guilty of adultery shall not marry the person with whom the crime was committed, during the life of the former husband or wife." The marriage, being prohibited by statute, is void, if solemnized in this state. 1 Bish. Mar. & Div. §§ 46, 223 ; Carter v. Montgomery, 2 Tenn. Ch. 225 ; Owen v. Bracket, 7 Eea, 448. In the last case cited this court held the woman not entitled to homestead where the marriage was had in this state in violation of the statute quoted above. It is admitted that there is nothing in the laws of Alabama prohibiting the guilty divorced party from marrying --4he paramour. The question, therefore, presented in this record is whether citizens of this state, prohibited by the statute referred to from marrying, can, by crossing over into a sister state, where such marriages are not inhibited, claim the benefit of the marriage there contracted, when they return at once to this state, having left it for the manifest purpose of evading our statute. The question is of first impression in this state, and one not free from difficulty, by reason of certain well-established principles, universally recognized in the law of marriage, which apparently would sustain such marriage, chief of which is that which says: "A marriage, valid where solemnized, 14 See, also, Scott v. Attorney General, L. R. 11 P. D. 128 (1886) ; Mock v. Chaney, 36 Colo. 60, 87 Pac. 538 (1906). Ch. 3) FAMILY LAW. 529 is valid everywhere." Adjudged cases are to be found which, under the supposed application of this rule, have sustained marriages identical with the one at bar in all of its essential facts, while others of equal respectability have reached a different result ; to some or both of which we will refer later on. Before doing so, let us see what are the general principles controlling in cases of this character. Marriage is an insti- tution recognized and governed to a large degree by international law, prevailing in all countries, and constituting an essential element in all earthly society. The well-being of society, as it concerns the relation of the sexes, the legitimacy of offspring, and the disposition of prop- erty, alike demand that one state or nation shall recognize the validity of marriage had in other states or nations, according to the laws of the latter, unless some positive statute or pronounced public policy of the particular state demands otherwise. It may be said, therefore, to be a rule of universal recognition in all civilized countries that in general a marriage valid where celebrated is valid everywhere. We say "in general," because there are exceptions to the rule as well es- tabhshed as the rule itself. These exceptions or modifications of the general rule may be classified as follows : First, marriages which are deemed contrary to the law of nature, as generally recognized in Christian countries; second, marriages which the local law-making power has declared shall not be allowed any validity, either in express terms or by necessary implication. To the first class belong those which involve polygamy and incest; and in the sense in which the term "incest" is used, are embraced only such marriages as are incestu- ous according to the generally accepted opinion of Christendom, which relates only to persons in direct line of consanguinity, and brothers and sisters. The second class, i. e., those prohibited in terms by the stat- ute, presents difficulties that are not always easy of solution, and have led to conflicting decisions. This class may be subdivided into two classes : First, where the statutory prohibition relates to form, cere- mony, and qualification, it is held that compliance with the law of the place of marriage is sufficient, and its validity will be recognized, not only in other states generally, but in the state of the domicile of the parties, even where they have left their own state to marry elsewhere, for the purpose of avoiding the laws of their domicile. Instead of being called a subdivision of the second class of exceptions, it would be more accurate to say that it is an exception to the exception, and falls within the operation of the general rule first announced, of "valid where performed, valid everywhere." To the second subdivi- sion of the second class of exceptions belong cases which, prohibited by statute, may or may not embody distinctive state policy, as affecting the moirals or good order of society. It is not always easy to determine what is a positive state policy. It will not do to say that every provision of a statute prohibiting mar- riage, under certain circumstances, or between certain parties, is indica- tive of a state policy in the sense in which it is used in this connection. LoB.CoNF.L.— 34 530 PAETicuLAR SUBJECTS. (Part 2 To so hold would be to overturn this most solemn relation, involving legitimacy of offspring, homestead dower, and the rights of property, in the face of the conclusions of approved text writers, and the con- currence of the adjudications in numerous cases, relating not only to forms or ceremonies and qualifications of the parties, but also to pro- hibited degrees of relationship, not incestuous in the common opinion of Christian countries, and relating to marriages between persons of different race and color. Each state or nation has ultimately to de- termine for itself what statutory inhibitions are by it intended to be imperative, as indicative of the decided policy of the state concerning the morals and good order of society, to that degree which will render it proper to disregard the jus gentium of "valid where solemnized, valid everywhere." The legislature has, beyond all possible question, the power to enact what marriages shall be void in its own state, not- withstanding their validity m the state where celebrated, whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed, or between parties who left the state of domicile for the purpose of avoiding its statutes, when they come or return to the state; and some of the states have in terms legislated on the subject. Where, however, the legislature, as in our own state, has not deerned it proper or necessary to provide in terms what shall be the fate of a marriage valid where performed, but has in the particular case contented itself with merely prohibiting such marriages, the duty is devolved upon the courts of determining, from such legislation as is before it, whether the marriage in the other state is valid or void when the parties come into this state. If, as we have seen, the statutory inhibition relates to matters of form or ceremony, and in some respects to qualification of the parties, the courts would hold such marriage valid here; but if the statutory prohibition is expressive of a decided state policy as a matter of morals, the courts must adjudge the marriage void here, as contra bonos mores. Thus, in State v. Bell, 7 Baxt. 9, 33 Am. Rep. 549, this court held that a marriage between a white person and a negro, valid in Mississippi, where celebrated, was void here, in a case where the parties were domi- ciled in Mississippi at the time of the marriage. This case is distin- guishable from the case at bar, not only by reason of the domicile in Mississippi, but also in that we have a highly penal statute on the sub- ject of marriages between whites and blacks, passed in 1870, in amend- ment of the act which prohibited such marriage theretofore, and by the very pronounced convictions of the people of this state as to the demoralization and debauchery involved in such alliances. The de- cision in the above case is so manifestly in keeping with sound prin- ciples now well established that it need not be here fortified by cita- tion of authority ; but we pause to call attention to a case relied on by counsel for defendants, holding not only that such a marriage, sol- emnized in Rhode Island, (where it was legal,) between persons domi- ciled there, would be valid in Massachusetts, but that it was valid in Ch. 3) FAMILY LAW. 531 the latter state where the parties had left Massachusetts, and gone hito Rhode Island, for the express purpose of evading the Massachusetts law prohibiting such marriage, and returned to Massachusetts. Med- way V. Needham, 16 Mass. 157, 8 Am. Dec. 131. This was certainly- carrying the doctrine of "valid where performed, valid everywhere," to an extreme limit. The case has been much criticised, — more so, indeed, than it deserves, as it seems to us ; for while, to our mind, the result is startling, it is not out of harmony, in its argument, with the principles we have stated. The learned judge delivering the opinion, in speaking of the exception to the general rule, says: "Motives of policy may likewise be admitted into consideration of the extent to which this exception is to be allowed to_operate. If without any restriction, then it might be that incestuous marriages might be con- tracted between citizens of a state where they were held unlawful and void, in countries where they were not prohibited, and the parties re- turn to live in defiance of the religion and laws of their own country. But it is not to be inferred from a toleration of marriages which are prohibited merely on account of political expediency, that others, which would tend to outrage the principles and feelmgs of all civilized nations, would be countenanced." So that the difference between this case and State v. Bell, 7 Baxt. 9, 33 Am, Rep. 549, is a difference in the "motives of policy" and ideas of "political expediency." We do not think, therefore, that the case is open to the criticism passed upon it by the lord chancellor in Brook v. Brook, 9 H. L. Cas. 193, which ■case is itself, with equal propriety, criticised by Gray, C. J., in Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509, which contains a very able and elaborate review of the subject under consideration. Though un- able to concur in some of the arguments, and especially with the dic- tum that "a marriage which is prohibited here by statute, because contrary to the policy of our laws, is yet valid if celebrated elsewhere, according to the law of the place, even if the parties are citizens and residents of this commonwealth, and have gone abroad for the purpose of evading our laws, unless the legislature has clearly enacted that' such marriages out of the state shall ha^e no validity here." Of course we refer to so much of the above as we have italicised, for it is the purest dictum; it being a case where there was no proof of an intent to evade the laws of Massachusetts, as is shown by the judge bimself, who concludes his opinion as follows : "Upon the principles and authorities stated in the earlier part of this opinion, it certainly cannot invalidate a subsequent marriage in another state, according to its laws, at least without proof that the parties went into that state, and were married there, with the intent to evade the provisions of the statutes of this commonwealth. No such intent being shown in this case, we need not consider its effect, if proved, nor whether the in- dictment was in due form." This case being an indictment for polyg- amy, where a wife, having obtained a divorce on account of the hus- band's adultery, (in which case he was prohibited from marrying again 533 PARTICULAR SUBJECTS. (Part 2 without leave of the court,) the husband married another woman in another state without proof that the second wife ever resided in Massa- chusetts prior to her marriage, and without proof of a purposed eva- sion of the Massachusetts law. Recurring for a moment to Medway v. Needham, it may well be that, recognizing and applying the same general principles, the courts in different states may reach different results in the same class of cases, according as the general and fixed sentiment of the. public in the respective states may differ in matters of public policy, and, if not, of "political expediency." What might be deemed a mere' regulation in one state might be regarded as a matter vitally affecting the morals and good order of society in another; so that what is pointed out as a reproach to the law by reason of the conflict in the reported cases from different states and nations is in fact evidence of the universali- ty of the general principles recognized as fundamental by all enlighten- ed courts; the different results reached being due to the statutory enactments of the different states as construed by courts thereof, who interpret the meaning, intent, and scope of each particular stat- ute on the subject of marriage in the light of the known policy of the state, deviating from the general principles of the international law of marriage only so far as they are constrained to do so by the terms of legislative enactments, or by the manifest and distinctive policy of the state, as understood by the courts. Now, believing, as we do, that the statute in question, which we are called upon to construe in the case at bar, is expressive of a decided state policy not to permit the sensibilities of the innocent and injured husband or wife, who has been driven by the adultery of his or her consort to the necessity of obtaining a divorce, to be wounded, nor the public decency to be af- fronted, by being forced to witness the continued cohabitation of the adulterous pair, even under the guise of a subsequent marriage per- formed in another state for the purpose of avoiding our statute, and believing that the moral sense of the community is shocked and outrag- ed by such an exhibition, we will not allow such parties to shield themselves behind a general rule of the law of marriage, the wisdom and perpetuity of which depends as much upon the judicious excep- tions thereto, as upon the inherent right of the rule itself. After what has been already said in the earlier part of this opinion, it is doubtless unnecessary to say that in reaching the conclusion just announced we do not intend in the slighest degree to encroach upon the principle which recognizes as valid marriages had in other states where the parties have gone to such other states for the purpose of avoiding our own laws in matters of form, ceremony, or qualification merely; but, confining ourselves to the facts of this case, we hold that where citizens of this state withdraw temporarily to another state, and there marry, for the purpose and with the intent of avoiding the statute in question, passed in pursuance of a determined policy of the state, in the interest of public morals, peace, and good order of society, Ch. 3) FAMILY LAW. 533 such parties, upon their return to this state, and cohabiting as man and wife, are liable to indictment in the courts of this state for lewd- ness. The case of Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 34 Am. Dec. 444, has no concern with the point adjudged in the case at bar. That case merely decides that a person divorced in Kentucky for adultery, and not by the laws of that state permitted to marry again, might contract a valid marriage in this state prior to the act of 1835, which for the first time prohibited such marriages ; and, having come to this state in good faith, married, and continued to reside here up to the time of her husband's death, she was held entitled to dower. The only instruction to be drawn from this case is that, notwithstanding our statute, these parties might have contracted a marriage in Alabama, where there is no similar statute, had they removed there in good faith, which would be valid in that state. Putnam v. Putnam, 8 Pick. (Mass.) 433, is a case deciding directly contrary to the conclusion we have reached, and the facts in that case were identical with this. It is extremely brief, is unsatisfactory to us from every point of view, and is predicated entirely upon the case of Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131, decided 10 years before, which the court said was "binding upon us and the community until the legislature shall see fit to alter it." While speak- ing of Medway v. Needham, the opinion continues: "The court were aware of all the objections to the doctrine in that case, and knew it to be vexata quasstio among civilians ; but they adopted the rule of the law of England on this subject, on the same ground it was adopt- ed there, namely, the extreme danger and difficulty of vacating a marriage which, by the laws of the country where it was entered into, was valid." It is manifest that the effort to fortify Medway v. Need- ham by assuming that it is based on the law of England must fail if the house of lords are competent to testify as to the state of the law in England on the subject, for we find that in Brook v. Brook, 9 H. L. Cas. 319, the lord chancellor, in speaking of the case of Medway v. Needham, as we have already seen, says : "It is entitled to but little weight, and is based upon decisions which relate to form and ceremony of marriage ;" and adds : "If a marriage is absolute- ly prohibited in any country as being contrary to public policy, and leading to social evils, I think that the domiciled inhabitants in that country cannot be permitted,' by passing the frontier, and entering another state in which the marriage is not prohibited, to celebrate a marriage forbidden by their own state, and, immediately returning to their own state, to insist on their marriage being recognized as law- ful." This is, in our opinion, the true doctrine, and we have quoted so much to show that the highest English court does not hold to the principle upon which it is claimed by the Ma"Ssachusetts court the Medway Case is based. But with due deference we must be permitted to say that the decision in the case of Brook v. Brook goes further 584 PAETICULAE SUBJECTS. (Part 2 than we think the principle announced requires, — further at least than we would be inclined to go, — when, as was done in that case, it was held that, while both were resident in England, the man marrying his deceased wife's sister in Denmark, where such marriage was legal, and returning to England, the marriage was void there, because a mar- riage between parties so related was contrary to the laws of England. Such a marriage would, we think, not fall within any of the excep- tions to the general rule. It certainly cannot be said to be incestuous in the estimation of Christendom, and it would seem that under the policy of many of the states of this Union such a marriage is not im- moral, nor tending to any social evil affecting the welfare of society. But, after all, it must be admitted that it was for that court to deter- mine whether or not the law infringed was indicative of a decided and essential public policy in England; and the courts of that coun- try would doubtless be as slow to approve our estimate of the public policy which condemns the marriage of the divorced adulterer, since the clause prohibiting such marriage was, upon the argument of Lord Palmerston, that the guilty party was preserved from ruin by such a marriage, stricken from the divorce bill in the house of commons, as we are to accept their opinion that a marriage between a man and his deceased wife's sister is contrary to good morals. We return for a moment to Putnam v. Putnam, supra, to note that the court in this case closes its opinion with this language: that "if it shall be found inconvenient or repugnant to sound principles [the italics are ours] it may be expected that the legislature will explicitly enact -that marriages contracted within another state, which, if en- tered into here, would be void, shall have no force within this com- monwealth." The legislature did shortly thereafter so enact ; whether because the doctrine laid down in the case was inconvenient, or be- cause repugnant to sound principle, does not appear. In our view of the law, both considerations might well have moved the legislature. Stevenson v. Gray, 17 B. Mon. (Ky.) 193, is a case holding the doc- trine of Putnam v. Putnam, and, after what we have said about the latter case, need not be further noticed here. Van Storch v. Griffin, 71 Pa. 240, does not sustain the contention of counsel on the point decided, as there is nothing in the case to show that the parties went from one state to the other for the purpose of evading the laws of the one. It merely holds that the decree of di- vorce in New York, which forbade the respondent from marrying again during the life of the libelant, had no extraterritorial effect; so that what is said in the opinion about going from one state to the other for the purpose of evading the law of the state granting the divorce is dictum, pure and simple. In full accord with the conclusion we have reached in the case at bar is Kinney v. Com., 30 Grat. (Va.) 858, 32 Am. Rep. 690, where it was held that a marriage between a negro and a white person, had in the District of Columbia, for the purpose of evading the law of Vir- Ch. 3) FAMILY LAW. 535 ginia, was void upon their return. To the same eflfect, see State v. Kennedy, 76 N. C. 851, 32 Am. Rep. 683; Scott v. State, 39 Ga. 331; Dupre V. Boulard, 10 La. Ann. 411. The intention to evade the law by going into another state was made the test of its vahdity in North Carolina, as will be seen by reference to the two cases of State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683, above cited, and State v. Ross, 76 N. C. 342, 22 Am. Rep. 678,— both marriages between a white person and a negro. In Kennedy's Case, such intention being shown, the marriage was held void; while in Ross' Case, it being shown that there was- no intent to return to North Carolina, though the parties afterward did so, the defendant was held not guilty - of fornication. This was, however, by a divided court, and is contrary to our own case of State v. Bell, 7 Baxt. 9, 32 Am. Rep. 549. We conclude this opinion, already too long, by a reference to Wil- ^ liams V. Oates, 37 N. C. 535, where Chief Justice Ruffin, in deliver- ing the opinion of the court in a case very similar to our own, says : "Now, if the law of South Carolina allow of such a marriage, and although it be true that generally marriages are to be judged by the lex loci contractus, yet every country must so far respect its own laws I and their operation on its own citizens as not to allow them to be | evaded by acts in another country, purposely to defraud them." See, also, Whart. Confl. Laws, §§ 135, 181, 182. Let the judgment of the circuit court be affirmed.^" 15 Accord: In re Stull's Estate, 183 Pa. 625, 39 Ati. 16, 39 I* R. A. 5B0, 63 Am. St. Rep. 776 (1898). Contra: Van Voorhis v. Brintnall, 86 N. Y. 18, 40 ( Am. Rep. .505 (1881). It was held in Newman v. Kimbrough, 59 S. W. 1061, 52 L. R. A. 668 (19(X)), by the Court of Chancery Appeals of Tennessee, affirmed orally by the Supreme Court of that state, that such a marriage would be void, al- though the parties had not gone to the state where the marriage was cele- brated for the purpose of evading the law of the forum. See, in general, 60 Am. St. Rep. 941-947 ; 57 L. R. A. 169-171. A marriage valid under the lex loci et domicilii may be denied recogni- tion on the ground that it does not conform to the notion of a "Christian" marriage. Hyde v. Hyde [1866] L. R. 1 P. & D'. 130. See Wharton, Conflict of Liaws, § 131a. As to Indian marriages, see Wall v. Williamson, 8 Ala. 48 (1844) ; Earl v. Godley, 42 Minn. 361, 44 N. W. 254, 7 U R. A. 125, 18 Am. St. Rep. 517 (1890) ; Roche v. Washington, 19 Ind. 53, 81 Am. Dec. 376 (1862). As to law governing the essentials of a marriage, see, in general, 57 L. R. A, 159-173 ; Bishop on Marriage, Divorce and Separation, §§ 841-906. Continental Law. — (a) Form. — The rule "locus regit actum" governs. France, Art. 170, Civ. Code (see. also, article 171, Civ. Code) ; App. Douai, Dec. 5, 1904 (2 Darras, 189); App. Douai, Nov. 18, 1903 (S. 1906, 1, 161). Ger- many. Art. 11, Law Intr. Civ. Code. Italy, Art. 9, Prel. Disp. Civ. Code ; Arts. lOO-lOl, Civ. Code ; Cass. Palermo, Aug. 5, 1905 (34 Clunet, 849). It is suffi- cient, however, if the form required by the national law be observed. Ger- many, Art. 11, Law Intr. Civ. Code. Italy, Art. 9, Prel. Disp. Civ. Code. Cer- tain exceptions to the rule "locus regit actum" exist. In Germany no mar- riage can be celebrated except according to the form prescribed by Ger- man law. Article 13, Law Intr. Civ. Code. In Prance it is established law that, if Frenchmen resort to another jurisdiction for the purpose of evading French law, the marriage will not be recognized, notwithstanding it was celebrated in accordance with the formal requirements of the local law. 536 PARTICULAR SUBJECTS. (Part 2 SECTION 2.— DIVORCE. LE MESURIER v. EE MESURIER. (Judicial Committee of the Privy Council, 1895. L. R. App. Cas. 517.) Appeal from the Supreme Court of Ceylon dismissing appellant's libel for divorce on the ground of lack of jurisdiction. Appellant was an Englishman by birth and at the time when this action was instituted retained his English domicil of origin. The marriage with the re- spondent, a Frenchwoman, had taken place in England. Their prin- cipal residence from the date of their marriage until the commence- ment of this suit had been in Ceylon, but neither was domiciled there. None of the respondents except the wife were residents of Ceylon and none of the matrimonial offenses charged had been committed within the jurisdiction of the courts of Ceylon.^" Cass. July 5, 10O5 (33 Ounet, 1145); Cass. Jan. 3, 1906 (S. 1906, 1, 142); Ti-ib. 1st Inst. Tunis, Feb. 27, 1907 (35 Clunet, 496). Tlie above rules are subject to the provisions of the Convention of the Hague of June 12, 1902. See Appendix A, I. A defect of form may be cured by a "possession d'Stat," i. e., the general ano8 PAKTicuLAR SUBJECTS. (Part 2 the next of kin of the deceased legatee." According to English law, there being no reference to the statute of distributions, that means to* be divided amongst the nearest blood relations, in an ascending and descending line, those of the half-blood being equally entitled with those of the whole blood; but it is argued that I must stop short of that, and say that "next of kin" standing alone means the nearest blood relations of the propositus, and that I must, inasmuch as the lega- tee was a domiciled German, ascertain who are the nearest blood rela- tions in accordance with German law. In support of this proposition the cases mainly relied on by counsel for the nephews and nieces were Goodman's Trusts, 17 Ch. D. 266, and In re Andros, 24 Ch. D. 637, cases which establish that where there is a gift of personalty to the "children" of a named person who is a foreigner, not only those chil- dren will take who by English law would be entitled as "children," but the gift must be construed as meaning all those children whose legit- imacy is established by the law of their parent's domicile ; in other words, you construe the will containing a gift of personalty to chil- dren of a foreigner according to English law, but in ascertaining who are the children entitled you have regard to the status of the parent, so that ante nati made legitimate by the subsequent marriage of their parents, in countries where a subsequent marriage renders these children legitimate, are recognized as legitimate under English law, and can take under this gift. That results from the rules followed by the comity of nations which we call international law. Now, it is said here that, this being a gift in an English will to the next of kin of a German lady, it is a question of status who are the next of kin ; in my opinion, that is not the true view of the law. It appears to me I must construe the will first, and I find the gift means a gift to the legatee's nearest blood relations; it may well be that, in consequence of the legatee being a German, different persons may be entitled from those who would have taken had she been an English woman, as, for instance, suppose she had left children legitimate according to German law, but illegitimate according to English law, these chil- dren would take precedence, and would thus oust a sister or a brother who would otherwise have been the persons entitled according to English law, and then the question of status would come in; but that is a different thing from what Mr. Jessel asks me to do here, namely, to put an interpretation upon the words used by this testator which shall entirely exclude the English construction of those words. I liave the words "next of kin" in an English will. I ask myself, what do they mean? The answer is they mean nearest blood relations in the ascending and descending line, including those of the half-blood, and I see no authority in any of the cases which have been cited to me for saying that I ought to construe these words as meaning next of kin according to the German law. In my opinion, the next of kin, are to be ascertained according to English law, subject, as I have al- ready indicated, to the question of status, should any question of that d- 4) INHERITANCE. 639 kind arise. The result in the present case is, that I hold that the sister of the half-blood is entitled to this legacy to the exclusion of the nephews and nieces.* STAIGG V. ATKINSON. ' "^ (Supreme Judicial Court of Massachusetts, 1887. 144 Mass. 564, 12 N. B. 354.) HotMES, J.^* This is an action brought by a widow to recover one- third of the proceeds of land in Minnesota, formerly belonging to her husband, and sold without prejudice. The defense is that she is barred by having accepted the provisions of her husband's will. The husband made a will while domiciled in Rhode Island, providing for the plain- tiff, but not declaring the provision to be in Ueu of dower, and then changed his domicile to Massachusetts, where he died. If he had died domiciled in Rhode Island, and the land had been situated there, the provisions of the will would not have prevented the plaintiff from re- covering dower; and it has been decided, in' a case between the same parties, that the change of domicile did not affect her right in Rhode Island land. Atkinson v. Staigg, 13 R. I. 725. If he had been domi- ciled and had made his will in Minnesota, the plaintiff would have been entitled by statute to the one-third which she claims; and, as there is no statute to the contrary, the provisions of the will would not have put her to an election. Gen. Laws Minn. 1875, c. 40; In re Gotzian, 34 Mmn. 159, 163, 164, 24 N. W. 920, 57 Am Rep. 43 ; Reed v. Dickerman, 12 Pick. 146, 149; Ellis v. I^ewis, 3 Hare, 310. If, finally, the land had been situated in Massachusetts, and the will executed there, the plaintiff would have been compelled to elect be- "Aecord: In re Riesenberg's Estate, 90 S. W. 1170 (1905). The law of the last domicile of the testator will govern the interpretation of a will of personal property, unless the testator had in mind the law of another state. Harrison v. Nixon, 9 Pet. 483, 9 L. Ed. 201 (1835). See, also, Caulfield T. Sullivan, 85 N. Y. 153 (1881). But it has been said that, where the domicile has been changed since the making of the will, the law of the domicile at the time of its execution should govern the interpretation of the will. Atkinson V. Staigg, 13 R. I. 725 (1882), semble; Holmes v. Holmes, 1 Russ. & M. 660 (1830). See, also, English -Wills Act, 1861 (St. 24 & 25 Vict. c. 114) § 3. >The law of the last domicile will determine, also, in general, the eflfect and f operation of the will of personal property — e. g. whether a bequest is ab- solute or upon trust. McCurdy v. McCallum, 186 Mass. 464, 72 N. E. 75 (1904). So whether an active or passive trust has been created. Rosenbaum V. Garrett, 57 N. J. Eq. 186, 41 Atl. 252 (1898). So whether a legacy will lapse by reason of the prior death of the legatee. Anstruther v. Clialmer, 2 Sim. 1 (1825) ; Lowndes v. Cooch, 87 Md. 478, 39 Atl. 1045, 40 L. R. A. 380 (1898). Or whether a will will be revoked by the subsequent birth of children. Mills V. Fogal, 4 Edw. Ch. (N. Y.) 559 (1844) ; Sneed v. Ewing, 5 J. J. Marsh (Ky.) 460, 22 Am. Dec. 41 (1831). So whether the personalty has been equitably con- verted into realty. McPherson v. Stewart, 28 L. J. Ch. 177 (1858). So as to what win pass under the term "movables." Enohin v. Wylie, 10 H. L. Cas. 1 (1862). Or under the residuary clause of a will. Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721 (1891). 10 The statement of facts has been omitted. G40 PARTICULAR SUBJECTS. (Part 3 tween her dower aiid the will. Pub. St. c. 137, § SO; St. 1861, c. 164, § 1. S,o far there is no dispute between the parties. On the foregoing statement, it is obvious that the defendant cannot prevail, unless the rule which would govern if the land lay here also governs the present case. It is contended that that rule does govern, on the ground that the Massachusetts statute is a statute of construc- tion, reading a clause of universal application into the will, to the effect that thp provision made for the widow is in lieu of dower, or substituted statutory interests in all lands, wherever situated; that the will is to be construed by the law of the doniicile of the testator at the time of his death, and that if the will, so construed, makes an ac- ceptance of its provisions a waiver of dower, etc., the law of Minnesota would enforce the election made by such acceptance. Washburn v. Va:.n Steenwyk, 33 Minn. 336, 30 N. W. 334. But we cannot admit that a rule of construction, properly so called, not known to the law of the party's domicile when he made his will, is necessarily to be imported into it by reason of his dying domiciled elsewhere. For purposes of construction it is always legitimate to consider the time when and the circumstances in which the will was made, and we think the law under which it was made was one of those QJrcumstances. We are speaking only with reference to a case like the one before us, not to a question like that in Harrison v. Nixon, 9 Pet. 483, 504, 9 L. Ed. 301. The testator was at liberty to make his gift to his wife in lieu of or in addition to dower, as he saw fit. Which it should be, he had to consider, if he ever considered it, when he drew his will. He drew his will under a system by which the gift was i-n addition to dower unless he expressed the contrary, and he did not express the contrary. We are at a loss to see why his words should be held to acquire a new meaning upon his moving into a state where testamentary gifts are in lieu of dower unless shown to be in ad- dition to it. Atkinson v. Staigg, ubi supra; Holmes v. Holmes, 1 Russ. & M. 660. In view of our construction of the Massachusetts statute, it is not necessary to consider what was the effect of moving into Massachu- setts with regard to Massachusetts land. The plaintiff has never made any claim upon it. See Shannon v. White, 109 Mass. 146. Neither need we pass upon the plaintiff's argument that the general laws of Minnesota should be accepted here as determining the construction of the will, so far as concerns the effect of accepting its provisions upon the plaintiff's right to Minnesota land. It would follow from that argument that the plaintiff would have been barred of her dower in the Massachusetts land even if the testator had not moved from Rhode Island. The case of Jennings v. Jennings, 21 Ohio St. 56, relied on by both sides, was the case of a West Virginia will giving the wife certain in- terests in land in Ohio, and. it was intimated that with regard to Ohio lands she was put to her election between the will and her dower. Ch. 4) INHERITANCE. 641 although West Virginia preserved the common-law rule allowing her to claim dower in addition to what was given by the will. We under- stand this case to go on the ground that the law of the place of the land given to the widow by the will was to determine whether she was put to an election or not, at least with regard to land in the same jurisdiction, claimed outside the will. Thus construed, the case helps neither party. The case of Washburn v. Van Steenwyk, 33 Minn. 336, 30 N. W. 334, which was put in evidence, is opposed to the plain- tiff's contention. See Van Steenwyck v. Washburn, 59 Wis. 483, 510, 17 N. W. 389, 48 Am. Rep. 533. But we need not pursue this branch of the case further, because, in our opinion, the Massachusetts sta,tute does not purport to affect lands outside of the state either by way of construction or otherwise. The language of Pub. St. c. 137, § 30, is as follows : "A widow shall not be entitled to her dower in addition to the provisions of her de- ceased husband's will, unless such plainly appears by the will to have been the intention of the testator." In St. 1861, c. 164, § 1, the lan- guage is : "If she makes no such waiver, she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower." Both of these acts in form are directed at dower, not at the construction of wills. The statutes give the widow dower (Pub. St. c. 134, § 3 ; Rev. St. c. 60, § 1), and allow her six months in which to waive the provisions made for her by will (Pub. St. c. 137, § 18; St. 1861, c. 164, § 1 ; Rev. St. c. 60, § 11). They then go on to say that she cannot have her dower unless she waives the will, but add that the hus- band may make his bounty an addition to her dower if he sees fit. No doubt the statute was intended to change the common-law rule. But the fact that it approaches the subject from the side of dower, and not from the side of the will, shows that it was only intended to operate with regard to Massachusetts lands, whether described as a statute of construction or as a statute relating to dower. Of course, Massachusetts would not attempt to legislate concerning dower in another state. Taking the view which we have expressed, we have not considered whether the statutory one-third in fee given by the law of Minnesota would be included under the word "dower" in our statute. It was suggested for the defendant that the widow could not claim under tl;ie wilj in one jurisdiction, and against it in another. But, on our construction of the will and the Massachusetts statute, she does not claim against the will by claiming her third of the Minnesota land outside of it. We are of opinion that the plaintiff's interest is bound to contribute to the payment of debts secured by mortgage upon the Massachusetts lands. By the old law, until changed in England by St. 17 & 18 Vict. c. 113, if other land was charged with the payment of debts, it had to exonerate land which the testator had mortgaged. And this rule LOB.CONF.Il. — 41 642 PARTICULAE SUBJECTS. (Part 2 was not based upon the fact that the devise of the mortgaged land was specific, as it would have been even if residuary, or upon any no- tion of the intention to be drawn from the will. Undoubtedly, land not passing by the will, but acquired and mortgaged after the will was drawn, would have been exonerated. The rule was put upon the gi-ound that the debt was a general debt, like any other, and the mort- gaged land only a security, and therefore that the funds liable for gen- eral debts must pay it. Bartholomew v. May, 1 Atk. 487 ; Tweedale v. Coventry, 1 Brown, Ch. 240; Serle v. St. Eloy, 2 P. Wms. 386; Hewes v. Dehon, 3 Gray, 305, 207; Plimpton v. Fuller, 11 Allen, 139. It followed that, when other land and the mortgaged land were both charged together, they were held to contribute ratably (Carter v. Barnadiston, 1 P. Wms. 505 ; Middleton v. Middleton, 15 Beav. 450 ; Harper v. Munday, 7 De Gex, M. & G. 369); and the same principle would apply when all the lands are charged by statute, instead of by will. By the Minnesota statute, the plaintiff's interest is "subject, in its just proportion, with the other real estate, to the payment of such debts of the deceased as are not paid from the personal estate"; so that, apart from the will, the plaintiff's one-third would stand no better than the other two-thirds. Taking into account this and the general course of legislation which makes land liable for debts, we think that it would be too artificial to interpret the testator's general direction to pay debts as indicating an intent to charge the interests passing by the will in exoneration of the plaintiff's one-third, even as against residu- ary devisees. Hewes v. Dehon, ubi supra. See Harris v. Watkins, Kay, 438. Although we assume that the residuary devise was not specific, so far as it affected the Minnesota land, as it was not with regai-d to the land in Massachusetts (Blaney v. Blaney, 1 Cush. 107; Thayer v. Wellington, 9 Allen, 283, 296, 85 Am. Dec. 753), the plain- tiff prevails upon a somewhat technical principle, and hardly can com- plain if she is held to stand upon the footing on which the Minnesota statute meant to put her. Judgment for plaintiff for $2,205.69.^1 PEET V. PEET. (Supreme Court of Illinois, 1907. 229 111. 341, 82 N. E. 376, 13 L. R. A. [N. S.] 780.) ViCKBRS, J." Section 10 of chapter 39, Hurd's Rev. St. 1905, pro- vides as follows: "If, after making a last will and testament, a child 11 In favor of the lex domicilii of the testator, see, also, Boiling v. Boiling, 88 Va. 524, 14 S. E. 67 (1891). 12 The statement of facts has been omitted. Only so much of the opinion is given as relates to the discussion of the law governing the construction of the will. Cartwright, Farmer, and Dunn, JJ., dissented. Ch. 4) INHERITANCE. 643 shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the tes- tator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a por- tion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died in- testate, and a marriage shall be deemed a revocation of a prior will." The sole question for determination in this case is whether the de- vise under the will should be abated to raise a portion for appellant equal to that which he would have been entitled to receive had the tes- tator died intestate. Appellant's contention may be reduced to two principal propositions: First, whether the testator intended by his will to disinherit his after-born child must be determined by the laws of the state of New York, where the testator was domiciled ; second, un- der section 10 of chapter 39 of our statutes, above set out, no evidence outside of the will itself is admissible, and under said section and the words of the will appellant is entitled to a one- fourth interest in the real estate involved. If either of the foregoing propositions is sus- tained, then that the decree below is erroneous would seem to follow as a necessary conclusion. We Will consider these two propositions in the order in which they are stated. First. Appellant concedes that the devolution of real property is governed by the law of the place where the real estate is situated, but be insists that in determining the testator's intention the law of New York must govern. To say that the intention of the testator must be determined under the laws of his domicile is equivalent to saying that the construction of a will is governed by the laws of the testator's domicile. There is no perceivable difference between the construction of a will and determining the intention of the testator, unless it may be said that ascertaining the intention of the testator is the object to be sought, and construction is the means of attaining that object. Whatever may be the rule with respect to movable property, we regard the law as firmly established in this state that all instruments affecting the title of real estate situated in this state must be governed, as to their execution, construction, and legal sufficiency, exclusively by the laws of Illinois, and not by the laws of a foreign country or sister state wherein the maker may reside at the time of their execution. In Redfield on Wills (volume 1, p. 398), it is said : "It is scarcely necessary to state that in regard to real property the mode of execu- tion, the construction, and the validity of a will must be governed ex- clusively by the lex rei sitae. The descent of real estate, as 'well as the devise of it, is governed exclusively by the law of the place where the property is situated. It would not comport with the dignity, the independence, or the security of any independent state or nation that these incidents should be liable to be affected, in any manner, by the legislation or the decisions of the courts of any state or nation besides Mi PARTICULAR SUBJECTS. (Part 2 itself. This has been a universally recognized rule of the Englis}! law from the earliest time, and is so unquestionable that we should scarce- ly feel justified in occupying much space in reviewing the cases." In City Ins. Co. v. Commercial Bank, 68 111. 348, this court, on page 353, said: "Mr. Story concedes that the courts of England and the United States have arrived at opposite conclusions as to the effect of statutable transfers of movable property under the bankrupt or in- solvent laws of the debtor's domicile, but he adds: 'All the authori- ties in both countries, so far as they go, recognize the principle, to its fullest extent, that real estate or immovable property is ex- clusively subject to the laws of the government within whose terri- tory it is situated. Indeed, so firmly is this principle established that in cases of bankruptcy the real estate of the bankrupt situated in foreign countries is universally admitted not to pass und^r the assignment, although, as we have seen, there is great diversity of opinion as to movables.' Story on Conflict of Laws, § 428." See, also. West v. Fitz, 109 111. 425. In Wunderle v. Wunderle, 144 111. 40, 33 N. E. 195, 19 L. R. A. 84, this court, on page 53 of 144 111., page 197 of 33 N. E. (19 E. R. A. 84), said : "It is a general rule of the common law that the title to real property must be acquired and passed according to the lex rei sitae. This rule not only applies to alienations and acquisitions made by the acts of the parties, but also to estates and rights acquired by operation of law. The descent and heirship of real estate are governed by the law of the country where it is located. Story on Conflict of Eaws, §§ 424, 448, 483, 509 ; Stoltz V. Doering, 112 111. 234. This principle, originally applicable as be- tween countries entirely foreign to each other, also prevails as among the states of the American Union." In Harrison v. Weatherby, 180 111. 418, 54 N. E. 337, this court had before it a will executed in the state of North Carolina by Richard Smith. There were no witnesses to the will, and apparently the laws of North Carolina recognized the validity of holographic wills without attestation. The will, on its face, showed that it had been written by the testator in person, and attestation by witnesses was dispensed with because the law of that state recognized the validity of a will proven to be in the handwriting of the testator. The will affected the title to a large body of real estate in Illinois. In the course of the opinion in that case, on page 435 of 180 111., page 239 of 54 N. E., the following rule was laid down by this court: "The validity and construction, as well as the force and eifect, of all instruments affecting the title to land, depend upon the law of the state where the land is situated. This rule includes wills, as well" as deeds, contracts, or agreements; and it includes the form and mode of the execution of the will as well as the power of the tes- tator to make the devise or disposition of property contained in the will. West v. Fitz, 109 111. 425 ; McCartney v. Osburn, 118 111. 403, 9 N. E. 210 ; City Ins. Co. of Providence v. Commercial Bank of Bris- tol, 68 111. 348; Wunderle v. Wunderle, 144 111. 40, 33 N. E. 195. Ch. i) INHEEITANCB. 645 19 L. R. A. 84 ; Ford v. Ford, 70 Wis. 44, 33 N. W. 188, 5 Am. St. Rep. 117; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049; McCormick v. Sullivant, 10 Wheat. 193, 6 L,. Ed. 300; Darby v. Mayer, 10 Wheat. 465, 6 E. Ed. 367." .It will be noted that in the cases above cited the construction of instruments affecting real estate, as well as their force and validity, is governed exclusively by the lex rei sitae. Judicial construction is 'the process of applying nat- ural methods of finding and weighing evidence to discover the fact of intention. To say that the intention of a maker of an instrument is to be determined by one law or set of rules, and that its construc- tion is to be by another and different law or set of rules, is contradict- ory and absurd. The oiily authorities in this state that appellant cites in support of his conteiition are Carpenter v. Browning, 98 111. 383, and Fireund v. • Freund, 318 111. 189, 75 N. E. 935, 109 Am. St. Rep. 383. Neither of these cases is in point. In the Browning Case the question present- ed was as to the effect of the married woman's act of 1861 upon a de- vise in trust for the use of a married woman, made prior to the act of 1861. In that case, after the act of 1861 was passed, the usee sought to compel the execution of the trust by compelling a conveyance to be made by the trustee to the beneficiary. It was held that the married woman's act of 1861 did not execute the trust nor entitle the beneficia- ry to a conveyance where the will imposed active duties on the trustee. In disposing of that case the court held that the state of the law at the time of the execution of the will might be referred to for the purpose of arriving at the intention of the testator, and that the rights of the parties were to be determined under the law as it existed at the time of the testator's death. The case lends no support to appellant's con- tention that a law of a foreign country or sister state should govern this court in the construction to be given to the will now under consideration. Freund v. Freund involved the right of the insur- ed, under a New York life insurance policy, to change the bene- ficiary without the consent of the company properly indorsed on the policy. Under the statute of New York a beneficiary could not be changed except by written indorsement upon the policy by the com- pany. It was held that the assured was bound by the statute of New York. That case has no application whatever to the facts of the case in hand. The case does not relate to real estate or other property located in this state. The contract of insurance was executed in the state of New York, and, so far as the case shows, was to be wholly performed there, and, of course, was made atid accepted in view of the statute relating to a change of beneficiaries. The authorities relied on by appellant outside this state, so far as we have been able to exarhine them, seem to be referable rather to the doctrine, recognized in this state as well as in those jurisdictions where- in the cases are found, that in determining the true intent and mean- ing of a will the court will have recourse to the circumstances of the 646 PARTICULAR SUBJECTS. (Part 2 testator and of his family and afifairs, and of other facts which it can be shown will in any way aid the court in the right interpretation of a testator's will. Proposition 5 of Wigram's Rules, p. 142, Wig- ram on Wills. Under this rule we have no doubt that if a will execut- ed in a foreign country contains words or phrases which have a local or domiciliary meaning different from the meaning of the same words or phrases in this state, with which the testator is shown or presumed to have been acquainted, extrinsic evidence of such domiciliary mean- ing may be heard to enable the court to read the will with the same light under which it was written. In this view it can make no differ- ence how such domiciliary meaning was established. It may be by the usage or custom of merchants or traders in the place where the instrument was executed, or may be a meaning established by statute or judicial decision. But, however established, the usage or law, and the meaning of the words thereunder, are proven, not to establish a rule of law binding on the court charged with the proper interpreta- tion of the will, but simply as a fact or circumstance proven to enable the court to arrive at a correct construction under the laws of the forum. It is a well-established rule that parol evidence may be received of a usage or custom to explain the meaning of terms used in a written contract that would otherwise be ambiguous. Indeed, under the more recent authorities the rule seems to be established that such evidence is admissible to explain the meaning of, but not to contra- dict, the instrument, even though no ambiguity exists on the face of the instrument. 1 Elliott on Evidence, § 607, and cases there cited. See, also, 2 Page on Contracts, § 1108, and citations there made. As applied to the construction of instruments affecting the title to real estate, the above rule furnishes the only ground upon which a court of this state is warranted in hearing evidence as to the law of the state or government of the maker's domicile, and when, under these limitations and restrictions, it is heard, it is only to be considered as an extrinsic fact brought forward by extrinsic evidence to enable the court to properly interpret the true intention of the testator. While the language selected by courts and law writers in applying this rule has not always been entirely clear, yet, when the authorities are care- fully considered and analyzed in the light of the facts involved, we do not believe a well-considered case can be found which holds that the law of the domicile of the maker of an instrument affecting the title of real estate, respecting the construction thereof, is binding on a court where the real estate is situated, when called on to construe and en- force such instrument. Our conclusion as to appellant's first proposi- tion is that it cannot be sustained, and that the will is to be construed — that is, the intention of the testator must be determined — by the law of this state. * * *is J 3 See, also, Minor, Conflict of Laws, § 145; Crawford D. Hening, Construe- iiou of Wills Devising Real Estate. 50 Am. L. Reg. 623-638, 718-733. t^h- 4) INHERITANCE. 647 WESTERMAN v. SCHWAB. (C!ourt of Session, 1905. 8 Sess. Cas. [5th Series] 132.) This was an action of multiple poinding raised in the Sheriff Court at Aberdeen at the instance of Thomas Collette Westerman, executor dative of the deceased Mrs. Sarah Ann Scott or Westerman, wife of the deceased Edward Westerman, soap manufacturer, Aberdeen. On 4th June, 1897, Mrs. Westerman, then Miss Scott, executed a will in English form disposing of her whole estate. At that date and down to the date of her marriage with Mr. Westerman she was domi- ciled in England. Some years after the execution of the will she was married in England to Mr. Westerman, who was then, and continued to be till his death, domiciled in Scotland. Mrs. Westerman died at Aberdeen on SSth March, 1904, survived by her husband, who died on 27th April, 1904, without having expede confirmation of her estate. The pursuer, who was a son of Mr. Westerman by a prior marriage, gave up an inventory of the estate of Mrs. Westerman, and was duly confirmed executor dative to her qua representative of her husband. The estate left by Mrs. Wester- man consisted of movable estate. One half of the free residue of the estate was paid by the executor to the representatives of Mrs. Westerman's husband in respect of jus relicti. The other half of the free residue formed the fund in medio in this action. A claim was lodged by Frederick L. P. Schwab and others, the executor and legatees under Mrs. Westerman's will. They claimed the whole fund in medio in virtue of the will. A claim was also lodg'ed by George Worth and others, Mrs. Wester- man's next of kin. These claimants averred that the will executed by Mrs. Westerman on 4th June, 1897, was, according to the law of Eng- land, revoked by her subsequent marriage. [The Wills Act, 1837 (1 Vict. c. 26), enacts as follows: "Sec. 18. And be it further enacted that every will made by a man or woman shall be revoked by his or her marriage. * * * Sec. 35. And be it further enacted that this act shall not extend to Scotland."] And that she executed no will subsequent to her marriage. The claimants Schwab and others pleaded: (2) Mrs. Sarah Ann Scott or Westerman becoming by her marriage a Scotswoman, her will was not revoked by her marriage, but remained valid and effectual. The claimants Worth and others pleaded: (1) The will founded on, having been executed before the marriage of the said Sarah Ann Scott or Westerman, who continued domiciled in England down to the date of her marriage, was by her marriage revoked. By an interlocutor, dated 28th December, 1904, the sheriff substi- tute (Robertson) found that the will executed by Mrs. Westerman on 4th June, 1897, remained valid and effectual notwithstanding, her sub- (*4:8 PARTICULAR SUBJECTS. (Part 2 sequent marriage, and therefore ranked and preferred the claimants Schwab and others in terms of their claim. The claimants Worth and others appealed to the sherifiE. By inter- locutor dated 11th February, 1905, the sherifiE (Crawford) recalled the sherifif substitute's interlocutor, found that the will executed by Mrs. Westerman on 4th June, 1897, was revoked by her subsequent marriage, and therefore ranked and preferred the claimants Worth and others in terms of their claim. The claimants Schwab and others appealed to the Court of Session. lyORD President.^* Miss Scott was a domiciled Englishwoman, and she executed a will — properly executed it according to the law of Eng- land — by which she disposed of her whole estate. Some years there- after she married Mr. Westerman, of Aberdeen, a domiciled Scotsman. Some years after that she died, having continued to live with her husband in Scotland. She left no will behind her except the will which she had made while she was a spinster. Her husband claimed and has received one-half of her movable estate in respect of his jus relicti ; and a competition has arisen as to the other half, the coitlpeti- tors being the executors under her will which I have referred to, and her next of kin, the latter claiming upon the assumption that she died intestate. The argument for intestacy turns entirely upon the fact that, by the eighteenth section of the Wills Act, 1837, it is enacted that every will made by a man or woman shall be revoked by his or her mar- riage. It is admitted by the parties that the Wills Act does not apply to Scotland; but it is contended on the one Side that, being an Eng- lishwoman, the moment she married her will was cut down, whereas, on the other side, it is maintained that the moment she married she became a Scotswoman, and that, therefore, the Wills Act had no efifect, and the will was not cut down. The sherifif substitute and the sherifif have taken dififerent views upon the matter. The point is a novel one, as to which I do not think that in this country, at any rate, there is any authority. The sheriff substitute held that the will was good-. His view is very well expressed. He says : "It is the law of the testatrix's domicile at the time of her death that determines the validity of the will; the testatrix died a Scotswoman, and by the law of Scotland a will valid when made according to the law of the testator's then domi- cile remains in force, notwithstanding a subsequent marriage, unless, of course, revoked. No doubt, if the testatrix here had married an Englishman the will would have been ipso facto revoked as if it had never been, and could not have been resuscitated even though she afterwards acquired a Scotch domicile. But the case here is different. The act that would otherwise have revoked the will exempted the testatrix from the provisions of the revoking statute." The sherifif, on the other hand, while agreeing with much that the sherifif substi- 1* The Lord Dunedin. Ch. 4) INHERITANCE. 649 tute says, states this, and this is the keynote of his judgment: "All three things are simultaneous, and occur at the same moment — the marriage and its two results — the revocation of the will and the change of domicile. The important point is that the two results are strictly simultaneous with each other. The same stroke which cuts off the English domicile cuts off the will. It is impossible to say that the testratrix had acquired a Scottish domicile before the event which revoked the will. For these reasons, I am of opinion that the will was revoked, and that the claimants under it cannot succeed." In these circumstances it cannot but be said that the question is one of nicety. If I may venture a criticism upon the learned sheriff's judgment it would be this, that I do not think the case can be well disposed of upon what I may call metaphysical considerations as to the precise moment of time at which these things happened. ' I think the way to dispose of the case is to begin at the beginning of the elementary principles that govern such matters. The first question undoubtedly is this : What is the domicile of the alleged testatrix at the time when she died? There is no doubt about that, everybody agrees that she died Scottish. Therefore you have first the undoubted propo- sition that it is the law of Scotland that will regulate the distribution of the effects which she left behind her ; and indeed it is conceded not only in argument at the bar, but it is conceded de facto by what has happened, because of course, it is under the law of Scotland that one- half of her movable estate has been given to her surviving husband in the name of jus relicti, which is a purely Scottish right. But, further, the law of Scotland goes on to say that the half which is not affected by the jus relicti, the half which is the dead's part, shall be carried by a will if she left one; and accordingly it is the law of Scotland which will first of all decide whether she did leave a will, or whether she did not. A certain document is produced which, upon the face of it, bears to be a will; and here the law of Scotland, although completely keeping to itself the right of pronouncing whether anything is a will or is not, will often have to have recourse to other systems of law in order to know whether a particular document is or is not a -will. Take the case that the will in question was a will which undoubtedly was badly executed according to the law of Scotland, but of which it was alleged that it was quite properly executed according to the law of the country where the person was domiciled at the time that he ex- ecuted it. The law of Scotland will always go to that system of law and will inquire: "Is this will well executed according to the forms of that other country, or is it not?" If the answer is in the affirmative, then it will give effect to it according to the law of that country. We had a very excellent argument upon both sides of the bar, but I can- not go the whole length that Mr. Brown wished us to go in the second portion of his speech, when he urged that the moment we say that this lady was a domiciled Scotchwoman, then the question ended. The question does not end, because, once you have to go to another 650 PARTICULAR SUBJECTS. (Part 2 system to find out whether this is a will or not, you have got, of course, to take the history of the document. I am assuming you are answered at once, that, according to the English law, the will was well executed ; but then it would be pointed out that although it is well executed, it was put out of existence 1?y something else happening, and we are bound to look into that. Now, what is that something? That some- thing is the fact of the marriage, and accordingly, it seems to me that we are bound to consider as the next question, what was the state of the law which arose upon the marriage? By what law is that to be determined ? It seems to me that the real principle is that when you come to con- sider the effect of the marriage upon the patrimonial rights of the persons who were married, you must, apart of course from the ques- tions of special contract, always consider that according to the law of the domicile of the married persons, and the law of the domicile of married persons is the law of the domicile of the husband. I am confirmed in this view, because I think it is directly in accord- ance with the view that was taken by the Master of the Rolls, now lyord Lindley, in a case which does not seem to have been cited before either of the learned sheriffs, X,oustalan v. Loustalan, L. R. (1900) 311. The judgment itself does not touch this case, and there was so much difference of opinion among the learned judges who disposed of the case upon the precise import of the facts, that one has to look at the case with considerable care, in order to extract from it what was really laid down in it. The question was, whether a will made by an unmarried Frenchwoman was or was not revoked by her sub- sequent marriage. The lady in question was undoubtedly French in origin. She came over to England and entered domestic service with an English family. While she was in England she made a will. It was not executed according to the law of England; it was executed according to the law of France. About four years after that she left domestic service and established a laundry business in London. In the same year she married a French refugee, who was flying from France at that time in order to escape from a prosecution for some offence which he had committed. Indeed, he had been sentenced in absence to ten years' imprisonment. The parties lived together for some time in England, and then, the ten years having run out, the husband seemed to have thought it safe to go back to France again, which he then did. He and his wife parted company, she remaining in England and he going to France. In that state of matters she died, leaving no will behind her except the old will which she had made as a spinster. The point in that case, as in this, was simply whether that will had been revoked by her marriage. The case was first disposed of by the late President of the Probate Division, Lord St. Helier, and it subsequently went to the Court of Appeal, composed of Lord Lind- ley, Master of the Rolls, and Lords Justices Rigby and Vaughan Williams. The learned Lords took very different views upon the Ch. 4) IXHERITANCE. 651 facts. The President held that at the date of her death her domicile was in France, because, in his opinion, her husband was domiciled in France at her death, but he held that when they married, at the moment of marriage, they intended that the matrimonial regime should be in England ; and upon that he came to certain conclusions. The . Master of the Rolls did not take that view at all. He thought that the domicile of both parties was French all along, that is to say, he thought that she had not lost her French domicile when she married, and that he did not lose his French domicile when he married her, in respect that he went back to France; and accordingly she was French from beginning to end. The other two Lord Justices, on the other hand, thought that the husband's domicile at the time of the marriage was English, and upon that view they held that the will was not good. But I am bound to state that I do not think they put their judgment nearly so much upon the operation of the marriage, in respect of the Wills Act, as they did upon this, that if the husband was a domiciled Englishman at that time, which was before some of the recfent Married Women's Property Acts, the result was simply to transfer the lady's whole estate to the husband, and that consequent- ly it was not so much a question of whether the will was good or not, as a question of there being nothing for the will to operate upon. I think Mr. Watson's observation' was well founded ; that although the case looks, upon the mere reading of the rubric, to be an authority against him, it is not really an authority upon this point, and I agree with him. There are certain observations of both Lord Justice Rigby and Lord Justice Vaughan Williams to the effect that this 18th section of the Wills Act is part of the matrimonial and not of the testamentary law with which I find it difficult to agree. I am not sure that I quite un- derstand what they mean by that, because I cannot see that you can divide the law into chapters, and say that such a thing belongs to one portion of the law and not to another. Of course, in many cases, it may be convenient to do so lor pufposes of discussion or reference, but I do not see how the effect of a thing can depend upon that di- vision into chapters. What I take from the Case of Loustalan, L. R. (1900) 311, accordingly, is not the decision, but rather certain obser- vations of Lord .Lindley, which, I think, are absolutely in point in the view of the law which I am suggesting, although as a matter of fact, they did not receive application in that case owing to the view of the facts that Lord Lindley took. Now, Lord Lindley begins, just as I have ventured to begin, by saying you must first of all begin at the death of the alleged testatrix, and find what the domicile then was. He held that her domicile at her death was French ; but he goes on to say : "The validity of a will of movables made by a person domiciled in a foreign country, at the time of such person's death, not only may, but must, depend on the G52 PARTICULAR SUBJECTS. (Part 2 view its Courts take of the validity of the will when made." Here it is agreed that the will was vahd when made. But then he goes on to say, not only that it depends on the validity of the will when made, but on its subsequent revocation if that question arises. "These ques- tions," he says, "may or may not turn on the domicile of the testator as understood in this country," and then he goes on to state the facts, and says — "By whatever court this question is to be decided, the Eng- lish law of marriage, which in such a case involves, and indeed turns on English views of domicile, must be considered. If this view be ig- nored, the effect of the marriage will be inadequately, and indeed er- roneously, ascertained. If the domicile of the testratrix is to be treat- ed as English, when she became a married woman her will was revoked by her marriage, for such is the law of England whatever the inten- tions of parties may be; but if her domicile was French, her will would not be revoked by English law, and still less by French law. Both laws are alike in regarding her domicile as that of her husband as soon as she married him. The effect of her marriage must, there- fore, depend upon the English view of his domicile." That is exactly what I have suggested to your Lordships. Further on, in a later portion of his judgment, his view is made perfectly clear, if your Lordships keep in mind what I have said upon the facts of the case, because at page 333 the learned Lord says this: "The domicile of the testratrix being French when she made her will and when she died, it became necessary to ascertain the effect of her will on her movable property according to French law. The husband being, in my opin- ion, domiciled in France when she married, it became necessary to ascertain the effect of such marriage by French law upon her will; and if, in order to ascertain this, it became necessary for the French experts to be told what the English law was, they should have been told that it depended on the view which an English court would take of the domicile, in the English sense, of the husband; and if I am right in my view of his domicile, the experts should have been told that by English law the marriage in this case did not revoke the wife's will." Your Lordships will notice that I have emphasised the fact that he always speaks of the husband and his domicile. He excludes al- together the consideration of what was the domicile of the wife. He says it is quite enough if you settle one way or another what was the domicile of her husband at the time of the marriage, because the moment you do that you settle what her domicile is; and then if you settle what the domicile of the parties at the time of the marriage is, you at once settle the law according to which the proprietary effects of the marriage are to be judged — either French law if he is a domiciled Frenchman, or English law if he is a domiciled Englishman. And, accordingly, he further goes on to say: "It was not necessary, or, indeed, proper on this occasion to pursue the inquiry further, and to see Ch. 4) INHERITANCE. 653 what matrimonial regime the parties intended to adopt. It was not necessary to cite authorities to shew that it is now settled that ac- cording to international law, as understood and administered in Eng- land, the effect of marriage on the movable property of spouses de- pends (in the absence of any contract) on the domicile of the husband in the English sense. * * * This being clear, the will was not re- voked." That would be a non sequitur unless the whole point de- pended upon the domicile of the husband at the time of the marriage. Accordingly, I think that, carefully looked into, it will be found that I certainly have the great authority of Lord L,indley for the proposi- tion that I am putting, that when you come to consider what the effect of the marriage is upon the will, which you have already started with as being properly executed, you must consider, that in the light of thp law of the domicile of the married persons at the date of the marriage, and the law of the domicile of the married persons is the law of the domicile of the husband. Here the domicile of the hus- band at the date of the marriage was Scottish, and, therefore, you have to consider the effect of the marriage upon the will in the light of the Scottish law, and not of the English. That being so, there is no question whatsoever that by the Scottish law the will of this spinster, being valid before her marriage, was not revoked, and, accordingly, I think the will stands. That disposes of the case; but I ought to mention a very ingeni- ous argument Mr. Watson pressed upon us, which was this, that the effect of the English Wills Act was really, so to speak, to read a clause into every English person's will to the effect that his will shall be revoked on marriage. He cited authorities in which certain ex- pressions were used that are consistent with that view. I am not in any way controverting the authority of these cases, because they do not touch the point at all. It would be quite a convenient way of speaking, to say that every will has got that read into it; but if you are to press that form of expression to more than a convenient way of speaking, then I do not agree. I do not think we need go further on this point than to cite the Case of Loustalan, L. R. (1900) 311, where the court held the will was revoked. The lady in that case married a person whom the court held to be a domiciled Englishman. Of course it does not matter whether the facts were rightly or wrongly decided. The husband in that case was a domiciled Englishman according to the majority of the court, and that revoked the will. That could only be by the operation of the act at the time of the marriage, because- it is evidently absurd to suppose that that French spinster's will had ingrafted into it a condition that revoked it upon marriage, because everybody agrees that, at the time she made the will, the will was a French document, and not an English document. Accordingly, I think that shews that what Mr. Watson says is no more than a conveni- ent form of expression,, and does not really go to the root of the matter. 654 PAETicuLAR SUBJECTS. (Part 2 On the whole matter I am of opinion that we should recall the judg- ment of the sheriff, and revert to the judgment of the sheriff substi- tute," HOPE V. BREWER. vhose law special rules apply. Article 28, Law Intr. Civ. Code. As to immovables, see, also, R. G. May 31, 1906 (35 Clunet, 193). Italy. — ^The national law of the deceased will govern the devolution of both movable and Immovable property. Article 8, Prel. Disp. Civ. Code; App. Genoa, March 16, 1887 (La Legge, 1887, 2, 310) ; App. Milan, March 21, 1905 (33 Clunet, 1236). The national law is applied by some courts also to immov- ables situated in a country under whose law the lex rel sitae is held to gov- ern the succession to realty. Cass. Turin, Feb. 20, 1905 (34 Clunet, 509) ; Trib. Civ. Caltanissetta, March 27, 1891 (20 Clunet, 9.55) ; Cass. Turin, Dec. 20, 1905 (35 Clunet, 910). Others, by reason of their inability to enforce their decree under the circumstances, will follow the law of the situs. Cass. Turin, June ly, 1874 (Monitore 1874, p. 894) ; Cass. Palermo, Aug. 25, 1894 (S. 1895, 4, 28) and note. 2. Testamentary Succession. — a. Capacity. — France. The national law of the testator applies to wills relating to both movables and immovables. App- Paris, Aug. 10, 1872 (1 Clunet, 128), semble. Germany. — Articles 7, 24, Law Intr. Civ. Code. Italy. — Article 6, Prel. Disp. Civ. Code. It is sometimes dif- ficult to determine whether a matter relates to capacity or to form. See French Cass. Apr. 2, 1884 (S. 1886, 1, 121), and note ; Cass. Florence, Nov. 12, 1897 (Monitore 1898, 245). b. Form. — The rule "locus regit actum" applies to wills of both movable and immovable property. France. — ^Ti'ib. Civ. Seine, Dec. 23, 1881 (9 Clunet, 322). /«a?j/.— Article 9, Prel. Disp. Civ. Code ; Cass. Turin May 31, 1881 (Mon- itore 1881, p. 673). Germany. — Articles 11, 24, Law Intr. Civ. Code. It has been held, however, that such a will will not stand in the face of an express statute existing under the national law of the testator. Cass. Turin, April 12, 1892 (Monitore 1892, p. 346). The rule "locus regit actum" is optional in Germany and Italy, the testa- tor being authorized to execute his will also in the form required by his na- tional law. Germany. — Articles 11, 24, Law Intr. Civ. Code. Italy. — Article 9, Prel. Disp. Civ. Code. In France the rule seems to be optional for French- men executing wills abroad, article 999, Civ. Code, but imperative for foreign- ers executing wills in France, Cass. March 9, 18.53 (D. 1853, 1, 217) ; App. Aix, July 11, 1881 (S. 1883, 2, 249), and note by J. E. Labbfi; App. Paris, Dec. 2, 1898 (D. 1899, 2, 177) and note by Ch. aaro ; App. Origans, Feb. 24, 1904 (31 Clunet, 680). In favor of optional character of the rule, permitting compliance with the formal requirements of the national law, Trib. Civ. Seine, June 28, 1895 (22 Clunet, 847) ; Trib. Civ. Eouen, July 22, 1896 ; App. Rouen, May 7, 1898 (26 Clunet, 578). See, also, note by B. Naquet to Cass. July 29, 1901 (S. 1903, 1, 73). , ^. c. Substantive Provisions. — France. — The rules governing the devolution of property upon intestacy apply here. Cass. Jan. 26, 1892 (D. 1892, 1, 497), and note by P. Pic; Cass. April 2, 1884 (S. 1886, 1, 121) and note; App. Pau, June 11, 1906 (D. 1907, 2, 1). Subject, however, to acquired rights upon a 682 PARTICULAR SUBJECTS. (Part 2 change of nationality or otherwise. App. Paris, Jan. 7, 1870 (S. 1870, 2, 97); Cass. Jan. 31, 1832 (S. 1832, 1, 220). Subject, also, to the rules con- cerning public order. Cass. Jan. 24, 1899 (D. 1900, 1, 533). See, also, L>. Re- nault, De la succession ab intestat des Strangers en France et des Frangais a I'gtranger, 2 Clunet, 329-345, 422-429, 3 Clunet, 15-22. Germany. — The national law governs both as to movables and Immovables. Article 24, Law Intr. Civ. Code. Subject, however, to renvoi. Article 27, Law Intr. Civ. Code. Such law is not applicable to property situated in a state where special rules prevail. Article 28, Law Intr. Civ. Code. See, In this connection, article 59, Law Intr. Civ. Code. Consult, also, C. Barazetti, Zur Brlauterung des Art. 24 Abs. 3 des Einfiihr- ungsgesetzes zum biirgerlichen Gesetzbuche fiir das deutsche Keich, 7 Nle- meyer, 1-7; J. Keidel, Le droit international privg dans le nouveau Code Civil Allemand. 26 Clunet, 260-275 ; P. Klein, Zur Auslegung des Art. 24 des E. G. zum deutschen biirgerlichen Gesetzbuche, 12 Niemeyer, 444-446; P. Klein, Haben die deutschen Vorschriften liber Pflichtteilsrecht und Erbun- wtirdlgkeit fiir das Internationale Privatrecht einen zwingenden Character? 13 Niemeyer, 87-91. Italy. — The national law governs with respect to both movables and immov- ables. Article 9, Prel. Disp. Civ. Code. See, also, P. Bsperson, Le droit in- ternational prlvfi dans la legislation italienne, 8 Clunet, 216-230; P. Piore, De la succession des Strangers en Italie, 30 Clunet, 42-70. In regard to successions and wills, see, also, Draft of Convention, signed at the Hague July 17, 1905, Appendix B, I, and, in general, G. Diena, De I'ln- fluence que pent exercer sur la validite d'une substitution un changement de nationalite du greve, 21 Clunet, 255-264 ; A. Laine, De la forme du testament privg en droit international, 3 Darras, 833-896; F. Survllle, La rSgle "locus regit actum" et le testament, 33 Clunet, 961-97&. Ch. 5) FOREIGN ADMINISTRATIONS. CHAPTER V. FOREIGN ADMINISTRATIONS. 683 SECTION 1.— EXECUTORS AND ADMINISTRATORS. VAUGHAN V. NORTHUP. (Supreme Court of the United States, 1841. 15 Pet. 1, 10 I/. Ed. 639.) Story, J.^ This is an appeal from a decree of the circuit court of the District of Columbia, sitting for the county of Washington, dis- missing a bill in equity, brought by the appellants against the appel- lees. The facts, so far as they are necessary to be stated upon the present occasion, are : That one James Moody, an inhabitant of Ken- tucky, died in that state, about the year 1803, intestate, without leav- ing any children ; that in May or June, 1833, the defendant, Northrup, obtained letters of administration upon his estate, from the proper court of Jefferson county, in Kentucky, and afterwards, under and in virtue of those letters of administration, he received from the treasury of the United States the sum of $5,215.56, for money due to the in- testate, or his representatives, for military services rendered during the Revolutionary War. The present bill was brought by the ap- pellants, claiming to be the next of kin and heirs of the intestate, for their distributive shares of the said money, against Northup, as ad- ministrator; and the other defendants, who are made parties, are as- serted to be adverse claimants, as next of kin and distributees. At the hearing of the cause in the court below, the same having been set down for argument upon the answer of Northup, denying the jurisdic- tion of the court, the bill was ordered to be dismissed for want of juris- diction; and from that decree, the present appeal has been taken. Under these circumstances, the question is broadly presented, wheth- er an administrator, appointed and deriving his authority from another state, is liable to be sued here, in his official character, for assets law- fully received by him, under and in virtue of his original letters of administration. We are of opinion, both upon principle and authori- ty, that he is not. Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the govern- ment which grants it; and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets lA part of the opinion has been omitted. 684 ' PARTICULAR SUBJECTS. (Part 3 of the deceased, in any other state; and whatever operation is allow- ed to it beyond the original territory of the grant, is a mere matter of comity, which every nation is at liberty to yield or to withhold, ac- cording to its own policy and pleasure, with reference to its own in- stitutions and the interests of its own citizens. On the other hand, the administrator is exclusively bound to account for all the assets which he received, under and in virtue of his administration, to the proper tribunals of the government from which he derives his au- thority; and the tribunals of other states have no right to interfere with or to control the application of those assets according to the lex loci. Hence, it has become an established doctrine, that an administra- tor, appointed in one state, cannot, in his official capacity, sue for any debts due to his intestate, in the courts of another state; and that he is not liable to be sued in that capacity, in the courts of the latter, by any creditor, for any debts due there by his intestate. The authori- ties to this effect are exceedingly yumerous, both in England and America; but it seems to us unnecessary, in the present state of the law, to do more than to refer to the leading principle as recognized by this court, in Fenwick v. Sears, 1 Cranch, 259, 2 L. Ed. 101, Dix- on's Executors v. Ramsay's Executors, 3 Cranch, 319, 2 L,. Ed. 453, and Kerr v. Moon, 9 Wheat. 565, 6 L. Ed. 161. [In the remaining portion of the opinion the court held that debts due from the government of the United States have no locality at the seat of government, and that Act Cong. June 24, 1812, c. 106, 3 Stat. 755, did not authorize the maintenance of the suit.]^ JOHNSON V. POWERS. (Supreme Court of the United States, 1891. 139 U. S. 156, 11 Sup. Ct. 525, 35 L. Ed. 112.) Gray, J. This is a bill in equity filed in the Circuit Court of the United States for the Northern District of New York by George K. Johnson, a citizen of Michigan, in behalf of himself and of all other persons interested in the administration of the assets of Nelson P. Stewart, late of Detroit, in the county of Wayne and state of Michi- gan, against several persons, citizens of New York, alleged to hold real estate in New York under conveyances made by Stewart in fraud of 2 See, in general, 45 Am. St. Rep. 664^674. Nor will submission on the part of the administrator to the jurisdiction of the foreign court give extraterritorial effect to the decree. Judy v. Kelley, 11 111. 211, 50 Am. Dec. 455 (1849) ; Jefferson v. Beall, 117 Ala. 436, 23 South. 44, 67 Am. St. Rep. 177 (1898) ; Greer v. Ferguson, 56 Ark. 324, 19 S. W. 966 (1892). But see Davis v. Connelly's Executors, 4 B. Mon. (Ky.) 136 (1843). It has been held that in the absence of statute a foreign administrator can- not sue, even if there are no local creditors. Mansfield v. McFarland, 202 Pa. 173, 51 Atl. 763 (1902). Ch. 5) FOREIGN ADMINISTRATIONS. 685 his creditors. The bill is founded upon the jurisdiction in equity of the Circuit Court of the United States, independent of statutes or practice in any state, to administer, as between citizens of differ- • ent states, any deceased person's assets within its jurisdiction. Payne V. Hook, 7 Wall. 435, 19 L. Ed. 260; Kennedy v. Creswell, 101 U. S. 641, 35 L. Ed. 1075. At the threshold of the case we are met by the question whether the plaintiff shows such an interest in Stewart's estate as to be entitled to invoke the exercise of this jurisdiction. He seeks to maintain his bill both as administrator and as a creditor in behalf of himself and all other creditors of Stewart. THe only evidence that he was either administrator or creditor is a duly certified copy of a record of the probate court of the county of Wayne and state of Michigan, showing his appointment by that court as administrator of Stewart's estate; the subsequent ap- pointment by that court, pursuant to the statutes of Michigan, of com- missioners to receive, examine, and adjust all claims of creditors against the estate; and the report of those commissioners, allowing several claims, including one to this plaintiff, "George K. Johnson, for judgments against claimant in Wayne circuit court as indorser," and naming him, as administrator, as the party objecting to the al- lowance of all the claims. The plaintiff certainly cannot maintain this bill as administrator of Stewart, even if the bill can be construed as framed in that aspect, because he admits that he has never taken out letters of administration in New York ; and the letters of administra- tion granted to him in Michigan confer no power beyond the limits of that state, and cannot authorize him to maintain any suit in the courts, either state or national, held in any other state. Stacy v. Thrasher, 6 How. 44, 58, 13 L. Ed. 337 ; Noonan v. Bradley, 9 Wall. 394, 19 L,. Ed. 757. The question remains whether, as against these defendants, the plaintiff has proved himself to be a creditor of Stewart. The only evidence on this point, as already observed, is the record of the pro- ceedings before commissioners appointed by the probate court in Michigan. It becomes necessary, therefore, to consider the nature and the effect of those proceedings. They were had under the provisions of the General Statutes of Michigan (3 How. Ann. St. §§ 5888-5906), "the general idea" of which, as stated by Judge Cooley, "is that all claims against the estates of deceased persons shall be duly proved before commissioners appointed to hear them, or before the probate court when no commissioners are appointed. The commissioners act judicially in the allowance of claims, and the administrator cannot bind the estate by admitting their correctness, but must leave them to be proved in the usual mode." Clark v. Davis, 33 Mich. 154, 157. The commissioners, when once appointed, become a special tribunal, which, for most purposes, is independent of the probate court, and from which either party may appeal to the circuit court of the county; and, as against an adverse claimant, the administrator, general or special. 686 PAETicuLAR SUBJECTS. (Part 2 represents the estate, both before the commissioners and upon the appeal. 2 How. Ann. St. §§ 5907-5917; Lothrop v. Conely, 39 Mich. 757. The decision of the commissioners, or of the circuit court on appeal, should properly be only an allowance or disallowance of the claim, and not in the form of a judgment at common law. La Roe v. Freeland, 8 Mich. 531. But, as between the parties to the controversy, and as to the payment of the claim out of the estate in the control of the probate court, it has the effect of a judgment, and cannot be collaterally impeached by either of those parties. Shurbun v. Hooper, 40 Mich. 503. Those statutes pro- vide that, when the administrator declines to appeal from a deci- sion of the commissioners, any person interested in the estate may appeal from that decision to the circuit court; and that, when a claim of the administrator against the estate is disallowed by the commis- sioners, and he appeals, he shall give notice of his appeal to all con- cerned by personal service or by publication. 2 How. Ann. St. §§ 5916, 5917. It may well be doubted whether, within the spirit and intent of these provisions, the administrator, when he is also the claim- ant, is not bound to give notice to other persons interested in the es- tate, in order that they may have an opportunity to contest his claim before the; commissioners; and whether an allowance of his claim, as in this case, in the absence of any impartial representative of the es- tate, and of other persons interested therein, can be of any binding effect, even in Michigan. See Lothrop v. Conely, above cited. But we need not decide that point, because upon broader grounds it is quite clear that those proceedings are incompetent evidence in this ,suit and against these defendants that the plaintiff is a creditor of Stewart or of his estate. A judgment in rem binds only the property within the control of the court which rendered it, and a judgment in personam binds only the parties to that judgment, and those in privi- ty with them. A judgment recovered against the administrator of a deceased person in one state is no evidence of debt in a subsequent suit by the same plaintiff in another state, either against an adminis- trator, whether the same or a different person, appointed there, or against any other person having assets of the deceased. Aspden v. Nixon, 4 How. 467, 11 L. Ed. 1059 ; Stacy v. Thrasher, 6 How. 44, 12 L. Ed. 337 ; McLean v. Meek, 18 How. 16, 15 L. Ed. 277 ; Low v. Bartlett, 8 Allen (Mass.) 259. In gtacy v. Thrasher, in which a judg- ment recovered in one state against an administrator appointed in that state upon an alleged debt of the intestate was held to be incompetent evidence of the debt in a suit brought by the same plaintiff in the Cir- cuit Court of the United States held within another state against an administrator there appointed of the same intestate, the reasons given by Mr. Justice Grier have so strong a bearing on the case be- fore us, and on the argument of the appellant, as to be worth quoting from: "The administrator receives his authority from the ordinary or other officer of the government where the goods of the intestate Ch- 5) FOREIGN ADMINISTRATIONS. 687 are situate; but, coming into such possession by succession to the intestate, and incumbered with the duty to pay his debts, he is con- sidered in law as in privity with him, and therefore bound or estopped by a judgment against him. Yet his representation of his intestate IS a qualified one, and extends not beyond the assets of which the ordi- nary had jurisdiction." 6 How. 68, 13 L. Ed. 337. In answering the objection that to apply these principles to a judgment obtained in another state of the Union would be to deny it the faith and credit and the effect to which it was entitled by the Constitution and laws of the United States, he observed that it was evidence, and conclusive by way of estoppel, only between the same parties or their privies, or on the same subject-matter when the proceeding was in rem, and that the parties to the judgments in question were not the same; nei- ther were they privies, in blood, in law, or by estate; and proceed- ed as follows: "An administrator under grant of administration in one state stands in none of these relations to an administrator in another. Each is privy to the testator, and would be estopped by a judgment against him; but they have no privity with each other, in law or in estate. They receive their authority from dif- ferent sovereignties, and over different property. The authority of each is paramount to the other. Each is accountable to the or- dinary from whom he receives his authority. Nor does the one come by succession to the other into the trust of the same property, incumbered by the same debts." 6 How. 59, 60, 13 L. Ed. 337. "It is for those who assert this privity to show wherein it lies, and the argument for it seems to be this: That the judgment against the administrator is against the estate of the intestate, and that his es- tate, wheresoever situate, is liable to pay his debts. Therefore the plaintiff, having once established his claim against the estate by the judgment of a court, should not be called on to make proof of it again. This argument assumes that the judgment is in rem, and not in per- sonam, or that the estate has a sort .of corporate entity and unity. But this is not true, either in fact or in legal construction. The judg- ment is against the person of the administrator that he shall pay the debt of the intestate out of the funds committed to his care. If there be another administrator in another state, liable to pay the same debt, he may be subjected to a like judgment upon the same demand, but the assets in his hands cannot be affected by a judgment to which he is personally a stranger." "The laws and courts of a state can only affect persons and things within their jurisdiction. Consequently, both as to the administrator and the property confided to him, a judg- ment in another state is res inter alios acta. It cannot be even prima facie evidence of a debt ; for, if it have any effect at all, it must be as a judgment, and operate by way of estoppel." 6 How. 60, 61, 13 L. Ed. 337. In Low v. Bartlett, above cited, following the decisions of this court, it was held that a judgment allowing a claim against the estate of a deceased person in Vermont, under statutes similar 688 PARTicuLAE SUBJECTS. (Part 2 to those of Michigan, was hot competent evidence of debt in a suit in equity brought in Massachusetts by the same plaintiff against an executor appointed there, and against legatees who had received money from him; the court saying: "The judgment in Vermont was in no sense a judgment against them, nor against the property which the}' had received from the executor." 8 Allen, 266. In the case at bar, the allowance of Johnson's claim by the commissioners appointed by the probate court in Michigan, giving it the utmost possible effect, faith, and credit, yet, if conbidered as a judgment in rem, bound only the assets within the jurisdiction of that court; and, considered as a judgment inter partes, bound only the parties to it and their privies. It was not a judgment against Stewart in his lifetime, nor against his estate, wherever it might be, but only against his assets and his ad- ministrator in Michigan. The only parties to the decision of the com- missioners were Johnson in his personal capacity, as claimant, and Johnson in his representative capacity, as administrator of those as- sets, as defendant. The present defendants were not parties to that judgment, nor in privity with Johnson in either capacity. If any other claimant in those proceedings had been the plaintiff here, the allowance of his claim in Michigan would have been no evidence of any debt due to him from the deceased in this suit brought in New York to recover alleged property of the deceased in New York from third persons, none of whom were parties to those proceedings, or in privity with either party to them. The fact that this plaintiff was himself the only party on both sides of those proceedings cannot, to say the least, give the decision therein any greater effect against these defendants. The objection is not that the plaintiff cannot maintain this bill without first recovering judgment on his debt in New York, but that there is no evidence whatever of his debt, except the judgment in Michigan, and that that judgment, being res inter alios acta, is not competent evi- dence against these defendants. This objection being fatal to the main- tenance of this bill, there is no occasion to consider the other ques- tions, of law or of fact, mentioned in the opinion of circuit court, and discussed at the bar. Decree affirmed." s The dissenting opinion of Brown, J., has been omitted. Contra, semble, as to executors. Hill v. Tucker, 1,3 How. (U. S.) 458, 14 L. Ed. 223 (1851) ; Goodall v. Tucker, 13 How. (U. S.) 469, 14 L. Ed. 227 (1851). Accord: Johnston v. McKlnnon, 129 Ala. 223, 29 South. 696 (1901); State V. Fulton (Tenn. Ch. App.) 49 S. W. 297 (1898). Nor is there privity between the executor and an administrator with the will annexed appointed In anoth- er state. Brown v. Fletcher, 210 U. S. 82, 28 Sup. Ct. 702, 52 L. Ed. 966 (1908). For the same reason a judgment against an ancillary aflmlnlstrator Is not a bar to a suit, founded on the same cause of action, brought by an ancillary administrator of the estate in another jurisdiction. Ingersoll v. C!oram, 29 Sup. Ct. 92 (1908). See, In general, 27 I/. B. A. 101-117. Ch. 5) FOREIGN ADMINISTEATIONSl 689 FALKE V. TERRY. (Supreme Court of Colorado, 1903. 32 Colo. 85, 75 Pac. 425.) Campbeli,, C. J.* The material facts, a^ set forth in the complaint, are that plaintiffs are children and heirs at law of Juan B. C. Phillips, deceased. In 1892 their father died in the city of Brooklyn, N. Y., leaving a will, in which the defendant, Amanda L,. Falke, formerly wife of Mr. Phillips, was named executrix, and John H. Springer executor. The will was duly presented for and admitted to probate ' in the surrogate's court of the city of Brooklyn, and letters testamen- tary issued to defendant as executrix (the executor not qualifying), and thereupon she took possession of all the property of the estate, and thereafter has had exclusive possession of it. No inventory of the assets of the estate was filed in the surrogate's court, and no account- ing thereto by the executrix has ever been made. Soon after the tes- tator's death the defendant married Henry Falke, and in the year 1894 removed with him to the state of Colorado, bringing with her funds and assets of the estate of great value. Their father's will, although it gave to the wife, the defendant herein, a life interest in all of the property, with the power to sell and dispose of the same, or any part thereof, as she deemed best, during such period of time, further pro- vided that, in case she married again, his personal representatives should set apart and invest in the names of his children, including these plaintiffs, such parts of the estate as would have been theirs by law in case he died intestate, the same to become their absolute property when they respectively reached the. age of 25 years. Disregarding the provisions of the will and her duty as executrix, the defendant denies the right of plaintiffs to any share of the estate of their father, al- though she married again after his death, and long before the action was begun, and has converted to her own use a large part of the prop- erty of the estate belonging to them, and holds the same in this state in fraud of their rights. There are other allegations of mistreatment of the plaintiffs by defendant, a denial of their legitimacy, and certain other allegations, which are not material to this decision. The court assumed jurisdiction of the cause, finding the issues in favor of the plaintiffs, adjudging title to certain real estate situate in the state of New York, standing in defendant's name upon the records, to be the property of the plaintiffs, and decreed that the same should be held by her in trust for them. The cause was then referred to a referee to take an accounting of defendant's acts and doings as executrix of the estate from the time she took possession and assumed control of the assets. The referee found that defendant was indebted to the plaintiffs in the sum of about $2,400, and his report was confirmed by the court, then presided over by a different judge from the one who *A part of the opinion has been omitted. LoB.CoNF.L. — 44 690 PARTIOULAE SUBJECTS. (Part 2 ordered the accounting, and a personal judgment against the defend- ant was rendered for that sum in favor of plaintiffs. The defendant brings the case here by appeal. 1. The general doctrine is that executors and administrators are not liable to actions as such in a state where they have obtained no letters of administration, but that they are amenable for their execu- torial acts only to the proper tribunals of the state from which they obtained their appointment. The appellant insists that this doctrine applies to this case, and that the court is wholly without jurisdiction of the subject-matter. The general rule for which appellant contends is sustained by a large number of authorities, among which are Wood- ruff V. Young, 43 Mich. 548, 6 N. W. 85; Spoon v. Baxter, 31 Mich. 279; Story on Conflict of Laws (7th Ed.) § 514; 1 Woerner on The American Law of Administration (3d. Ed.) c. 17, and additional au- thorities therein cited. If this action were against the defendant, in her capacity as executrix, to enforce the performance of her official duty, it would not lie. Appellant misconceives the real scope of the action. It is based upon the proposition that a trust fund in the pos- session of a defendant has been improperly used, and is in danger of being still further misapplied, and the protection of the court is sought by the ones entitled thereto in order to protect it from loss. In his valuable work on the Conflict of Laws at section 514b, Judge Story declares that the doctrine is fully established that, if a foreign execu- tor or administrator brings or transmits to another state property which he has received under administration abroad, or if he is person- ally present, he is not, either personally or in his representative capaci- ty, hable to a suit in such other state. Several cases are cited in its support. Notwithstanding this opinion of the learned jurist, we think the principle upon which the jurisdiction of the court in this case rests has been firmly established by many respectable authorities. In the case of Tunstall v. Pollard's Adm'r, 11 Leigh (Va.) 1, in an able opin- ion by Tucker, P. J., in which he reviews and comments upon the authorities referred to by Judge Story, the conclusion was reached that an executor who has qualified and received assets in a foreign country and brought them into the state of Virginia is liable to be sued and to be compelled to account in her courts, though he never qualified as executor in Virginia, and may have received no assets there. In H6d- enberg v. Hedenberg, 46 Conn. 30, 33 Am. Rep. 10, it was held that a foreign executor who comes into another state to reside, and brings with him property belonging to the estate, cannot be made liable in the latter state, upon suit of a local creditor of the testator, to the extent of the property brought therein, but may be to the extent of the property already there. This, in a measure, sustains the text of Judge Story. The leading case in America in support of the principle upon which jurisdiction herein can be maintained is McNamara v. Dwyer, 7 Paige (N. Y.) 239, 3'3 Am. Dec. 627. Others are Montal- van V. Clover, 32 Barb. (N. Y.) 190; Patton v. Overton, 27 Term. Ch. 5) FOREIGN ADSIINISTEATIONS. C91 ■ 192; Colbert v. Daniel, 33 Ala. 314; Dillard v. Harris, 2 Tenn. Ch. 196 ; Bryan v. McGee, 2 Wash. C. C. 337, Fed. Cas. No. 2,066 ; Sprad- dling V. Pipkin, 15 Mo. 118 ; Clopton v. Booker, 27 Ark. 482 ; Mc- Cabe V. Lewis, 76 Mo. 296. Other authorities are collected in 8 Enc. PI. & Pr. 714 et seq. ; Schouler's Executors & Administrators (2d Ed.) § 173 ; 1 Woerner's Amer. Law of Adm'n (2d Ed.) § 164. The com- plaint therefore stated a case within the jurisdiction of the district court. It was necessary, however, for the plaintiffs, anlong other things, to prove that the defendant brought into this state funds and assets belonging to the estate of the testator. The only witness produced by plaintiffs upon this controverted issue was the defendant herself. Her testimony does not establish it. Indeed, it appears therefrom that she brought no property belonging to the estate from New York to Colorado, unless it is a gold watch, which, some time before the hear- ing, had been returned to the former state, and concerning whose own- ership at the time there was a dispute. If the defendant has possession or control of any property belonging to the estate, it is, for aught that appears from this record, in bank, or in the form of investments or real estate, all in the state of New York. In her brief appellant chal- lenged appellees to point out in the record any evidence whatever that any of the assets of the estate was brought into this state by the exe- cutrix. In their brief appellees have not referred to any portion of the record where this proof is disclosed. Considering the voluminous record, we would have been justified in assuming for the purposes of the opinion that none such exists. We have, however, examined the abstract, and are unable to find sufficient evidence of this essential fact upon which the jurisdiction of the court depended. Proof not being made of this essential fact, necessary in this kind of a case to give the courts of this state jurisdiction, it follows that the trial court, upon the showing made, should have dismissed the action. * * *» MOORE V. PETTY. (Circuit Court of Appeals of United States, 1905. 135 Fed. 668, 68 C. C. A. 306.) In Error to the Circuit Court of the United States for the Northern District of Iowa. Hook, Circuit Judge. The assignments of error present but four propositions which require consideration: Had plaintiffs, as foreign executors, authority to maintain the action in the state of Iowa?" 5 See, also, Keiningham v. Keiningham's Bx'r (Ky.) 71 S. W. 497 (1903) ; Courtney v. Pradt (C. C. A.) 160 Fed. 561 (1908). 6 The statement of facts has been omitted. Only so much of the opinion is given as relates to this point. f!ll2 ■ PARTICULAR SUBJECTS. (Part 2 Did the Circuit Court commit error in permitting the plaintififs to amend their petition on the eve of trial? Was the fact that no writing in the form of a verdict was signed by or on belialf of the jury fatal to the judgment? Did the Circuit Court err in directing a verdict for the plaintififs upon the evidence adduced at the trial? 1. The will of the testatrix was duly probated in Allegheny coun- ty, Pa., and, the plaintififs having qualified as executors, letters testa- mentary were there issued to them in due course. An attested copy of the will and a transcript of the probate proceedings were recorded in 'the county in Iowa in which the land was , situated. By an order of the probate court in Iowa the same executors were appointed as such in that state, but they did not there qualify or give bond or receive letters testamentary. We will not pause to consider whether the language of the order in Iowa invested the executors with a dom- estic character, and whether the failure to qualify, give bond, and take out letters testamentary in that state can be urged in this proceed- ing. It may be assumed for the purposes of this cause that they were purely foreign executors ; possessing, however, under an express provision of a statute of Iowa, the power to sell and convey the real property of the testatrix in that state. Proceeding with this assump- tion, did they have the right to maintain the action in Iowa for the recovery from their agents of the proceeds of a sale of land made under their authority? This question was presented by the defend- ants' answer, wherein it was alleged that the plaintififs were appoint- ed and qualified as executors only in the state of Pennsylvania, and that they had never been qualified or authorized to act as such under the laws of the state of Iowa. The general rule undoubtedly is that an executor or administrator in his representative capacity cannot maintain an action in the courts of any sovereignty other than that under whose laws he was appointed and qualified, without obtaining an ancillary grant of letters in the state where the action is brought unless the right so to do is conferred upon him by the law of the fo- 'rum. Fenwick v. Sears' Administrators, 1 Cranch, 259, 3 L. Ed. 101 ; Dixon's Executors v. Ramsay's Executors, 3 Cranch, 319, 2 L. Ed. 453; Doe v. McFarland, 9 Cranch, 151, 3 L,. Ed. 687; Kerr v. Moon, 9 Wheat. 565, 6 L,. Ed. 161; Vaughan v. Northup, 15 Pet. 1, 5, 10 L. Ed. 639; Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; John- son V. Powers, 139 U. S. 156, 11 Sup. Ct. 525, 35 E. Ed. 112. The rule as to foreign guardians is the same. Morgan v. Potter, 157 U. S. 195, 15 Sup. Ct. 590, 39 L. Ed. 670. But whenever the cause of action declared upon by the foreign executor or administrator is one which involves an assertion of his own right, rather than one of the deceased, or which has accrued directly to him through his contract or transaction, and was not originally an asset of the estate in his charge he may maintain an action in another state for the enforce- ment thereof, although express authority so to do may not be found in a statute of the forum. The principle underlying this modification Ch. 5) FOREIGN ADMINISTRATIONS. 693 of the general rule is that, when the cause of action accrues directly to the executor or administrator, it is assets in his hands for which he may sue in his personal capacity, and, if he sues as executor or administrator, the words so describing him will be regarded as merely descriptive, and be rejected as surplusage. See Talmage, Adm'r, v. Chapel, 16 Mass. 71, in which it was held that, where a judgment had been recovered in New York by an administrator appointed in that state, he could bring suit upon the judgment in Massachusetts without taking out letters of administration there. This case was approved in Biddle v. Wilkins, 1 Pet. 686, 692, 7 L. Ed. 315. See, also, Mowry V. Adams, 14 Mass. 337; WilHams v. Moore, 9 Pick. (Mass.) 432; Kane v. Paul, 14 Pet. 33, 42, 10 I.. Ed. 311. The general rule is recognized and applied in Iowa (McClure v. Bates, 12 Iowa, 77), and also the qualification which has been stated (Greasons v. Davis, 9 Iowa, 319 ; Chamberlain v. Wilson, 45 Iowa, 149). In Greasons v. Da- vis the plaintiffs, foreign executors, brought an action in Iowa upon transcripts of judgments rendered in Pennsylvania. One of the defens- es was that the plaintiffs were not qualified to sue when the action was commenced. It appeared that the plaintiffs' testator recovered the judgments in Pennsylvania, and, having died, the plaintiffs, as execu- tors, were substituted on the record, which, under the practice in that state, put them in the position of judgment creditors, as though they had been the original plaintiffs in the actions. The trial court in Iowa was requested to instruct the jury that, if the plaintiffs were not appointed and qualified as executors under the laws of Iowa at the commencement of the action, they could not recover. A refusal of the instruction was sustafned by the Supreme Court of Iowa, which said: "If they had not been made parties in Pennsylvania, they could not sue without taking out letters here. * * * Other reasons may require that they should still take out letters, in order to administer his estate here, but these reasons do not require it before suing in the present case." The doctrine is more clearly illustrated in Chamberlain v. Wilson. Chamberlain, a citizen of Nebraska, died, holding a note executed by a resident of Iowa, and secured by mortgage upon real property in the latter state. Letters of administration were issued in Nebraska to Van Horn, who, in his representative capacity, took possession of the note. He sent the note for collection to one Wilson, in Iowa, who collected a portion thereof from the maker, and had the money in his hands, ready to pay to the party entitled. A son of the deceased took out letters of administration in Iowa, demanded the money from Wilson, and sued him in that state upon his refusal to pay. The Ne- braska administrator filed his petition as intervener, and claimed the money. It was held that, as the foreign administrator took actual possession of the note in question, embraced it in his inventory, and. was charged with the principal and primary administration of the es- tate, he was entitled to the further control of it and its proceeds, which 694 PARTICULAR SUBJECTS. (Part 2 lie did not lose by sending it to Iowa for collection. The court said: "He may, in our opinion, maintain an action against Wilson for the proceeds of the note collected and in his possession, in his own name, without taking out new letters of administration. Probably, under the doctrine of McClure v. Bates, 12 Iowa, 77, he might not be enabled to maintain an action as administrator for the collection of the note. But the note came rightfully into his possession in virtue of the ad- ministration granted in Polk county, Nebraska. It was collected, and the proceeds were in the hands of Wilson, so that the right to maintain an action upon the note is not involved." This doctrine is elsewhere generally recognized. In Trecothick v. Austin, 4 Mason, 16, Fed. Cas. No. 14,164, Mr. Justice Story said: "But it is by no means clear that, if Trecothick's executors were now suing, they would be obliged in the present case to take out letters of administration here before they could proceed. The demand against Ivers or the defendant [J. L,. Austin] is not a demand which accrued in Trecothick's lifetime, or out of any contract with him. But it is a demand which accrued under agencies created by them, in their charac- ter as executors, after the death of Trecothick. They might, under such circumstances, have maintained a suit in their own names for an account against their agent, and need not have sued in their repre- sentative capacity. See Cockerill v. Kynaston, 4 Term R. 380 ; Cowell v. Watts, 6, East, 405 ; Thompson v. Stent, 1 Taunt. 323 ; Toll, Ex'rs, bk. 3, c. 10, p. 439. The agent would be estopped to deny their right to receive what he had collected in virtue of their authority. See Nickolson v. Knowles, 5 Madd. 47; 10 Vin. Abr. 'Estoppel,' M; 2 Comp. 11." In Lawrence v. Lawrence, 3 Barb. Ch. (N. Y.) 71, Chancellor Wal- worth said: "As a general rule, a foreign executor is not entitled to sue in our courts without having proved the will and taken out letters testamentary thereon in the proper probate court of this state. These rules, however, are only applicable to suits brought by executors for debts due to the testator, or where the foundation of the suit was based upon some transaction with the testator in his lifetime. They do not prevent a foreign executor from suing in our courts upon a contract made with himself as such executor." To the same effect are Fox v. Tay, 89 Cal. 339, 24 Pac. 855, 36 Pac. 897, 33 Am. St. Rep. 474; State v. Kaime, 4 Mo. App. 479; Tyer v. Milling Co., 32 S. C. 598, 10 S. E. 1067; Lewis v. Adams, 70 Cal, 403, 11 Pac. 833, 59 Am. Rep. 423 ; Barton v. Higgins, 41 Md. 539 ; Rogers v. Hatch, 8 Nev. 35; Wayland v. Porterfield's Ex'r, 58 Ky. 638; Barrett v. Barrett, 8 Me. 346; Trotter v. White, 18 Miss. (10 Smedes & M.) 607; Johnston v. Wallis, 41 Hun, 420; Terrell v. Crane, 55 Tex. 81; Griswold v. Railroad Co. (C. C.) 9 Fed. 797, 798; Goodyear v. Hullihen, 2 Hughes, 492, Fed. Cas. No. 5,573. In the case at bar the cause of action did not exist in the lifetime of the deceased. The proceeds of the sale sued for were never assets Ch. 5) FOREIGN ADMINISTRATIONS. 695 of her estate. The employment of defendants as agents to make the sale of the land was by the plaintiffs as executors. The right to re- cover the avails of any such sale accrued directly to the plaintiffs, and they were authorized to assert it in Iowa without procuring new letters in that state. * * * 7 WILKINS V. ElvLETT. (Supreme Court of the United States, 1883. , 108 U. S. 256, 2 Sup. Ct. 641, 27 L. Ed. 718.) Gray, J. This is an action of assumpsit on the common counts, brought in the Circuit Court of the United States for the Western District of Tennessee. The plaintiff is a citizen of Virginia, and sues as administrator, appointed in Tennessee, of the estate of Thomas N. Quarles. The defendant is a citizen of Tennessee, and surviving partner of the firm of F. H. Clark & Co. The answer sets up that Quarles was a citizen of Alabama at the time of his death; that the sum sued for has been paid to William Goodloe, appointed his ad- ministrator in that state, and has been inventoried and accounted for ' by him upon a final settlement of his administration ; and that there are no crechtors of Quarles in Tennessee. The undisputed facts, ap- pearing by the bill of exceptions, are as follows : Quarles was born at Richmond, Virginia, in 1835. In 1839 his mo- ther, a widow, removed with him, her only child, to Courtland, Ala- bama. They lived there together until 1856, and she made her home there until her death, in 1864. In 1856 he went to Memphis, Tennes- see, and there entered the employment of F. H. Clarke & Co., and continued in their employ as a clerk, making no investments him- self, but leaving his surplus earnings on interest in their hands until 7A foreign executor or administrator may sue in his own name for the re- covery of property which has vested in him under the law of the state where he was appointed. Patchen v. Wilson, 4 Hill (N. Y.) 57 (1842). Or upon a negotiable Instrument payable to bearer. Sanford v. McOreedy, 28 Wis. 103 (1871) ; Barrett v. Barrett, 8 Me. 3.53 (1832). Or upon a judgment recovered by him upon a cause of action existing in favor of the deceased. Talmage V. Chapel, 16 Mass. 71 (1819) ; Biddle v. Wilkins, 1 Pet. 686, 7 L. Ed. 315 (1828). But not upon a judgment obtained by the deceased himself. Jliller T. Hoover, 121 Mo. App. 568, 97 S. W. 210 (1906). He may likewise execute as persona designata a power of sale contained in a mortgage. Doolittle v. Lewis, 7 .lohn. Ch. (N. Y.) 45, 11 Am. Dec. 389 (1823) ; Hayes v. Frey, 54 Wis. 503, 11 N. W. 095 (1882) ; Thurber v. Carpenter, 18 R. I. 782, 31 Atl. 5 (1895). Or sell real estate in a foreign jurisdiction as donee of a power in trust con- tained in a will. Green v.'Alden, 92 Me. 177, 42 Atl. 358 (1898). Or sue as donee of the universality of the personal and real estate of a testator dis- posing of his property under the civil law. Vanquelin v. Bouard, 15 C. B. (N. S.)'341 (1863). In many jurisdictions a foreign executor or administrator may now sue in his representative capacity under such terms and conditions as the statutes of the state may prescribe. See Woerner, American Law of Administration, § 163. 696 PARTICULAR SUBJECTS. (Part 2 January, 1866, when he went to the house of a cousin in Courtland, Alabama, and while there died by an accident, leaving personal estate in Alabama. On the 27th of January, 1866, Goodloe took out letters of administration in Alabama, and in February, 1866, went to Mem- phis, and there, upon exhibiting his letters of administration, received from defendant the sum of money due to Quarles, amounting to $3,- 455.22 (which is the same for which this suit is brought), and included it in his inventory and in his final account, which was allowed by the probate court in Alabama. There were no debts due from Quarles in Tennessee. All his next of kin resided in Virginia or in Alabama; and no administration was taken out on his estate in Tennessee until June, 1866, when letters of administration were there issued to the plaintiff. There was conflicting evidence upon the question whether the domi- cile of Quarles at the time of his death was in Alabama or in Ten- nessee. The jury found that it was in Tennessee, under instructions, the correctness of which we are not prepared to affirm, but need not consider, because, assuming them to be correct, we are of opinion that the court erred in instructing the jury that if the domicile was in Tennessee they must find for the plaintiff ; and in refusing to instruct them, as requested by the defendant, that the payment to the Alabama administrator before the appointment of one in Tennessee, and there being no Tennessee creditors, was a valid discharge of the defendant, without reference to the domicile. There is no doubt that the succession to the personal estate of a deceased person is governed by the law of his domicile at the time of his death; that the proper place for the principal administration of his estate is that domicile; that administration may also be taken out in any place in which he leaves personal property; and that no suit for the recovery of a debt, due to him at the time of his death, can be brought by an administrator as such in any state in which he has not taken out administration. But the reason for this last rule is the pro- tection of the rights of citizens of the state in which the suit is brought; and the objection does not rest upon any defect of the administrator's title in the property, but upon his personal incapacity to sue as ad- ministrator beyond the jurisdiction which appointed him. If a debtor, residing in another state, comes into the state in which the administrator has been appointed, and there pays him, the pay- ment is a valid discharge everywhere. If the debtor, being in that state, is there sued by the administrator, and judgment recovered against him, the administrator may bring suit in his own name upon that judgment in the state where the debtor resides. Talmage v. Chapel, 16 Mass. 71; Biddle v. Wilkins, 1 Pet. 686, 7 L,. Ed. 315. The administrator, by virtue of his appointment and authority as such, obtains the title in promissory notes or other written evidences of debt, held by the intestate at the time of his death, and coming to the possession of the administrator; and may sell, transfer, and in- Ch. 5) FOREIGN ADMIMSTKATIONS. 697 dorse the same; and the purchasers or indorsees may maintain ac- tions in their own names against the debtors in another state, if the debts are negotiable promissory notes, or if the law of the state in which the action is brought permits the assignee of a chose in action to sue in his own name. Harper v. Butler, 3 Pet. 339, 7 L. Ed. 410 ; Shaw, C. J., in Rand v. Hubbard, 4 Mete. (Mass.) 353, 358-260; Petersen v. Chemical Bank, 33 N. Y. 31, 88 Am. Dec. 398. And on a note made to the intestate, payable to bearer, an administrator appoint- ed in one state may sue in his own name in another state. Barrett V. Barrett, 8 Greenl. (Me.) 353; Robinson v. Crandall, 9 Wend. (N. Y.) 435. In accordance with these views, it was held by this court, when this case was before it after a former trial, at which the domicile of the intestate appeared to have been in Alabama, that the payment in Tennessee to the Alabama administrator was good as against the administrator afterwards appointed in Tennessee. Wilkins v. EHett, 9 Wall. 740, 19 L. Ed. 586. The fact that the domicile of the intestate has now been found by the jury to be in Tennessee does not appear to us to make any diifer- ence. There are neither creditors nor next of kin in Tennessee The Alabama administrator has inventoried and accounted for the amount of this debt in Alabama. The distribution among the next of kin, whether made in Alabama or in Tennessee, must be according to the law of the domicile; and it has not been suggested that there is any difference between the laws of the two states in that regard. The judgment must, therefore, be reversed, and the case remanded with directions to set aside the verdict and to order a new trial.* sAccord: In re William's Estate, 130 Iowa, 553, 107 N. W. 608 (1906). But a payment to a foreign administrator after the appointment of an an- cillary administrator within a local jurisdiction will not constitute a dis- charge. Stone V. Scripture, 4 Lans. (N. Y.) 186 (1870); "Walker v. Welker, 55 111. App. 118 (1893). Unless, perhaps, the payment is made In ignorance of the local appointment and there appear to be no local creditors. Maas v. German Sav. Bank, 176 N. Y. 877, 68 N. B. 658, 98 Am. St. Rep. 689 (1903) The domiciliary administrator is bound as far as possible to collect foreign assets. In re Ortiz's Estate, 86 Cal. 306, 24 Pac. 1034, 21 Am. St. Rep. 44 (1890). See, also, Klein v. French, 57 Miss. 662 (1880), and 45 Am. St. Rep. 664-674. Where letters of administration are granted to him 'in different ju- risdictions, he is accountable in each jurisdiction for the property which he has there received and for that only. Normand's Adm'r v. Grognard, 17 N. J. m 425 (1865). But see Cureton v. Mills, 13 S. O. 409, 36 Am. Rep. 700 (1879). 098 PAETicuLAE SUBJECTS. (Part 2 PETERSEN V. CHEMICAE BANK. (Court of Appeals of New York, 1865. 32 N. Y. 21, 88 Am. Dee. 298.) Action to recover $32,321.24, the amount standing to the credit of Aaron Cohen on the books of the defendant bank, in New York. Co- hen died at his residence in Connecticut on July 27, 1862, and David J. Peck was appointed administrator with the will annexed by the probate court of the district of New Haven, Conn. Peck presented an authenticated copy of his appointment to the defendant and demand- ed payment of the above amount, but payment was declined. He thereupon assigned the debt owing by the defendant bank to the plain- tiff in this action. Plaintiff called at the bank, exhibiting the instru- ment under the hand and seal of the administrator. Peck, and demand- ed the money. He exhibited at the same time an instrument signed by all the legatees named in the will, with the exception of one who resided in an insurgent state and who was entitled to one-sixth of the residue, requesting that the money might be paid over to Peck as ad- ministrator. Defendant persisted in refusing payment, on the ground, apparently, that the moneys could not safely be paid except to an ad- ministrator appointed under the laws of the state of New York." Denio, C. J.^° [After holding that Cohen's domicile at the time of his death was at New Haven the learned justice continued:] A foreign executor or administrator (and one appointed under the laws of a sister state of the Union is foreign in the sense of the rule) cannot sue in his representative character in the courts of this state. The question whether a party deriving title to a chose in action by transfer from such an executor or administrator, can prosecute the debtor residing here, in our courts, has been variously decided in the cases to which we have been referred. In the Supreme Court in the First District, the Merchants' Bank of New York was sued for refus- ing to transfer to the plaintiff one hundred shares of its stock, to which the latter made title by transfers from the executors of one Robert Middlebrook, in whose name the stock stood on the books of the bank. He died at his residence in Connecticut, and his will had been proved, and letters testamentary had been issued by the probate court of the proper district in that state. The plaintiff was a legatee of a certain amount of the testator's stock, and the shares in controversy had been assigned to him in satisfaction of the legacy. The court held that the executors became vested with the title to the stock, and that the plain- tiff, though he derived his title under them, could enforce his right against the bank in our courts, and judgment was accordingly given in his favor. Middlebrook v. Merchants' Bank, 27 How. Pr. 474; s. c, at Special Term, 24 How. Pr. 267. This statement of facts has been substituted for that of the original re- port. 10 The concurring opinion of Potter, J., has been omitted. Ch. 5) FOREIGN ADMINISTRATIONS. Sd9 A different rule has been established in the courts of New Hamp- shire and of Maine. Thompson v. Wilson, 2 N. H. 391 ; Stearns v. Burnham, 5 Greenl. (Me.) 261, 17 Am. Dec. 228. In each of these cases the defendant was sued as the maker of a promissory note, by parties claiming as indorsees under indorsements by the executors of the payees who were respectively residents of Massachusetts, and whose wills were proved and letters thereon issued in that state. The defendants prevailed in each case, on the objection that the respective plaintiffs were subject to the same disability to sue which would have attached to the executprs if they had attempted to prosecute in another state than that under whose laws their letters testamentary were granted. In the first case the judgment was placed upon the English ecclesiastical law, by which probates of wills and grants of administra- tion are void when not made by the ordinary of the proper diocese, a doctrine which I do not think applicable to questions arising between different states, as it makes no allowance for the principles of interna- tional comity. In the case in Maine, it was thought that allowing a recovery would be an iildirect mode of giving operation in Maine to the laws of Massachusetts, and also that the effects of the deceased might thereby be withdrawn from the state, to the prejudice of credi- tors residing there. The precise case now before us came before the Supreme Court of the United States in Harper v. Butler, 2 Pet. 239, 7 L. Ed. 410. The suit was brought in Mississippi, on a chose in action, originally existing in favor of a citizen of Kentucky, who died there, and whose, executor having letters testamentary issued in that state, assigned it to the plaintiff. In Mississippi, choses in action are assignable so as to permit the assignee to sue in his own name, as is now the case in this state. The question arose on demurrer to the complaint, and the District Court sustained the demurrer. The judgment was reversed upon a short opinion by Chief Justice Marshall, which merely states the point, and contains no general reasoning. No counsel appeared on behalf of the defendant. The case in Maine has been made the subject of comment in Story's Treatise on the Conflict of Laws, §§ 258, 259, and is decidedly dis- approved by the learned writer. He says, that upon the reasoning of the case a promissory note would cease to be negotiable after the death of the payee, which, he observes, would certainly not be an admissible proposition. It seems clear to me that there are no precedents touching the ques- tion which are binding upon this court, or which can relieve it from the duty of examining the question upon principle. There are certain legal doctrines, now very well established, which have a strong bearing upon the point'. It is very clear, in the first place, that neither an exe- cutor, or administrator, appointed in a foreign political jurisdiction, can maintain a suit in his own name in our courts. Foreign laws have no inherent operation in this state ; but it is not on this account solely 700 PAETicuLAK SUBJECTS. (Part 2 or principally that we deny foreign representatives of this class a standing in our courts. The comity of nations, which is a part of the common law, allows a certain effect to titles derived under and powers created by the laws of other countries. Foreign corporations may be- come parties to contracts in this state, and may sue or be sued in our courts on contracts made here or within the jurisdiction which created them. The only limitation of that right is the inhibition to do anything in its exercise which shall be hostile to our own laws or policy. Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274; Bard V. Poole, 2 Kern. 495, 505, and cases cited. And yet nothing can be more clearly the emanation of sovereign political power than the crea- tion of a corporation. Again, the receivers of insolvent foreign cor- porations, and assignees of bankrupt and insolvent debtors, under the laws of other states and countries, are allowed to sue in our courts. It is true their titles are not permitted to overreach the claims of dom- estic creditors of the same debtor, pursuing their remedies under our laws; but in the absence of such contestants they fully represent the rights of the foreign debtors. Story's Confl. Laws, § 113; Hoyt v. Thompson, 5 N. Y. 320 ; s. c, 19 N. Y. S07 ; Willitts v. Waite, 35 N. Y. 584. It is not therefore because the executor or administrator has no right to the assets of the deceased, existing in another country, that he is refused a standing in the courts of such country, for his title to such assets, though conferred by the law of the domicile of the deceased, is recognized everywhere. Reasons of form, and a solici- tude to protect the rights of creditors and others, resident in the juris- diction in which the assets are found, have led to the disability of for- eign executors and administrators, which disability, however incon- sistent with principle, is very firmly established. We have lately de- cided that if the debtors of the deceased will voluntarily pay what they owe to the foreign executor, such payment will discharge the debts, and the moneys so collected will be subject to the administration of such foreign executor. Parsons v. Lyman, 20 N. Y. 103. But the principle of law which I think governs this case is, that the succession to the personal estate of a deceased person is governed by the law of the country of his domicile at the time of his death. This is so whether the succession is claimed under the law providing for in- testacy or for transmission by last will and testament. See Parsons v. Lyman, supra, and authorities cited at page 112. It is not so held because the foreign Legislature or the local institutions have any extra- territorial force, but from the comity of nations. Accordingly, it is a necessary supplement to the doctrine that, if the lawmaking power of the state where the property happens to be situated, or the debtor of the deceased reside, to subserve its own policy, has engrafted quali- fications or restrictions upon the rights of those who would succeed to the estate by the law of the domicile, they must take their rights subject to such restrictions. One of the most natural, as well as the most usual of these qualifications is that whrch is intended to secure Ch. 5) FOREIGN ADMINISTEATIONS. 701 the creditors of the deceased residing in the county where the assets exist. It is in part to subserve this poHcy that the personal repre- sentatives are not permitted to prosecute the debtor or parties who withhold his effects in our courts. But the protection to the creditor is further secured by the remedy which is provided by allowing them to take out administration in the jurisdiction where the assets are. If the deceased have any relatives in this state who would be preferably entitled, they can be summoned, and if they elect to take out letters themselves, they will be compellable to give bond, and the creditors will be then made secure in their rights, or if the relatives refuse to assume that responsibility, then the creditors may themselves be ap- pointed, and thus qualified to take possession of the assets here upon the same terms. 2 Rev. St. (1st. Ed.) p. 73, pt. 2, c. 6, tit. 2, §§ 23, 24. If the debtors of the estate elect to pay to the former representative, or to deliver to him the movable assets, before the granting of admini- stration in this state, the. domestic creditors are put to the inconven- ience of asserting their rights in the courts of the country of their debtor's domicile against his representatives appointed under the laws of that country, just as they would have been compelled to do if all his effects had been situated there. Another general principle of law necessary to be adverted to is, that the executor of a testator, as soon at least as he has clothed himself with the commission of the probate court, is vested with the title to all the movable property and rights of action which the deceased possessed at the instant of his death. The title of the executor, it is true, is fiduciary and not beneficial. That title is, however, perfect against every person except the credi- tors and legatees of the deceased. The devolution of ownership is direct to the representative, and the beneficiaries take no title in the specific property which the law can recognize. An administrator with the will annexed, has the same rights of property as the executor nam- ed in the will would have had if he had qualified. 2 Rev. St. (1st Ed.) p. 72, pt. 2, c. 6, tit. 2, § 22. The law of m.aintenance, while it existed, prohibited the transfer of the legal property in a chose in action, so as to give the assignee a right of action in his own name. But this is now abrogated, and such a demand as that which is asserted against the defendant in this suit may be sold and conveyed so as to vest in the purchaser all the legal as well as the equitable rights of the original creditor. Voorhie«' Code (6th Ed.) § 111. Though such demands are not negotiable in precisely the same sense as commercial paper, since the assignee is sub- ject to every substantial defense which might have been made against the assignor, yet where, as in this case, no such defense exists, the transfer is absolute and complete. The title which is vested in the executor carries with it the jus disponendi which generally inheres in the ownership of property. "It is a general rule of law and equity," says Judge Williams, in his Treatise on Executors, "that an executor or administrator has an absolute power of disposal over the whole 702 PARTICULAR SUBJECTS. (Part 2 personal effects of his testator or intestate, and that they cannot be followed by creditors, much less by legatees, either general or specific, into the hands of the alienee." Treatise, p. 796. See, also. Whale v. Booth, 4 Term R. 625, in note to Farr v. Newman, 4 Term R. 632; Sutherland v. Brush, 7 Johns. Ch. 17, 11 Am. Dec. 383 ; Rowlinson V. Stone, 3 Wils. 1 ;- Harper v. Butler, supra. It follows that the plaintiff presented himself to the superior court as the owner by purchase and assignment of the debt against the de- fendant, from a person holding the title and hence having authority to sell. He claimed to recover, not as the representative of any other party, but as the substituted creditor of the defendants' bank. He had, it is true, to make title through the will of Cohen, and the proceedings of the probate court of Connecticut. But the validity of that title de- pended upon the law of Connecticut, that being the place of the domicile of the former owner of the demand. The validity of every transfer, alienation or disposition of personal property depends upon the law •of the owner's domicile. Story on Confl. of Laws, § 383. In the ab- sence of proof to the contrary, we assume the law of Connecticut re- specting the alienation of choses in action to be the same as our own. If Cohen had, at his death, been a resident of this state, and his ad- ministrator with the will annexed had sold and assigned to the plain- tiff his demand against the bank, there is no manner of doubt but that the assignee, upon the refusal of the bank to pay the amount, could have maintained this- action. Hence there is not, I think, any reason why. the plaintiff should be precluded from maintaining his action, on account of his making title through a foreign administration. The rule is not that our courts do not recognize titles thus acquired. It is simply that a foreign execu- tor or administrator can have no standing in our courts. The plaintiff does not occupy that position. He sues in his own right and for his •own interest, and represents no one. In my opinion, the disability to sue does not attach to the subject of the action, but is confined to the person of the plaintiff. If he is an unexceptionable suitor, and there is no rule of form or of policy which repels him from our courts, he is to be received, and he may make out his title to the subject claimed, in any manner allowed by law; and it has been shown that title ac- quired through a foreign administration is universally respected by the •comity of nations. It is pretty obvious from the evidence of the circumstances of the transfer by Peck to the plaintiff, that its object was to avoid the objec- tion which might be taken if Peck had sued in his own name as ad- ministrator, without taking out letters here. There was no other con- ceivable motive for the plaintiff to purchase this moneyed demand pay- able immediately, for its precise amount paid down. If his check on the bank, drawn shortly after the transfer, had been answered, he would have received the precise amount he had parted with, and the transaction at the best would have been paying with one hand and re- ^^^- 5) FOREIGN ADMINISTRATIONS. 7O3 ceiving the same amount back with the other. If he failed to realize tile amount, he was to be indemnified by Peck. This circumstance and the manner m which the assumed consideration was disposed of' would doubtless have led the jury to find, that the form adopted was resorted to m order to enable the administrator to avail himself of the balance m the defendant's bank, without taking out administration here. , Still, as between the plaintiff and Peck, the interest in the de- mand passed. Peck would have been estopped by his conveyance un- der seal, containing an acknowledgment of the payment of the con- sideration, from setting up that nothing passed by the conveyance. I am of opinion that the defendant cannot make a question as to the consideration. If all the parties had been residents of this state, a transfer of the demand, good as between the parties to that transfer, would have obliged the defendant to respond to the action of the transferee. Then if we hold, as I think we should, that the objection to the suit of the administrator was in the nature of a personal disa- bihty to sue, and not an infirmity inhering in the subject of the suit, the fact that the transfer was made for the purpose of getting rid of the objection, should not prejudice the plaintiff. The cases which have been referred to upon this point have considerable analogy. The Constitution and laws of the United States confer upon the courts of the Union jurisdiction in suits between citizens of different states, with an exception, contained in an act of Congress, of one suing as the assignee of a chose in action, of a party whose residence was such as not to permit him to sue. In an action by an assignee concerning the title to land, which was not within the exception, it was held not to be an objection which the defendant could take, that the assignment was made for the purpose of removing the difficulty as to jurisdiction. Briggs V. French, 2 Sumn. 351, Fed. Cas. No. 1,871. In a late case in this court against a foreign corporation, which could not be prose- cuted here except by a resident of this state, unless the cause of ac- tion arose here or the subject of the action was situated here, it was held that the objection — that the assignment of the demand by one not qualified by his residence to sue, to the plaintiff who was thus qualified, was made for the purpose of avoiding the difficulty — could not be sustained. McBride v. Farmers' Bank, 36 N. Y. 450. I have not thus far referred to the circumstance that Cohen was shown not to have owed any debts in this state. That fact was proved as strongly as in the nature of the case such a position could be estab- lished. The administrator, whose business it was to ascertain the ex- istence of debts, and the confidential servant of Cohen who was very familiar with his transactions, affirmed that there were none ; and the defendant gave no evidence on the subject. The motive of policy for forbidding the withdrawal of assets to the prejudice of domestic cred- itors, did not therefore exist in this case. Still, if the rule is that nei- ther the foreign administrator or his assignee can maintain an action in our courts to collect a debt against a debtor residing here, on account 704 PAETicuLAE SUBJECTS. (Part 2 of its tendency to prejudice domestic creditors, the exceptional fea- tures of the present case would not change the principle. It would often be more difficult than in this case to disprove the existence of such debts. But I am of opinion that the objection should be regarded as formal, and that it does not exist where the plaintiff is not a foreign executor or administrator but sues in his own right, though his title may be derived from such a representative. I am in favor of affirming the judgment of the Supreme Court.^^ BROWN v. SMITH. (Supreme Judicial Court of Maine, 1906. 101 Me. 545, 64 Atl. 915, 115 Am. St. Bep. 339.) The plaintiff held by assignment a mortgage of the demanded premises, given May 28, 1887, by Albert D. Bumps, of TKorndike, Me., to George Tyler, of Boston, Mass., to secure a certain judg- ment recovered by said Tyler against said Bumps in the Supreme Judicial Court, Waldo county. Afterwards the said Tyler died, and Isabella J. Tyler, of Waltham, Mass., was duly appointed adminis- tratrix of the estate of said Tyler by the probate court of Middle- sex county, Mass. The administratrix then assigned said mortgage to the plaintiff. There was no ancillary administration on the estate of the said deceased, George Tyler, in the state of Maine. The defendant con- tended, among other things, that the administratrix of the estate of said deceased, George Tyler, had no power to make a valid assign- ment of the aforesaid mortgage given to her intestate, as she had been appointed administratrix in another state while the mortgage was of land in the state of Maine. Powers, J. Writ of entry to recover certain lands in Thorndike. The case comes here on report. To make out title plaintiff introduced: (1) A duly recorded mortgage of the demanded premises from Albert D. Bumps, of Thorndike, Me., to George Tyler, of Boston, Mass., dated May 38, 1887, given to secure a certain execution and judgment recovered by said Tyler against said Bumps in this court in said Waldo county; (3) copies of records of the probate court of Middlesex county, Mass., showing that December 10, 1889, Isabella J. Tyler, of Waltham, in iiAecord: Luce t. Manchester & L. R. R., 63 N. H. 588, 3 Atl. 618 (1885). Contra: Stearns v. Burnham, 5 Greenl. (Me.) 261, 17 Am. Dec. 228 (1828) ; McCarty v. Hall, 13 Mo. 480 (1850). Such an assignment will not be recognized after the appointment of an ancillary administrator. Du Val v. Marshall, 30 Ark. 230 (1875) ; Murphy v. CSrouse, 135 Cal. 14, 66 Pac. 971, 87 Am. St. Rep. 90 (1901). It has been held that it will be recognized only as against a debtor of the state in which the deceased had his domicile. Elmer v. Hall, 148 Pa. 345, 23 Atl. 971 (1892). Ch. 5) FOREIGN ADMINISTRATIONS. 70C the county of Middlesex, was duly appointed administratrix of the estate of George Tyler, late of said Waltham, deceased; (3) as- signment from said administratrix to the plaintiff of said mortgage, duly recorded, and dated November 21, 1904. This makes a prima facie case, if an administratrix appointed in another state has power to assign a mortgage given to her intestate upon real estate in this state. It is a well-settled principle of the common law that the power and authority of an administrator or executor over the estate of the deceased is confined to the sovereignty by virtue of whose laws he is appointed. In recognition of this principle provision is made by our statutes for the granting of ancillary administration on the es- tate of nonresidents who died leaving estate to be administered in this state, or whose estate is afterwards found therein. Rev. St. 1903, c. 65, § 7; chapter 66, §§ 14, 15, and 16. One reason at least upon which this rule is founded, is to prevent the effects or credits of the deceased found in any state, which may be needed to satisfy debts due to the citizens of that state, from be- ing withdrawn from its jurisdiction. That no such necessity in fact exists can never be known with certainty in any given case, unless administration is granted, and an opportunity thereby afforded to creditors to present their claims. Mansfield v. McFarland, 202 Pa. 173, 51 Atl. 763. It is said in Stearns v. Burnham, 5 Me. 2G1, 17 Am. Dec. 228, that the principles of justice and policy, upon which similar statutes to those above cited were founded, "would seem to lead our courts of law to that course of proceedings which would harmonize with those principles and have a manifest tendency to produce the same beneficial results." In that case it was accord- ingly held that an executor appointed under the laws of another state cannot indorse a promissory note payable to his testator by a citizen of this state so as to give the indorsee a right of action here in his own name. The debt due from Bumps, who, at the time of the recovery of the judgment and ever since, has been a resident of this state, con- stituted no part of the goods, effects, rights, and credits of the in- testate in Massachusetts, which alone the administratrix was au- thorized and empowered to administer. The debt follows the cred- itor while living. After his death it follows the debtor. Saunders V. Weston, 74 Me. 85. The situs of the debt being in Maine, the administratrix, deriving her authority solely from the laws of Mass- achusetts, had no control over it. There is even stronger reason for holding that she had no control over the mortgage. A mortgage and its assignment are conveyan- ces of land in fee, which must be recorded. It is desirable that ti- tle to real estate should, so far as possible, appear of record. The party having a right to redeem ought to be able, by an examination of the records in the registry of deeds and the probate courts of this liOK.CONT'.Ii. — 45 706 PARTICULAR SUBJECTS. (Part 2 state, .to ascertain who is entitled to receive payment and give a dis- charge of the mortgage, without being compelled, at his peril, to incur the expense of searching the records of other states and coun- tries. Without doing this the defendant in the present case could not know, until the evidence was produced at the trial, that the plaintiff's assignee had ever been appointed administratrix of the deceased in the place of his domicile. The courts of Massachusetts, in a case which has been frequently cited and followed in that state, have decided the precise point here presented against the plaintiff's contention. Cutter v. Davenport, 1 Pick. 81, 11 Am. Dec. 149. The question is a new one in this state ; but the trend of our decisions has been to restrict the power of a foreign administrator to the ju- risdiction of his appointment. Stevens v. Gaylord, 11 Mass. 256; Stearns v. Burnham, supra ; Smith v. Guild, 34 Me. 443 ; Oilman V. Oilman, 54 Me. 453 ; Smith v. Howard, 86 Me. 203, 29 Atl. 1008, 41 Am. St. Rep. 537 ; Oreen v. Alden, 92 Me. 177, 43 Atl. 358. It may fairly be regarded as the settled policy of this state that, when assets of a foreign decedent are found here, ancillary admin- istration must be obtained here for the protection of resident cred- itors, before our courts will enforce the recovery of debts due the foreign decedent. Otherwise, the assets could be converted into money, taken outside the state, distributed under the jurisdiction of foreign courts, and our citizens compelled to go into other juris- dictions to collect their just dues. Such is the general rule. Note to Shinn's Estate, 45 Am. St. Rep. 667; Maas v. Bank, 176 N. Y. 377, 68 N. E. 658, 98 Am. St. Rep. 689. Inasmuch, therefore, as ample provision is made by our statutes for the granting of ancillary administration in this state, a course which seems to be in accord with our legislative policy and judicial decisions, and may in any case be necessary for the protection of our citizens who are credito'rs of the estate, and in view, also, of the fact that it is desirable, so far as possible, that title to real estate should somewhere appear on record in this state, we hold, in accord- ance with Cutter v. Davenport, above cited, that an administrator cannot, by virtue of letters granted in another state, assign a mort- gage of land situated in this state, so as to enable the assignee to enforce payment thereof. Dial v. Oary, 14 S. C. 573, 37 Am. Rep. 737 ; 18 Cyc. 1231 ; Reynolds v. McMullen, 55 Mich. 568, 22 N. W. 41, 54 Am. Rep. 386. The right of a foreign administrator to re- ceive a voluntary payment, and give a discharge of a debt so paid, is not involved in this case. Judgment for the defendant. ^^ i2Accord: Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737 (1880); Heyward V. Williams, 57 S. O. 235, 35 S. E. 503 (1900). See, also, Reynolds v. McMul- len, 55 Mich. 568, 22 N. W. 41, 54 Am. Rep. 38G (1885). Contra: Gove v. Gove, 64 N. H. 503, 15 Atl. 121 (1888). Ch. 5) FOREIGN ADMINISTRATIONS, 707 ANONYMOUS.^" (In Chancery, 1724. 9 Mod. 66.) The testator, who lived in Holland, and who was seised of a real estate there, and of a considerable personal estate in Eiigland, de- vised all his real estate to the plaintiff, and all his personal estate to the defendant, whom he made executor, and died. But at the time of his death he owed some debts by specialties, and some by simple contract in Holland, and had no assets there to satisfy those debts, other than by his real estate, which, by the custom and laws of Holland, is made liable to the payment of debts upon simple con- tract as well as upon specialties, if there are not personal assets to answer the same, especially debts upon simple contract for servants wages or for work done. Now the creditors in Holland sued the plaintiff there, to whom the real estate was devised, and had a sentence against it, by virtue whereof it was sold for the payment of their respective debts. Thereupon the plaintiff exhibited this bill against the defendant, who was executor, and to whom the personal estate was devised as aforesaid, that he (the plaintiff) might be reimbursed by the defend- ant for the loss he had sustained in not bringing the personal estate t-o Holland to discharg-e the debts there in aid of the real estate. Per Curiam. * * * Now by the laws of Holland, all debts shall affect the real estate there; but it is there, as it is here, that the personal estate shall come in aid of the real estate, and be charged in the first place ; therefore the personal estate in this case should answer the loss the plaintiff sustained by the sale of the real estate, though that happened in a different dominion. Therefore it was decreed, that the plaintiff should be reim- bursed.^* LAWRENCE v. KITTERIDGE. (Supreme Court of Errors of Connecticut, 1852. 21 Conn. 577, 56 Am. Dec. 385.) Church, C. J.^" The first decree of the court of probate appealed from, was predicated upon facts essentially as follows, viz., Cephas Pettibone, the intestate, at the time of his death, was an inhabitant of, and had his domicile in, the state of Vermont, and was possessed of an estate there ; and there was due to him here, from a citizen 13A part of the facts and opinion, relating to another matter, has been -omitted. 14 See Bice v. Harbeson, 63 N. Y. 493 (1875) ; Minor, Conflict of Laws, § 112. 15 The statement of facts and a small portion of the opinion have been omit- ited. 708 PARTICULAE SUBJECTS. * (Part 21 of this state, a debt of about one thousand dollars. Original admin- istration upon his estate was granted in the state of Vermont, and was in progress, when an ancillary administration was granted in this state. When the decree appealed from was made, there were no unsatisfied debts due from the estate, here or in Vermont, and noth- ing but a distribution of the estate remained to be done. The intestate died, leaving brothers and sisters of the whole and half blood; all, excepting the late Augustus Pettibone, Esq., of Norfolk, who was a brother of the whole blood, residing in Ver- mont, or elsewhere, out of this state ; and he had no other heirs at law. By the laws of Vermont, the brothers and sisters of an intes- tate of the whole and half blood are entitled equally to the estate, under the statute of distribution. Upon the foregoing state of facts, the court of probate for the dis- trict of Norfolk was of opinion, that the personal estate of Cephas Pettibone — the chose in action of one thousand dollars — should be distributed according to the laws of the state of Vermont ; and that this could better be done, and without injury to any citizen of this state, by transmitting the money to the administrator there, and to the jurisdiction of the court of principal administration, than to or- der a distribution of it here. And therefore the decree appealed from was made. The appellant, who is the representative of Augustus Pettibone, the brother of the whole blood residing in the district of Norfolk, objects to this decree, and appeals from it. He claims, that the as- sets or money in the hands of the administrator here, should have been distributed here, and according to the laws of this state, which prefer a brother or sister of the whole blood to one of the half blood. 1. We had supposed, that the law of the country of the domicile of an intestate governed and regulated the distribution of his per- sonal estate ; and that this was a principle of international law, long ago recognized by jurists in all enlightened governments, and es- pecially recognized by this court, in the recent case of Holcomb v. Phelps, 16 Conn. 127, 133, in which we say, that, "It certainly is now a settled principle of international law, that personal property shall be subject to that law which governs the person of the owner, and that the distribution of and succession to personal property, wherever situated, is to be governed by the laws of that country where the owner or intestate had his domicile at the time of his death." Sto. Conf. Laws, 403, in notis, §§ 480, 465 ; 3 Kent's Com. Lect. 37; 2 Kaine's Prin. Eq. 313, 826; Potter v. Brown, 5 East, 124; Balfour v. Scott, 6 Bro. Pari. Cas. (Toml. Ed.) 550; Bempde V. Johnstone, 3 Ves. 198; Pepon v. Pepon, Amb. 25, 415; Guier v. O'Daniel, 1 Bin. (Pa.) 349, in notis; Harvey v. Richards, 1 Mason, 381, Fed. Cas. No. 6,184. It is not necessary that we should now examine the reasons whether of public policy or legal propriety, which have led the tri- Ch. 5) FOREIGX ADMINISTRATIONS. 709 bunals of civilized nations to relax from antiquated notions on this subject ; some of these are well considered, by Judge Story, in the case of Harvey v. Richards, 1 Mason, 381, Fed. Cas. No. 6,184, and by Chancellor Kent, in his Commentaries, vol. 3, lect. 37. It is true, that it is in the power of every sovereignty, and within the constitutional powers of the states of this Union, to repudiate this^ salutary doctrine, in its application to themselves, or to mod- ify it, for what they may suppose to be the protection of their own citizens ; but without some peculiar necessity, it cannot be suppos- ed, that any well regulated government will do it. It was claimed in argument, in this case, that this had been done in this state, and by the provision of the forty-ninth section of our statute for the settlement of estates (Rev. St. 1849, p. 357), by declaring, that when there are no children, etc., of an intestate, his "real and personal estate shall be set off equally to the brothers and sisters of the whole blood." But it was not the purpose of this provision to disregard the universal and salutary doctrine of the law to which we have referred, but only to regulate the descent and distribution of the estates of our own citizens. This provision of our statute is not peculiar to ourselves ; a similar one, we presume, may be found in the codes of other states; at least, imperative enactments exist in every state, direct- ing the distribution of estates; but none of them are intended to repeal the law of the domicile, in its effect upon the personal estate of the owner. The controversy, in the case of Holcomb v. Phelps, arose under the same section of our law as does the one now under consideration, and the result of that case must settle this question, if it be one. There are cases in which the law of the domicile has been modified or restrained, in its full operation, for what courts have supposed to be the proper protection of the rights of the citizens of their own states ; but these are generally confined to cases in which creditors are, in some way interested under insolvent proceedings, assign- ments, or bankrupt laws, and never, we believe, are extended to mere cases of distribution, as here claimed. Sto. Conf. L,. 377, § 337. The views of the court of probate in regard to the operating law of distribution, in this case, were correct ; and the remaining question, in this part of the case, is, whether the decree which followed, direct- ing the money in the hands of the administrator here, to be trans- mitted to the proper jurisdiction in Vermont, for distribution, should be reversed; or whether the court here, should, by its own decree, have made distribution according to the laws of Vermont? There was but one estate to be settled; and this was, in legal view, attached to the person of the owner, at the time of his death, so far as it was personal. There were two administrations; one original and principal in Vermont ; the other ancillary and subordi- nate, in this state. Perkins v. Stone, 18 Conn. 270; Sto. Conf. h. 423. 710 PARTICULAR SUBJECTS. (Part 2 The creditors of this estate, and all persons having claims upon it, in this state and in Vermont, were satisfied, and nothing remain- ed to be done, but in the distribution of it among those, who, by the laws of .the state of Vermont, were entitled to it. Why were twa distributions of this one estate necessary? Without special reasons re- quiring a different course, there would seem to be a propriety, that the consummating act in the settlement, should have been done, by the tribunal exercising the principal jurisdiction, and that the money accidently and temporarily in this state, should be transmitted thith- er, for that purpose. Otherwise, there might have been conflict- ing decrees, and the courts of the different jurisdictions, upon vary- ing proofs, might have found different persons entitled to take as dis- tributees. The law of Vermont was the governing law, and. known to the courts of that state, as a matter of certainty ; but here, to be ascertained only by proofs, as a matter of fact. There are cases in which the courts of the ancillary administra- tion have retained the assets, and distributed them according to the law of the domicile; and others, in which they have been transmitted to the principal and original jurisdiction for final action. Harvey v. Richards, 1 Mason, 391, Fed. Cas. No. 6,184; Richards v. Dutch, 8 Mass. 506 ; Dawes v. Boylston, 9 Mass. 355, 6 Am. Dec. 72. We do not think it to be a legal consequence, because distribution should be made according to the law of the domicile, that the assets should be transmitted for distribution; the courts of the ancillary jurisdiction may distribute them. Stevens v. Gaylord, 11 Mass. 256 ; Dawes v. Head et al., 3 Pick. 128; Bruce v. Bruce, 2 Bos. & Pull. 229; Balfour v. Scott, 6 Bro. Pari. Cas. 550; Hog v. Lashley, Id. 577 ; Drummond v. Drummond, Id. 601 ; Somerville v. Somerville, 16 Ves. 791. But it seems now to be settled, that the power of the court grant- ing the ancillary administration is a discretionary one, and should depend for its exercise upon the circumstances and equity of each case. This is a salutary principle, and can work no harm; but in its application, the citizens of the state of the ancillary administra- tion and their rights, are not alone to be regarded, but also the rights of all interested. Harvey v. Richards, 1 Mason, 381, Fed. Cas. No. 6,184; Dawes v. Head, 3 Pick. 128; Topham v. Chapman, 1 Rep. Const. Court, S. C. 292 ; 2 Kent's Com. Lect. 37 ; Sto. Conf. L. 424. We see no good reason to be dissatisfied with the application of ■ this principle and the exercise of this discretion, by the court of pro- bate, in the decree appealed from. The original administration was granted, by a court in a sister state near by, and within one or two days' reach of the appellant, who represents the only person inter- ested in the estate here. All the other interested parties — and there were several of them — resided in the state of Vermont, or else- where, where they could, with equal convenience, protect their in- terests, and receive their portions of the distributed estate, as if the Ch. 5) FOEEIGN ADMINISTRATIONS. 711 distribution had been made by the court of probate for the district of Norfolk. A greater inconvenience and expense has been avoid- ed, by the transmission of the money to Vermont for final distribu- tion, than if it had been retained here. And still we do not say, that we would, even under the circumstances of this case, have re- versed an order of distribution, if made by the court of probate here. * * * The superior court is advised, that the orders and" decrees of the court of probate should be afHrmed.^' RAMSEY v. RAMSEY. (Supreme Court of Illiuois, 1902. 196 111. 179, 63 N. E. 618.) Rufus N. Ramsey died a resident of Clinton county, 111., leaving property in Illinois and Missouri. The assets of the estate amount- ed to $131,810.42, while the claims presented and allowed against the estate aggregated $183,854.70. Among those claims was one in favor of Julia D. Ramsey and another in favor of G. Van Hoore- beke, the appellants in this case. The claims of appellants were probated and allowed in Missouri and a pro rata payment of 12.44 per cent, upon their respective claims was received by them. Thereafter the administrator in Illinois was directed by the cir- cuit court of Clinton county to pay all claimants except appellants 12.44 per cent, on their claims and to then distribute the balance in his hands ratably among all claimants of the seventh class. The judg- ment of the circuit court was affirmed by the Appellate Court, and from that judgment of affirmance Julia D. Ramsey and G. Van Hoore- beke prosecuted this appeal. The Revised Statutes of Missouri of 1889 provided as follows : "Sec. 263. If a person dies insolvent, his estate found in this state shall, as far as practicable, be so disposed of that all his creditors, here and elsewhere, may receive an equal share in proportion to their re- spective debts. "Sec. 264. To this end the estate shall not be transmitted to the foreign administrator until his creditors who are citizens of this state shall have received their just proportion that would be due them if the whole estate, wherever found, were divided among all of said creditors in proportion to their respective debts, without preferring any species of debt to another. i6As to transmission of balance to the domiciliary administrator after the payment of local creditors, see, also, Matter of Accounting of Hughes, 95 N. T 55 (1884) ; Toung v. WIttenmyre, 123 III. 303, 14 N. E. 869 (1888) ; Welles' Estate, 161 Pa. 218, 28 Atl. 1116, 1117 (1894) ; In re Gable's Estate, 79 Iowa, 178 44 N. W. 352, 9 L. R. A. 218 (1890) ; Smith v. Smith, 174 111. 52, 50 N. E. 1083, 43 L. R. A. 403 (1898). 712 PARTicuLAE SUBJECTS. (Part 2 "Sec. 265. No creditor not being a citizen of this state shall be paid out of the assets found here until those who are citizens shall have received their just proportion, as provided in the preceding sec- tion." "Sec. 267. No one shall receive more than would be due him if the whole estate were divided ratably among all creditors who shall have diily proven their claims in the court having jurisdiction thereof in this state." " Wn,KiN, C. J. It is insisted by appellants that they are entitled to receive full distributive shares of the assets reported by the admin- istrator to the probate court of Clinton county, without in any way be- ing charged with the amounts received from the Missouri assets. The proposition is so manifestly unjust to other creditors of the insolvent estate that it should be sustained only in obedience to strict and im- perative requirements of the law. The general policy of the law in all jurisdictions, so far as we are aware, is that all the property of a de- ceased insolvent debtor not set apart for the widow or minor children shall become assets in the hands of his administrator for the payment pro rata of all his debts according to classification, no matter where the assets may be found or the creditors reside. In Dawes v. Head, 3 Pick. (Mass.) 138, it was said by Parker, J.: "We cannot think that in any civilized country advantage ought to be taken of the accidental circumstances of property being found within its territory which may be reduced to possession by the aid of its courts and law, to sequester the whole for the use of its own subjects or citizens, and wlaere it shall be known that all the estate and effects of the deceased are in- sufficient to pay his just debts. Such a doctrine would be derogatory to the character of any government." The above quoted sections 263 and 264 of the Missouri statute, as well as other sections of that stat- ute, clearly recognize this just and equitable rule. Our statute provides that, "when the estate is insufficient to pay the whole of the demands, the demands in any one class shall be paid pro rata, whether the same are due by judgment, writing obligatory or otherwise, except as other- wise provided." 1 Starr & C. Ann. St. 1896, c. 3, § 71. Unless, there- fore, appellants have shown that their claims are in some way excep- tions to the general rule, the judgment of the circuit court is right, and should be affirmed. It seems to be thought by appellants' counsel that they are entitled to a preference over other creditors, as to the Missouri assets, on the principle that in the settlement of insolvent estates a creditor shall be allowed to prove his whole debt, without regard to any collateral se- curity he may hold, and be entitled to a dividend on the whole claim so allowed — citing Furness v. Bank, 147 111. 570, 35 N. E. 624; First Nat. Bank of Peoria v. Commercial Nat. Bank, 151 111. 308, 37 N. E. 1' This statement of facts has been substituted for that of the original re- port. Ch. 5) FOREIGN ADMINISTRATIONS. 713 1019 ; Levy v. Bank, 158 111. 88, 42 N. E. 139, 30 h. R. A. 380 ; and cases from other jurisdictions holding the same rule. No argument seems necessary to show that the doctrine of these cases can have no application to the question at issue. How can it be said that the Mis- souri property was in any sense a collateral security for appellants' claims, or that it was a fund open to them for the payment of their debts, rather than those of all other creditors? At the time of the death of Ramsey, he owned the property free from any lien whatever in their favor, and it was liable for the payment of all his debts. It is further contended that appellants are entitled to a preference over other creditors in that property because of some superior dili- gence on their part. No reason or authority is cited in support of this contention, and none, we think, can be. It was undoubtedly the right of all the creditors of Rufus N. Ramsey to have the Missouri estate, as well as his Illinois property, converted into money and ap- plied in payment of his debts, and it was the duty of the resident ad- ministrator to see that that purpose was accomplished. Being a non- resident of the state of Missouri, and therefore disqualified by the statute of that state from taking letters of administration himself, it was his duty to procure administration in the name of a resident. It was undoubtedly, also, the privilege of any creditor to cause such administration. It was also proper for Illinois creditors to file their claims and have them allowed in the probate court of St. Louis, and to cause the real estate there to be sold for the payment of the debts of Rufus N. Ramsey, but not for the payment of the claims probated there alone, because, by the express provisions of the statute of that state, the estate being insolvent, the property found in Missouri was to be so disposed of that all his creditors there and elsewhere should receive an equal share, in proportion to their respective debts. There was no occasion for diligence upon the part of creditors in filing their claims there. They each had a right to rely upon the Missouri statute for protection against the > claim now made by appellants. Upon the death of a person intestate, leaving assets in different states or countries, the administration in the domicile of the deceased is the principal administration, through which, in contemplation of law, assets are to be distributed in payment of his debts. Young v. Wit- tenmyre, 123 111. 303, 14 N. E. 869. Administration in other states or jurisdictions must be held in order to collect the debts and reduce the assets into money, which are known as ancillary or auxiliary ad- ministrations. In the absence of statutory provision, it is the duty of the auxiliary administrators to collect the assets, reduce them to money, and transmit them to the principal administrator ; or they may, under certain circumstances, pay claims probated there, transmit- ting only what remains in their hands to the principal administrator. Where, however, the estate is insolvent, it has been held (and we think with reason and justice) that the auxiliary administrator has no right to pay resident claimants, , or those who have filed their claims there. T14 PARTICULAR SUBJECTS. (Part 2 more than their pro rata share of the whole estate. Dawes v. Head, 3 Pick. (Mass.) 138; Davis v. Estey, 8 Pick. (Mass.) 475; Miner v. Austin, 46 Iowa, 231, 24 Am. Rep. 763; 2 Kent,'Comm. 434. Mani- festly, under section 263 of the Missouri statute, the administrator there had no right to pay these appellants more than their proportion- ate part of the whole assets, taking into account all seventh-class "cred- itors, there and elsewhere," even though the property in that state had sold for enough to pay them in full ; and, as we have said, every "creditor, there or elsewhere," had a right to rely upon his perform- ing his duty under that statute. He might have complied with the request of appellee, and, after paying the small claims of resident creditors, transmitted the balance of the fund in his hands for dis- tribution. However, his refusal to do so, and the refusal of the St. Louis probate court to order him to do so, did not render it imprac- ticable to still give effect to said section 263 and the provisions of our own statute above quoted. It is to be observed that these appellants are not content with what the Missouri court gave them, but come into the probate court of Clinton county and demand that they shall be allowed to participate in the assets in the hands of the appellee, the resident administrator. Having done so, we entertain no doubt that the latter court had the power, and that it was its duty, to require them to account for that which they had received under the Missouri administration, and to or- der a distribution pro rata among all the seventh-class creditors. The judgment of the circuit court to that effect was right, and it was prop- erly affirmed by the appellate court. ' Judgment affirmed.^* 1 8 Where the estate as a whole is insolvent, a creditor who has received- full payment in the ancillary jurisdiction cannot be compelled by the courts of the domicile of the decedent to refund a part of what he has received. Schneller V. Vance, 8 La. 508, 28 Am. Dec. 140 (1835). All questions relating to the administration of the estate in the ancillary jurisdiction are governed exclusively by the local law. Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472 . (1840) ; Miner v. Austin, 45 Iowa, 221, 24 Am. Rep. 763 (1876). In the absence of proof that they have received something abroad, foreign creditors are ordinarily allowed to come in pari passu with the local creditors of the same class. In re Kloebe, 1884, 28 Ch. Div. 175; Tyler v. Thompson, 44 Tex. 497, 23 Am. Rep. 600 (1876). But see Shegogg v. Perkins, 34 Ark. 117 (1879). The ancillary administrator is responsible only to the court that appoint- ed him. In re Crawford, 68 Ohio St. 58, 67 N. E. 156, 96 Am. St. Rep. 648 (1903). His responsibility ceases after the assets have been, duly transmitted to the domiciliary administrator. Emery v. Batchelder, 132 Mass. 452 (1882). His accountability does not extend to assets received by him in the state of the principal administration. Fay v. Haven, 3 Mete; (Mass.) 109 (1841). All questions of priority in the payment of debts, both in the domiciliary and ancillary jurisdictions, are determined by the lex fori. Smith v. Union Bank of Georgetown, 5 Pet. 518, 8 L. Ed. 212 (1831) ; Pardo v. Bingham [1868J L. R. 6 Eq. 485. Except, perhaps, with respect to foreign assets. Cook v. Gregson, 2 Dr. 286 (1854); Estate of Rowland, 1 N. Y. St. Rep. 308 (1886). An ancillary administrator may be authorized to sell land for the payment of debts proved within the ancillary jurisdiction, notwithstanding the per- Cll. 5) FOREIGN ADMINISTRATIONS. 715 sonal estate at the domicile of the deceased has not been exhausted. Bosen- thal V. Renicli, 44 111. 202 (1867) ; Cowden v. Jacobson, 165 Mass. 240, 43 N. E. 98 (1896) ; Lawrence's Appeal, 49 Conn. 411 (1881). As to the jurisdiction of a court of ancillary administration to decree an allowance to the widow of a nonresident decedent out of assets within such jurisdiction, see 11 L. R. A. (N. S.) 361-363. JuKiSDiCTiON TO APPOINT Administeatoe. — See, in general, 24 L. R. A. 684- 089. Jurisdiction to appoint an ancillary administrator is not dependent upon the existence of an administrator at the domicile of the deceased. Stevens V. Gaylord, 11 Mass. 256 (1814) ; Green v. Rugely, 23 Tex. 539 (1859). An ancillary administrator may he appointed in any jurisdiction where there are assets belonging to the estate. Jurisdiction has been taken, though the only assets found within the state consisted of choses in action. Jordan v. Chicago & Northwestern R. R. Co., 125 Wis. 581, 104 N. W. 803, 1 L. B. A. (N. S.) 885, 110 Am. St. Rep. 865 (1905). In such a case, however, the application for the appointment of an ancil- lary administrator has been denied on the ground that the administration of a decedent's estate should be one as far as possible. Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790, 11 D. R. A. 41 (1891). Property of an estate administered in another jurisdiction is not assets in the state to which it is subsequently removed. Currie v. Bircham, 1 Dow. & By. ?,') (1822) ; Wheelock v. Pierce, 6 Gush. (Mass.) 288 (1850). Whether or not administration can be granted with respect to unadministered property so re- moved depends upon the terms of the statute upon which the jurisdiction of the particular probate court rests. In favor of such jurisdiction: Green v. Bugely, 23 Tex. 539 (1859) ; Pinney v. McGregory, 102 Mass. 186 (1869) ; Turner V. Campbell, 124 Mo. App. 133, 101 S. W. 119 (1907). See, also, In re McCabe. 84 App. Div. 145, 82 N. Y. Supp. 180 (1003), affirmed 177 N. Y. 584, 69 N. E. 1126. Contra: Embry v. Millar, 1 A, K. Marsh. (Ky.) 300, 10 Am. Dec. 732 (1818). The court of the state where the decedent was domiciled and where all the creditors of the estate reside may enjoin such creditors from petitioning for the appointment of an administrator In another state. In re Williams' Estate, 130 Iowa, 553, 107 N. W. 608 (1906). Choses In action, for the purpose of administration, are regarded as bona notabllia of the state where the debtor resides. Dial v. Gary, 14 S. C. 573, 37 Am. Bep. 737 (1880). So in the case of shares of stock. Grayson, v. Bob- ertson, 122 Ala. 330, 25 South. 229, 82 Am. St. Bep. 80 (1899) ; Murphy v. Crouse, 13-5 Cal. 14, 66 Pac. 971, 87 Am. St. Bep. ,90 (1901). So in the case of negotiable paper. Wyman v. Halstead, 109 U. S. 654, 3 Sup. Ct. 417, 27 L. Ed. 1068 (1884). See, also, Moore v. Jordan, 36 Kan. 271, 13 Pac. 337, 59 Am. Bep. 550 (1887). But a voluntary payment of a note will not be sustained, unless the administrator has possession of the Instrument. Amsden v. Dau- lelson, 19 B. I. 533, 35 Atl. 70 a896). So In the case of a judgment debt. Swancy v. Scott, 9 Humph. (Tenn.) 327 (1848); Miller v. Hoover, 121 Mo. App. 568, 97 S. W. 210 (1906). According to the earlier view, a judgment debt had a situs in the state only where It was rendered. Anonymous, 8 Mod. 244. Bonds are assets in the state where they are located at the death of their owner Beers v. Shannon, 73 N. Y. 292 (1878). A policy of Insurance con- stitutes an asset in the state where the debtor resides. A foreign msurance company for the purpose of this rule, will be regarded as having a residence in every iurisdiction where it is subject to suit. New England Mut. Life Iiis Co v. Woodworth, 111 U. S. 138, 4 Sup. Ct. 364, 28 L. Ed. 379 (1884) A suit may be maintained there upon the policy by a donjlclliary administrator or by an ancillary administrator who has possession of the policy. Sulz v. Mutual an anciiidiy u ^ ^_ ^ 242, 28 L. R. A. 379 (1895) ; New York Sfe Ins 00. v'. Smith, 67 Fed. 694, 14 C. C. A. 635 (1895). But see Ellis v. In- surance 'Co., 100 Tenn. 177, 43 S. W. 766 (1897). If jurisdiction has attached in one state with respect to an insurance policy, comity will cause it to be respect ed elsewhere. Sulz v. Mutual R. F. L. Assoc, 14o ^ . Y. 563, 40 N- B- 242, 28 L B. A. 379 (1895) ; Traflet v. Empire Life Ins. Co. 04 N. J. Law 38<, 46 Atl 204 n&m See also, Steele v. Connecticut Gen. L. I. Co., 31 App. Div. 389, o2 IS. Y Supp 373 a898) affirmed 160 N. Y. 703, 57 N. E. 1125; Merrill v. New Eng- land Ins. Co., 103 Mass. 245, 4 Am. Rep. 548 (18G0). It has been held that an 716 PAETicDLAR SUBJECTS. (Part 2 SECTION 2.— GUARDIANS. LAMAR V. MICOU. (Supreme Court of the United States, 1884. 112 U. S. 452, 5 Sup. Ot. 221, 28 L. Ed. 751.) William W. Sims, a citizen of Georgia, _died in 1850, leaving a wid- ow and two_inf ant daughters, Martha M. Sims and Ann C . Sims. In 1853, th e widow married Rev. Richard M. Abercrombie, £537 to- gether with her children, went to reside with him in New York . Up- on her petition Gazaway B. lyamar , at that time a resident of Brook- lyn, N. Y., was appointed guardian of the person an d estate of each child by the s urrogate of the county of Richmond, N. Y. L,amar in- vested in 1856 a part of the moneys belonging to each ward in stock of the Bank of the Republic in New York, and in 1857 a part of such moneys in stock of the Bank of Commerce at Savannah. Several months after Lama r's appointment, in 1856, Mr. and Mrs! Aber- crombie removed to Harttord, Conn., takmg tiie children with tn em, wher e they resided until their m other's death in 1859. Aft er that the chi ldren lived with their grandmother and aunt in Georgi a. In 1860 the aunt married Benjamin H. Micou, of Alabama, and the children and the grandmother thereafter lived with Mr. and Mrs. Micou . From 1855-1859, Lamar resided partly in Ge orgia and part- ly in New York . '■ ' " During the Civil War, fearing that the stock in the Bank of the Republic at New York would be confiscated by the United States, Lamar sold it and invested it in guaranteed bonds in the cities of New Orleans, Memphis, and Mobile, and of the East Tennessee & Georgia Railroad Company, depositing the bonds in a bank in Can- ada. He invested, also, from time to time, the property of his wards that was within the so-called Confederate States in Confederate States insurance policy is an asset in the state where it is payable. Pritchard v. Standard L. I. Co., 7 Ont. Rep. 188. Continental Law.— Title to both real and personal property, upon the death of the owner, vests under the law of France, Germany, and Italy in the heirs, in accordance with the Roman doctrine of universal succession. The doctrine that every grant of administration is confined in its author- ity and operation to the limits of the territory of the government which grants it, and can act beyond such territory only by way of comity, is not rec- ognized. An administrator appointed in England or the United States may sue as the representative of the estate without the need of a previous exe- quatur. Trib. Civ. Seine, May 12, 1891 (19 Cluuet, 487). In accordance with the general rule, however, which requires an exequatur for a foreign judg- ment or decree, if so-called acts of execution are in question, such exequatur of the decree under which he was appointed must be obtained before a for- eign executor or administrator will be placed in possession of the local as- sets. French Cass. March 9, 1853 (S. 1853, 1, 269). Ch. 5) FOREIGN ADMINISTRATIONS. 717 bonds, in bonds of the individual states which composed the Con- federacy, and in bonds of cities and of railroad corporations. Mariha^ M. Sims died in 1864, leaving her sister Ann C. Sims as ^!'^ "^^^ °^^^^- ^^'^ ^^^ suggestion of Lamar and up on the request °^ -^Q" C. 5"ims, "iViicou was appointed guardian ot the property" of Ann C.~Sims in the state of Alabama.,. X amar died in 1874, and Ann (S. tJims died m l«7«. In June, 1878, Mrs. Micou was appointed ad- ministratrix de bonis non of Martha M. Sims in New York, and as such administratrix filed a bill of revivor for an accounting or- iginally filed against Lamar in the Supreme Court of New York b y Ann C. Sims as administr at rix ot Martha M. Sims, and removed to the Circti it Court of the Uni ted_States_ for the Southern Di'stric t oi iNiew York. ^TheCi miit rourt held all Lamar's investments to have bee iPbreaches ot trust. A final decree was entered in favo r oTga mtia tor the sum of $18.705.19. 1 Fed. 14: 7 T^ed. 180. The defendant appealed.^" Gray, J.^" * * * ^pj^g ^^-^es of investment varying so much in the diflferent states, it becomes necessary to consider by what l aw the management and investment of the ward's property should be eov -' erned. As a ge neral rule (with some exceptions not material to the consideration orTEi"s case) tPgla^TofThe d"oihiale~governs tEe' statu^ a perso n, and-the disposition andjmanagement of his movablejgroperty . The domicile of an infant is universally held to be the fittest'plac e for the appointment of a guardian of his person and estate ; althSugE j for the protection of either, a guardian rnay be appointed in any s tate where the person or any property of an infant may bp fnnnrl On ttip continent ot liurope, the guardian appointed in the state of the domicile of the ward is generally recognized as entitled to the control and dominion of the ward and his movable property everywhere, and guardians specially appointed in other states are responsible to the principal guardian. By the law of England and of this country, a guardian appo inted by the co urts of onT ^tate has no authority ove r TM Waras person _or_Bro2grty_io_ano,ther„state,r'except sg~?ar as al- lowe ^~by the comity ot that statg,_as_expres_sed through its legisl a- tu re or its courts • but the tendency ot modern, statutes .and de ci- sions IS to defer to'the law of jhe , domicile, and to support the au - Thority of, the guardian appointed there,_ Hoyt v. Sprague, 103 U. S. '613, 631, 26 L. Kd. 585, and authorities cited; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153; Woodworth v. Spring, 4 Allen (Mass.) 321 ; MilHken v. Pratt, 125 Mass. 374, 377, 378, 28 Am. Rep. 241 ; Leonard v. Putnam, 51 N. H. 247, 12 Am. Rep. 106 ; Com. v. Rhoads, 37 Pa. 60 ; Sims v. Renwick, 25 Ga. 58 ; Dicey, Dom. 172-176 ; Westl. Priv. Int. Law, (2d Ed.) 48-50 ; Whart. Confl. Laws, (2d Ed.) §§ 259- 19 This sta-tement of facts has been substituted for that of the original re- port. 20 Only a part of the opinion is given. 718 PARTICULAR SUBJECTS. (Part 2 3G8. An infant cannot change his ow n dnvnmle.. As infants have the domicile of their father, he may change their domicile by chang - ing his own; and after his death the mother, while she remains a "* widow, may liRewise.Jjy cfa anpfin g her domicile, chancre the domici le "ot the infan ts; t he domicile of the children, in either case^ f nllow- ing the mdependent domicile of their parents K ennedy v. Ryall. 67 N. "V. iiW; "Fotmger'vrWightman, 3 Mer. 67; Dedham v. Natick, 16 Mass. 135; Dicey, Dom. 97-99. But when the widow, by ma r- rying again, acquires the domicile of a second husband, sh'e'does no t, ( " by taking her chiTdren by the first husband to live with her ther e, make the domicile which she derives from the second husband th eir "domicil e: and they retam the dnm irilp whirh thpv had hefor-e her se cond marriage, acquired from her or from their fathe r. Cumner V. Milton, 3 Salk. 259; S. C. Holt, 578; Freetown"v:' Taunton, 16 Mass. 52 ; School Directors v. James, 2 Watts & S. (Pa.) 568, 37 Am. Dec. 525 ; Johnson v. Copeland, 35 Ala. 521 ; Brown v. Lynch, 2 Bradf. Sur. (N. Y.) 214;'Mears v. Sinclair, 1 W. Va. 185; Pot. In- troduction Generale aux Coutumes, No. 19 ; 1 Burge, Col. & Foreign Law, 39; 4 Phillim. Int. Law (2d Ed.) § 97. The preference due to the law of the ward's domicile, and the itn - portance of a uniform administration of his whole estate, require th at, as a general rule, the management and in v estment of his pro p- e rty should.^,ej;fOverneaibY-th.e"law„Qt the state of his domicile, e s- jieci all y when he actual ly resides there, rather .than by the law~ of any state in wnicn a guardia n may have been appointed or may ha ve rece ived spme property of the ward ! If the duties of the guardian were to be exclusively regulated Ey the law of the state of his ap- pointment, it would follow that in any case in which the temporary residence of the ward was changed from state to state, from con- siderations of health, education, pleasure, or convenience, and guard- ians were appointed in each state, the guardians appointed in the dif- ferent states, even if the same persons, might be held to diverse rules of accounting for different parts of the ward's property. The f orm, of accounting, so far as concerns the remedy only , must. i'ndee dj~be according to the law of the court in which relief is sought; bu t "the general rule by which the guardian is to be held responsible for 'th e inves tment of the ward's property is the law of the place of the do m- ic ile 01 jt he_waid'^ Bar;Tnt7Law, § 106 (Gillespie's Translation,) p. '1-38; VvlTartrConfl. Laws, § 259. It may be suggested that this would enable the guardian, by changing the domicile of his ward, to choose for himself the law by which he should account. Not so. The father, and after his dea,th.the widowed mothei \being- the natiiral guardTan , and the person from whom t he waFd" derives~"lTTs" domicile, may change that domicile. But the ward does n ot derive " a domicile from any other than a natural guardia n. A testamenta ry guardian nominated by the father may^Tiave the sanie control ot tKe 11^ C''- 5) FOREIGN administ;«Ctions. ""^ 719 I ' ^^.'"^kL'^°!"."^'l^. , ^^^.^^ ^^^.^. ^^ther h ad. Wood v. Wood, 5 Paige (N. ^.) &iJt), aOi), -oH Am. Uec. 45fr" "And any guardian, appointed ^ in q^-^_'^^^^^ °^ the .domicile of the ward, has beW^-arerallv held to h ave , th e' power ot'ciTariging the ward's domicile from onecountv to a n- ' uUierwfthin-tte-sam^ and under thesame_ law."~Cu!Trv-rHas- lans, 9 Mass. 543; Holyoke v. Haskbs, 5 Pick.' (Mass.) 20, 16 Am. Dec. 372 ; Kirkland v. Whately, 4 Allen (Mass.) 463 ; Anderson v. Anderson, 42 Vt. 350, 1 Am. Rep. 334; Ex parte Bartlett, 4 Bradf. Sur. (N. Y.) 221 ; The Queen v. Whitby, L. R. 5 Q. B. 325, 331, But it is very doubtful , to say the least, whether even a guardian « !appomted m the statTortEe" domTcile of the ward" ( not being th e^ 'i}ii'""Mi i'^'"^^^^^^" "'" a tjestamentary guardian) carij-emove the ward's domicile beyond the limit's of the state in which the guardian is ap- pointed, and to which his legal, authority is ..confined .Douglas v. TTouglas, L. R. 12 Eq. 617, 625; Daniel v. Hill, 52 Ala. 430; Story Confl. Laws, § 506, note ; Dicey, Dom. 100, 133. And it is _quit e clear t hat a guardian appointed in a state in which the ward is t em- porarily residing, cannot change the ward's perrnanent domicileTrom one srare to another, 'i'he case oi such a guardian differs from that of an executor ot, or a trustee under, a will. In the one case, the title in the property is in the executor or the trustee; in the other, the title in the property is in the ward, and the guardian has only the custody and management of it, with power to change its invest- ment. The executor or trustee is appointed at the domicile of the testator; the guardian is most fitly appointed at the domicile of the ward, and may be appointed in any state in which the person or any property of the ward is found. The general rule which governs the administration of the property in the one case may be the law of the domicile of the testator ; in the other case, it is the law of the domicile of the ward. As the law of the dom icile of t he ward has no ext raterritorial e f- fect, except by th e comit y ot ttiestate whe re the prppeirty is situate d, or where the guardian is appointe d, rT cannot, of^ cour se, prevai l against a statute of tne statejnw hich th e ^uestion ispresente d for " atfjuclteation. eifpi'^^^v aTpphcahlFto the estate of a ward domiciled elsewhere. Hoyt v. Sprague, 103 U. S. 613, 26 L. Ed. 585. Cases may also arise with facts so peculiar or so complicated as to modify the degree of influence that the court in which the guardian is called to account may allow to the law of the domicile of the ward, con- sistently with doing justice to the parties before it. And a guardian, who had in good faith conformed to the law of the state in which he was appointed, might, perhaps, be excused for not having com- , plied with stricter rules prevailing at the domicile of the ward. But in a ca se in which th e domicile of the ward has always been in a state wtiose law leaves much to the discretion of the guar dian in the matter of investments, and he has faithfully a:na prtiaently exer- - 720 PARTicuLAK SUBJECTS. (Part 2 cised that discretion with a view to the pecuniary interests of the ward, it would be inconsistent with the principles of equity to charge him with the amount of the moneys invested, merely because he has not complied with the more rigid rules adopted by the courts of the state in which he was appointed. The domicile of William W. Sim s, during his life and _a t tlip t ^o-g-of his death in laau, was m T jeorg ia. This domicile confinued to3elhe~domicile of his wi^ow "and of the ir infant children until they acquired new ones. In 1853 the widow , by "TnarryiFg the Kev. Mr.'Xberr.rnmb ie , argnire d iiis domici le. Eut she did not, by taking the iniants to the home, at first in New kork and af terwards in Connecticut, of her new husband, who ^as 'oT'tio kin to the childreiT, was under no legal obliej'ation t o '^"ppojt them, and w as, in fact, "paid tor their board out of their property , make his domicile, or tEe' domicile derived 'by "her from him^ the domicile of the children of the first husbaj id. Immediately " upon her death in Connecticut, in 1859, these children, both under 10 years of age, were taken back to Georgia to the house of their father's mother and unmarried sister, their own nearest surviving relatives ; and they continued to live with their grandmother and aunt in Geor- gia until the marriage of the aunt in January, 1860, to Mr. Micou, a citizen of Alabama, after which the grandmother and the children resided with Mr. and Mrs. Micou at their domicile in that state. Upon these facts, the domicile of the children was always in Geo r- gia fr om their birth until January, 1860. and thenceforth was eithe r " iir" vjepr gia or. in-Aiaiama . As the rules of investment prevailing belyra IbbS in Georgia and in Alabama did not substantially differ, the question in which of those two states their domicile was is im- material to the decision of this case; and it is therefore unnec essary to consider whether their p;rar\r\rr\Q^er was their natural guardia n, and as such had the power to change their domicile from one sS te" "uTanoLher. See Margrave's note 'Fe. to Co. Li'tt. 88b; Reeve, Dom. Rel. 315 ;~2 Kent, Comm. 219; Code Ga. 1861, §§ 1754, 2453; Darden V. Wyatt, 15 Ga. 414. Whether the dom icile of lyamar in Dece m- ber, 1855, when he was appointed in JNew York guardian of the. in- fants, was in New York or in Georgia, does not distinct^ appear, ' and'is noFmatefial ; because, for the reasons already stated^whefeyer his" domTcil'e was, his ;dtities^s_guardia5 in Jhe management and in- vestment of the property of his wards were to" be~feguTate3~'5y~the Tawpf th,eir dorniciie. * * * - ■ — The result is that both the decrees of the Circuit Court in this case must be reversed, and the case remanded for further proceed- ings in conformity with this opinion.''^ 21 The rules determining the rights and duties of foreign guardians with respect to the property of thejr wards do not differ materially from those applicable to foreign administrators. See 89 Am. St. Rep. 271-275 ; 13 Am. & Eng. Enc. Law, 968-973 ; 21 Cyc. 265-272 ; Minor, Conflict of Laws, § 116. With respect to the rights of guardians, foreign and domestic, to the cus- Ch. 5) FOEBIGN ADMINISTRATIONS. 721 tody of the ward, see 89 Am. St. Rep. 274^278; 13 Am. & Eng Enc. Law, 967-968 ; 21 Cyc. 264 ; Minor, Conflict of Laws, § 115. With respect to jurisdiction to appoint guardians, see 21 Cyc. 23-26 ; 7 Col. Law Rev. 348-3S0. Continental Law. — France and /taZi/.— Jurisdiction to appoint guardians is on principle deemed to belong exclusively to the courts of the country of which the ward, lunatic, or spendthrift is a subject. App. Paris, Dec. 12, 1863 (S. 1864, 2, 20). A temporary guardian, however, may be appointed and provi- sional measures may be taken until the com:ts of his country act. Prance. — App. Nancy, April 25, 1885 (D. 1886, 2, 131) ; Cass. Nov. 10, 1896 (S. 1900, 1, 516). Italy.— Cass. Turin, June 13, 1874 (1 Clunet, 830). But see App. Milan, July 5, 1901 (Monitore 1901, p. 688). Jurisdiction will be assumed, also, if the party in question has no known domicile in the country of which he is a subject, so that a refusal to take jurisdiction would be tantamount to a denial of justice. Trib. Civ. Seine, April 6, 1894 (21 Clunet, 531). But not If such guardianship is unknown to the national law. App. Paris, July 31, 1895 (23 Clunet, 147). Subject to the rules concerning public order, a foreign guardian can exercise all the rights vested in him under the law of the state in which he was appoint- ed. France, App. Paris, June 27, 1888 (17 Clunet, 946) ; App. Origans, Feb. 9, 1900 (S. 1902, 2, 141). Italy, Article 6, Prel. Disp. Civ. Code; App. Genoa, Dec. 31, 1889 (Temi Genovese 1889, p. 85); App. Casale, April 13, 1902 (Foro It. 1902, 1, 912). This is true, even with respect to realty. App. Pau, July 9, 1907 (35 Clunet, 183). Ordinarily no exequatur of the decree is necessary to entitle him to the enjoyment of such rights, unless, of course, acts of execution are in question. France, App. Nancy, April 25, 1885 (D. 1886, 2, 131). Italy, App. Origans, Feb. 9, 1900 (S. 1900, 2, 14) ; article 944, Code Civ. Proc. So whether the ward has a lien upon the property of his guardian as a protection against mismanagement depends upon his national law. App. Bor- deaux, July 23, 1897 (S. 1900, 2, 89), and note by E. Audinet. As a "strictly civil right," however, it will, in the absence of treaty or an authorized domicile, not exist in favor of a foreigner with respect to property in France. See Cass. May 20, 1862 (S. 1862, 1, 673). Oermany. — A foreigner of age may be placed under guardianship in' Ger- many according to German law, if he is domiciled in the country, or if, pos- sessing no domicile in any country, he resides in Germany. Article 8, Law Intr. Civ. Code. A guardian may be appointed in Germany for a foreign minor, if the state of which he Is a subject fails to provide one for him. The need of a guardian, however, is to be determined in this case in accordance with his national law. Article 23, Law Intr. Civ. Code ; K. G. June 23, 1902 (12 Niemeyer, 468) ; K. G. Feb. 23, 1903 (13 Niemeyer, 420). O. L. G. Jena, May 8, 1907 (18 Niemeyer, 180). The above rules are subject to the provisions of the Convention of the Hague of June 12, 1902. See Appendix A, III. In regard to guardianship for persons of age, see, also, Draft of Convention, signed at the Hague July 17, 1905 (Appendix B, III). Lob. CoNr.L. — 46 722 PARTICULAR SUBJECTS. (Part 2 SECTION 3.— RECEIVERS AND TRUSTEES IN BANK- RUPTCY. GREAT WESTERN MINING & MFG. CO. v. HARRIS. (Supreme Court of the United States, 1905. 198 U. S. 561, 25 Sup. Ot. 770, 49 L. Ed. 1163.) This case was begun by a bill in equity, filed in the Circuit Court of the United States for the District of Vermont against B. D. Harris, a citizen of Vermont, by L. C. Black, receiver of the Great Western Mining & Manufacturing Company, a corporation organized under the laws of Kentucky. A decree was rendered in favor of the receiv- er, which wag reversed by the Circuit Court of Appeals for the Second Circuit. Plaintiff sued out a writ of certiorari.^^ Day, J. The theory of the complainant's case seems to be that the transfers of the stock of the defendant and other directors and stock- holders, paid for out of the proceeds of the bonds, in view of the alle- gations of the bill as to the condition of the company, and the pur- poses in view by the defendant and associates, amounted to .a breach of duty upon the part of the defendant and other directors, and a con- version to their own use of the property of the company, for which they should be held to account in an action brought by the company, through its receiver, under the order of the circuit court of Kentucky. The particulars of the suit in which the receiver was appointed are not very fully set forth, but enough appears to show that he was appointed in a suit to adjudicate and enforce liens, and subject the property to the payment of the claims of creditors. In the brief of the learned coun- sel for complainant, it is styled a "general creditors' and foreclosure suit." It does not appear that, by order of the court or otherwise, there has been any conveyance of the property and assets of the com- pany to the receiver, nor has the corporation been dissolved, and the receiver made its successor, entitled to its property and assets. The minute books of the company, in evidence do not show any authority by the corporation for the filing of this bill in the name of the Great Western Mining & Manufacturing Company or otherwise, although meetings were held after the appointment of the receiver. Nor is our attention called to any statute vesting the title of the corporation in the receiver. So far, then, as the receiver is concerned, his right to prosecute the action must depend upon his powers as such officer of the court and the order of the court, set forth in the statement of facts, authorizing him to bring suit against the stockholders, and directors for the purpose of realizing the assets, either in his own name or that 2 2 This statement of facts has been substituted for that ot the original re- port. €h. 5) FOREIGN ADMINISTRATORS. 723 'Of the corporation, as may be proper. This condition of the record brings up for consideration at the threshold of this case the question »of the extent of the power of the receiver to maintain this action un- der the order of the court, either in his own name or that of the corn- pan)-. As to the power of the court to authorize the receiver to sue, we think the case is ruled by Booth v. Clark, 17 How. 322, 338, 15 L. Ed. 170, in which case the authority of the court to authorize a receiver appointed in one jurisdiction to sue in a foreign jurisdiction was the subject of very full consideration. In that case it was held that a receiver is an officer of the court which appoints him, and, in the absence of some conveyance or statute vesting the property of the debtor in him, he cannot sue in courts of a foreign jurisdic- tion upon the order of the court which appointed him, to recover the t)roperty of the debtor. While that case was decided in 1854, its authority ha^s been frequently recognized in this court, and as late as Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380, it was said by Mr. Justice Peckham, who delivered the opinion of the court : "We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that case." In that case the following language, as to a receiver's powers, from Booth v. Clark, 17 How. 338, 15 L- Ed. 171, is quoted with ap- proval : "He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor's property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek." Mr. Justice Wayne, who delivered the opinion of the court in Booth V. Clark, stated, among others, the following reasons for re- fusing to recognize the powers of a receiver in foreign jurisdictions : "We think that a receiver could not be admitted to the comity extended to judgment creditors without an entire departure from chancery proceedings as to the manner of his appointment, the securities which are taken from him for the performance of his du- ties, and the direction which the court has over him in the collec- tion of the estate of the debtor, and the application and distribution of them. If he seeks to be recognized in another jurisdiction, it is to take the fund there out of it, without such court having any con- trol of his subsequent action in respect to it, and without his having even official power to give security to the court, the aid of which he seeks, for his faithful cbnduct and official accountability. All that could be done upon such an application from a receiver, according to chancery practice, would be to transfer him from the locality of liis appointment to that where he asks to be recognized, for the 724 PARTICULAR SUBJECTS. (Part 2 execution of his trust in the last, under the coercive ability of that court; and that it would be difficult to do, where it may be asked to be done, without the court exercising its province to determine whether' the suitor, or another person within its jurisdiction, was the proper person to act as receiver." It will thus be seen that the decision in Booth v. Clark rests upon the principle that the receiver's right to sue in a foreign jurisdic- tion is not recognized upon principles of comity, and the court of his appointment can clothe him with no power to exercise his oifi- cial duties beyond its jurisdiction. ^ The ground of this conclusion is that every jurisdiction, in which it is sought, by means of a re- ceiver, to subject property to the control of the court, has the right and power to determine for itself who the receiver shall be, and to make such distribution of the funds realized within its own juris- diction as will protect the rights of local parties interested therein, and not permit a foreign court to prejudice the rights of local cred- itors by removing assets from the local jurisdiction without an or- der of the court, or its approval as to the officer who shall act in the holding and distribution of the property recovered. In Quincy M. & P. R. Co. V. Humphreys, 145 U. S. 82, 12 Sup. Ct. 787, 36 L. Ed. 632, the powers of a receiver were under consideration, and the following language was quoted with approval (145 U. S. 98, 12 Sup. Ct. 792, 36 Iv. Ed. 637) : "The ordinary chancery receiver, such as we have in this case, is clothed with no estate in the prop- erty, but is a mere custodian of it for the court, and by special au- thority may become an officer of the court to effect a sale of the property, if that be deemed necessary for the benefit of the par- ties concerned." There are exceptional cases, such as Relfe v. Run- die (Life Asso. of America v. Rundle) 103 U. S. 223, 26 L. Ed. 337,^* in which the entire property of the insolvent company was vested in the superintendent of insurance of the state, where his authority did not come from the decree of the court, and his right to sue was main- tained. In Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739, 33 L. Ed. 184, it appeared that Glenn had derived title by assignment and deed, and he was permitted to sue. In the case now before us it does not appear that the receiver had any other title to the assets and prop- erty of the company than that derived from his official relation thereto as receiver under the order of the court. In such a case we think the doctrine of Booth v. Clark is fully applicable. It is doubtless because of the doctrine therein declared that the practice has become general in the courts of the United States, where the property of a corpora- tion is situated in more than one jurisdiction, to appoint ancillary re- ceivers of the property in such separate jurisdictions. It is true that the ancillary receiverships are generally conducted in harmony with the court of original jurisdiction, but such receivers are appointed with 28 See, also, Bemheimer v. Converse, 206 U. S. 516, 27 Sup. Ct. 755, 51 L. Ed. 1163 (1907). Ch. 5) FOREIGN ADMINISTKATORS. 723 a view of vesting control of property rights in the court in whose jurisdiction they are located. If the powers of a chancery receiver in the federal courts should be extended so as to authorize suits be- yond the jurisdiction of the court appointing him, to recover property in foreign jurisdictions, such enlargement of authority should come from legislative, and not judicial, action. Nor do we think the jurisdiction is established because the action is authorized to be instituted by the receiver in the name of the cor- poration. Such actions subjecting local assets to a foreign jurisdic- tion and to a foreign receivership would come within the reasoning of Booth V. Clark. If a recovery be had, although in the name of the corporation, the property would be turned over to the receiver, to be by him administered under the order of the court appointing him. It is urged that jurisdiction in this case is sustained by the case of Great Western Teleg. Co. v. Purdy, 163 U. S. 329, 16 Sup. Ct. 810, 40 L. Ed. 986, in which it was held that the assets and affairs of an insolvent corporation being in the hands of a receiver, the court might direct the calls or assessments upon delinquent shareholders who had not paid for their shares, thereby using the authority the directors might have exercised before the appointment of the re- ceiver. In that case, a receiver appointed by the circuit court of Cook county, in Illinois, under the direction of that court brought an action in the name of the Great Western Telegraph Company, an Illinois corporation, by its receiver, against Purdy, a citizen of Iowa, to re- cover a sum alleged to be due from him upon an assessment upon his stock subscription, and it was held that the Illinois court might make the assessment and calls necessary to collect the stock which would be binding in another court. The jurisdiction of the Iowa court was not called in question in the state court of Iowa, where the original action was brought, nor was the question of jurisdiction raised in this court, or passed upon in deciding the case. While not detracting from the authority of that case as to the matter decided, we see nothing in it to indicate that, had the question herein presented been made, it would have been decided otherwise than herein indicated. There are numerous and conflicting decisions in the state courts as to the rights of a receiver to sue in a foreign jurisdiction upon prin- ciples of comity, which it is not necessary to review here. In this court, since the case of Booth v. Clark, 17 How. 338, 15 L,. Ed. 170, we deem the practice to be settled, and to limit a receiver, who derives his au- thority from his appointment as such, to actions, either in his own name or that of an insolvent corporation, such as may be authorized within the jurisdiction wherein he was appointed. We think the Circuit Court of Appeals was right in holding that the Circuit Court had no jurisdiction of this action. This view of the case renders it unnecessary to consider the other questions made in the record. Decree affirmed. Mr. Justice Brewbr concurs in the decree. 726 PARTICULAR SUBJECTS. (Part 2 HURD V. CITY OF ELIZABETH. (Supreme Court of New Jersey, 1879. 41 N. J. Law, 1.) The plaintiff brought this suit in his character of receiver of the- Third Avenue Savings Bank. The allegations touching his right to sue w^ere the following: "For that the said S. H. Hurd heretofore, tO' Vfit, on the thirtieth day of November, eighteen hundred and seventy- five, at the city of Kingston, in the state of New York, to wit, at Elizabeth, in said county of Union, was duly appointed receiver of the Third Avenue Savings Bank, by the Supreme Court of the state of New York, in pursuance of the laws of said state of New York, and afterwards, to wit, on the day and year last aforesaid, duly qualified as such receiver, and thereupon became empowered to exercise and perform all the powers and duties imposed upon him as receiver as aforesaid, by virtue of the laws of the state of New York and said appointment, and particularly by said laws and his said appointment, became seized and possessed of the personal property and choses in action of the said the Third Avenue Savings Bank, and entitled to sue for, collect and receive all moneys then due to the said the Third Ave- nue Savings Bank, and particularly the several sums hereinafter men- tioned." The declaration then showed, in the form of common counts, sundry moneys due, antecedently to the receivership, to the savings bank, and concluded in the usual style. The defendant demurred. Beasley^ C. J.^* The plaintiff's right to stand as the actor in this suit is derived wholly from the receivership that was conferred upon him by the Supreme Court of the state of New York; and on the part of the defendant, such right is contested on the ground that it is contrary to established rules for the courts here to lend their as- sistance in carrying into effect an office created in the course of a pro- ceeding before a foreign tribunal. To countenance this contention various authorities are cited, and notably among them that of Booth v. Clark, 17 How. 322, 15 L. Ed. 164. But that case belongs to a train of decisions which have been undoubtedly rightly decided, but which are not to be i-egarded as ruling the precise point now in issue. The decisions thus referred to will be found in High on Receivers, § 239, and they are all cases involving a controversy between the receiver and the creditors of the person whose property has been placed un- der the control of such receiver. In such a posture of things it is manifest that different considerations should have force from those that are to control when the litigation does not involve the rights of creditors in opposition to the claims of the receiver. That the officer of a foreign court should not be permitted, as against the claims of creditors resident here, to remove from this state the assets of the 2A part of the opinion has been omitted. Ch. 5) FOREIGN ADMINISTRATORS. 737 lish bankruptcy act, transfers to the trustee all the personal property of the bankrupt, wherever situated, whether in Great Britain or else- where. Notwithstanding his bankruptcy, Waite continued to act as assignee of Haynes & Sanger, and converted the assets of that firm into money, and, under the preference given to his firm, paid himself for the firm of Pendle & Waite the sum of $14,333.70. He paid no portion of that sum to Pendle or to the creditors of his firm, the American creditors of such firm having been fully paid from other assets of the firm. After all this, Waite filed his petition in the court of common pleas of the city of New York for a settlement of his accounts as assignee, and citations were issued, served, and published for that purpose, and a referee was appointed to take and state his accounts. In his accounts he entered and claimed a credit for the sum paid to himself as above stated. Schofield, through his attorney, appeared upon the accounting, and as trustee objected to the credit, and claimed that that sum should be paid to him. The referee ruled that the law of this state does not recognize the validity of foreign bankruptcy proceedings to transfer title to property of the bankrupt situated here, and for that reason held that the payment by Waite as assignee to himself, as a member of the firm of Pendle & -Waite, was valid, and that he was entitled to the credit claimed. The same view of the law was taken at the special and general terms of the common pleas, and then Schofield appealed to this court. We have stated the facts as found by the referee and as the respond- ent did not and could not except to the findings, and is therefore in no condition to complain of them, we must assume that they were bas- ed upon sufficient evidence. The transfer of the property of Pendle & Waite to Schofield, as trus- tee, was in invitum solely by operation of the English bankrupt law. While the proceeding first instituted by the bankrupts to arrange a composition with their creditors was voluntary, the final proceeding through which the adjudication in bankruptcy was had, and the trustee appointed, was adversary and against their will, having no basis of voluntary consent to rest on. Willitts v. Waite, 25 N. Y. 577. If the transfer effected by the bankruptcy proceedings is to have the same ef- fect here as in England, tben the title to the money due to the bank- rupts from Haynes & Sanger was vested in the trustee. Schofield was appointed receiver of the property of the bankrupts in March, 1882, and then the title passed out of them. That title continued in him as receiver until he was appointed trustee. After he was appointed re- ceiver, and before or after he was appointed trustee, (which does not appear,) Waite, as assignee, paid himself, as a member of the firm of Pendle & Waite, the sum of money in controversy. He had notice of the bankruptcy proceedings, and knew that the title to the money due from Haynes & Sanger, and from himself as their assignee, had passed out of the bankrupts to Schofield, and hence he had no right to LoB.CoNi'.L. — 47 738 PARTICULAR SUBJECTS. (Part 3 make payment to them. Schofield became substituted in their place, and Waite was bound to make payment to him, and cannot, therefore, have credit for a payment wrongfully made ; and Schofield, standing in the place of the original creditors of Haynes & Sanger, had the right to appear upon the accounting and object to the erroneous payment made in disregard of his rights. But the alleged payment was merely formal, not real. Waite, the assignee, still has the money, and is accountable for it to the proper party. It is not perceived how it can be claimed that Schofield was bound at any time before the accounting to make any demand upon the assignee. He was a creditor, holding the claim orig- inally due to Pendle & Waite, and as such he could appear upon the accounting with all the rights of any other creditor to protect his in- terests, and he could not be prejudiced by a payment alleged to have been made by the assignee to himself. All this is upon the assump- tion that the transfer to Schofield, as trustee, is to have the same force and effect here as against the bankrupts as in England ; and whether it must have, is the important and interesting question to be determined upon this appeal. It matters not that Waite was a citizen of this coun- try, domiciled here. He went to England, and invoked and submitted to the jurisdiction of the bankruptcy court there, and is bound by its adjudication to the same extent as if he had been domiciled there. The adjudication estopped him just as every party is estopped by the ad- judication of a court which has jurisdiction of his person and of the subject-matter. We have not a case here where there is a conflict between the foreign trustee and domestic creditors. So far as appears, no injustice what- ever will be done to any of our own citizens, or to any one else, by al- lowing the transfer to have full effect here. Indeed, justice seems to require that this money should be paid to the foreign trustee for dis- tribution among the foreign creditors of the bankrupts. The effect to be given in any country to statutory in invitum transfers of property through bankruptcy proceedings in a foreign country has been a sub- ject of much discussion among publicists and judges, and unanimity of opinion has not been, and probably never will be, reached. We shall not enter much into the discussion of the subject, and thus travel over ground so much marked by the footsteps of learned jurists. Our main endeavor will be to ascertain what, by the decisions of the courts of this state, has become the law here. [The learned justice here examined Bird v. Caritat, 2 Johns. 342, 3 Am. Dec. 433, Raymond v. Johnson, 11 Johns. 488, Holmes v. Remsen, 4 Johns. Ch. 460, 8 Am. Dec. 581, Holmes v. Remsen, 20 Johns. 229, 11 Am. Dec. 269, Plestoro v. Abraham, 1 Paige, 336, Abraham v. Plestoro, 3 Wend. 538, 20 Am. Dec. 738, Johnson v. Hunt, 33 Wend. 87, Hoyt V. Thompson, 5 N. Y. 320, Id., 19 N. Y. 307, Willitts v. Waite, 25 N. Y. 577.] From all these cases the following rules are to be deemed thor- oughly recognized and established in this state : (1) The statutes Ch. 5) FOREIGN ADIIINISTRATORS. 739 of foreign states can in no case have any force or eflfect in this state ex proprio vigore, and hence the statutory title of foreign as- signees in bankruptcy can have no recognition here solely by virtue of the foreign statute. (2) But the comity of nations, which Judge Demo in Peterson v. Chemical Bank, 32 N. Y. 21, 88 Am. Dec. 298, said is a part of the common law, allows a certain effect here to titles derived under and powers created by the laws of other coun- tries, and from such comity the titles of foreign statutory assignees are recognized and enforced here, when they can be, without injus- tice to our own citizens, and without prejudice to the rights of cred- itors pursuing their remedies here under our statutes: provided, also, that such titles are not in conflict with the laws or the public policy of our state. (3) Such foreign assignees can appear, and, subject to the conditions above mentioned, maintain suits in our courts against debtors of the bankrupt whom they represent, and against others who have interfered with or withheld the property of the bankrupt. If it be admitted, as it must be under the authorities cited, that Schofield can, as assignee of Pendle & Waite, have a standing in our courts, and that his title will be-so far recognized here that he can sue the debtors of that firm to recover the amount owing to the firm, why may he not sue the bankrupts ? If the assignee could sue Haynes & Sanger to recover what they owed the bankrupts, why can he not be permitted to sue the bankrupts for money or property placed in their hands to pay the debt ? If he could sue Haynes & Sanger, why could he not sue their assignee, although a member of the bankrupt firm, to recover the money placed in his hands to pay their debt? No principle of justice, no public policy, requires the courts of this state to ignore the title of this assignee at the instance of one of the bankrupts. No injustice will be done to Waite if this money be taken to pay his creditors, and public policy does not require that the courts of this state should protect him in his efforts either to cheat his creditors or his partner. If it be conceded, as it must be, that the title of a foreign statutory assignee is good in this state for any purpose against anybody, it seems to us that it ought to be held good against the bankrupt, against whom an adjudication in bank- ruptcy has been pronounced which is binding upon him. Before such an adjudication can be held to be efficacious in a for- eign country to transfer title to property, the bankrupt court rnust have had jurisdiction of the bankrupt either because made in the country of his domicile, or because he, although domiciled else- where, submitted to the jurisdiction, or in some other way came under the jurisdiction of the bankrupt court. Here Pendle & Waite did most of their business in England. Most of their assets and of their creditors were there, and while Pendle alone was domiciled there, Wait6 went there arid subriiitted to the jurisdiction of the bank- rupt court, and exposed himself to the operation of English law. 740 PARTICULAR SUBJECTS. (Part 2 He is therefore bound by the adjudication of the court as he would have been if domiciled there and the judgment had been in a com- mon-law court upon any personal cause of action. The decisions in the federal courts and in most of the other states are in harmony with the views we have expressed, and so are the doctrines of all the great jurists who have written upon the subject of private international law. 2 Bell, Comm. 681, 687 ; Wheat. Int. Law (8th Ed. by Dana) §§ 89-91, 144, and note; 2 Kent, Comm. 405 ; Whart. Confl. Laws, §§ 353, 368, 391, 735, 736 ; Story, Confl. Laws, §§ 403, 410, 413, 414, 420, 421. There are but two cases in this state which really hold anything in conflict with these views, and they are Mosselman v. Caen, 34 Barb. 66 ; Mosselman v. Caen, 4 Thomp. & C. 171. In the first case the action was by foreign trustees appointed in bankruptcy proceed- ings to recover goods in the possession of the defendant in this coun- try, and the plaintiffs recovered. The defendant appealed, and sought to reverse the judgment upon the ground that the plaintiffs did not, as trustees, have any title to the property. The judgment was affirmed on the ground that the defendant did not raise the ques- tion of title at the trial. But the judges writing were of opinion that the plaintiffs did not have any title to the bankrupt's property located here, and one of them (Sutherland, J.) stated that the case of Abraham v. Plestoro, 3 Wend. 538, 30 Am. Dec. 738, confirmed by Johnson v. Hunt, 33 Wend. 87, "would seem to be conclusive upon the question whether our courts will recognize or enforce a right or title acquired under a foreign bankrupt law or foreign bankruptcy judicial proceedings. The case of Abraham v. Plestoro was certain- ly very broad in its repudiation of foreign bankruptcy proceedings, and went much further than the case of Holmes v. Remsen, 30 Johns. 339, 11 Am. Dec. 269 ; but I think it must be deemed conclu- sive authority for saying that had the defendant raised the question by demurrer, or on the trial, it must have been held that the plain- tiffs could not maintain this action." In the second case, Davis, P. J., writing the opinion of the court, said : "It seems to be the set- tled law of this state that our courts will not recognize or enforce a right or title acquired under a foreign bankrupt law or foreign proceedings so far as affects property within their jurisdiction or demands against residents of the state." These two cases are un- supported by authority, and are, we think, opposed to sound prin- ciples, and are in conflict with the current of authority in this state. We are therefore of opinion that Schofield was competent to appear upon the accounting to protect the interests of the bankrupt estate which he represented ; and that, upon the facts as they appear in this record, his objection to the allowance of the payment made by the assignee to himself ought to have prevailed, and that he should be recognized as a creditor for the amount of such payment. It follows that the orders of the general and special terms should be reversed, Ch. 5) FOREIGN ADMINISTRATORS. 741 and as the facts may be varied, or more fully presented upon a new hearing, the matter shoufd be remitted to the special term for fur- ther proceedings upon the same or new evidence in accordance with the rules of law herein laid down; and that the appellant should recover from the respondent costs of the appeals to the general term, and to this court. AH concur. Ordered accordingly. SECURITY TRUST CO. v. DODD, MEAD & CO. (Supreme Court of the United States, 1899. 173 U. S. 624, 19 Sup. Ct. 545, 43 L. Ed. 83.) This was an action originally instituted in the district court for the Second judicial district of Minnesota, by the Security Trust Company, as assignee of the D. D. Merrill Company, a corporation organized under the laws of Minnesota, against the firm of Dodd, Mead & Co., a partnership resident in New York, to recover the value of certain stereotyped and electrotyped plates for printing books, upon the ground that the defendants had unlawfully con- verted the same to their own use. The suit was duly removed from the state court to the Circuit Court of the United States for the District of Minnesota, and was there tried. Upon such trial the fol- lowing facts appeared : The D. D. Merrill Company having become insolvent and unable to pay its debts in the usual course of business, on September 23, 1893, executed to the Security Trust Company, the plaintiff in er- ror, an assignment under and pursuant to the provisions of chapter 148 of the Laws of 1881 of the state of Minnesota, which assignment was properly filed in the office of the clerk of the district court. The trust company accepted the same, qualified as assignee, took possession of such of the property as was found in Minnesota, and disposed of the same for the benefit of creditors, the firm of Dodd, Mead & Co. having full knowledge of the execution and filing of such assignment. At the date of this assignment the D. D. Merrill Company was in- debted to Dodd, Mead & Co. of New York, in the sum of ,$1,349.98, and also to Alfred Mudge & Sons, a Boston copartnership, in the sum of $126.80, which they duly assigned and transferred to Dodd, Mead & Co., making the total indebtedness to them $1,376.78. Prior to the assignment the D. D. Merrill Company was the own- er of the personal property for the value of which this suit was brought. This property was in the custody and possession of Alfred Mudge & Sons at Boston, Mass., until the same was attached by the sheriff of SuflFolk county, as hereinafter stated. The firm of Alfred Mudge & Sons was, prior to March 8, 1894, informed of the assignment by the Merrill Company, and at about 742 PARTICULAK SUBJECTS. (Part 2 the date of such assignment a notice was served upon them by George E. Merrill to the effect that he (Merrill) took possession of the property in their custody for and in behalf of the Security Trust Company, assignee aforesaid. On March 8, 1894, Dodd, Mead & Co. commenced an action against the D. D. Merrill Company in the superior court of the county of Suffolk upon their indebtedness, caused a writ of attach- ment to be issued, and the property in possession of Mudge & Sons seized upon such writ. A summons was served by publication in the manner prescribed by the Massachusetts statutes, although there was no personal service upon the Merrill Company. The Security Trust Company, its assignee, was informed of the bringing and pen- dency of this suit, and the seizure of the property, prior to the enter- ing of a judgment in said action, which judgment was duly rendered August 6, 1894, execution issued, and on September 37, 1894, the attached property was sold at public auction to Dodd, Mead & Co., the execution creditors, for the sum of $1,000. Upon this state of facts the Circuit Court of Appeals certified to this court the following questions : "First. Did the execution and delivery of the aforesaid deed of assignment by the D. D. Merrill Company to the Security Trust Company, and the acceptance of the same by the latter company, and its qualification as assignee thereunder, vest said assignee with the title to the personal property aforesaid, then located in the state of Massachusetts, and in the custody and possession of said Alfred Mudge & Sons? "Second. Did the execution and delivery of said assignment and the acceptance thereof by the assignee, and its qualification thereun- der, in the manner aforesaid, together with the notice of such as- signment which was given, as aforesaid, to Alfred Mudge & Sons prior to March 8, 1894, vest the Security Trust Company with such a title to the personal property aforesaid on said March 8, 1894, that it could not on said day be lawfully seized by attachment un- der process issued by the superior court of Suffolk county, Massa- chusetts, in a suit instituted therein by creditors of the D. D. Merrill Company, who were residents and citizens of the state of New York, and who had notice of the assignment, but had not proven their claim against the assigned estate nor filed a release of their claim?" Beown, J.'" This case raises the question whether an assignee of an insolverit Minnesota corporation can maintain an action in the courts of Minnesota for the conversion of property formerly belong- ing to the insolvent corporation, which certain New York creditors had attached in Massachusetts, and sold upon execution against such corporation. The question was also raised upon the argument how far an assignment executed in Minnesota, pursuant to the general as- 8»A.part of the opinion has been omitted. Ch- 5) FOREIGN ADMINISTRATORS. 743 signment law of that state, by a corporation there resident, is avail- able to pass personal property situated in Massachusetts, as against parties resident in New York, who, subsequent to the assignment, had seized such property upon an attachment against the insolvent corporation. The assignment was executed under a statute of Minnesota, the material provisions of which are hereinafter set forth. The instru- ment makes it the duty of the assignee "to pay and discharge, in the order and precedence provided by law, all the debts and liabilities now due or to become due from said party of the first part, together with all interest due and to become due thereon, to all its creditors who shall file releases of their debts and claims against said party of the first part, according to chapter 148 of the General Laws of the State of Minnesota for the year 1881, and the several laws amenda- tory and supplementary thereof; and, if the residue of said proceeds shall not be sufficient to pay said debts and liabilities and interest in full, then to apply the same, so far as they will extend, to the payment of said debts and liabilities and interest, proportionately on their respective amounts, according to law and the statute in such case made and provided; and if, after the payment of all the costs, charges, and expenses attending the execution of said trust, and the payment and discharge in full of all the said debts of the party of the first part, there shall be any surplus of the said proceeds remaining in the hands of the party of the second part, then, third, repay such surplus to the party of the first part, its successors and assigns." The operation of voluntary or common-law assignments upon property situated in other states has been the subject of frequent discussion in the courts, and there is a general consensus of opin- ion to the effect that such assignments will be respected, except so far as they come in conflict with the rights of local creditors, or with the laws or public policy of the state in which the assignment is sought to be enforced. The cases in this court are not numerous, but they are all consonant wi-th the above general principle. Black V. Zacharie, 3 How. 483, 11 L. Ed. 690 ; Livermore v. Jenckes, 31 How. 136, 16 Iv. Ed. 55; Green v. Van Buskirk, 5 Wall. 307, 18 L. Ed. 599 ; Hervey v. Locomotive Works, 93 U. S. 664, 33 L. Ed. 1003 ; Cole V. Cunningham, 133 U. S. 107, 10 Sup. Ct. 369, 33 L. Ed. 538 ; Barnett v. Kinney, 147 U. S. 476, 13 Sup. Ct. 403, 37 L. Ed. 347. But the rule with respect to statutory assignments is somewhat different. While the authorities are not altogether harmonious, the prevailing American doctrine is that a conveyance under a state in- solvent law operates only upon property within the territory of that state, and that with respect to property in other states it is given only such effect as the laws of such state permit, and that, in gen- eral, it must give way to claims of creditors pursuing their reme- dies' there. It passes no title to real estate situated in another state. 744 PARTICULAR SUBJECTS. (Part 2 Nor, as to personal property, will the title acquired by it prevail against the rights of attaching creditors under the laws of the state where the property is actually situated. Harrison v. Sterry, 5 Cranch, 289, 302, 3 L,. Ed. 104; Ogden v. Saunders, 12 Wheat. 313, 6 L. Ed. 606; Booth v. Clark, 17 How. 322, 15 L. Ed. 164; Blake v. Williams, 6 Pick. (Mass.) 286, 17 Am. Dec. 372; Osborn v. Adams, 18 Pick. (Mass.) 245; Zipcey v. Thompson, 1 Gray (Mass.) 243; Abraham v. Plestoro, 3 Wend. (N. Y.) 538, 20 Am. Dec. 738, over- ruling Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec. 581 ; Johnson v. Hunt, 23 Wend. (N. Y.) 87 ; Hoyt v. Thompson, 5 N. Y. 320 ; Willitts v. Waite, 25 N. Y. 577 ; Kelly v. Crapo, 45 N. Y. 86, 6 Am. Rep. 35 ; Barth v. Backus, 140 N. Y. 230, 35 N. E. 425, 23 h. R. A., 47, 37 Am. St. Rep. 545; Weider v. Maddox, 66 Tex. 372, 1 S. W. 168, 59 Am. Rep. 617 ; Rhawn v. Pearce, 110 111. 350, 51 Am. Rep. 691 ; Catlin v. Silver-Plate Co., 123 Ind. 477, 24 N. E. 250, 8 Iv. R. A. 62, 18 Am. St. Rep. 338. As was said by Mr. Justice Mc- Lean in Oakey v. Bennett, 11 How. 33, 44, 13 L,. Ed. 593 : "A stat- utable conveyance of property cannot strictly operate beyond the local jurisdiction. Any effect which may be given to it beyond this does not depend upon international law, but the principle of comity; and national comity does not require any government to give effect to such assignment when it shall impair the remedies or lessen the securities of its own citizens. And this is the prevailing doctrine in this country. A proceeding in rem against the property of a for- eign bankrupt, under our local laws, may be maintained by credit- ors, notwithstanding the foreign assignment." Similar language is used by Mr. Justice Story in his Conflict of Laws (section 414). The statute of Minnesota, under which this assignment was made, provides in its first section that any insolvent debtor "may make an assignment of all his unexempt property for the equal benefit of all his bona fide creditors, who shall file releases of their demands against such debtor, as herein provided"; that such assignments shall be ac- knowledged and filed, and, if made within 10 days after the assignor's property has been garnished or levied' upon, shall operate to vacate such garnishment or levy at the option of the assignee, with certain exceptions. The second section provides for putting an insolvent debtor into involuntary bankruptcy on petition of his creditors, upon his committing certain acts of insolvency, and for the appointment by the court of a receiver with power to take possession of all his property not exempt, and distribute it among his creditors. Under either section only those creditors receive a benefit from the act who file releases to the debtor of all their demands against him. This statute was held not to conflict with the federal Constitution in Denny V. Bennett, 138 U. S. 489, 9 Sup. Ct. 134, 32 L. Ed. 491. The construction given to this act by the Supreme Court of Minne- sota has not been altogether uniform. ^"- ^) FOREIGN ADMINISTRATORS. 745 [The learned justice here examined Wendell v. Lebon, 30 Minn. 234, 15 N. W. 109, In re Mann, 32 Minn. 60, 19 N. W. 347, Jenks v. Lud- den, 34 Minn. 482, 37 N. W. 188, Covey v. Cutler, 55 Minn. 18, 56 N. W. 255, Hawkins v. Ireland, 64 Minn. 339, 67 N. W. 73, 58 Am. St. Rep. 534, McClure v. Campbell, 71 Wis. 350, 37 N. W. 343, 5 Am. St. Rep. 220, and Franzen v. Hutchinson, 94 Iowa, 95, 62 N. W. 698.] Notwithstanding the two later cases in Minnesota above cited, we are satisfied that the Supreme Court of that state did not intend to overrule the prior decisions, to the effect that the act was substan- tially a bankrupt or insolvent law. It is true that in these cases a broader effect was given to this act with respect to property in other states than is ordinarily given to statutory assignments, though vol- untary in form. But the court was speaking of its power over its own citizens, who had sought to obtain an advantage over the general creditors of the insolvent by seizing his property in another state. There was no intimation that the prior cases were intended to be overruled, nor did the decisions of the later cases require that they should be. So far as the courts of other states have passed upon the question, they have generally held that any state law upon the subject of as- signments, which limits the distribution of the debtor's property to such of his creditors as shall file releases of their demands, is to all intents and purposes an insolvent law ; that a title to personal property acquired under such laws will not be recognized in another state when it comes in conflict with the rights of creditors pursuing their remedy there against the property of the debtor, though the proceedings were instituted subsequent to, and with notice of, the assignment in in- solvency. The provision of the statute in question, requiring a re- lease from the creditors in order to participate in the distribution of the estate, operates as a discharge of the insolvent from his debts to such creditors — a discharge as complete as is possible under a bank- rupt law. An assignment containing a provision of this kind would have been, in many, perhaps in most, of the states, void at common law. Grover v. Wakeman, 11 Wend. (N. Y.) 187, 25 Am. Dec. 624; Ingraham v. Wheeler, 6 Conn. 277 ; Atkinson v. Jordan, 5 Ohio, 293, 24 Am. Dec. 281 ; Burrill, Assignm. 232-256. As was said in Conk- ling v. Carson, 11 111. 508 : "A debtor in failing circumstances has an undoubted right to prefer one creditor to another, and to provide for a preference by assigning his effects; but he is not permitted to say to any of his creditors that they shall not participate in his present estate unless they release all right to satisfy the residue of their debts out of his future acquisitions." In Brashear v. West, 7 Pet. 608, 8 L. Ed. 801, an assignment containing a provision of this kind was upheld with apparent reluctance, solely upon the ground that in Penn- sylvania, where the assignment was made, it had been treated as valid. If the assignment contain this feature, the fact that it is executed 746 PAETICULAE SUBJECTS. (Part 2 voluntarily, and not in invitum, is not a controlling circumstance. In some states a foreign assignee under a statutory assignment, good by the law of the state where made, may be permitted to come into such state and take possession of the property of the assignor there found, and to withdraw it from the jurisdiction of that state, in the absence of any objection thereto by the local creditors of the assignor; but in such case the assignee takes the property subject to the equity of attaching creditors, and to the remedies provided by the law of the state where such property is found. A somewhat similar statute of Wisconsin was held to be an in- solvent law in Earth v. Backus, 140 N. Y. 230, 35 N. E. 425, 23 L. R. A. 47, 37 Am. St. Rep. 545, and an assignment under such statute treated as ineffectual to transfer the title of the insolvent to property in New York, as against an attaching creditor there, though such creditor was a resident of Wisconsin. A like construction was given to the same statute of Wisconsin in Townsend v. Coxe, 151 111. 62, 37 N. E. 689. It was said of this statute (and the same may be said of the statute under consideration) : "It is manifest from these pro- visions that a creditor of an insolvent debtor in Wisconsin, who makes a voluntary assignment, valid under the laws of that state, can only avoid a final discharge of the debtor from all liability on his debt by declining to participate in any way in the assignment proceedings. He is therefore compelled to consent to a discharge as to so much of his debt as is not paid by dividends in the insolvent proceedings, or take the hopeless chance of recovering out of the assets of the assigned es- tate remaining after all claims allowed have been paid." To the same effect are Upton v. Hubbard, 28 Conn. 274, 73 Am. Dec. 670 ; Paine V. Lester, 44 Conn. 196, 36 Am. Rep. 442; Weider v. Maddox, 66 Tex. 372, 1 S. W. 168, 59 Am. Rep. 617 ; Catlin v. Silver-Plate Co., 133 Ind. 477, 24 N. E. 250, 8 L,. R. A. 62, 18 Am. St. Rep. 338; Boese v. King, 78 N. Y. 471. In Taylor v. Insurance Co., 14 Allen (Mass.) 353, it is broadly stated that "when, upon the insolvency of a debtor, the law of the state in which he resides assumes to take his property out of his control, and to assign it by judicial proceedings, without his consent, to trustees for distribution among his creditors, such an assignment will not be allowed by the courts of another state to prevail against any remedy which the laws of the latter afford to its own citizens against property within its jurisdiction." But the weight of authority is, as already stated, that it makes no difference whether the estate of the insolvent is vested in the foreign assignee under proceedings instituted against the insolvent, or upon the voluntary application of the insolvent him- self. The assignee is still the agent of the law, and derives from it his authority. Upton v. Hubbard, 28 Conn. 374, 73 Am. Dec. 670. While it may be true that the assignment in question is good as be- tween the assignor and the assignee, and as to assenting creditors, to pass title to property both within and without the state, and, in the Ch. 5) FOREIGN ADMINISTEATOES. 747 absence of objections by nonassenting creditors, may authorize the assignee to take possession of the assignor's property wherever found It cannot be supported as to creditors who have not assented, and Who are at hberty to pursue their remedies against such property of the assignor as they may find in other states. . Bradford v. Tappan 11 Pick. (Mass.) 76; WilHtts v. Waite, 25 N. Y. 577; Catlin v. Silver- Plate Co., 123 Ind. 477, 24 N. E. 250, 8 L. R. A. 63, 18 Am. St. Rep. (i6S., and cases above cited. We are therefore of opinion that the statute of Minnesota was in substance and effect an insolvent law; was operative as to property m Massachusetts only so far as the courts of that state chose to re- spect It, and that so far as the plaintifif, as assignee of the D. D. Mer- nll Company, took title to such property, he took it subservient to the defendants' attachment. It results that the property of the D. D. Merrill Company found in Massachusetts was liable to attachment there by these defendants, and that the courts of Minnesota are bound to respect the title so acquired by them. The second question must therefore be answered in the negative, and, as this disposes of the case, no answer to the first question is' necessary.^ "^ 31 A foreign involuntary assignment will not as a matter of comity be al- lowed to prevail as to creditors who are residents of the state where the property is found. Taylor v. Columbian Ins. Co., 14 Allen (Mass.) 353 (1867). It has been held that it would prevail against all other creditors. Long v Gird wood, 150 Pa. 413, 24 Atl. 711, 23 L. R. A. 33 (1892). Usually, however, citizens of the other states of the Union are placed upon the same footing with citizens of the state where the property is found. Paine v. Lester, 44 Conn 196, 26 Am. Rep. 442 (1876) ; Linville v. Hadden & Co., 88 Md. 594, 41 Atl. 1097, 43 L. R. A. 222 (1898). As to whether such equality is imposed by the federal Constitution, see Blake v. M^Clung, 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432 (1898) and ante, p. 322, note. Some courts have extended the same rights to creditors of the state where the assignment wf s made. Taylor v. Geary, Kirby (Conn.) 313 (1787) i Hibernian Nat'l Bank v. Lacombe, 84 N. Y. 367, 38 Am. Rep. 518 (1881); Rhawn v. Pearce, 110 111. 350, 51 Am. Rep. 691 (1884) ; Barth v. Backus, 140 N. Y. 230, 35 N. B. 425, 23 L. R. A. 47, 37 Am. St. Rep. 545 (1893). Most courts, however, allow the foreign as- signment to operate with respect to such creditors. Bagby v. Atlantic, Miss. & Oh. R. Co., 86 Pa. 291 (1878) ; Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395, 23 L. R. A. 52, 36 Am. St. Rep. 899 (1893) ; Linville v. Hadden & Co. 88 Md. 594, 41 Atl. 1097, 43 L. R. A. 222 (1898). Creditors, who voluntarily become parties to the insolvency proceedings, are bound thereby. Gerding v. East Tennessee Land Co., 185 Mass. 380, 70 N. E 206 (1904). A court of equity may enjoin resident creditors from proceeding against the debtor's property in another .lurisdiction. Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538 (1890) ; Dehon v. Foster, 4 Allen ne 12 1902^ may be found in 31 Clunet, '^'li;?S^'ttl'e^a^orcVnv?Xns,'i^n^^^ the Hague July 17, 1905, may be found in 1 Darras, 789-801. LOE.CONF.L. ('i'^") 758 APPENDIX. of having conspired against the life of the husband or wife of one of the par- ties. A marriage celebrated contrary to one of the prohibitions above mention- ed shall not be void, provided It would be valid according to the law refer- red to in article 1. Subject to the application of the first paragraph of article 6 of the present Convention, none of the contracting powers bind themselves to authorize the celebration of a marriage, which, by reason of a prior marriage or an obsta- cle of a religious nature, would contravene Its laws. The violation of an im- pediment of this nature shall not render such a marriage void In countries other than the one in which it was celebrated. Art. 3. The law of the place of celebration may permit the marriage of foreigners notwithstanding a prohibition contained in the law mentioned in article 1, when the prohibitions are based exclusively upon considerations of a religious nature. The other powers may refuse to recognize the validity of a marriage per- formed under these circumstances. Art. 4. Foreigpers, desiring to marry, must prove that they fulfil the con- ditions required by the law referred to in article 1. This proof may consist either of a certificate from a diplomatic or consu- lar agent authorized by the country to which the contracting parties belong, or of any other evidence, which is regarded as sufiiclent by international trea- ty or the authorities of the country of celebration. Art. 5. A marriage performed in accordance with the law of the place of celebration, shall be, as regards its form, considered everywhere as valid. It is understood, however, that countries whose law requires a religious cer- emony may decline to consider as valid marriages entered Into by their sub- jects abroad without observing such i-equirement. The provisions of the national law with respect to publication must be ob- served, but the omission of such publication shall not render the marriage void in countries other than the one whose law has been violated. An authentic copy of the act of marriage shall be sent to the authorities of the country of each of the parties. Art. 6. A marriage entered into before a diplomatic or consular agent in conformity with the law of his country shall be regarded everywhere as val- id, as regards its form, provided neither of the contracting parties is a sub- ject of the power where the marriage has been 'celebrated and provided such power does not object to It. It cannot object in the case of a marriage which by reason of a prior marriage or an obstacle of a religious nature would con- travene its laws. The reservation contained in the second paragraph of article 5, is applica- ble to diplomatic and consular marriages. Art. 7. A marriage, void as regards form in the country where it was cel- ebrated, may nevertheless be considered valid In the other countries, if the form prescribed by the national law of each of the parties has been observed. Art. 8. The present Convention applies only to marriages celebrated with- in the territory of the contracting powers between persons of whom one at least is a subject of one of such powers. None of the powers obligates Itself by the present Convention to apply a law which is not that of one of the contracting powers. [Articles 9-12 have been omltted.]2 2 The omitted articles of this Convention and of the succeeding Conventions or Draft of Conventions relate to their ratification, application, duration, etc CONVENTIONS OF THE HAGUE. 759 II. DIVORCE AND SEPARATION. Article 1. Married persons may apply for divorce only If both the nation- al law and the law where such application is made admit of divorce. This applies also to separation. Art. 2. A divorce may be granted only for grounds admitted by both the national law of the parties and the law of the place where the application is made. This applies also to separation. Art. 3. Notwithstanding the provisions of articles 1 and 2, the national law shall be exclusively observed, if the law of the place where the applica- tion Is made so directs or authorizes. Art. 4. The national law referred to in the preceding articles may not be invoked where It would render a fact which occurred when the parties or either of them had another nationality a ground for divorce or separation. Art. 5. An application for divorce or separation may be made: 1. In the .iurisdlctlon competent under the national law of the parties. 2. In a jurisdiction competent according to the law of the place where the parties are domiciled. Where, according to their national law, the parties do not have the same domicile, the competent jurisdiction shall be that of defendant's domicile. In case of desertion or of a change of domicile after the cause for divorce or separation arose, the application may also be made In the competent juris- diction of the last common domicile ; provided, however, that the national jurisdiction shall be reserved to the extent that It Is exclusively competent for an application for divorce or separation. The foreign jurisdiction remains competent for a marriage which is not subject to divorce or separation in the competent national jurisdiction. Art. 6. Where the parties are not authorized to apply for divorce or sep- aration In the country wliere they are domiciled, either of them may never- theless apply to a competent jurisdiction of that country for such provision- al relief as Its law may provide In the case of a cessation of the life in com- mon. ■ Such relief shall be continued If confirmed within a year by the na- tional jurisdiction ; it shall not continue longer than the law of their domicile permits. Art. 7. A divorce or separation decreed by a court competent according to the terms of article .5, shall be recognized everywhere, provided the pro- visions of the present Convention have been observed, and, provided the de- fendant has been cited In accordance with the special provisions of his na- tional law for the recognition of foreign judgments, if the decree has been rendered by default. A divorce or separation decreed by an administrative jurisdiction shall like- wise be recognized everywhere, if the law of each of the parties recognizes such a divorce or separation. Art. 8. If the parties have not the same nationality, the law last common to them shall be considered as the national law in the application of the pre- ceding articles. Art. 9. The present Convention applies only to applications for divorce or separation made In one of the contracting powers if at least one of the par- ties Is a subject of one of such powers. No power shall be bound by the present Convention to apply a law which is not that of one of the contracting powers. [Articles 10-13 have been omitted.] 760 APPENDIX. III. GUARDIANSHIP. Article 1. The guardianship of a minor shall be regulated by his nation- al law. Art. 2. If the national law does not constitute a guardianship In the coun- try of the minor where the latter has his permanent residence abroad, the diplomatic or consular agent authorized by the law of the state of which the minor is a subject may do so in conformity with the laws of that state, pro- vided the state of the permanent residence of the minor does not oppose it. Art. 3. The guardianship of a minor having his permanent residence abroad, shall be instituted and administered, however, in conformity with the law of that place, if it is not or cannot be constituted pursuant to the provi- sions of article 1 or of article 2. Art. 4. The existence of a guardianship created pursuant to the provisions of article 3, shall not prevent the instituting of a new guardianship under article 1 or article 2. Information of such fact shall be given as soon as possible to the govern- ment of the state where the guardianship was first created. Such government shall then Inform the authority which instituted the guardianship, or if such an authority does not exist, the guardian himself. The law of the state where the guardianship was originally created shall decide at what moment such guardianship ceases in the case referred to In this article. Art. 5. The guardianship shall in every case begin and end at the time and for the causes determined by the national law of the minor. Art. 6. The administration by the guardian shall extend to the person and over all the property of the minor, wherever Its situation. Immovables subjected by the law of their situs to a special r§gime applica- ble to land may be excepted from this rule. Art. 7. Pending the creation of a guardianship, as well as in all cases of urgency, measures necessary for the protection of the person and Interests of a foreign minor may be taken by the local authorities. Art. 8. The authorities of the state within whose territory there Is a for- eign minor for whom it is necessary to create a guardianship, shall Inform the authorities of the state of which the minor Is a subject of this situation as soon as it is known to them. The authorities so notified shall at the earliest moment indicate to the au- thorities giving such notice whether a guardianship has been or will be cre- ated. Art. 9- The present Convention shall apply only to the guardianship of mi- nors who are subjects of one of the contracting powers, and have their per- manent residence within the territory of one of such powers. Articles 7 and 8 of the present Convention, however, shall apply to all mi- nors who are subjects of one of the contracting powers. [Articles 10-13 have been omitted.] B. DRAFT OF CONVENTIONS SIGNED AT THE HAGUE, JULY 17, 1905. I. SUCCESSIONS ANB WILLS. Article 1. Successions, as regards the designation of the persons capable of inheriting, the order In which and the shares in the succession to which they are entitled, the collations, the portion of property which can be dispos- ed of and the reserve, are governed by the national law of the deceased, what- ever the nature of the property or the country in which It Is situated. CONVENTIONS OF THE HAGUE. 7C1 The same rule applies to the intrinsic validity and to the effect of testa- mentary dispositions. Art. 2. The property of a deceased person shall not escheat to the state in which it is found except when, under the national law of the deceased, there is either no party entitled to it under a will, or there is no party, save the foreign state, entitled to it ab intestate. Art. 3. Wills are valid, as regards form, if they conform either with the law of the place where they are executed or with the law of the country of which the deceased was a subject at the time of their execution. However, if the national law of a person prescribes or prohibits a certain form for a will executed outside of his country, a failure to comply with such provision may render the will void in the country of which the testator was a subject ; provided that if the will conforms to the law of the place where it was executed, it shall be valid in the other countries. Wills of foreigners shall be valid, as regards form, if they have been re- ceived, in conformity with their national law, by duly authorized diplomatic or consular agents of the state of which such foreigners were subjects. Art. 4. The provisions of article 1, par. 2, and of article 3, relating to tes- tamentary dispositions, shall be applicable also to the revocation of such dis- positions. Art. 5. The authorities of a state within whose territory property belong- ing to the succession is found, may take all necessary measures to insure its preservation, unless, under special Conventions, the matter is attended to by duly authorized diplomatic or consular agents of the state of which the de- ceased was a subject. Art. 6, § 1. The right is reserved to apply such territorial laws as are ex- clusively designed to prevent the subdivision of rural property and such laws as relate to immovables placed under a special regime applicable to land. § 2. There is likewise reserved to each state the right to apply such laws of the state as possess an imperative or prohibitive character and relate io matters to be indicated by the contracting powers by common agreement in an additional protocol which it is intended shall be ratified at the same time as the present Convention. § 3. Each government, in order to avail itself of the reservation contain- ed in the preceding paragraphs, shall furnish to the government of the Neth- erlands a list of such provisions of its laws as shall be applicable, by way of exception to the rules of the present Convention, to all successions, includ- ing those of persons who are subjects of the other contracting powers. Such list may be modified within the limits marked out in the preceding paragraphs in accordance with the wishes of each government which shall notify the Dutch government likewise of such change. This government shall transmit the notifications in question through diplomatic channels to the contracting powers indicating the date when such notifications were received. § 4. The reservations made by a state under the foregoing provisions shall apply only to the succession of subjects of the other contracting powers which shall become open GO days after such notification to the Dutch government. § 5. The provisions of the foregoing paragraphs shall not authorize a con- tracting power to exempt from the operation of the national law of the de- ceased immovables not comprised within those mentioned in paragraph 1, nor to defeat the application of article 7. Art 7 Foreigners belonging to one of the contracting powers shall be com- pletely assimilated with the subjects of such country in regard to all matters mentioned in article 1. Those provisions, therefore, will have no application between the contracting powers which create in favor of the subjects of such country rights of preference in the property situated within Its territory, whose effect would be indirectly to modify the rules prescribed by the pres- ent Convention. 762 APPENDIX. Such rights of preference, on the other hand, shall be enforced by way of set-off if, as a result of the restrictions made in the application of the law of the deceased, subjects of one state are deprived with respect to property situated within the territory of another state, of the benefit, in full or in part, which they would have had in accordance with the national law of the deceased. Art. 8. The contracting powers shall by common agreement establish rules concerning jurisdiction and procedure in matters of succession and wills as soon as may be possible after the signing of the present C9nvention. The Convention containing such provisions shall be ratified at the same time as the present Convention. Art. 9. The present Convention shall apply only where the deceased at the time of his death was a subject of one of the contracting powers. Kach contracting power reserves the right to conclude special Conventions with a noncontracting power, in which the succession of persons who are sub- jects of such country may be subjected to a law other than the national law. If the present Convention is found to be incompatible, in whole or in part, with a special Convention of this kind, the latter shall apply between the powers that have concluded it, without reference to the present Convention. In such a case the other contracting powers may, on the other hand, decline to enforce the present Convention to the extent that it is excluded by the spe- cial Convention. [Articles 10-14 have been omitted.] II. THE EFFECT OP MARRIAGE UPON THE RIGHTS AND DUTIES OF MARRIED PERSONS IN THEIR PERSONAL RELATIONS AND UPON THEIR PROPERTY. ■ Article 1. The rights and duties of married persons in their personal rela- tions shall be governed by their national law. Such rights and duties can be enforced, however, only with the means which are sanctioned also by the law of the country in which they are to be en- forced. Art. 2. In the absence of contract the effect of a marriage upon the prop- erty of married persons, immovable as well as movable, shall be governed by the national law of the husband at the time of the celebration of the mar- riage. A change of nationality by the husband and wife or by either of them shall have no effect upon the property regime. Art. 3. The capacity of each of the future spouses to enter into a marriage contract is determined by his or her national law at the time of the celebra- tion of the marriage. Art. 4. The national law of husband and wife decides whether during the marriage they can enter into a marriage contract or whether they can rescind or modify, their marriage contract. No change in the property regime can have retroactive effect to the prej- udice of third parties. Art. 5. The intrinsic validity of a marriage contract and its effects are gov- erned by the national law of the husband at the time of the celebration of the marriage, and, if such a contract was made during the marriage, by the na- tional law of the husband and wife at the time of the maliiug of such contract. The same law determines whether, and if so to what extent, a husband and wife have the power to refer to another law. If they have so referred, such law shall determine the effect of the marriage contract. Art. 6. The marriage contract is valid, as regards form, if it was made in conformity with either the law of the place where it was executed, or with the national law of each of the future spouses at the time of the celebration CONVENTIONS OF THE HAGDE. 7(j:; ance with the national law of each of the parties executed "fl,rHn^Mf'^ °* "*''^' °* *^^ ^'^^"'^^ 'P°"^''^- <"•' ** tl^e contract was executed during the marriage, the national law of either husband or wife cZlZZ.^TrT^'^ °^"' """''"^ ^ '"''^"^ ^°™ notwithstanding Inlt contract was executed in a foreign country, such provision must be observed. mnvnhiL ^ ^^1°"'^/""? °^ ^^'^ P'"'''^"* Convention are inapplicable to im- «ablet"a';id''' "" '"^ °' *'^'' ^""^' ^'"^ '''"''' ^^^ ^ ^^^^^^ ^-^'-^^ Art. 8. Each of the contracting powers reserves the right: 1. To require special formalities before a property rgglme Is allowed to operate against third parties. 2 To apply measures having for their object the protection of third parties in their relations with married women engaged in business within the terri- tory of such power. The contracting powers agroe that they will communicate to one another the rules applicable according to the present article. Art. 9. If husband and wife have acquired the same new nationality dnrin<' their marriage such a new national law shall apply in the cases mentioned in articles 1, 4 and 5. If It should happen that during the marriage husband and wife have not thesame nationality, the last law common to both shall be regarded as their national law In the application of the preceding articles. Art. 10. The present Convention does not apply if the law applicable un- der the preceding articles would be that of a noncontracting power. [Ai-ticles 11-15 have been omitted.l III. INTERDICTION AND SIMILAR MEASURES. Article 1. Interdiction Is governed by the national law of the person to be interdicted, subject to the exceptions established in the following articles. Art. 2. Interdiction can be pronounced only by the competent authorities of the state to which the person to be interdicted belongs by nationality and the guardianship shall be created in accordance with the law of such state ex- cept in the cases mentioned In the following articles. Art. 3. If a subject of another state is found in the territory of one of the contracting powers under circumstances requiring interdiction according to his national law, the local authorities may talte all provisional measures re- quired for the protection of his person or property. Notice thereof shall be given to the government of the state of which he is a subject. These measures shall cease as soon as the local authorities receive notice from the national authorities that provisional measures have been taken or t'lat the condition of the person in question has been determined by judicial decree. A.rt. 4. The authorities of the state within whose territory a foreigner re- quiring interdiction has his permanent residence shall, as soon as it has be- come known to them, notify the authorities of the state of which the foreigner is a subject, of this situation informing them of any application for Interdic- tion pending before them and of such provisional measures as may have been taken. Art. 5. The notice mentioned in articles ."? and 4 shall be given through diplomatic channels, unless direct communication between the respective au- thorities is authorized. Art. 6. The country In which the person to be interdicted has his permanent residence shall delay all definitive measures so long as the national authorities 764 APPENDIX. have not replied to the notice referred to in article 4. If the national authori- ties declare that they desire to abstain, or if they do not reply within six months, the authorities of the permanent residence shall hear thei application for interdiction taking into consideration the objections which, according to the reply received from the national authorities, would prevent the interdiction in the country of origin. Art. 7. Where the authorities of the permanent residence are competent by virtue of the preceding article the application for interdiction may be- made by the persons and upon the ground admitted by both the national law and the law of the residence of the foreigner. Art. 8. If interdiction has been pronounced by the authorities of the per- manent residence, the guardianship of the person and property of the party interdicted shall be organized in accordance with the local law, and the effect of the interdiction shall be governed by the same law. If the national law of the person interdicted provides, however, that a cer- tain person shall be entitled as of right to the guardianship such provision shall as far as possible be observed. Art. 9. The interdiction pronounced by the competent authorities in con- formity with the foregoing rules shall, as far as the capacity of the person interdicted and his guardianship are concerned, produce its effects in all of the contracting powers, without the need of an exequatur. Measures of publicity, prescribed by the local law for interdictions pro- nounced by the authorities of such country, may be made equally applicable, however, to interdictions pronounced by a foreign authority, or similar pro- visions may be substituted therefor. The contracting powers agree that they will communicate to one another, through the medium of the Dutch govern- ment, the dispositions they may have taken in this regard. Art. 10. The existence of a guardianship created in accordance with article 8 shall not prevent the creation of a new guardianship in conformity with the national law. Notice thereof shall be given as soon as possible to the authorities of the state where the interdiction was pronounced. The law of this state shall determine at what time the guardianship there created shall cease. From this moment the effect of the interdiction pro- nounced by the foreign authorities shall be governed by the national law of the person interdicted. Art. 11. The interdiction pronounced by the authorities of the permanent residence may be raised by the national authorities in conformity with their law. The local authorities which have pronounced the interdiction may raise it likewise upon all grounds recognized by the national law or by the local law. The application may be made by all authorized thereto by one or the other of these laws. The decree raising the interdiction shall produce its effect ipso facto, without the need of an exequatur, in all of the contracting powers. Art. 12. The preceding provisions shall apply to the movable and immovable property of the Incompetent person, alike, save immovable property placed by the law of their situs under a special rfigime applicable to land. Art. 13. The rules contained in the present Convention shall apply equally to interdiction properly so called, to the creation of a guardianship for prop- erty, to the appointment of a judicial counsel and to all other similar measures resulting in a restriction of capacity. Art. 14. The present Convention shall apply only to the interdiction of per- sons who are subjects of one of the contracting powers and have their perma- nent residence within the territory of one of these ijowers. Article 3 of the present Convention, however, applies to all subjects of the contracting jiowers. [Articles 15-19 have been omitted.] CONVENTIONS OF THE HAGUE. 7C& IV. BANKRUPTCY. Article 1. The declaration of bankruptcy of a merchant, pronounced in one of the contra ctiD.g powers by the authority competent to article 2, shall be recoguized and shall produce its effect in the other contracting powers in the measure and to the extent established by the following articles. Art. 2. The authority exclusively competent to pronounce a declaration of banliruptcy is that of the country in which the debtor has his principal com- mercial establishment. The authority exclusively competent with respect to a partnership or cor- poration (societe) is that of the country in which it has its principal place of business, provided that it be neither fraudulent nor fictitious. Art. 3. If the bankruptcy declared in one of the contracting powers em- brace a branch or establishment in another, the formalities of publicity pre- scribed by the legislation of the latter state must be fulfilled by the syndic or trustee at the place where such branch or establishment is located, without prejudice, however, to conservatory measures or measures of administration mentioned in article 5. Art. 4. The appointment and the powers of the trustees in bankruptcy, the procedure to be followed, the admission of creditors, the formation of a com- position and the distribution of assets among the creditors shall be governed by the law of the place where the bankruptcy has been declared. Art. 5. Foreign creditors who are subjects of one of the contracting powers shall be completely assimilated with the tiational creditors. Art. 6. The syndic, trustee, or other administrator in bankruptcy, duly ap- pointed in accordance with the law of the place where the bankruptcy has been declared, may, without the need of a preliminary exequatur, take all steps or measures necessary for the preservation or administration of the bankrupt estate. He may likewise sue or be sued as the representative of the bankrupt or of the bankrupt estate. But he can proceed to acts of execution only if the decree under which he acts has been provided with an exequatur in accordance with the law of the country in which such acts are to take place. Art. 7. The exequatur shall be granted if the applicant proves: 1. That the bankruptcy has been declared by an authority competent ac- cording to article 2. 2. That the decree has executory force in the state where it was rendered. 3. That the copy produced contains all the conditions which are necessary for its authenticity under the laws of such state. 4 That the debtor has been duly cited, that he appeared or defaulted. Art. 8. The procedure with respect to the exequatur is governed by the law of the state where the application is made. ^ ,, ^ , ,. An exequatur may be sought not only by the administrator of the bankrupt, but also by any person entitled to make such application under the law of the country in which the bankruptcy was declared. Art 9 A composition, effected subsequent to the declaration of bankruptcy, shall produce its effect ipso jure in all of the contracting powers, provided it was eranted by the creditors and confirmed by the competent authority in the manner prescribed by the law of the state where the bankruptcy was "^Zf'lO The present Convention does not deprive the contracting powers nf the rieht to apply any measures enacted by their legislatures for the pur- pose of ifsLVng the continuation of a public service with which a bankrupt nf irnrapSblVeTthlfio enterprises in regard to which special legis- lative measures or regulations have been made in the interest of creditors. INDEX. [the figures refer to pages.] ACTION, form of, see Procedure. ADMINISTRATORS, see Executors and Administrators. ADMIRALTY, bills of lading, 459, 467 n. French, German, and Italian law, 468 n bottomry, 468 n. French, German, and Italian law, 468 n collisions, at sea, 502, 508 n. French, German, and Italian law, 508 n., 509 n. in territorial waters, 474, 508 n. French, German, and Italian law, 508 n. death on the high seas, 508 n. mortgage and sale of vessels, 285, 316 n., 322 n salvage, 508 n. see, also. Judgments in Rem. ADOPTION, jurisdiction, 571 n., 591. French, German, and Italian law, 591 n. AGENTS, see Principal and Agent. ALIMONY, jurisdiction to decree, 565 n. ANNULMENT OF MARRIAGE, jurisdiction, 563 n. ARBITRATION, agreements relating to, 394 n. French, German,, and Italian law, 395 n. ASSIGNMENT, of bills and notes, 421, 424. of contracts, 329 n. of debts, 324. French, German, and Italian law, 329 n. of fund, bill or cheek operating as, 344 n. French law, 345 n. ASSIGNMENT FOR BENEFIT OF CREDITORS, constitutionality of discrimination between creditors, 322 n. creditors who can attack, 316, 321 n., 322 n. distinguished from involuntary assignment, 321 n. validity of, with respect to immovables, 322 n. with respect to movables, 316, 321 n. LoR.OoNF.L. (767) 768 INDEX, [The figures refer to pages.] ATTACHJIENT, of intangible property, 324, 338 n. of tangible property, 291 n. situs of debts for purpose of, 329, 331, 338 n. see, also. Garnishment. AVERAGE, GENERAL, law governing, 508 n. BANKING CONTRACTS, law governing, 413. BANKRUPTCY, constitutionality of discrimination between creditors, 322 n., 747 n. Convention of the Hague, 76.5. creditors who can attack, 741, 7^47 n. discharge of obligations under, 469 n. distinguished from voluntary assignment, 741. dividends received abroad, duty to account for, 735 n., 747 n., 753 n. extra-territorial effect, 733, 736, 741. French, German, and Italian law, 753-755 n. injunction to restrain proceedings in another state, 747 n. payment out of property abroad, right of creditor to retain, 735 n. BILLS AND NOTES, acceptance, acceptor's contract, 420 n., 424. French, German, and Italian law, 421 n. as presumptive payment of debt, 444 n. form, 262, 265, 269 n. accommodation, 420 n., 421 n., 437 n. assignment, 421, 424. attorney's fees, stipulations for, 420 n. bona fide holder for value, 426. damages, 75, 348, 433 n., 437 n. drawer's contract, 427, 433 n., 437 n., 439. French, German, and Italian law, 433 n., 445 n. form, German law, 421 n., 426 n. grace, days of, 444 n. indorsement, contract of indorser, 420, 433, 437 n., 439. French, German, and Italian law, 439 n., 445 n. contract of irregular indorser, 341. form, 424. legality of consideration, see Contracts, maker's contract, 348, 420 n. French, German, and Italian law, 421 n. negotiability, 420 n., 433 n. notice of dishonor, necessity, 427, 437 n. sufficiency, 344 n., 433, 438, 444 n. operation of bill or check as assignment of funds, 344 n. French law, 345 n. place of making, 420 n. presentment, demand, and protest, necessity, 427, 433, 437 n. French, German, and Italian law, 445 n. sufficiency, 344 n., 444 n. French, German, and Italian law. 444 n., 445 n. situs of, for purpose of administration, 715 n. BILLS OF EXCHANGE ACT, English, 444 n. INDEX. 769 [The figures refer to pages.] BILLS OF LADING, assent to, 59. exemptions from liability for negligence, 352, 367, 449, 452, 459. French, German, and Italian law, 468 n. BOTTOMRY, law governing, 468 n. French, German, and Italian law, 468 n. BURDEN OF PROOF, see Procedure. CAPACITY, as a status, 218, 219, 231. for rights, 219, 231, 239 n. foreign artificial incapacity, 239 n. l^ench law, 239 n. foreign penal Incapacity, 239 n. of corporations, 246. of married women to charge separate estate, 271. to release cause of action for personal injuries, 613 n. to contract, infants, 51. French, German, and Italian law, 239, 240 n. married women, 220, 223, 228, 231 n. to convey or to mortgage immovables, 240, 243. French, German, and Italian law, 239, 240 n. to make a marriage contract. Convention of the Hague, 762, 763. French, German, and Italian law, 623 n. to make a will, 629, 630. French, German, and Italian law, 681 n. to marry, 521, 523 n., 528, 535 n. French, German, and Italian law, 536 n. to take property as heir, distributee, legatee, or devisee, 571 n., 626, 629, 630. French, German, and Italian law, 681 n. CAKRIERS, authority of master of vessel, 409. French and German law, 415 n. bills of lading, Rsssnt^ to 59 exemptions from liability for negligence, 352, 367, 449, 452, 459. French, German, and Italian law, 467 n., 468 u. liability in general, 350, 446, 456, 480. CHAMPERTY, law governing, 378. CHATTEL MORTGAGES, law governing, 292, 301, 303, 307 n. CHOSES IN ACTION, see Debts ; Movables. COLLISIONS, at sea, 502, 508 n. French, German, and Italian law, 508 n., ooa n. in territorial waters, 474, 508 n. French, German, and Italian law, 508 n. ^°^eSse of, 4, 13, 14, 246, 252 n., 683, 720 n., 722, 726, 733, 736, 741. CONFLICT OF LAWS, definition, 2. LoE.CoNF.L. — 49 770 INDEX. [The figures reler to pages.] CONSIDERATION, see Contracts. CONTRACTS, assignment, 329 n. capacity to make, 51, 220, 223, 228, 231 n. French, German, and Italian law, 239, 240 n. consideration, necessity, 361. legality, 378, 379-392, 395, 397 n., 400 n. damages for breach, 75, 76, 78, 348, 433 n., 437 n. discharge, 468 n. efeect,'344 n. form, 254, 256 n., 257, 262, 265, 269 n. French, German, and Italian law, 270 n. interpretation, 394 n. jurisdiction to enforce foreign, 340 n. limitation of actions, 64. French, German, and Italian law, 15 n. nature and obligation, 341, 352, 355, 361, 367, 371, 373. French, German, and Italian law, 354, 355 n. nonenforcement, 375, 376, .392, 394 n., 397, 400, 405 n., 459, 467 n. particular contracts, banking, 413. bills and notes, 420^45. French, German, and Italian law, 421 n., 420 n., 433 n., 444 n., 445 n. carriers, 446-468. French, German, and Italian law, 467 n., 468 n. guaranty and suretyship, 415-420. German law, 418 n. Insurance, 373, 392, 394 n. partnership, 405. French and German law, 409 n. principal and agent, 405-415. French, German, and Italian law, 415 n., 502 n., 508 n^ sales, 397 n. German law, 354 n. performance, effect of prohibition, 378. French, German, and Italian law, 348 n. impossibility of, 348 ri. matters relating to, 343, 343 n., 344, 344 n., 345. nonperformance, efCect of, 348, 350, 371. place of, 343 n. place of making, 340 n. French, German, and Italian law, 340 n. validity, French, German, and Italian law, 354, 355 n. Sunday contracts, 375, 376. usurious contracts, 379-392. see, also. Consideration. CONVENTION OF BERNE, international transportation by rail, 468 n. CONVENTIONS OF THE HAGUE, bankruptcy, 765. divorce and separation, 759. effect of marriage upon rights and duties of married persons in their personal relations and upon their property, 762. Interdiction and similar n:\easures, 763. yiarriage, 757. succession and wills, 760. INDEX. 771 [The figures refer to pages.] COPYRIGHT, Frencli, German, and Italian law, 501 n. CORPORATIONS, FOREIGN, capacity to become stockholder, 239 u. discliarge of obligations in bankruptcy, 409 n. dissolution of, jurisdiction, French law, 253 n. French, German, and Italian law, 253 n. garnishment, 339 n. jurisdiction over, 132, 139, 139 n., 141 n. liability, statutory, of directors and stockholders, 509 n. payment of dividends on shares held by married women, 345. powers, 252 n. service upon, 141 n. status, 246. see Stock and Stockholders. COVENANTS, law governing, 281 n. CUSTODY OF CHILDREN, right to, by guardian, 720 n. jurisdiction to award in divorce proceedings, 565 n. DAMAGES, for breach of contract, in general, 75, 76, 78, 348. as against acceptor of bill or maker of note, 348. as against drawer and indorser of bill, 433 n., 437 n. in tort actions, 81, 491, 493 n., 497 n. interest as damages, 75, 76, 348. French, German, and Italian law, 348 n. DEATH, action for wrongful, 487, 491, 493. on the high seas, 508 n. DEBTS, assignment, 324. French, German, and Italian law, 329 n. attachment and garnishment, 329, 331, 33S n. situs, for purpose of administration, 715 n. taxation, 338 n., 339 n. DIRECTORS, statutory liability, 509 n. DISCHARGE OF OBLIGATIONS, law governing, 468 n. DISTRIBUTION OF PROPERTY UPON DEATH, see Succession. DIVORCE, ^ _„_ effect upon property rights of spouses, 565 n. German law, 565 n. grounds, 563 n. Convention of the Hague, 759. French and German law, 564 n. jurisdiction, international and interstate, in general, 536, 541, 549, 563 n. character of residence, 543 n. Convention of the Hague, 759. effect of recital of jurisdictional facts in decree, 99 n. estoppel to deny, 543 n. __ _ French, German, and Italian law, 564, j(,.o n. < '-i INDEX. [The figures refer to pages.] DIVORCE— Continued, municipal, 540 n., 563 n. domicile of wife, 540 n. Frencti, German, and Italian law, 564, 565 n. DOMICILE, American-Chinese, 201. Anglo-Indian, Anglo-Turkish, 209 n. area of, 189 n. commercial, 189 n. conflict with national law as basis of law, 17-30. French, German, and Italian law, 30 n. definition, 182, 183, 184, 185, 189, 190, 202. establishment In country where authority of government necessary, 19, 592. French, German, and Italian law, 217 n. French "authorized domicile," 217 n. national or domestic, 200 n. of choice, abandonment of, reverter of domicile of origin, 194, 198. burden of proof, 189, 192 n. freedom of choice, 192. intention, 176. evidence, 176, 189, 192. presence, 184, 189 n. of dependent persons, infants, 216 n. effect of marriage, 216 n. power of guardian, 216 n. insane persons, 217 n. married women, 210. capacity to acquire independent domicile, 210, 216 n., 540 n. of origin, 176, 192 n., 195. place of, where boundary line passes through dwelling house, 189 n. residence equivalent to domicile, 194 n. reverter of domicile of origin, 194, 198. EVIDENCE, see Procedure. EXECUTORS AND ADMINISTRATORS, ancillary administration, where granted, 715 n. jurisdiction to decree allowance to widow of nonresident, 715 n. appointment of administrator, 715 n. disposition of surplus after payment of debts, 707, 711 n. exoneration of realty out of personalty, 707. French, German, and Italian law, 716 n. land, authority of ancillary administrator to sell, 714 n. liability, 697 n., 714 n. order of payment of debts, 714 n. power over assets, duty to collect assets abroad, 607 n. transfer of assets, 698, 704, 704 u. privity between representatives, 684, 088 n. proof of claims, 714 n. rights of creditors, where estate insolvent, 711. situs of debts for purpose of administration, 715 n. suits by and against, 683, 689, 691, 695 n. action for wrongful death, 487, 490 n. French law, 716 n. voluntary payment to foreign, 695. EXEMPTIONS, see Procedure. INDEX. 773 [The figures refer to pages.] FOREIGN LAW, proof, 51. French, German, and Italian law, 52 n. presumptions, 52 n. FORM, of acceptance of bills, 262, 265, 269 n. German law, 421 n., 426 n. of action, see Procedure, of contracts, 254, 256 n., 262, 265, 269 n. Fi-ench, German, and Italian law, 270 n. of contracts relating to land, 257. French, German, and Italian law, 270 n. of deeds and mortgages, 269. French, German, and Italian law, 270 n. of marriage, 510, 513 n. Convention of the Hague, 758. French, German, and Italian law, 521 n., 535 n., 536 n. of marriage contracts. Convention of the Hague, 762, 763. French law, 623 n. of wills, 629 n., 630. Convention of the Hague, 681 n. French, German, and Italian law, 681 n. statute of frauds, 254-262. GARNISHMENT, jurisdiction, 329-338. GIFTS, between husband and wife, German law, 624. formalities, French law, 270 n. GIFTS CAUSA MORTIS, law governing, 292 n. French and German law, 292 n. GRACE, DAYS OF, law governing, 444 n. GUARANTY, law governing, 418. GUARDIAN AND WARD, jurisdiction to appoint, 721 n. Convention of the Hague, 760, 763, 764. French, German, and Italian law, 721 n. liability of guardian, 716. majority of ward, 231. power to change domicile of ward, 216 n. rights with respect to property of ward, 720 n. Convention of the Hague, 760. French and Italian law, 721 n. rights with respect to custody of ward, 720 n. Convention of the Hague, 760. French and Italian law, 721 n. suits by and against, 716, 720 n. French and Italian law, 721 n. HUSBAND AND WIFE. French, German, and Italian law, 624 n. gifts between, German law, 624. marriage contracts, 613, 622. 774 INDEX. [The figures refer to pages.] HUSBAND AND WIFE— Continued, married women, domicile, 210, 216 n., 540 n. capacity to charge separate estate, 271. to contract, 220, 223, 228, 231 n. to release cause of action for personal injuries, 013 n. matrimonial property, 592-613. payment to husband as discharge of wife's debts, 34o. personal relations, 622 n. Convention of the Hague, 762. IMMOVABLES, assignment for benefit of creditors, 322 n. capacity of married women to charge separate estate, 271. capacity to contract with reference to, 276. French, German, and Italian law, 240 n., 245 n. 9apacify to convey or mortgage, 240, 243. French, German, and Italian law, 240 n., 245 n. contracts relating to, 257, 275 n., 276. French, German, and Italian law, 239 n., 240 n., 245 n. covenants in a deed, 281 n. deeds, validity and interpretation, 274 n. French, German, and Italian law, 2S1 n. devolution of, upon death, 578, 587, 628. Convention of the Hague, 760. French, German, and Italian law, 680 n., GSl n. divorce, effect upon, 565 n. German law, 5C5 n. eo.uitable conversion into personalty, 630 n. formalities, of deed or mortgage, 269. French, German, and Italian law, 270 a. statute of frauds, 257, 262 n. French, German, and Italian law, 270 n. jurisdiction as to foreign, 105-117. marriage, effect of upon, 598. Convention of the Hague, 762. French, German, and Italian law, 623 n., 624 n. mechanics' liens, 281 n. mortgage, validity and interpretation, 274. French, German, and Italian law, 2S1 n. trespass upon foreign, 501 n. what are, 271 n. French, German, and Italian law, 281 n. wills, 626-630. Convention of the Hague, 761. French, German; and Italian law, 681 u., 682 n. INFANTS, adoption, 571 n., 591. French, German and Italian law, 591 n. capacity to contract, 51. French, German and Italian law, 239-240 n. custody, domicile, 216 n. French and Italian law, 565 n. guardian, rights of with respect to ward, 720 n. French and Italian law, 721 n. legitimacy, 540 n., 566, 571, 576, 578, 583. French, German, and Italian law, 591 n. parents, rights and duties toward, 622 n., 023 n. French, German, and Italian law, 024 n. INHABITANCY, equivalent to domicile, 101 n. INDEX. 775 [The figures refer to pages.] INSANE PERSONS, Convention of the Hague, 763. domicile, 217 n. guardiansliip, 720-721 n. Frencli, German, and Italian law, 721 n. INSOLVENCY, see Bankruptcy. INSTITUTE OF INTERNATIONAL, LAAV, resolution in regard to matrimonial property, 621 n. in regard to renvoi, 30 n. INSURANCE, assignment of policy, 329 n. contracts of, 373, 392, 394 n. situs C)f policy, for the purpose of administration, 715 n. INTEREST, as damages, 75, 76, 348. French, German, and Italian law, 34S n. contractual, 350 n, French, German, and Italian law, 348 n. on judgments, 76 n. usurious, 379-392, INTERNATIONAL PUBLIC ORDER, definition, 14 n. INTERPRETATION, of contracts, 394 ri. of deeds and mortgages, 274, French, German, and Italian law, 281 n. of marriage contracts, 613, 617. of wills, 637, 639, 689 n,, 642, 659 n, French, German, and Italian law, 681 n., 082 n. of wills under power of appointment, 672, 677. JUDGMENTS, FOREIGN, conclusiveness, 170. French, German, and Italian law, 175 n. effect, as a new cause of action, 156. German law, 167 n. as merger of original cause of action, 168, 170 n. German law, 170 n. upon property, 105 n. enforcement, defenses, dormancy, 90 n. fraud, 142-152, 152 n, French, German, and Italian law, 95 n,, 167, 168 n, irregularity of procedure, 90, judgment not final for fixed sum, 89, pendency of appeal, 86, • mistake in regard to lex fori, 152, penal cause of action, 152, statute of limitations, 62: want of jurisdiction, 95-141. recital of jurisdictional facts, 99 n. want of reciprocity, 156, mode, 156, French, German, and Italian law, 167 n. in personam and in rem, 99, 291 n, interest, 76 n. 776 INDEX. [The figures refer to pages.] JUDGMENTS, FOREIGN— Continued, obligation, French law, 168 n. priorities, 64. jaDICIAL SEPARATION, see Divorce. JUKISDICTION, in personam, agreement to submit to jurisdiction, express, 120. under power to confess judgment, 126. French and Italian law, 95 n. ■ Implied," 122, 132, 139, 139 n. personal service within jurisdiction, 117. personal service without jurisdiction, 120 n. English law, 120 n. French, German, and Italian law, 95 n., 131 n. possession of property within jurisdiction, 141 n. when defendant a citizen of the forum, 131 n. In rem or quasi in rem, in general, 291 n. adoption, 591 n. French, German, and Italian law, 591 n. annulment of marriage, 563 n. bankruptcy, 733, 736, 741. French, German, and Italian law, 753-755 n. dissolution of corporations, French law, 253 n. divorce, 536, 541, 549, 5G3 n. Convention of the Hague, 757. French, German, and Italian law, 564, 505 n. garnishment, 329-388. legitimation, 566, 571, 576, 578, 583. French, German, and Italian law, 591 n. probate, 563 n. proceedings relating to foreign land, 105-117. recital of jurisdictional facts in decree, 99 n., (580 n. municipal, discretion of judge to decline jurisdiction, 131 n. French, German and Italian law, 131 n. in garnishment proceedings, 338 n. in probate proceedings, 568 n. injunction against bringing of suit in another jurisdiction, 131 n. jurisdiction on the high seas, 181 n. territorial jurisdiction of nations, 131 n. to annul marriage, 563 n. to appoint administrator, 715 n. to appoint guardian, 721 n. I'rench, German, and Italian law, 721 n. to decree divorce, 540 n., 563 n. French, German, and Italian law, 564, 565 n. I.AND, * . see Immovables. LEASEHOLDS, law governing, 271 n. LEGITIMACY, as depending upon marriage and divorce, 540 n. by subsequent marriage of parents, 566, 578, 583. right to inherit real estate, 578. French, German, and Italian law, 591 n. other modes of legitimation than by subsequent marriage, 571, 576. INDEX. 777 [The figures refer to pages.] LIENS, maritime, 316 n. mechanics', 281 n. of cliild upon property of parent, French law, 624 n. of corporations upon shares of stock, 323 n. of ward upon property of guardian, French law, 721 n. of wife upon property of husband, French law, 623 n. vendor's, 397 n. see Chattel Mortgages; Mortgages. LIMITATION OF ACTIONS, French, German, and Italian law, 85 n. with respect to foreign judgments, 62. with respect to movables, 66. with respect to obligations, 64, 68, 69. for wrongful death, 71. LIS PENDENS, doctrine of, 86. French, German, and Italian law, 89 n. MARRIAGE, before consular and diplomatic agents, 513 n. Convention of the Hague, 758. capacity to contract, 521. Convention of the Hague, 757. evasion of law of domicile, 521, 528, 535 n. French, German, and Italian law, 536 n. prohibition to remarry, 521, 528. while divorce decree incomplete, 523 n. consent of parents, 514 n. French, German, and Italian law, 521 n. effect upon property of spouses, 592-613. Convention of the Hague, 762. French, German, and Italian law, 623, 624 n. effect upon domicile of wife, 210. essentials, 521, 535 n. French, German, and Italian law, 536 n. evasion of law of domicile, 521. French law, 534 n. formalities, 510, 513 n. Convention of the Hague, 758. French, German, and Italian law, 535, 536 n. Indian, 535 n. infants' capacity to acquire independent domicile upon, 216 n. jurisdiction to annul, 563 n. nonrecognition, incestuous marriages, 523, 524, 524 n. polygamous marriages, 523, 535 n. on the high seas, 513 n. putative, 536 n. revocation of wills by, 647. MARRIAGE CONTRACTS, Convention of the Hague, 762-763. French, German, and Italian law, 623 n. interpretation and validity, 613, 617, 622 n. MARRIED WOMEN, capacity, to charge separate estate, 271. to contract, 220, 223, 228, 231 n. to release cause of action for personal injuries, 013 n. 77S INDEX. [The figures refer to pages.] MARRIED WOMEN— Continued, domicile, 210, 216 n., 540 n. payment to Imsband as discharge of wife's debt, 345. MASTI5R AND SERVANT, Implied authority of shipmaster, 409. French, German, and Italian law, 415 n. liability of master for torts of servants, 502, 508 n. French, German, and Italian law, 502 n., 508, 509 n. MATRIMONIAL PROPERTY, ^ in absence of marriage contract, 592-613. in general, 610. in immovables, 598. Convention of the Hague, 762, 763. French, German, and Italian law, 623, 624 n. In movables, 592. change of domicile, 594, 602. Convention of the Hague, 262, 263. French, German, and Italian law, 623, 624 n. rights under community system, 606, 609 n. vested rights, 606, 609 n. marriage contracts, 613, 617, 622 n. Convention of the Hague, 762, 7G3. French, German, and Italian law, 623 n. MECHANICS' LIEXS, law governing, 281 n. MORTGAGES, capacity to make, 240, 243. French, German, and Italian law, 240 n., 245 n. form, 269. . French, German, and Italian law, 270 n. validity and interpretation, 274. French, German, and Italian law, 281 n. MORTMAIN ACTS, application of, 659, 665. MOVABLES, assignment for benefit of creditors, 316, 321 n. assignment in bankruptcy, 733, 736, 741. French, German, and Italian law, 753-755 n. attachment of intangible property, 329, 331, 338 n. tangible property, 291 n. capacity to transfer, see Capacity, chattel mortgages, 292, 301, 303, 307 n. conditional sales, 307, 309, 316 n. French, German, and Italian law, 316 n. distribution, upon death, 626. Convention of the Hague, 760. French, German, and Italian law, 680-681 n. effect of divorce, 565 n. German law, 565 n. effect of judgment in rem, 105 n. ' effect of marriage, 592. change of domicile, 594, 602. Convention of the Hague, 762, 703. gift causa mortis, 292 n. French, German, and Italian law, 292 n. limitation of actions, 66. situs for purpose of administration, 715 n. statute of frauds, 256, 256 n., 257 n. taxation of intangible personalty, ,338 n., 339 n. tangible personalty, 291 n. INDEX. 77D [The figures refer to pages.] MOVABLES— Continued, transfer of Intangible personaltyj 322, 324, 329 n. French, German, and Italian law, 329 n. transfer of tangible personalty, 281-322. French, German, and Italian law, 292 n., 316 n. transfer of vessels, 285, 316 n trusts, 617, 639 n., 654, 659 n. see Sales. NATIONALITY, as criterion of personal law, 217 n. NEGOTIABLE INSTRUMENTS, see Bills and Notes. NONENFORCEMENT AND NONRECOGNITION OF FOREIGN LAW, general grounds, contrary to abstract justice, detriment to residents of forum, 316, 321 n., 322 n. inability to do justice to all parties concerned, 493, 509 n. ' lack of reciprocity, 15, 156. penal cause of action, 31-50. contrary to express statute of forum, 292, 390 n., 392, 397 n., 467 n. contrary to public policy of forum, 13, 14, 14 n. evasion of law of forum, 521, 528, 535 n. contrary to pure morals, 400, 523, 524, 524 n., 535 n. in particular Instances, administration of estates, 683. assignment for the benefit of creditors, 316, 321 n., 322 n. assignment in bankruptcy, 741. capacity, 228. French and German law, 239, 240 n. chattel mortgages, 303. conditional sales, 307. French, German, and Italian law, 31G n. contracts, 392, 397, 400, 459, 467 n. French and Italian law, 395 n., 468 n. corporations, 252 n. guardianship, 720 n. legitimation, 576, 583. marital rights, 622 n. maiTiage, 521, 523, 524, 524 n., 528, 535 n. matrimonial property, 610. receiverships, 722. torts, 474, 493, 497, 501 n. French and German law, 476 n., 502 n. OBLIGATIONS, discharge 468, 469 n. law governing, 340, 509. PARENT AND CHILD, control of parents over children, 622 n. duty to support, 623 n. French, German, and Italian law, 624 n. PARTNERSHIP, liability of special partiler, 405. French and German law, 409 n. PATENTS, infringement of foreign, 501 n. French and German law, 501 n. 780 INDEX. [The figures refer to pages.] PAYMENT, amouut recoverable, calculated by real or nominal par, 344 n. currency, 344. to husband as discharge of wife's debt, 345. I'EXAL LAWS, enforcement, 31-50. PERFORMANCE, impossibility, 34S n. matters relating to, 343, 343 n., 344, 344 n., 345. French, German, and Italian law, 348 n. nonperformance, discharge of obligations by reason of, 468 n. effect, 348, 350, 371. place of, 343 n. German law, 355 n. when prohibited, 378. PERSONAL PROPERTY, see Movables. POWER, execution of, in will, 672, 677. PRESUMPTIONS, see Procedure. I'RINCIPAL AND AGENT, contracts by agents, liability of principal, 355, 367, 410. see Contracts, implied authority of agents, 410. French and German law, 415 n. implied authority of shipmaster, 409. French, German, and Italian law, 415 n. torts by agents, liability of principal, 474, 480, 5C2, 508 n. French, German, and Italian law, 502 n., 508, 509 n. see Torts. PRINCIPAL AND SURETY, law governing, 415, 427. German law, 418 n. PROBATE, conclusiveness, 680 n. jurisdiction to grant, 680 n. PROCEDURE, damages, 75-84. French, German, and Italian law, 348 n. distinguished from obligation, 53, 56, 59. evidence, 59, 61 n., 62 n. French and Italian law, 85 n. exemptions, 75 n. form of action, 61 n. parties, 61 n. presumiitions, 62 n. set-off, 75 n. French and German law, 85 n. statute of frauds, 254-262. French, German, and Italian law, 270 n. statute of limitations, 62-74. French, German, and Italian law, 85 n. PUBLIC ORDER, in general, 14 n. see Nonenforcement and Nonrecognition of Foreign Law. INDEX. 781 [The figures refer to pages.] PUBLIC POniOY, In general, 13, 14, 14 n. see Nonenforcement and Nom-ecognition of Foreign Law. QUASI CONTRACTS, law governing, 348, 350, 508 n., 509 n. REAL, ESTATE, see Immovables. RECEIVERS, ancillary, appointment, 753 n. duty to remit, 753 n. effect of voluntary assignment, 748 n. jurisdiction to appoint, 732 n. privity between, in different jurisdictions, 732 n. rights of creditors, 748. suits by and against, 722, 726, 732 n. RECIPROCITY, necessity of existence, 15, 156. German and Italian law, 167 n., 108 n., 175 n., 395 n. REMEDY, see Procedure. RENVOI, in general, 17-30. Convention of the Hague, 30 n. French, German, and Italian law, 30 n. RESIDENCE, equivalent to domicile, 194 n. RETORSION, French and Italian law, 95 n., 131 n., 167 n. German law, art. 31, Law Intr. Civ. Code. SALES, law governing, 395, 397 n. German law, 354 n. see Movables; Transfer. SALVAGE, law governing, 508 n. SET-OFF, see Procedure. SHIPMASTER, authority, 409. French, German, and Italian law, 415 n. STAMP LAWS, effect upon contract, 256 n. STATUS, capacity as, 218, 219, 231. effect of foreign penal law, 239 n. French, German, and Italian law, 239, 240 n. domicile and nationality, as basis of, 194 n. 195. French, German, and Italian law, 217 n. foreign, unknown to law of forum, 239 n. French law, 239 n. of assignees for benefit of creditors, 316, 321 n., 322 n. in bankruptcy, 733, 736, 741. I'reneh, German, and Italian law, 753-755 n. 7S2 INDEX. [The figures refer to pages.] ST.iXUS— Continued, of executors and administrators, iiHo. French, German, and Italian law, 716 n. of foreign corporations, 246, 252 n. French, German, and Italian law, 253 n. of guardian and ward, 716, 720 n. French, German, and Italian law, 721 n. of husband and wife, 622 n. French, German, and Italian law, 624 n. of parent and child, 622, 623 n. children by adoption, 571 n., 591. French, German, and Italian law, 591 n. French, German, and Italian law, 624 n. legitimacy, 540 n., 566, 571, 576, 578, 583. French, German, and Italian law, 591 n. of receivers, 722, 726, 732 n., 748 n. STATUTE OF FRAUDS, see Procedure. STATUTE OF LIMITATIONS, see Procedure. STOCK, SHARES OF, attachment, 838 n. situs of, for purpose of administration, 715 n. taxation, 339 n. transfer, 322, 323 n. STOCKHOLDERS, status, 252 n. statutory liability, enforcement in other jurisdictions, 509 n. power of foreign state to impose, 509 n. SUCCESSION, intestate, with respect to immovables, 628. determination and capacity of heirs, 578, 587. Convention of the Hague, 760. election, necessity of, between testamentary provision and dower, 639. French, German, and Italian law, 680, 681 n. with respect to movables, determination of distributees, 626. Convention of the Hague, 760. capacity of distributees to take, adopted children, 571 n. Convention of the Hague 760. legitimated children, 571 n. Convention of the Hague, 761. effect of subsequent retroactive legislation, 629 n. French, German, and Italian law, 680, 681 n. rights of state in which property found, if no natural heirs, 629 n. French law, 629 n. testamentary, see Wills. SUPPORT, French, German, and Italian law, 565 n., 624-025 n. of children by parents, 623 n. SURETYSHIP, see Principal and Surety. TAXATION, based upon domicile, 217 n. of intangible property, 338 n., 339 n. INDEX. 783 [The figures refer to pages.] TAXATION— Continued, of successions, 217 n., 339 n., 680 n. of transfers inter vivos, 217 n., 339 n. TORTS, collisions, at sea, 502, 508 n. French, German, and Italian law, 508, 509 n. in territorial waters, 474, 508 n. French, German, and Italian law, 508 n. common law, enforcemeiit in other states, 497. trespass to foreign land, 501 n. law governing, 469, 471, 474, 478, 480. amount of recovery, 81 limitation of actions, 68, 69. place where committed, 483, 486 n., 493. survival of action, 493 n. French and German law, 478 n., 487 n., 501 n., 502 n. high seas, wrongful death upon, 508 n. statutory, enforcement in other states, 487, 493, 497, 501 n. law governing, 487, 491, 493. amount of recovery, 491, 493 n., 497 n. limitation of action, 71 parties plaintiff, 487, 490 n. TRADE-MARKS, infringement of foreign, 501 n. , French, German, and Italian law, 501 n. TRUSTS, in immovables; 630 n. in movables, created inter vivos, 617. by wUl, 639 n., 654, 659 n. UNCIVILIZED COUNTRIES, law governing acts in, 209 n. USURY, defense by drawer or indorser of bill of exchange, 437 n. surety, 416 n. law governing, 379-392. French and German law, 392 n. VESSELS, bottomry, 468 n. French, German, and Italian law, 468 n. collisions, at sea, 502, 508 n. French, German, and Italian law, 508 n., 509 n. in territorial waters, 474, 508 n. French, German and Italian law, 508 n. •de^th upon high seas, 508 n. implied authority of, master, 409. French, German, and Italian law, 415 n. mortgage and sale, 285, 316 n., 322 n. VESTED RIGHTS, ^„^ ,,^ ^^ recognition, 301, 303, 309, 594, 598, 602, 606, 613 n., 695 n., 715, (29. French, German, and Italian law, 239 n., 623, 624 n., 681 n. 784 INDEX. [The figures refer to pages.] WAREHOUSE RECEIPTS, validity, 316 n. WILLS, relating to immovables, capacity of devisees, 627, 628. Convention of the Hague, 760. in case of legitimation or adoption, 571 n. capacity of testator, 629. Convention of the Hague, 760. French, German, and Italian law, 681 n. construction and interpretation, 642. French, German, and Italian law, 681 , 682 n. effect and operation, 630 n. Convention of the Hague, 701. conversion of realty Into personalty, 030 n. form, 629 n. Convention of the Hague, 761. French, German, and Italian law, 681 n. intrinsic validity, 630 n. Convention of the Hague, 761. French, German, and Italian law, 681, 082 n. revocation by subsequent birth of children, 630 n. Convention of the Hague, 761. relating to movables, capacity of legatees, 571 n. capacity of testator, 030. French, German, and Italian law, 681 n. construction and interpretation, 359 n., 637, 639, 639 n. French, German, and Italian law, 681, 682 n. effect and operation, 639 n. Convention of the Hague, 761. conversion of personalty into realty, 039 n. form, 630. Convention of the Hague, 761. effect of change of domicile, 630, 037 n. French, German, and Italian law, 681 n. intrinsic validity, 654-672. Convention of the Hague, 761. French, German, and Italian law, 681-682 n. power, execution in will, 672, 677. revocation, by marriage, 647. by subsequent birth of children, 639 n. Convention of the Hague, 761. ■WEST PUBLISHINO CO., PBINTBBS, ST. PADI., MIHH. KF i+10 I186 Author Vol. Lorenzenj' Ernest Gustav Title Copy Cases on the conflict of laws Date Borrower's Name